TEOH KIEN PENG, MAH SIEW PEUN, THANNIMALAI A/L SUBRAMANIAM

BETWEEN
(1) TEOH KIEN PENG (2) MAH SIEW PEUN ...
AND THANNIMALAI A/L SUBRAMANIAM ...
CORAM:
APPELLANTS/DEFENDANTS
RESPONDENT/PLAINTIFF
(1) (2) (3)
JAMES FOONG CHENG YUEN, JCA VINCENT NG KIM KHOAY, JCA ABDUL MALIK BIN ISHAK, JCA
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THE COURT OF APPEAL PRESIDING AT PUTRAJAYA CIVIL APPEAL NO: P-04-50-2006
JUDGMENT OF ABDUL MALIK BIN ISHAK, JCA (DISSENTING)
Introduction [1] This was an appeal by the appellants/defendants against the
decision of the High Court in dismissing with costs the notice of motion to adduce further evidence. It was in the nature of introducing fresh evidence by way of certain photographs marked as exhibit “A-1” annexed to the
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affidavit of Azizah bte Supaat that was affirmed on 20.10.2003 as seen at pages 21 to 24 of the appeal record (“AR”).
[2] The classic case of Ladd v. Marshall [1954] 1 W.L.R. 1489, a decision of the Court of Appeal is the best starting point to begin with when considering the issue of fresh evidence. There, delivering a separate judgment, Denning L.J. had this to say at page 1491:
“To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
Facts of the case [3] The respondent/plaintiff commenced an action in tort against the
appellants/defendants in respect of a motor vehicle accident. That accident occurred on 9.1.1999 at about 4.00 pm when the respondent/plaintiff was driving a motor van PDK 1566 along Jalan Datuk Hj Ahmad Badawi from the direction of Permatang Sireh traffic light and when he was in the process of turning into Jalan Dua, the first appellant/defendant who was driving a motor car WEE 6248 and who was coming from the same direction crashed into the rear of the motor van. At the material time, the second appellant/defendant was the registered owner of the said motor car
(i) (ii)
(iii)
Loss of earnings (a) medical bills (b) Gleneagles medical centre Nursing care for 24 years
[6]
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and the first appellant/defendant was the authorised driver of the said motor car.
[4] As a result of the road accident, the respondent/plaintiff sustained the following injuries:
(a) cerebral concussion; and (b) C7 fracture with neurological deficit. [5] On 16.10.2002, the sessions court found the first
appellant/defendant 80% liable while the respondent/plaintiff was found to be 20% liable. The sessions court then made the following awards:
General damages (i) Loss of consciousness
(ii) Injury to C7 bone and incapacity Special damages
: RM 2,000.00 : RM120,000.00
: RM192,000.00 : RM 70.00 : RM 7,436.66 : RM 88,400.00
The appellants/defendants were unhappy with the decision of the sessions court and they filed a notice of appeal to the High Court against the whole of the said decision. The appeal to the High Court, against both the issues of liability and quantum, has not been heard as yet.
[8]
“Daripada ketiga-tiga laporan dapat dibuat rumusan bahawa plaintif mengalami loss of conscious dan kecederaan pada tulang C7. Laporan pakar mengesahkan kedua anggota bawah plaintif menjadi lemah dan tidak berupaya berfungsi. Plaintif tidak boleh berjalan sendiri dan perlu dibantu atau menggunakan crutches. Beliau juga memerlukan kerusi roda untuk bergerak. Plaintif juga memerlukan bantuan untuk bergerak dari tempat tidur ke kerusi dan untuk bangun bergerak. Plaintif alami kecederaan spinal cord. Badan sebelah kiri plaintif menjadi kebas ‘loss of sensation’. Beliau juga mempunyai masalah membuang air kecil dan air besar. Semasa perbicaraan Mahkamah juga dapat melihat kaki kanan plaintif bergetar (menggeletar) tanpa dapat dikawal.”
And the English language translation may be stated as follows:
“From the three medical reports, it can be surmised that the respondent/plaintiff was rendered unconscious and sustained injury to his C7 bone. The specialist report confirmed that the respondent/plaintiff had weakness of both his lower limbs and they cannot function. The respondent/plaintiff cannot walk unaided and he requires assistance or he needs to use crutches. He needs a wheelchair to move around. The respondent/plaintiff also requires assistance to move from his bed to his chair as well as to get up. The respondent/plaintiff sustains spinal cord injury. There is an impaired sensation of the left side of the respondent/plaintiff’s body: ‘loss of sensation’. He has urinary and bowel incontinence. During the trial, the court observed that the respondent/plaintiff’s right leg was shaking
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The evidence before the sessions court [7] In regard to the quantum, this was what the sessions court
judge said at pages 189 to 190 of “AR” in the Malay language:
uncontrollably.” [9] In regard to nursing care, this was what the sessions court
judge said at pages 194 to 195 of “AR”:
“Memandangkan keadaan plaintif dan ketidakupaya beliau, Mahkamah percaya beliau memerlukan penjagaan khas dalam kehidupan beliau akan datang. Berdasarkan kes-kes
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yang telah diputuskan oleh Mahkamah di Malaysia plaintif adalah berhak kepada nursing care walaupun tiada bukti tentang pembayaran yang dibuat ataupun jika dijaga oleh saudara mara. Mahkamah membenarkan sejumlah RM300.00 sebulan memandangkan plaintif bukanlah lumpuh seluruh anggota badan.”
[10] The English language translation may be stated as follows:
“Bearing mind the condition of the respondent/plaintiff and his disabilities, the court is of the view that he requires special care for the duration of his future life. Based on the authorities decided by the Malaysian courts, the respondent/plaintiff is entitled to nursing care even though there is no evidence of any payment made or any nursing care carried out by his relatives. The court allows the sum of RM300.00 per month bearing in mind that the respondent/ plaintiff’s body is not totally paralysed.”
[11] The nursing care that the sessions court judge awarded was for a duration of twenty-four (24) years (see page 195 at line “B” of “AR”).
[12] There was evidence that the respondent/plaintiff’s wife by the name of Rajesvary a/p Subramaniam (SP2) took care of him from 10.1.1999 to 11.7.2000 (see page 116 at line “C” of “AR”). Of significance is the evidence of the respondent/plaintiff and that can be seen at page 120 of “AR” and this was what he testified:
“Selepas kemalangan hingga hari ini saya tidak bekerja. Saya tidak dapat bekerja sebab tidak boleh berjalan. Sebelum kemalangan kesihatan saya adalah baik. Sekarang keadaan kaki kanan saya selalu bergoyang dan tidak dapat dikawal.
S: Bolehkah Encik tanpa pertolongan boleh ke katil, bergerak di dalam rumah?
J: Tanpa bantuan saya tidak boleh bergerak.”
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[13] The English language translation may be stated as follows:
“After the accident and right up till today, I am not working. I cannot work because I am immobile. Before the accident, my health was good. Now, my right leg constantly shaking uncontrollably.
Q: Can you without help go to your bed, move freely in the house?
A: Without help, I cannot move.” [14] The respondent/plaintiff’s auntie by the name of Aboorvam a/p
Govinthan (SP4) gave evidence as seen at pages 130 to 132 of “AR”. She testified as follows (see page 130 of “AR”):
“Thannimalai adalah anak saudara saya. Beliau telah ditimpa kemalangan dan tidak boleh menjaga diri. Sekarang saya yang menjaga beliau. S : Bagaimana puan jaga beliau?
J : Saya menjaga beliau mulai Julai 2000, sejak isteri beliau pergi kerja. Saya menjaga beliau seperti bawa beliau ke tandas. Menolong beliau untuk baringkan beliau tidur atas katil.
S : Adakah puan menolong beliau, bergerak dari satu tempat (ke tempat yang lain)?
J : Ya, umpamanya beliau akan menonton tv satu jam. Kemudian minta saya tolak ke bilik tidur dan baringkan beliau. Saya buat kerja ini setelah isteri beliau bekerja.”
