The court ruled that liability must be based on a thorough appreciation of evidence, and initial findings can be revised if unsupported by the facts.

Introduction

[1] Annapoorni a/l Vasiappan commenced a civil suit against Siti Rohayu binti Jaafar (Siti Rohayu) in the Kulim Sessions Court vide Suit No: KF-A53KJ-137-09/2018 (Suit 137) for a road accident which resulted in the death of her son Sharmilan a/l Dhasarajoo (Sharmilan).

[2] At the material time, Sharmilan was riding motorcycle bearing registration no: PDH 6147 and Siti Rohayu was driving a pick-up bearing registration no: WXQ 5742 (Pick-up)

[3] Jagadisan a/l Subramaniam (Jagadisan) commenced a civil suit against Siti Rohayu in the same Court vide Suit No: KF-A53KJ- 198-12/2018 (Suit 198) for the same accident. Jagadisan was the pillon rider on the motorcycle.

[4] Siti Rohayu commenced third party proceedings in Suit 198 against:

(i) Chandran a/l Gurappah, owner of the motorcycle; and

(ii) Annapoorni and later substituted by Thamootharan a/l Dhasarajoo (Thamootharan), Sharmilan's brother.

[5] After a full trial, the learned Sessions Court Judge (SCJ) adjourned the cases for decision. The cases were called up for decision on 2 June 2022.

[6] For Suit 137, the learned SCJ found Siti Rohayu and Sharmilan both liable for the accident and apportioned liability at 50% each. The learned SCJ awarded damages including:

(i) RM 10,000.00 for bereavement; and

(ii) RM 134,400.00 for dependency at RM 700.00 X 12 months X 16 years.

[7] On the same finding of liability, the learned SCJ awarded Jagadisan, damages including RM 200,000.00 for severe head injury with disabilities in Suit 198.

[8] She did not allow Jagadisan's claim for hearing aid or damages for right foot laceration wound.

[9] In suit 137, Siti Rohayu appealed against the decision on liability and quantum (Appeal 8) whereas Annapoorni appealed on liability alone (Appeal 10).

[10] In suit 198, Siti Rohayu appealed against the decision on liability and quantum (Appeal 9). Jagadisan cross-appealed on the learned SCJ's decision on the apportionment of liability and quantum for the severe head injury, the laceration wound on the right foot and the hearing aid.

[11] In suit 198, Chandran and Thamootharan appealed against the decision on the apportionment of liability (Appeal 11).

[12] All four appeals were heard together on 4 July 2023 and adjourned for decision. After careful consideration of the cause papers and the written and oral submissions of counsel, this Court decided to:

(i) dismiss Appeal 8 on liability and allow the appeal on quantum for bereavement by consent;

(ii) dismiss Appeal 9 and the cross appeal; and

(iii) allow Appeals 10 and 11 on liability

[13] The following are the grounds for the decision.

Proceedings In The Sessions Court

Liability

[14] Suit 137 and 198 were heard together. On the issue of liability, the witnesses were:

(i) SP1 - the investigating officer, Insp G/19311 Mohd Yusuf bin Payarin;

(ii) SD1 - the chemist, Nurul Nadia binti Ahmad;

(iii) SD2 - Siti Rohayu; and

(iv) SD3 - independent witness, Najmuddin bin Abu Hassan.

[15] The accident took place on 26 August 2017 at 9:45 pm along Jalan Kulim-Mahang near the junction to the road leading to Batu Putih. Siti Rohayu and Sharmilan came from opposite directions.

[16] SP1 gave evidence that when he went to the scene about 30 minutes after the accident, the vehicles were still in their original positions. He drew the sketch plan (Exhibit P7 & P7K) and directed photographs of the scene and the damaged vehicles be taken (Exhibit P8(A) - (L)).

[17] This is P7.

[18] In P7, SP1 made note of the vehicles' position, the glass fragments (marked F), the brake marks (marked E1 - E2) and Sharmilan's body (marked D). He also noted the damages to both