Sole survivor in horrific crash entitled to full compensation, appellate court rules

 Judge says the girl, now 13, requires lifelong assistance due to the catastrophic injuries she suffered even though her father was substantially responsible for the crash.

The Court of Appeal said the injured child is entitled to 100% recovery of her damages as an innocent passenger.

PUTRAJAYA:

The sole survivor of a 2017 accident that claimed the life of her parents and three siblings is entitled to full compensation despite her father being held substantially responsible for the crash, the Court of Appeal held.

Justice Alwi Abdul Wahab said the girl, now 13, was entitled to RM486,000 in future care costs as she requires lifelong assistance due to the catastrophic injuries she suffered in the crash.

“The injured child is entitled to 100% recovery of her damages as an innocent passenger,” he said when dismissing the final appeal by bus driver Rahmat Ali and his employer, Seri Merdu Sdn Bhd, in the negligence suit involving liability and quantum.

Alwi, who sat with Justices Amarjeet Singh and Dean Wayne Daly, said the award for future care was reasonable and not manifestly excessive, noting that the girl remained completely dependent on others for her daily needs.

The bench, however, maintained the apportionment of liability made by the sessions court, with 90% liability against the girl’s father and 10% against the bus driver and the bus company.

It also awarded RM30,000 in costs to the girl, who brought the suit through her grandmother.

In affirming the High Court’s decision, Alwi said the defendants’ counterclaim was rightly dismissed because the girl, as an innocent passenger, was entitled to full recovery of her damages.

He said the child had done nothing wrong and her compensation could not be reduced because of her father’s negligence.

“Any claim against the deceased should have been brought against his estate, not his dependants.

“Since the estate was not sued and the limitation period has expired, the counterclaim could not succeed,” he said in his broad grounds delivered yesterday.

The sessions court had also awarded the girl and her grandparents about RM570,200 in general damages and loss of support, which were not the subject of the appeal.

According to the facts of the case, the accident occurred at Km176 of the Johor Bahru-Seremban trunk road near Segamat, Johor, on Dec 12, 2017.

The girl was three years old and the youngest of four siblings when the incident occurred. She suffered severe brain injuries.

The car she was travelling in crossed into the path of an oncoming bus driven by Rahmat.

The courts found that the girl’s father was 90% responsible for the accident because he had encroached into the bus’s lane.

The bus driver was held 10% liable for failing to slow down or brake effectively despite having seen the danger from between 50m and 70m away.

Lawyers GK Ganesan, Krishnavaine Indiran, Shomendran Permal, JN Lheela and Lydia Jaynthi appeared for the girl and her grandparents.

Counsel Christina Edwin Jacob, Meneka Kanasmoorthy, Munjeet Kaur and J Annapurani represented the bus driver and the company. - FMT