Mohd Sidik Bin Muhamad Ketar 1. ) Zainal Hazril Bin Zainal Mokthar 2. ) Zainal Mokthar Bin Zainal Abidin

Mohd Sidik Bin Muhamad Ketar 1. ) Zainal Hazril Bin Zainal Mokthar 2. ) Zainal Mokthar Bin Zainal Abidin

On appeal the court found plaintiff proved on balance of probabilities a permanent total right brachial plexus injury caused by the accident and that the specialised motorised MyoPro2 orthosis was necessary and useful; SP3's expert evidence was admissible under s45 Evidence Act and, given his specific expertise and corroborating medical evidence, outweighed SD1's contrary opinion; thus the claim for the orthosis (RM3,977,160) and costs (RM7,000) were allowed and the defendants' cross-appeal dismissed.

Citation
AB-12BNCvC-2-01/2020 (Mahkamah Tinggi)
Parties
Appellant/plaintiff: Mohd Sidik bin Muhamad Ketar; Respondent/defendant 1: Zainal Hazril bin Zainal Mokhtar; Respondent/defendant 2: Zainal Mokhtar bin Zainal Abidin
Court
High Court
Jurisdiction
Malaysia
Judgment Date
12 November 2021
Case Number
AB-12BNCvC-2-01/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (motor Vehicle Accident / Personal Injury) / Appeal From Sessions Court Judgment on Quantum and Ancillary Orders
Outcome
Appeal allowed in part; defendants' cross-appeal dismissed
Legal Topics
Damages, Brachial Plexus Injury, Orthosis/prosthesis, Expert Evidence (s45 Evidence Act), Costs, Apportionment of Liability
Source Language
Malay/English
Tort Personal Injury Evidence Civil Procedure Damages Brachial Plexus Injury Orthosis/prosthesis Expert Evidence (s45 Evidence Act) +2 more

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Parties

Mohd Sidik bin Muhamad Ketar

Appellant/plaintiff

Zainal Hazril bin Zainal Mokhtar

Respondent/defendant 1

Zainal Mokhtar bin Zainal Abidin

Respondent/defendant 2

Procedural Posture

Civil Appeal (motor Vehicle Accident / Personal Injury) / Appeal From Sessions Court Judgment on Quantum and Ancillary Orders

Legal Issues

  1. 1 Whether plaintiff proved causation and permanence of total right brachial plexus injury
  2. 2 Whether plaintiff is entitled to purchase a custom motorised orthosis as compensatory damages
  3. 3 Admissibility and weight of expert evidence from a prosthetist/orthotist versus an orthopaedic surgeon

Ratio Decidendi

On appeal the court found plaintiff proved on balance of probabilities a permanent total right brachial plexus injury caused by the accident and that the specialised motorised MyoPro2 orthosis was necessary and useful; SP3's expert evidence was admissible under s45 Evidence Act and, given his specific expertise and corroborating medical evidence, outweighed SD1's contrary opinion; thus the claim for the orthosis (RM3,977,160) and costs (RM7,000) were allowed and the defendants' cross-appeal dismissed.

Court Disposition

Appeal allowed in part; defendants' cross-appeal dismissed

Orders

  • Claim for motorised orthosis (MyoPro2) in the sum of RM3,977,160 allowed
  • Costs awarded to plaintiff RM7,000