[15] The English language translation of her evidence may be stated as follows:
“Thannimalai is my nephew. He met with an accident and he is unable to take care of himself. Now, I take care of him. Q : How do you take care of him?
A : I have been taking care of him since July 2000 when his wife started working. I will assist him to go to the toilet. I also help him to lie on the bed.
Q : Do you assist him moving from one place to another? A : Yes, for example, he would watch tv for an hour. Then he would request me to help him to go to the bedroom and put
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him to bed. I started doing this job when his wife started working.”
[16] According to the auntie, she was paid cash RM400.00 per month to take care of the respondent/plaintiff (see page 131 of “AR”).
[17] Altogether there were four (4) medical reports in favour of the respondent/plaintiff. The first medical report was from Hospital Seberang Jaya dated 1.3.1999 and it was prepared by Dr. Koh Bee Bee. It was worded as follows (see page 159 of “AR”):
“Medical Report on: THANNIMALAI A/L SUBRAMANIAM 31 years old / male / IC No: 680122-07-5265 Date of Admission : 09.11.99 Date of Discharge : 15.01.99
History: Alleged motor vehicle accident. History of loss of conscious. On Examination: Glasgow coma scale : 15/15 Vital signs stable. Unable to move both limbs. Injuries: - Celebral concussion. - C7 fracture with neurological deficit. X-ray: Fracture C7. Management and Progress: Patient was put on skull traction. Later he took discharge at own risk.”
[18] The second medical report was from Penang Gleneagles Medical Centre dated 3.3.1999. It was a medical report prepared by Dr. K.Parameshwaran and that report was worded as follows (see pages 160 to 161 of “AR”):
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“MEDICAL REPORT ON THANNIMALAI A/L SUBRAMANIAM – M. AGE: 31 YRS. IC NO: A 1053155
Mr. Thannimalai was involved in an alleged road traffic accident on 8th January, 1999. He was taken to Seberang Jaya Hospital where he was admitted and nursed. On 15th January, 1999, the patient was transferred to the Gleneagles Medical Centre. He sustained:
1) Multiple superficial abrasions of the scalp. 2) Laceration wound measuring 10cm. on the frontal aspect of the
scalp. 3) A burst fracture of the seventh cervical spine with retropulsed
bone fragment. 4) Quadriparesis.
Progress and Treatment On initial examination, the patient had decreased sensation below the T2 segment level. There was weakness in wrist flexion/extension on both sides – Grade 4/5. The motor power in the lower limbs was 0/5 bilaterally. The MRI scan which he brought along with him showed a burst fracture of C7 vertebral body with a retropulsed fragment compressing the spinal cord. The patient was initially put on cervical traction and underwent spinal surgery on 18th January, 1999. A cervical decompression and fusion was performed. The post-operative recovery was uneventful. He showed initial recovery of motor function in the left lower limb three days following surgery. On 27th January, 1999 he was noted to have a fluctuant swelling in the scalp. He was referred to the Neurosurgeon who drained the subgalean abscess on the following day. The scalp abscess resolved completely within a week. The patient was started on regular physiotherapy to strengthen the muscles of the lower limbs.
Comments Mr. Thannimalai was discharged on 13th February, 1999. At that time, he was able to move the left lower limb and stand with some support. There were also early signs of some recovery in the motor functions on the right lower limb. However, he had both urinary and bowel incontinence which showed no signs of recovery. The patient has been advised to come for regular physiotherapy and to be seen by me at the clinic every two weeks.”
[19] The third medical report was also from Penang Gleneagles Medical Centre dated 25.8.1999. It was prepared by a consultant neurosurgeon by the name of Mr. B. Gunasekaran. It was a detailed
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medical report of the respondent/plaintiff and it was worded in this way (see pages 229 to 235 of “AR”):
“MEDICAL REPORT ON THANNIMALAI A/L SUBRAMANIAM AGE : 31 YRS. MALE NRIC NO : A 1053155
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The above patient was examined by me on 3rd August, 1999 for the purpose of preparing this specialist’s report. He was allegedly involved in a road traffic accident on 8th January, 1999. The patient said that he was rendered unconscious immediately after the accident. He said that he recovered his consciousness on arrival at the Seberang Jaya Hospital. On 15th January, 1999, the patient was transferred to Gleneagles Medical Centre under the care of the Orthopaedic Surgeon. According to the medical report from the Orthopaedic Surgeon, the patient had sustained the following injuries:
• Multiplesuperficialabrasionsofthescalp. • 10cm.lacerationwoundoverthefrontalregion. • Burst fracture of the seventh cervical spine with retropulsed bone
fragment. At the time of admission to the Gleneagles Medical Centre, the patient had weakness in wrist flexion and extension on both sides (Grade 4/5). The power in the lower limbs was Grade 0/5 bilaterally. The patient had decreased sensation below the T2 dermatome. The magnetic resonance imaging showed a burst fracture of the C7 vertebral body with retropulsed fragment compressing the spinal cord. The patient was initially put on cervical traction and subsequently underwent surgery on 18th January, 1999. On 27th January, 1999, he developed a subgaleal abscess which was surgically drained. The patient was commenced on physiotherapy. He was discharged on 13th February, 1999. At that time, he was able to move the left lower limb and stand with some support. He had urinary and bowel incontinence. The following radiological investigations were performed during his hospital stay:
27th January, 1999 – x-rays of the skull. The skull vault appeared intact. No abnormality was seen.
28th January, 1999 – x-rays of the cervical spine. It was difficult to get a good view of the seventh cervical vertebra. Alignment of the upper cervical vertebrae appeared normal. The seventh cervical vertebra seen in the anterior-posterior view showed no obvious abnormality.
13th February, 1999 – x-rays of the right femur including knee joint. No bone nor soft tissue abnormality noted.
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24th February, 1999 – x-rays of the cervical spine.
Alignment of the cervical spine appeared normal but in the lateral view, only the upper five cervical vertebrae were seen clearly. In the anterior-posterior view, the alignment of the lower cervical vertebrae appeared normal. There was compression fracture involving the seventh cervical vertebra noted.
PAST AND PERSONAL HISTORY At the time of the alleged accident, the patient was working as a van driver. He has been doing that work for about a year. Before that he was doing odd jobs as a labourer. The patient had studied up to Form II. The primary education was in the Tamil medium.
PRESENT COMPLAINTS The patient was accompanied to the clinic by his wife. Their present complaints are as follows: 1) The patient says that he is unable to stand on his own. 2) The patient says that he is not able to walk independently. He
says that he requires the support of another person to walk. Even then, he says that he can only walk very short distances. He says that he moves around the house in a wheelchair.
3) The patient says that he has constipation. He needs to take suppositories to open his bowel. He takes a suppository once in two days.
4) The patient complains of low back pain. 5) The patient says that he has tremors of the right leg. 6) The patient says that he is unable to move his head upwards. 7) The patient complains of cramps in the right lower limb. 8) The patient’s wife says that she has to take care of the patient.
For example, she says that she has to help him take bath, to dry him and to dress him. She also says that she has to clean him after he has opened his bowels.
EXAMINATION The patient was brought into the clinic in a wheelchair. He was alert. His mental functions were normal. The patient had pain on moving the neck in all directions. The extension movement was limited. The power in the upper limbs was normal (Grade 5/5). He had weakness of both his lower limbs. The right hip flexion, extension, abduction and adduction was Grade 1/5. The left hip flexion, extension, abduction and adduction was Grade 2/5. The right knee flexion/extension was Grade 0/5. The left knee flexion/extension was Grade 3/5. The right ankle dorsiflexion and plantarflexion was Grade 0/5 while on the left side it was 1/5. The tone was increased in both lower limbs. The reflexes were brisk in both lower limbs with the right side being more than the left. There was clonus on the right side. There was impaired sensation to touch and pinprick from the second thoracic dermatome and below on the right side and fourth thoracic dermatome and below on the left side.
