Headache in Quantifying Head Injuries
As a legal practitioner dealing with personal injury claims, one of my greatest challenges comes about when I am drafting a legal opinion on the quantum of damages for a claimant who sustained head injuries. Compared to the other parts of the body, a head injury (especially to the brain) can result in many types of residual disabilities such as slurred speech, impaired memory and neurological deficits affecting other parts of the body. It is difficult to put a price to an injury to a member of the body more so, where head injuries are concerned.
In Ong Ah Long v Dr. S Underwood [1983] 2 MLJ 324, Syed Agil Barakbah FJ had this to say in respect of how damages (general damages) for personal injuries ought to be treated:-
“It must be borne in mind that damages for personal injuries are not punitive and still less a reward. They are simply compensation that will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act, so far as money can compensate… .”
Through past decisions, Courts would be guided on what is a fair and reasonable amount to compensate the injured party. Similar injuries and residual disabilities would be compared and a sum awarded to reflect the pain and suffering sustained and loss of amenities to the injured party. So far so good. Now, let me show you some headaches based on recent reported cases which dealt with damages for head injuries.
In Baharuddin b Sulong & Anor v Hiew Chong Choo [2008] 1 PIR 40, the Kuantan Sessions Court awarded RM100,000 for “severe head injury resulting in the plaintiff suffering from impaired attention span (immediate recall), impaired recent recall and some impairment of constructional ability (constructional apraxia) and left lower limb weakness and numbness.”
In Mohd Shafri b Rehan v Mohd Nurrul Amry b Mohd Rahim [2008] 1 PIR 55, the Melaka Sessions Court awarded RM80,000 for “haemorrhagic contusion of the right temporal and parietal lobes and left thalamus. The Plaintiff suffered permanent impairment of concentration, memory, calculation and dexterity of the right hand and gait.“
Then, in Zaidi b Talip & 6 ors v Semawun ak Bau & anor [2008] 1 PIR 73, the Miri Sessions Court awarded RM100,000 for “comminuted depressed fracture of the left temporoparietal bone, fracture of the anterior wall of the left maxillary bone, fracture of the left ethmoid bone and haematoma over the head, bleeding in the left ear and resulting in the Plaintiff suffering from cognitive and memory impairment and blindness in the left eye“.
Subsequently, the Kuantan Sessions Court in Paramasivan a/l Savy Peruman v Ibrahim b Mohd Amin & anor [2008] 2 PIR 10 awarded RM150,000 for “cerebral oedema and severe head injuries with impaired attention span, impaired recent recall, impairment of execution of written commands, weakness in the right upper and lower limbs“.
Readers will note that the awards are not consistent and some might argue that certain residual disabilities probably deserve more in compensation compared to the other. There will never be a satisfactory award when it comes to valuing one’s life and limbs. The Court does its best to come up with a fair award but it does not help when the Courts themselves have largely diverging awards for similar injuries with similar residual disabilities. Not only does it create uncertainty, it also puts lawyers in a difficult position to advise their clients on the potential damages to be awarded.
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