1. ) ZULKARNIN BIN HUSSEIN 2. ) YAP CONTRACTOR v 1. ) MD RASIDI BIN GAZALI 2. ) NUR AFIKA BINTI AZMAN

Case Significance

Illustrates the strict-proof requirement for future and speculative heads of damage in a road-accident claim, including the cost of future surgery and loss of future earnings under section 28A(2)(c)(i) of the Civil Law Act 1956.

This High Court decision, on appeal from the Sessions Court, concerns the assessment of damages in a road-accident negligence claim and the standard of proof required for particular heads of loss. The appellants, the defendants below, appealed against part of the Sessions Court's award of general and special damages arising from a road accident in which the first respondent, who suffered a severe head injury, was seriously injured and brought the action through his wife as litigation representative. The appeal was confined to quantum and centred on a specific issue relating to the cost of care. The Court applied the principle that certain heads of damages must be strictly proved. On the cost of future surgery, it treated a conditional medical recommendation as requiring strict proof before it could be awarded. On the cost of care, it assessed the reasonableness of the award having regard to the severity of the head injury and the resulting cognitive deficit. On loss of earnings and loss of future earnings, it applied the requirement of strict proof and the constraint in section 28A(2)(c)(i) of the Civil Law Act 1956. Allowing the appeal in part, the Court set aside three of the awards, including an award of RM100,000 for loss of future earnings, reducing the total special damages accordingly, while leaving undisturbed the awards that had not been appealed. It also directed that interest on the retained future awards run only from the date of judgment, and, the appeal having succeeded only in part, ordered each party to bear its own costs. The judgment illustrates the strict-proof requirement for future and speculative heads of damage in personal-injury claims. The decision is a useful statement of the evidential thresholds that apply to future and speculative heads of damage in road-accident claims, and of the limited circumstances in which an appellate court will revisit a trial court's assessment of quantum.