1)
2) 3) 4)
5)
6) 7)
Cerebral concussion. The fact that he was rendered unconscious immediately after the accident and remained so for a short while is evidence of a mild cerebral concussion. Soft tissue injuries. * Multiple superficial abrasions of the scalp. * 10 cm. laceration in the frontal region.
Fracture spine. The patient had sustained a burst fracture of the 7th cervical vertebra with retropulsed fragment compressing the spinal cord.
Weakness of both lower limbs. The patient has weakness of both lower limbs with the right side being worse than the left. The right hip movements was Grade 1/5 and the left hip movements Grade 2/5. There are no movements in the right knee and ankle. The left knee movements are Grade 3/5 and ankle movements Grade 1/5. There was increased tone in both lower limbs with clonus on the right side. The reflexes were brisk on the right side. Sensory impairment. There is impaired sensation to touch and pinprick from the second thoracic dermatome and below on the right side and fourth thoracic dermatome and below on the left side. Constipation. The patient suffers from constipation for which he has to take regular suppositories. Restricted neck movements. The patient has pain on moving the neck in all directions and has restricted extension movements.
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CONCLUSIONS As a result of the alleged road traffic accident, this patient had sustained the following injuries and disabilities:
COMMENTS In my opinion, this patient had sustained severe injuries to his cervical spine. He had sustained fracture of the seventh cervical vertebra and damage to his spinal cord. As a result of damage to the spinal cord, he has weakness of his lower limbs as outlined above. As a result of the weakness of the lower limbs, he is unable to stand on his own and he is not able to walk. The power in both lower limbs has been outlined above. The power was tested by asking the patient to carry out against resistance the movements possible at the various joints, comparing successively the same movements on the two sides of the body. The degree of power present in a muscle group was recorded using the following scale:
Grade 0/5 - Grade 1/5 - Grade 2/5 - Grade 3/5 - Grade 4/5 -
Grade 5/5 -
No contraction. Flicker or trace of contraction. Active movements with gravity eliminated. Active movements against gravity. Active movements against gravity and resistance. Normal power.
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As a result of the weakness of his lower limbs, the patient is severely disabled. He needs the assistance of another person for activities of daily living everyday. He needs assistance when getting out of bed, moving about the house, bathing, moving from the wheelchair to the ordinary chair or bed and dressing. It is now about seven months since the alleged accident. Patients with spinal cord injuries have achieved virtually all objectively discernible neurological improvement at the end of the first year. More than 90% of recovery has occurred by six months. Maximal improvement occurs during the first six months of the injury. Some recovery does persist beyond six months but it is much less by comparison. Over the next five months, this patient may improve by, at the most, another 10%. Even with such recovery, he will be still severely disabled, requiring assistance for activities of daily living.”
[20] Finally, the fourth medical report came from Penang Gleneagles Medical Centre and it was dated 28.4.2000. It was prepared by Mr. M. Shunmugam as seen at pages 177 to 179 of “AR” and it was worded in this fashion:
“SPECIAL REPORT ON THANNIMALAI A/L SUBRAMANIAM AGE : 31 YRS., MALE IC NO : A 1053155
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This specialist report has been prepared having examined the abovenamed on 18th April, 2000. He was apparently a van driver and was involved in a collision with a car on 8th January, 1999. He was then admitted to Hospital Seberang Jaya and then transferred to the Gleneagles Medical Centre on 15th January, 1999. The injuries sustained by him were:
1) Multiple abrasions over the scalp. 2) Laceration 10cm. over the frontal aspect of the scalp. 3) A burst fracture of the seventh cervical vertebra with
retropulsed bone fragment. 4) Quadriparesis.
He was treated with cervical traction and subsequently cervical spine decompression and fusion. He developed an abscess over the scalp which was later drained. He was working as a van driver. He is now unemployed. His present complaints are:
1) Unable to walk well. 2) He has difficulty in passing urine and opening his bowels. 3) Involuntary shaking of the right leg. 4) Aching over the neck.
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EXAMINATION His general condition was fair. He was able to walk with a pair of crutches. He walked slowly with a staggering gait.
Head There is a 17cm. long scar over the forehead. Neck There was a full range of movement of the neck. There was some pain over the neck on movements. There was a 6 cm. scar over the right side of the neck.
UPPER LIMBS There was a full range of movements of all the joints of both upper limbs. The muscle power of the upper limb was Grade 5/5 which was normal. The sensation was reduced over the left arm. The sensation was intact over the right arm.
LOWER LIMBS The right lower limb was very spastic and rigid. There was clonus over the right lower limb. The muscle power of the right lower limb was only about Grade 3/4 with rigidity. The left lower limb muscle power was Grade 4/5. The knee jerks and ankle jerks were brisk on both sides. There was clonus in both the legs. The sensation was reduced over the left lower limb, over the left side of the trunk and the left upper limb. The sensation was intact on the right side.
X-RAYS of the Cervical spine There is a compression fracture of the body of the 7th cervical vertebra. The rest of the cervical vertebra is normal. The disc space between the 6th and the 7th cervical vertebra appear narrowed.
CONCLUSIONS AND OPINION 1) This man had sustained a severe injury to the cervical spine. As
a result of this, he is having weakness of both the lower limbs. He has recovered functions in the upper limbs. Due to the weakness of the lower limbs, he is unable to walk independently. He has to use crutches to walk. He also needs a wheelchair as he is unable to stand or walk for long periods of time. (His) right lower limb is very spastic and rigid as a result of the spinal cord injury. He needs (assistance) to move from the bed to the chair and to stand and walk.
2) The right lower limb is rigid and spastic. This is giving rise to discomfort to him and he finds difficulty to walk as a result of this.
3) There is a loss of sensation over the left side of the body. This is due to the spinal cord injury.
4) He was working as a van driver. He will be unable to work in this occupation in future.
5) He has difficulty in passing urine and opening his bowel. This is due to the injury to the spinal cord which affects the functions of these organs.”
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[21] All these medical reports speak volumes of the injuries sustained by the respondent/plaintiff.
[22] The trial before the sessions court judge started on 1.2.2001 (see page 111 of “AR”) when the investigating officer by the name of Sergeant 60309 Ismail bin Din took the stand (see pages 112 to 114 of “AR”). It was then adjourned and the trial continued on 9.4.2001. On that date (referring to 9.4.2001), the respondent/plaintiff’s wife (SP2) gave evidence. This was followed by the evidence of the respondent/plaintiff himself. The trial was then adjourned and it was continued on 26.6.2001 when the respondent/plaintiff’s auntie (SP4) gave evidence. After another witness was called, the trial was adjourned. The trial resumed on 6.9.2001 (see pages 136 to 142 of “AR”) where two other witnesses were called and the respondent/plaintiff then closed his case. The appellants/ defendants did not attend court and were absent throughout the duration of the trial. But the learned counsel for the appellants/defendants appeared and defended the case for them. The case was called for mention on 25.3.2002 where the sessions court judge ordered the respondent/plaintiff to file written submission. Finally, on 16.10.2002, the sessions court judge announced her decision (see pages 146 to 148 of “AR”). The order of the sessions court judge can be seen at pages 197 to 200 of “AR”.
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[23] It must be emphasised that all the four (4) medical reports were already prepared by the time the trial first commenced before the sessions court judge. In fact, all the four (4) medical reports were before the sessions court judge at the time of the trial itself. Arguments of the parties
[24] Before us, Mr. Muralee Menon for the appellants/defendants argued that the fresh evidence in the form of certain photographs should be admitted so that they would be considered by the High Court judge when the appeal from the decision of the sessions court comes up for hearing. He submitted that the appellants/defendants did not suspect that anything was amiss because of the availability of the four (4) medical reports before the sessions court judge.
