Court confirmed that both parties were at fault in a road traffic accident, emphasizing the burden of proof on the Plaintiff to establish negligence.

Introduction

[1] This is an appeal by the 1st Defendant (D1) and 2nd Defendant (D2), the driver and owner of a car, who were found 100% liable for a road traffic accident on 28 February 2018 that injured the Plaintiff, a motorcyclist. Plaintiff cross appealed for a particular item of future expense not allowed by the trial Judge - customized insoles and prosthetic toe amounting to RM651,330.00 over a period of 50 years.

[2] There is a question pending at the Court of Appeal, whether that cross appeal is competent, ie if it should have been filed as a separate Notice of Appeal. A previous High Court Judge had dismissed a Preliminary Objection raised by Defendants to that effect, and the hearing of the appeal had been postponed for some time to await the outcome.

[3] Due to delays in the disposal of the appeal, the last straw being a postponement of the scheduled hearing of the appeal at the request of lawyers, this Court set the appeal and cross appeal down for hearing, the validity of the latter to be subject to the outcome of the appeal.

Background Facts

[4] There was a collision between the motorcycle and the car, both travelling in the same direction on a narrow winding road as shown in the sketch plan adduced in evidence.

[5] The motorcycle collided with the back left corner of the car, causing quite severe impact damage. The Plaintiff suffered injuries to her right leg and foot. Her right-most small toe had to be amputated. Plaintiff blamed D1 for suddenly braking and swerving into her path on the road shoulder, causing the collision at the point marked X. D1 blamed the Plaintiff for not keeping a safe distance and proper lookout and colliding into the car at point Y on the road.

[6] The question before the trial Judge was how the accident happened and therefore, who was negligent. On the issue of liability, the only eyewitnesses were Plaintiff, D1 and D1's passenger in the car (D1 's adult son who testified as "SD2"). All 3 testified at the trial. The Investigation Officer (IO) also testified.

[7] The Sessions Court Judge found that the Plaintiff's version was more probable:

[12]. Mahkamah berpendapat, bendasarkan apa yang dinyatakari SD1. maka versi SP2/plaintif adalab lebih prvbabie di mana SD1 yang berhenti di ataslaluan utama sewaktu dilanggar Ptaintif dibuKtikan Cidlak benar melalui keterangan anaknya sendiri iaitj SD2. SD 2 serrasa memberi keterangan memberitahu bahawa motokar Defendan pertama masih sedang bergerak sewaktu dilanggar dan selepas dilanggar didapati berada rapat ke kiri bahu jalan tersebut.. Oleh itu mahkarriah memutuakan Defendan Pertama dan Kedua sepenuhnya dipersalabkan bagii kemalangan ini.

Analysis And Findings

[8] The Sessions Court Judge did not state any reasons to prefer the evidence of Plaintiff over D1, other than what is set out in the Judgment ie reliance on what is considered to be corroborating evidence from SD2.

[9] However, this Court finds that there were no primary facts that could be inferred from SD2's evidence that D1 suddenly braked and swerved left onto the road shoulder, to prove that Plaintiff's version was true. It is Plaintiff's burden, first and foremost, to prove that her version is true on a balance of probabilities, regardless of what D1's version is.

[10] SD2's evidence was that he felt the car slow down to a stop and as the car was stopping, he felt a strong impact at the back.

S: Tahu sikit sahaja. Apa yang Encik tahu?

J: Sedang saya bermain telefon saya rasa keret