“Whether a claim for a more expensive bionic prosthesis as opposed to a mechanical prosthesis, be allowed for an accident victim?”

CHUA KAY HOCK & ANOR v. LEE HOON POI [2022] 7 CLJ 669

• An accident had occurred on the 17 November 2015 around 7.50pm between the first appellant’s (“Chua Kay Hock”) motorcycle and a car driven by the respondent (“Lee Hoon Poi”).

• The second appellant was riding pillion with Chua Kay Hock and was also injured.

• As the result of the accident, Chua Kay Hock’s right lower limb was amputated at the above knee level.

• Before the accident, Chua Kay Hock was working in Singapore as a senior operations executive/supervisor.

• He went back to work in Singapore after the accident in June 2016 and was paid full salary. He tendered the resignation in September 2016.

• After hearing evidence led by parties, the learned Sessions Court Judge (LSCJ) made her findings of fact that Lee Hoon PHoon Poi was 100% liable for the accident.

• In terms of the quantum awarded, in particular, it was the finding of facts of the LSCJ that bionic prosthesis prescribed by Chua Kay Hock’s expert is more suitable for him and she awarded RM2 million for the said prosthesis.

• Upon appeal to the High Court, the learned High Court Judge affirmed most of the findings of the LSCJ.

• However, the award of bionic/microprocessor prosthesis by the LSCJ was set aside by the High Court Judge, and the award was reduced to RM620,370 being the cost for mechanical prosthesis.

• Chua Kay Hock then appealed to the Court of Appeal.

• The Court of Appeal found that the learned High Court Judge did not err in fact or in law in concluding that the costs of a state of the art prosthesis at RM 2 million was not sustainable for reasons that:

         i)  Chua Kay Hock was holding the position of a supervisor at the material time;

        ii)  Chua Kay Hock had resumed work after the accident but chose to tender his resignation after four months

             upon resumption of work;

       iii)  Chua Kay Hock did not produce any evidence from his employer that he was unable to work as before due to

             his disabilities or residuals; and

       iv)  The awards for actual loss of earnings in the sum of RM96,000 and future loss of earnings in the sum amount

             of RM960,000 had been made. If a bionic prosthesis were to be allowed together with loss of future earnings, it

             would unreasonably set a precedent for all plaintiffs in similar circumstances to claim for a bionic prosthesis

             instead of a medium, reasonably priced hydraulic prosthesis leg.

• The Court of Appeal also held that the hydraulic leg was used widely in the public service/government sector and known to be popular in Malaysia over the years.

• More importantly, the sophisticated state of the art bionic leg is not widely used in the country and known to lack facilities for after-sales service or repair if it breaks down.

• Additionally, a plaintiff seeking compensatory damages is required to mitigate his loss and is entitled only to a reasonable compensation and not exorbitant awards, save on grounds of necessity in exceptional circumstances, when a reasonable alternative is wholly unavailable or inappropriate.

• However, the Court of Appeal also mentioned that there must be sufficient justification shown by the victim for the award of compensation for well above the trend of contemporary awards.

• The Court of Appeal stated that the High Court Judge had correctly applied the principles and taken into account important and relevant considerations in arriving at his conclusion on the type of prosthesis that should be awarded to the appellant to reasonably and appropriately compensate him and to avoid unjust enrichment.

• Therefore, although a bionic prosthesis has a much better functionality, the court, in deciding whether the bionic prosthesis is more suitable than the mechanical prosthesis for an accident victim, must weigh the evidence and relevant circumstances so as to ensure that the claim is justified and the claimant is appropriately compensated.