[25] Mr. N. Narendran for the respondent/plaintiff objected vigorously to the reception of the photographs as fresh evidence. He submitted that there was nothing new that can be seen from the photographs. According to him, what the respondent/plaintiff did as seen in the photographs are supported by the second and fourth medical reports. Analysis
[26] In dismissing with costs the notice of motion to adduce fresh evidence, the High Court made the following observations at page 74 of “AR” in regard to the photographs:
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“Anyway, what do those photographs show? They merely show a man using crutches getting on the back of a motorcycle and that is exactly what the two medical reports are saying:
‘That the respondent needs support or has to use crutches to move around’.”
[27] Again, at pages 76 to 77 of “AR”, the High Court had this to say in regard to the photographs:
“............ I don’t think that the photographs were necessary or helpful in the interests of justice. They merely show that the respondent was seen using crutches and getting on the back of a motorcycle. But those photographs do not certainly prove that the respondent had misled the lower court at the time of the hearing of the case.”
[28] I now proceed to take a closer look at the photographs. There were altogether ten (10) photographs tendered in the High Court in support of the appellants/defendants application to introduce further evidence by way of a notice of motion. All these ten (10) photographs were cumulatively marked as exhibits “A1” and the dates when the photographs were taken were also typewritten on the top portions of pages 21, 22, 23, and 24 of “AR”. Thus, at page 21 of “AR”, three photographs were exhibited and these three photographs were taken on 21.10.2002 and given the markings “A”, “B” and “C” respectively. Photograph “A” taken at a close range shows the respondent/plaintiff smiling and seated on a motorcycle and wearing a crash helmet taken from the waist upwards. Photograph “B” shows the rear portion of someone (taken from the waist
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downwards) described as the respondent/plaintiff who was seated on a moving motorcycle as a pillion with both his legs spread apart while holding and placing one “crutch” on the thigh of the right leg. Photograph “C” taken from the front section shows both the rider and the pillion (the respondent/plaintiff) seated on the motorcycle. The respondent/plaintiff was smiling and seated comfortably as pillion and his right hand was holding something (unclear – but it must be the “crutch” as seen in photograph “B”). It must be noted that the respondent/plaintiff was not holding onto the waist of the rider of the motorcycle while he was seated as pillion on the motorcycle. Photograph “B” shows the respondent/plaintiff’s ability to balance himself as pillion on a moving motorcycle.
[29] At page 22 of “AR”, another three photographs were exhibited and these three photographs were taken on 22.10.2002 and, again, they were given markings “D”, “E” and “F”. Photograph “D” shows the left side view of the respondent/plaintiff walking with the aid of a “crutch” under his left armpit. The photograph is slightly blurr and unclear. Photograph “E” shows the front side of the respondent/plaintiff with a “crutch” under his left armpit. Photograph “F” is the same as photograph “E”.
[30] At page 23 of “AR”, two other photographs were exhibited and these two photographs were taken on 22.10.2002 and, again, they were
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given markings “G” and “H”. Photograph “G” is the same as photograph “D”. Photograph “H” is the same as photograph “E”.
[31] Finally, at page 24 of “AR”, two other photographs were exhibited and these two photographs were taken on 22.10.2002 and they were given markings “I” and “J”. Both these two photographs “I” and “J” show the respondent/plaintiff with a “crutch” under his left armpit.
[32] Two observations must be made in regard to the photographs. Firstly, the respondent/plaintiff was not using a pair of crutches to walk. He was only using one crutch placed underneath his left armpit to assist him in walking. Secondly, notwithstanding that the respondent/plaintiff was immobile and his right leg constantly shaking uncontrollably (see the respondent/plaintiff’s evidence at page 120 of “AR”) and the fact that his auntie took care of him by assisting him to go to the toilet and then put him to bed (see the auntie’s evidence at page 130 of “AR”) and the fact that the sessions court judge had surmised based on the medical reports that the respondent/plaintiff experienced loss of consciousness and a burst fracture of the 7th cervical vertebra (see the decision of the sessions court judge at page 189 of “AR”) yet five days after the sessions court judge announced her decision (21.10.2002 minus 16.10.2002), the respondent/plaintiff was caught riding pillion on the motorcycle and what he did was captured in the photographs as alluded to earlier. The learned
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counsel for the respondent/plaintiff stated that the mobility of the respondent/plaintiff was nothing new because it was also alluded to in the medical reports. The High Court judge also said that it was a natural progression of getting better (see page 72 of “AR”).
[33] On 9.4.2001 when the respondent/plaintiff testified under examination-in-chief he said that (see pages 120 to 121 of “AR”):
“Saya biasanya sakit pinggang, kaki dan punggung. Kalau saya duduk lama di satu tempat saya akan sakit pinggang.”
[34] And the English translation may be stated as follows:
“I normally suffer from back pain as well as pain on my legs and buttocks. If I were to sit for a long time at one place, I would suffer back pain.”
[35] And when the respondent/plaintiff was being cross-examined, he reiterated that he could not do other job like selling ticket because of his back pain (see page 127 at line “C” of “AR”).
[36] From the available evidence recorded by the sessions court judge, the respondent/plaintiff was not getting any better even though the third medical report predicted: “Some recovery does persist beyond six months but it is much less by comparison. Over the next five months, this patient may improve by, at the most, another 10%. Even with such recovery, he will be still severely disabled, requiring assistance for activities of daily living” (see page 235 of “AR”). So, what we
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have, at the time when the respondent/plaintiff was giving evidence before the sessions court, was a picture of gloom. Nothing eventful would come along the way for the respondent/plaintiff. The fourth medical report on the respondent/plaintiff sealed the fate of the respondent/plaintiff – medically speaking, of course. That fourth medical report showed that the respondent/plaintiff has recovered functions of his upper limbs but the good doctor gave the following “bad news” for the respondent/plaintiff:
(a) that he has a severe injury to his cervical spine and as a result thereto he is having weakness of both the lower limbs; (b) that he is unable to walk independently due to the weakness of his lower limbs;
(c) that he has to use crutches to walk and he also needs a wheelchair because he is unable to stand or walk for long periods of time; (d) that his right lower limb is very spastic and rigid as a result of the spinal cord injury;
(e) that he needs assistance to move from the bed to the chair and to stand and walk; and (f) that there is a loss of sensation over the left side of his body and this is due to the spinal cord injury.
[37] But lo and behold. Five days after the decision of the sessions court, a miracle took place. The respondent/plaintiff was seen riding pillion on the motorcycle notwithstanding his spinal cord injury. You need to
21
balance yourself when you ride pillion on the motorcycle. With all the medically “bad news” as alluded to above, can the respondent/plaintiff balance himself on the motorcycle without falling down? Photograph “B” at page 29 of “AR” would show that the respondent/plaintiff has succeeded in balancing himself when the motorcycle was in motion. What a feat for a man who has sustained a spinal cord injury and who attended court in a wheelchair?
[38] It cannot be denied that the appellants/defendants did not secure other medical reports to counter the ones tendered by the respondent/plaintiff. This was the observation of the High Court judge at page 73 of “AR” and such an observation, perhaps, was to place the onus on the appellants/defendants to show that the respondent/plaintiff was feigning ill health or pretending to be immobile. It must be borne in mind, as rightly pointed out by Mr. Muralee Menon, that the appellants/defendants did not suspect that anything was amiss bearing in mind the presence of the four (4) medical reports. Be that as it may, if during the course of the trial before the sessions court on diverse dates, namely, 1.2.2001, 9.4.2001, 26.6.2001, 6.9.2001, 25.3.2002 and 16.10.2002, the respondent/plaintiff had attended court sessions riding pillion on the motorcycle that would cause eyebrows to be raised and that would definitely have an effect on the quantum of damages that was
22
handed down by the sessions court. But that was not the case here. The respondent/plaintiff’s evidence tallied with the four (4) medical reports. No reasonable amount of diligence could have unearthed the fresh evidence for use at the trial before the sessions court. The fresh evidence, if admitted, would add a different complexion to the quantum of damages that was ordered by the sessions court and that fresh evidence was certainly credible. The fresh evidence must be placed before the High Court during the appeal proper.
