1. ABA MUTIARA ENTERPRISE 2. ABDUL MU'IZZ BIN JAMIL THAVAMANY A/P KATHARAYAN (Mendakwa sebagai wakil litigasi dalam harta pesaka KATHARAYAN A/L VYETHILINGAN, simati)

1. ABA MUTIARA ENTERPRISE 2. ABDUL MU'IZZ BIN JAMIL THAVAMANY A/P KATHARAYAN (Mendakwa sebagai wakil litigasi dalam harta pesaka KATHARAYAN A/L VYETHILINGAN, simati)

The Sessions Court misdirected itself by failing to consider the deceased's prolonged vegetative state, survival period and age in assessing general damages; the High Court applied the approach in Moo Ah Kow to determine a modal award for the head and facial injuries (RM300,000 and RM70,000 respectively), then reduced that total (RM370,000) to 30% due to lack of consciousness and other factors, awarding RM111,000 as general damages; special damages were undisturbed and lower court costs must be recalculated to reflect the varied award.

Citation
PA-12B-13-02/2018 (Mahkamah Tinggi)
Parties
Appellant/defendant: ABA Mutiara Enterprise; Appellant/defendant: Abdul Mu'izz bin Jamil; Respondent/plaintiff: Thavamany a/p Katharayan (representative of estate of Katharayan a/l Vyethilingam)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
1 January 1900
Case Number
PA-12B-13-02/2018 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (personal Injury/motor Accident) / High Court Appeal From Sessions Court Judgment on Liability, Quantum and Costs; Judgment on Reduction of General Damages and Recalculation of Lower Court Costs
Outcome
Appeal allowed in part (defendant/appellant succeeded only on general damages); liability apportionment 75% against defendant and 25% deceased maintained; costs ordered.
Legal Topics
Quantum of General Damages, Apportionment of Liability, Assessment Where Victim in Vegetative State, Application of Precedent, Recalculation of Lower Court Costs, Functus Officio
Source Language
Malay/English
Tort Personal Injury Civil Procedure Damages Costs Quantum of General Damages Apportionment of Liability Assessment Where Victim in Vegetative State +3 more

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Parties

ABA Mutiara Enterprise

Appellant/defendant

Abdul Mu'izz bin Jamil

Appellant/defendant

Thavamany a/p Katharayan (representative of estate of Katharayan a/l Vyethilingam)

Respondent/plaintiff

Procedural Posture

Civil Appeal (personal Injury/motor Accident) / High Court Appeal From Sessions Court Judgment on Liability, Quantum and Costs; Judgment on Reduction of General Damages and Recalculation of Lower Court Costs

Legal Issues

  1. 1 Whether the Sessions Court erred in assessing general damages by failing to consider the deceased's prolonged vegetative state and subsequent death after 1 year 2 months
  2. 2 How to quantify general damages where the victim endured limited consciousness/vegetative state prior to death
  3. 3 Whether the High Court should intervene on appeal to vary the quantum of damages

Ratio Decidendi

The Sessions Court misdirected itself by failing to consider the deceased's prolonged vegetative state, survival period and age in assessing general damages; the High Court applied the approach in Moo Ah Kow to determine a modal award for the head and facial injuries (RM300,000 and RM70,000 respectively), then reduced that total (RM370,000) to 30% due to lack of consciousness and other factors, awarding RM111,000 as general damages; special damages were undisturbed and lower court costs must be recalculated to reflect the varied award.

Court Disposition

Appeal allowed in part (defendant/appellant succeeded only on general damages); liability apportionment 75% against defendant and 25% deceased maintained; costs ordered.

Orders

  • General damages reduced to RM111,000.00 (total for head injury and facial fractures calculated at RM370,000.00 then reduced to 30% yielding RM111,000.00)
  • Special damages of RM24,298.35 to remain undisturbed