1. ) Nasudi Bin Bujang 2. ) Muhammad Fazli Bin Nasudi v Fatin Nuraqidah Binti Azhar

Case Significance

Illustrates appellate reassessment of apportionment of liability in a road traffic accident and the approach to awarding future medical expenses a claimant has not yet incurred.

This High Court decision at Shah Alam concerns a civil appeal from the Sessions Court in a road traffic accident claim, together with a cross-appeal on quantum. The plaintiff below, a motorcyclist, had been injured in a collision on a narrow winding road with a car driven by the first defendant and owned by the second defendant; her injuries were serious, and her right smallest toe had to be amputated. At trial the Sessions Court had found the defendants wholly liable, that is 100 per cent, for the accident. On appeal the defendants challenged that finding of liability, while the plaintiff cross-appealed against the trial judge's refusal to award a particular item of future expense, namely customised insoles and a prosthetic toe. A procedural question over the competency of the cross-appeal, specifically whether it ought to have been brought as a separate notice of appeal, was pending before the Court of Appeal, and the High Court heard the matter with the cross-appeal's validity left subject to that outcome. On liability, the court examined how the accident happened by reference to the sketch plan, the impact damage to the rear left corner of the car, and the competing accounts of the only eyewitnesses, weighing whether the plaintiff had kept a safe distance and proper lookout. The court concluded that responsibility should be shared and varied the Sessions Court's judgment to apportion liability equally, at 50:50, with damages and costs assessed on that basis. On the cross-appeal, the court found that no reasons had been given below for disallowing part of the claim for customised insoles and held that the plaintiff should not be denied a medically beneficial item merely because she had not yet purchased it; taking the average of two broadly similar suppliers' quotations, it awarded an additional RM29,375.00 for customised insoles, subject to the Court of Appeal's ruling on competency. Costs of the appeal of RM3,000.00 were awarded to the defendants. The judgment is a useful illustration of appellate reassessment of apportionment in a traffic accident and of the approach to future medical expenses that a claimant has not yet incurred.