[39] I have applied the principles of Ladd v. Marshall (supra) in favour of the appellants/defendants. To justify the reception of fresh evidence, the three conditions set out by Lord Denning L.J. in Ladd v. Marshall (supra) must be fulfilled. These three conditions have been referred to, time and again, not only on appeals to the Court of Appeal from a judgment after a trial or hearing of any proceeding on the merits and raising questions of fact relating to matters occurring before the trial or hearing, but also on appeals made at other levels of the court system and for different purposes (example, interlocutory appeals from the senior assistant registrar to the judge in chambers). At times, the three conditions have been treated as if they are statutory provisions, and on other occasions, judges have been interpreting and applying the three conditions and applying them sometimes with subtle modifications. There
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were cases where counsel have deployed the varied authorities by arguing selectively, juggling the material facts according to the need of the day, and have successfully urged the court that just because a particular result was reached in one case the same result should be reached in another.
[40] Should we slavishly follow Ladd v. Marshall or should we be freed from its strait-jacket three conditions? Sad to say, it is the courts that let the three conditions in Ladd v. Marshall to be compartmentalised as a strait-jacket. For my part, I will not let Ladd v. Marshall to stand in the way of doing justice to an individual case. Old vintage cases like Scott v. Scott [1863] 3 Sw. & Tr. 320, 325, The English Reports volume 164, page 1298, at 1300; and Brown v. Dean And Another [1910] A.C. 373 should be referred to and these two cases have been overshadowed and ignored and put into oblivion since the arrival of Ladd v. Marshall in 1954. The court said in Scott v. Scott (supra) that:
“It has never been the habit in Westminster Hall to grant new trials on the simple ground that the party could make the same case stronger by corroborating testimony (even though newly discovered) if another trial were allowed. And if it were otherwise, there are few cases that would not be tried a second time.”
[41] Lord Loreburn L.C. in Brown v. Dean (supra) said that when a litigant has obtained a judgment in a court of justice he is by law entitled not to be deprived of that judgment without very solid grounds and where the
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ground concerns the alleged discovery of new evidence, “it must at least be such as is presumably to be believed, and if believed, would be conclusive.”
[42] Cases may arise in future where it would be proper to admit fresh evidence on an appeal by way of a re-hearing on the simple ground that it appears just to do so and nothing else (Sinanide v. La Maison Cosmeo [1927-1928] vol: XLIV, The Times Law Reports 574). An objection may be raised to the receipt of fresh evidence where that would trigger a re-trial like the case of Ladd v. Marshall as opposed to an objection of receiving fresh evidence on an appeal by way of a re-hearing. The distinction between these two was set out in the case of Ellis v. Leeder [1950-1951] Vol. 82 C.L.R. 645 and there at page 655 it was held that a Court of Appeal invited to receive further evidence was to enable it to be placed in a better position to determine an appeal which was before it whereas a court concerned with the setting aside of the decision obtained after a regular trial would send the case down for a new trial.
[43] According to the case of Sara Lee Household & Body Care U.K. Ltd v. Johnson Wax Ltd [2001] Fleet Street Reports 17, it would require an exceptional case before the court was prepared to accede to an application to adduce new evidence where the applicant could not satisfy the three conditions in Ladd v. Marshall.
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[44] There were cases in the past where the courts had admitted fresh evidence without even referring to the principles in Ladd v. Marshall. This involved cases which turned on the legality of a ministerial decision where the evidence was not available when the Minister made the initial determination and where the Minister was regarded, all along, as having responsibility over the matter. In this connection, two cases immediately come to the forefront. The first would be the case of Regina v. Secretary of State for the Home Department, Ex parte Launder [1997] 1 W.L.R. 839 at 860 to 861. The second would be the case of Regina v. Secretary of State for the Home Department, Ex parte Simms And Another [2000] 2 A.C. 115 at 127.
[45] Notwithstanding the fact that the error could have been spotted by the applicant’s advisers at the time of the decision by the Immigration Appeal Tribunal (“IAT”), the Court of Appeal in Tewedros Tadesse Haile v. Immigration Appeal Tribunal [2001] EWCA Civ 663, [2002] I.N.L.R. 283 allowed the error to be rectified by adducing fresh evidence in order to show the identity of the Ethiopian political party with which the applicant was connected. Simon Brown L.J. acknowledged that the evidence would not have passed the first condition under the Ladd v. Marshall test because the mistake should have been noticed by the applicant’s advisers before the IAT gave its decision but his Lordship was prepared to hold that
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the principles underlying that decision which was that there must be finality in litigation were applicable subject to the overriding judicial discretion to depart from them provided the wider interests of justice so required.
[46] Statutory wise we have Order 55 rule 5A of the Rules of the High Court 1980 (“RHC”) which states as follows:
“5A Restriction of fresh evidence (O 55 r 5A)
At the hearing of the appeal fresh evidence shall not be admitted unless the Judge is satisfied that –
(a)at the hearing before the subordinate court the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and
(b) the fresh evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the subordinate court.”
[47] In Norfaiz Azli Muhammad v. Abdullah Yaman [2001] 4 CLJ 371, Ramly Ali J.C. held that the further evidence complied with the two conditions as set out in Order 55 rule 5A of the RHC as well as the three conditions laid down in Ladd v. Marshall.
[48] Next, we have to consider rule 7 of the Rules of the Court of Appeal 1994 which states as follows:
“7 Power of Court to amend, admit further evidence, or draw inferences of fact
(1) The Court shall have all the powers and duties, as to amendment or otherwise, of the appropriate High Court, together with full discretionary power to receive further evidence by oral examination in Court, by affidavit, or by the deposition taken before an examiner or Commissioner.
(2) Such further evidence may be given without leave on interlocutory applications, or in any case as to matters which
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have occurred after the date of the decision from which the appeal is brought.
(3) Upon appeals from a judgment, after trial or hearing of any cause or matter upon the merits, such further evidence, save as to matters subsequent aforesaid, shall be admitted on special grounds only, and not without leave of the Court.
(3A) At the hearing of the appeal further evidence shall not be admitted unless the Court is satisfied that –
(a)at the hearing before the High Court or the subordinate court, as the case may be, the new evidence was not available to the party seeking to use it, or that reasonable diligence would not have made it so available; and
(b) the new evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the High Court or the subordinate court, as the case may be.
(4) The Court may draw inferences of fact, and give any judgment, and make any order which ought to have been given or made, and make such further or other orders as the case requires.
(5) The powers aforesaid may be exercised notwithstanding that the notice of appeal relates only to part of the decision, and such powers may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties have not appeal from or complained of the decision.”
[49] The phrase “special grounds” appear in rule 7(3) of the Rules of the Court of Appeal 1994. The old English R.S.C. Order 59, rule 10(2), also makes reference to the phrase “special grounds” and the relevant part provides as follows: “no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds”. Hale L.J. writing for the English Court of Appeal in Hertfordshire Investments Ltd. v. Bubb And Another [2000] 1 W.L.R. 2318 had this to say at page 2324
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in regard to the phrase “special grounds”. This was what his Lordship Hale L.J. said:
“Special grounds, as we all know, meant that the fresh evidence satisfied the principles in Ladd v. Marshall [1954] 1 W.L.R. 1489: that is, that it could not have been obtained with reasonable diligence for use at trial; if given it would probably have had an important influence on the result of the case; and it is apparently credible although not incontrovertible; although there are exceptional cases in which those principles do not apply, for example those involving the welfare of children.
There are, of course, strong reasons for this approach, which has a long pedigree. It is in the interests of every litigant and the system as a whole that there should be an end to litigation. People should put their full case before the court at trial and should not be allowed to have a second bite at the cherry without a very good reason indeed.”
[50] And the very good reason for the appellants/defendants to admit the fresh evidence here would be this. That instead of attending the sessions court on a wheelchair the respondent/plaintiff should have used one crutch under his left arm and stand before the judge of the sessions court during the trial. By coming to the sessions court on a wheelchair he had misled the sessions court judge into believing that he was paralysed and needed nursing care and the sessions court judge awarded nursing care to him for 24 years. It must be borne in mind that the respondent/plaintiff gave evidence before the sessions court judge from the wheelchair. And flowing from this, it was argued that the respondent/ plaintiff intentionally and fraudulently concealed to the sessions court judge his actual health condition to the detriment of the appellants/defendants
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resulting in the misapprehension of facts that led to an erroneous estimate of damages suffered by the respondent/plaintiff. This was said to be fraud perpetrated by the respondent/plaintiff. And if the photographs were to be received as fresh evidence and made available to the High Court judge who will, in due course, hear the merits of the appeal his Lordship would be in a better position to weigh the available evidence and come to a just decision in regard to the quantum of damages. It is true that the fourth medical report alluded to the need to use crutches to walk and the necessity of using wheelchair, but when the respondent/plaintiff appeared and gave evidence before the sessions court judge on a wheelchair, half of the battle was won. The impact must have been tremendous and it must have bowled over the sessions court judge to such an extent that she awarded nursing care for 24 long and lingering years. The sight of the respondent/plaintiff on the wheelchair must have been overwhelming.
[51] Applying rule 7(3A) of the Rules of the Court of Appeal 1994, I was satisfied that the new evidence was not available to the appellants/defendants who were seeking to use it or that reasonable diligence on the part of the appellants/defendants would not have made that kind of evidence (riding pillion on the motorcycle as depicted in the photographs) available and the new evidence would have had or would have been likely to have had a determining influence upon the decision of
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the sessions court judge and eventually the High Court judge who will hear the appeal on its merits.
[52] Ladd v. Marshall was decided in 1954. On 2.3.1970, the then Federal Court in Lau Foo Sun v. Government of Malaysia [1970] 2 MLJ 70 applied Ladd v. Marshall. In 1970, the Court of Appeal has not been set up. It was only in 1994 that the Court of Appeal was constituted. So, when the then Federal Court in Lau Foo Sun v. Government of Malaysia (supra) decided the issue of adducing further evidence, rule 7(3A) of the Rules of the Court of Appeal 1994 cannot be invoked for the simple reason that the Rules only came into force on 24.6.1994. We now have rule 7(3A) of the Rules of the Court of Appeal 1994 and we should vigorously apply it to the present appeal at hand instead of resorting wholesale to Ladd v. Marshall. A classic example would be the case of Lombard Natwest Factors Ltd. v. Sebastian Justin Arbis [2000] B.P.I.R. 79 (Ch D) where the brief facts may be stated as follows. Natwest sought to re-open a bankruptcy hearing because new evidence had come to light. The question was whether the provisions of Rule 59.10 in Schedule 1 to the Civil Procedure Rules 1998 (“CPR”) should be interpreted in the light of the overriding objective in Rule 1.2 of the CPR or in the light of the Court of Appeal decision of Ladd v. Marshall. The form of wording in Rule 59.10 in Schedule 1 to the CPR is exactly the same as that adjudicated upon in
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Ladd v. Marshall. Hart J., held that even though the two provisions were worded indentically, it did not mean that the old interpretation had to apply. According to his Lordship, Rule 59.10 in Schedule 1 to the CPR had to be interpreted in the light of the overriding objective.
[53] It is now opportune to narrate the facts in Ladd v. Marshall. It is as follows. Ladd claimed repayment of a sum of £1,000 from Marshall. The latter denied receiving the money. At the trial, Ladd called Marshall’s wife. In her evidence, she professed to know nothing of the transaction. The trial judge found that Ladd had not proved his case and gave judgment for Marshall. Some months after judgment had been entered, Marshall’s wife obtained a divorce from her husband and thereupon she told Ladd’s solicitors that she had given false evidence at the trial. Her excuse was that at the time of the trial she was living in Marshall’s house and was afraid of telling the truth. Ladd appealed to the Court of Appeal, applying for a new trial, and moved for leave to adduce further evidence. Ladd’s counsel argued that the relevant rule of court (then it was RSC Order 58, rule 4) was in wide terms, that there was a complete discretion in the court which ought not to be fettered to receive further evidence “if the justice of the case requires it”. Unfortunately, the appeal failed. Denning L.J. said that it was very rare that an application was made to the court for a new trial on the ground that a witness had told a lie. His
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Lordship added that the principles to be applied are the same as those always applied when fresh evidence was sought to be introduced. His Lordship then set out the three conditions as reproduced in the early part of this judgment.
[54] Of course, you cannot allow Ladd v. Marshall to stand in the way of doing justice in an individual case. I have said this earlier. When you see this happening, you will notice that the decided cases have been distinguished by the judges and when this happens you will see that the law has become more elaborate. This causes no difficulty because it illustrates the exercise of discretion by the judges to the particular facts of the case.
[55] Under rule 7(3A) of the Rules of the Court of Appeal 1994, further evidence shall not be admitted unless I am satisfied that –
(a) the new evidence was not available to the appellants/defendants who were seeking to use it, or that reasonable diligence would not have made it so available; and (b) the new evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of the High Court judge who has yet to hear the appeal on its merits.
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[56] I shall now consider the conditions set out in rule 7(3A) of the Rules of the Court of Appeal 1994 against the backdrop of the new evidence:
Condition (a) It must be recalled, that at all material times, the respondent/plaintiff attended and gave evidence in the sessions court in a wheelchair and he acted as though he was paralysed and needed nursing care. It was only five (5) days after the sessions court judge announced her decision that it was discovered by sheer coincidence that the respondent/plaintiff could walk with the aid of a single crutch placed under his left armpit and he too could ride pillion on a motorcycle. The respondent/plaintiff only let down his guard after the decision was handed down by the sessions court judge. His fraudulent conduct made it impossible for the appellants/defendants to discover the real medical condition of the respondent/plaintiff at all material times notwithstanding the presence of the four (4) medical reports. The appellants/defendants had acted in good faith and relied solely on the four (4) medical reports adduced before the sessions court judge.
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Condition (b) From the photographs, it can be surmised that the respondent/plaintiff had misled the sessions court judge in the course of the hearing that he was paralysed and that he required nursing care when in actual factual he did not require it. Had the sessions court judge seen the photographs she would not have made an award of RM120,000.00 for incapacity and fracture of the C7 bone, plus an award of RM192,000.00 for loss of earnings and a further award of RM88,400.00 for nursing care for 24 years. These awards were certainly aggravated because of the charade put up by the respondent/plaintiff. [57] The sum total of it all would be this. That the new evidence in
the form of the photographs should be made available to the High Court judge who has yet to hear the appeal on its merits.
[58] Even if I am mindful of applying the three conditions of Ladd v. Marshall, I would still arrive at the same conclusion and I have demonstrated that somewhere in this judgment.
[59] The insurers had no reason to take the photographs of the respondent/plaintiff in the course of the hearing before the sessions court judge. Nothing was amiss then. It was only after the sessions court judge had announced her decision that the insurers received an
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anonymous telephone call stating that the respondent/plaintiff has recovered functional ability of his limbs which prompted the appellants/defendants to appoint adjusters to investigate the real physical condition of the respondent/ plaintiff.
[60] The photographs were not meant to challenge the four (4) medical reports. In fact, Mr. Muralee Menon submitted that the appellants/ defendants were not disputing the four (4) medical reports. He submitted that he was merely asking the High Court judge to look at the photographs when the appeal proper is fixed for hearing. It was correctly submitted that the High Court judge erred in fact when he failed to consider that the photographs showed that the respondent/plaintiff was holding a crutch under his left armpit whereas the fourth medical report stated that the respondent/plaintiff suffered loss of sensation on the left part of his body. And it must be recalled that according to the fourth medical report the respondent/plaintiff’s right lower limb is said to be very spastic and rigid as a result of the spinal cord injury. So, the pertinent question to pose would be this: how could the respondent/plaintiff balance himself on the motorcycle as a pillion when he was supposed to be paralysed?
[61] I will now refer to the case of Curwen v. James And Others [1963] 2 All E.R. 619, C.A., a decision of the Court of Appeal with a coram of Sellers, Harman and Pearson, L.JJ. The facts may be stated as follows.
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In June 1959, the deceased was killed in a motor accident. His widow brought an action for damages under the Fatal Accidents Act 1846 and the Law Reform (Miscellaneous Provisions) Act 1934. The action was heard in January 1962 when the widow, who had no children, was aged 24. The trial judge awarded damages to the widow without providing any dimunition in the amount of damages on account of the possibility of re-marriage bearing in mind that the widow was a presentable young lady who would have opportunities, if she were so minded, of re-marrying. True enough, in March 1962, before the expiry of the time for giving notice of appeal she re-married. On appeal by the defendant against the amount of damages, the defendant sought leave to have the Court of Appeal receive evidence of the widow’s re-marriage on the ground that if leave was granted the defendant would contend that by her re-marriage the widow had not lost the financial support as assessed by the trial judge. The Court of Appeal held that although the re-marriage occurred after the trial, evidence of that re-marriage would be allowed and that damages would have to be reduced. Harman, L.J., writing a separate judgment had this to say at page 623 of the report:
“Why should we, when we know that the plaintiff has married, pretend that we do not know it and assess the damages, as we are assessing them anew here, on the footing that she may or may not marry? As we know the truth, we are not bound to believe in a fiction.”
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[62] Here, no one can pretend that the photographs were not taken five (5) days after the decision was announced. The High Court judge cannot pretend that there were no photographs taken showing the mobility of the respondent/plaintiff. Since the High Court judge know of the existence of the photographs, those photographs should be received as fresh evidence because they would have had a determining influence upon the decision of the High Court judge who has yet to hear the appeal on its merits within meaning of Rule 7(3A)(b) of the Rules of the Court of Appeal 1994.
[63] It was argued that the judgment that the respondent/plaintiff obtained at the sessions court was through concealment of a material fact and that, so it was argued, constituted an unconscionable act tantamount to fraud and that being the case, that judgment was liable to be set aside. It was further argued that the respondent/plaintiff had misled the sessions court judge into believing that he was paralysed and required nursing care when in actual fact he did not require nursing care. Finally, it was argued that had the sessions court judge seen the respondent/plaintiff walking with the aid of a crutch under his left armpit and rode pillion on the motorcycle she would not have made those awards. Edgar Joseph Jr. J. (as he then was) has this to say about fraud in Seng Huat Hang Sdn. Bhd.
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& Ors. v. Chee Seng & Co. Sdn. Bhd. [1987] 1 MLJ 413 particularly at page 418:
“Now ‘acts of the highest judicial authority,’ though ‘not to be impeached from within,’ yet ‘are impeachable from without,’ for ‘although it is not permitted to shew that the court was mistaken, it may be shewn that they were misled. Fraud is an extrinsic collateral act; which vitiates the most solemn proceedings of Courts of justice.’ – per De Gray, C.J. in Duches(s) of Kingston’s Case [1776] 2 Smith L.C. (13th ed.) 644, 651. ‘Fraud’ said Lord Buckmaster ‘is an insidious disease, and if clearly proved to have been used so that it might deceive the court, spreads to infect the whole body of the judgment.’ – in Jonesco v. Beard [1930] A.C. 298 H.L. @ 301.”
[64] It was urged upon us not to shut our eyes and to accede to the application to adduce fresh evidence. We were referred to the case of Mulholland and another v Mitchell (by his next friend Hazel Doreen Mitchell) [1971] 1 All ER 307, a decision of the House of Lords, and there Lord Wilberforce writing a separate judgment had this to say at page 313:
“These cases are useful as instances, but they cannot be generalised into a formula. I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree (Murphy’s case [1969] 2 All ER 949). Negatively, fresh evidence ought not to be admitted when it bears on matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted, if some basic assumptions, common to both sides, have been clearly falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice. All these are only non-exhaustive indications; the application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that court.”
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[65] Mulholland laid down the following simple principles of law that should be adhered to:
(a) the court has an unfettered discretion to allow fresh evidence to be received; (b) common sense or a sense of justice will always prevail when considering the issue of whether to allow the reception of fresh evidence; and
(c ) the court recognises that only in exceptional cases would fresh evidence be allowed. [66] The House of Lords in Mulholland gave leave to adduce fresh
evidence on matters that occurred after trial but before the hearing of the appeal. There the respondent had been awarded damages for injuries sustained as a result of a road accident which had occurred while he was travelling as a passenger in the appellant’s car. Damages had been assessed on the basis, inter alia, that it would be possible for him to be looked after at home and, if that proved to impose too much of a strain on his family, in an ordinary nursing home. He appealed to the Court of Appeal against the award of damages. While the appeal was pending an application was made on his behalf for leave to adduce fresh evidence on the ground that there had been a dramatic change of circumstances since
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the award had been made at the trial. The fresh evidence was that the respondent’s mental condition had subsequently and unexpectedly deteriorated to such an extent that he could no longer be looked after at home, that he needed specialist care at a psychiatric rather than an ordinary nursing home and that as a result the costs of nursing care over a long period of years would be about double that originally estimated at the trial. The appellants appealed from the order of the Court of Appeal giving the respondent leave under RSC Order 59, rule 10(2) which reads as follows (the material parts only):
“The Court of Appeal shall have power to receive further evidence on questions of fact .......... but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.”
[67] The House of Lords in Mulholland held that the Court of Appeal had an unfettered discretion to admit evidence of facts occurring after the trial but, since it was desirable that there should be finality in litigation and fresh evidence should not be admitted relating to matters falling within a field or area of uncertainty taken into account by the trial judge, the court should only exercise its discretion in an exceptional case as where, for example, the basis on which the trial judge gave his decision had been clearly falsified by subsequent events. The House of Lords also held that
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since the basis on which damages had been assessed had been suddenly and materially falsified by a dramatic change in circumstances after the trial, the present case was exceptional and the Court of Appeal had rightly exercised its discretion in favour of admitting the fresh evidence and, so, the appeal would be dismissed.
[68] In Murphy v. Stone Wallwork (Charlton), Ltd. [1969] 2 All E.R. 949, the House of Lords allowed the appellant to adduce fresh evidence as to his dismissal from employment since the basis on which damages had been assessed had been falsified.
[69] In McCann v Sheppard and another [1973] 2 All ER 881, the Court of Appeal had to consider a similar question. There the plaintiff was severely injured in a motor accident. To relieve his pain, he was prescribed a powerful drug known as palfium. In June 1972, he was awarded damages by the court of first instance. In July 1972, the defendant appealed seeking a reduction of the award. In October 1972, the plaintiff died of an overdose of palfium. Later, at the hearing of the appeal, the defendant sought to introduce as fresh evidence the fact that the plaintiff had died. The Court of Appeal held that despite the fact that the plaintiff had died after the trial, that fact was admissible at the appeal state.
[70] I must reiterate that the photographs were not available to the appellants/defendants to use them before the sessions court judge and no
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amount of reasonable diligence would have made it available. And the photographs would have had or would have been likely to have a determining influence upon the decision of the High Court judge who has yet to hear the appeal on its merits. In short, the photographs would have made a substantial impact on the outcome of the appeal before the High Court judge.
[71] For my part, I have this to say. That I should not “affront common sense” by shutting my eyes and not allow the reception of those photographs as fresh evidence.
[72] Ladd v. Marshall is a “thorn in the flesh” for many applicants who are interested in adducing new or fresh evidence. Just like the English Civil Procedure Rules 1998 (“CPR”), our Rule 7(3A) of the Rules of the Court of Appeal 1994 should relax the rigours of Ladd v. Marshall.
[73] At the end of the day, the criticism that can be advanced in this appeal would be this. That the sessions court judge was given an incomplete disclosure in regard to the recovery of the respondent/plaintiff. This Court certainly has the jurisdiction to avoid real injustice in exceptional and appropriate cases. This is one of those cases.
[74] The court is usually reluctant to deprive a litigant of a judgment obtained after a full trial. That is quite understandable. But there are
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circumstances in which justice may require the court to receive the fresh evidence and upset the judgment. According to Lord Atkin in Ras Behari Lal and others v. King Emperor [1933-1934] vol. L., The Times Law Reports 1 at page 2:
“Finality is a good thing, but justice is better.” [75] I will now refer to the case of Prentice v Hereward Housing
Association and East Cambridgeshire District Council [2001] EWCA Civ 437, [2001] 2 ALL ER (Comm) 900, not cited by either party. The facts may be stated as follows. On 6.7.1994, the claimant fell on a grassed area outside his home and suffered serious injuries to his left ankle. Proceedings for damages were commenced against the first and second defendants, with the claimant alleging that the defendants had been in breach of their duties under the Occupiers’ Liability Act 1957 and had also been negligent. The claimant and his wife both gave evidence to the effect that the claimant had gone outside his house wearing slippers, in order to shut the sun roof on his car, and had tripped in a large pot-hole. This evidence was not contradicted and the trial judge accepted the honesty of the witnesses and their account of the facts. The trial judge held that the second, but not the first, defendants were liable for the injuries. The trial judge also held that the claimant was 30% to blame for his own injuries and that being the case the claimant was entitled to 70% of the
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agreed damages of £340,000 and that would be for the sum of £238,000.00. The claim was handled by the second defendants’ liability insurers.
[76] The trial was reported in the local newspaper. As a result of the judgment, a number of local residents contacted the first defendant and told them that the accident had not occurred as reported in the local newspaper. This prompted the second defendants’ insurers to conduct inquiries and they succeeded in obtaining witness statements from seven local residents. The new witnesses stated that they had either seen the accident or were present in its aftermath or had been told by the claimant himself as to what had happened. Their versions were that the claimant had been bare-footed and that the accident occurred some three metres away from any pot-hole while the claimant was playfully chasing his stepson. The residents also stated in their witness statements that they were not aware that any claim had been made until they read the outcome of the trial in the local newspaper. The residents said that they were motivated in coming forward because they were shocked on learning that a false claim had been made against the defendants. Of course, all these were denied by the claimant and his wife.
[77] The second defendant then appealed to the English Court of Appeal seeking an order for a retrial so that the evidence of the additional
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witnesses could be considered by the trial judge. Under Rule 52.10(2) of the CPR, the English Court of Appeal has the power to order a re-trial. That provision re-enacts in the same terms as Order 59 rule 10(2) of the Rules of the Supreme Court: in the Prentice case the latter provision was operative because the former had not come into force at the relevant time. The English Court of Appeal ruled that the principles applicable under both regimes were the same. Those principles had been set out in Ladd v. Marshall.
[78] The English Court of Appeal was satisfied that each of the requirements in Ladd v. Marshall had been met and that a retrial should be ordered. It was held that the new evidence was sufficiently cogent to affect the outcome of the trial and that it was on its face to be believed. It was also held that the key issue was whether the new evidence could, with reasonable diligence have been discovered by the second defendant and their insurers prior to the original trial. The claimant asserted that the insurers should have carried out investigations as to the existence of the pot-hole and as to the circumstances of the accident; and according to the claimant this could have been done either by writing to those in the neighbourhood or by sending an investigating officer to the houses of the neighbours in order to ascertain what had happened.
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[79] The main judgment of the English Court of Appeal in Prentice was delivered by Kay L.J. The learned judge held that this type of obligation was unrealistic. Liability insurers faced with such a claim were entitled to start on the assumption that the claim presented against the assured was a genuine one rather than based on the assumption that the claim was false and had to be investigated. In the absence of anything suspicious in the claim itself or arising from the insurers investigations, the claim was to be treated as honest. Flowing from all these, the learned judge held that the insurers had acted perfectly proper and were thus entitled to have the matter re-opened since the fresh evidence had come to light.
[80] Likewise here, the insurers must have started on the assumption that the respondent/plaintiff’s claim was a genuine one and did not proceed on the assumption that the claim was a false claim and had to be investigated. After the sessions court judge had announced her decision, the insurers were alerted about the mobility of the respondent/ plaintiff and they then launched the investigations. That explains the photographs which the appellants/defendants now propose to adduce as fresh evidence.
[81] The three conditions in Ladd v. Marshall were also applied successfully in the unfair dismissal case of Photostatic Copiers
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(Southern) Ltd v Okuda and Japan Office Equipment [1995] I.R.L.R. (Industrial Relations Law Reports) 11. In that case, the tribunal rejected the submission that Okuda’s compensation should be reduced for contributory fault because Okuda had allegedly been working for a rival firm, despite expressing reservations as to Okuda’s explanations of his connections with that rival firm. On appeal, Photostatic sought leave to adduce fresh evidence about this issue which was thought to have a bearing on Okuda’s overall credibility as well as the compensation to be paid. The application to adduce fresh evidence was granted because the evidence in question had become available following the conclusion of the original hearing and that the existence of the evidence could not reasonably have been known or foreseen and that the evidence was relevant and likely to have an impact on the result of the case.
[82] Under the CPR, the three conditions of Ladd v. Marshall continue to be relevant in deciding whether it is appropriate to order that new evidence be admitted. It will be a rare case where those three conditions are not satisfied but the court will nevertheless admit new evidence on appeal. The admissibility of fresh evidence in later cases will certainly depend in part on how the courts apply the principles of Ladd v. Marshall and the extent to which the courts are willing to exercise their discretion to depart from those principles in particular situations. Of course,
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there is little doubt that the exercise of such a discretion will be dictated by the nature of the case.
[83] In adjudicating an application to adduce fresh evidence or new evidence, it would be ideal to remember the following salient principles:
(a) that rule 7 of the Rules of the Court of Appeal 1994 and Order 55 rule 5A of the RHC complement the three conditions of Ladd v. Marshall; (b) that the phrase “special grounds” in rule 7(3) of the Rules of the Court of Appeal 1994 would be dependent on the nature of the case and that there must be a very good reason to admit the fresh evidence;
(c) that there were cases where the court had admitted fresh evidence without reference to the principles of Ladd v. Marshall because those cases turned on the legality of a Ministerial decision (Ex parte Launder (supra) and Ex parte Simms (supra)); (d) that it would generally require an exceptional case before the court is prepared to accede to an application where the applicant could not satisfy the three conditions in Ladd v. Marshall;
(e) that cases may arise where it will be thought proper to admit fresh evidence on an appeal by way of a re-hearing simply on the
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ground that it appears just to do so (Sinanide v. La Maison Cosmeo (supra)); (f) that the further evidence would assist the court to better understand the case and to be able to reach a final determination of the proceeding (Ellis v. Leeder (supra)); and
(g) that the question of whether fresh evidence should be received is purely a matter of unfettered discretion to be exercised in a principled way. [84] The list can never be exhaustive. It will continue to expand in
the years to come. [85] For the reasons as adumbrated above, I allowed the appeal
with costs. Deposit to be refunded to the appellants/defendants. As a matter of courtesy, I have circulated this judgment to James Foong Cheng Yuen, JCA and Vincent Ng Kim Khoay, JCA who sat together with me in this panel. I now look forward to read the majority judgment.
9.6.2008 Abdul Malik bin Ishak Judge, Court of Appeal
Putrajaya
Counsel
(1)
(2)
For the Appellants/Defendants Solicitor
For the Respondent/Plaintiff Solicitor
: Mr. Muralee Menon and Mr. Y.S. Cheah
: Messrs Jaafar & Menon Advocates & Solicitors
Kuala Lumpur
: Mr. N. Narendran : Messrs Narendran & Associates
Advocates and Solicitors Prai, Butterworth
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