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2020 MarsdenLR 3175
HIGH COURT MALAYA PENANG
MUHAMAD QAMARUL MUNSYIAQBAL @ YUSRI – Appellant
Versus
MD NOR MD ZAIN & ANOR – Respondent
[Civil Appeal No: PA-12B-69-12/2018]
The appellate court emphasized that a plaintiff in a negligence claim must establish a prima facie case, with the burden shifting to the defendant to disprove it, while inadmissible hearsay evidence cannot support a defense.
Headnote:(A) Road Traffic Act, 1987 – Negligence – Burden of Proof – Evidence Act 1950 – Sections 73A, 76, and 77 – Writ filed for damages after a motorcycle accident – The plaintiff claimed negligence against the defendant but was initially dismissed by the lower court – The appellate court found that the plaintiff established a prima facie case of negligence, leading to appellate interference in favor of the plaintiff. (Paras 6, 56, 70)
(B) Admissibility of Evidence – The High Court found errors in admitting the statutory declaration and police report due to the lack of the maker's testimony, rendering them inadmissible hearsay. (Paras 41, 43)
Facts of the case: On September 4, 2015, the plaintiff was involved in an accident with the 1st defendant’s vehicle while riding his motorcycle. The 1st defendant denied the collision, leading to a writ for damages. The trial court initially ruled in favor of the defendants.
Findings of Court: The appellate court overruled the trial court's decision, establishing that the plaintiff proved negligence against the 1st defendant by evaluating the evidence on a balance of probabilities.
Issues: The court addressed the issues of negligence, admissibility of evidence, and the shifting burden of proof in negligence claims. The necessity of corroboration for establishing claims was also discussed.
Ratio Decidendi: The court found that the lower court had failed to exercise proper judicial appreciation of evidence, particularly by applying an incorrect standard regarding the burden of proof and admissibility of hearsay evidence. The duty of the defendants to disprove the plaintiff's prima facie case was emphasized. (Paras 8, 56)
Result: The plaintiff's appeal was allowed, with judgment entered in their favor, affirming the correct principles for awarding damages as per established legal standards.
The grounds of appeal are based on several procedural and evidentiary errors committed by the lower court that affected the outcome of the case.
Firstly, the appellant contends that the lower court failed to properly evaluate and appreciate all the evidence presented, including police reports, statutory declarations, and witness testimonies (!) (!) (!) (!) . This failure led to an erroneous assessment of the facts and the weight of the evidence.
Secondly, the appellant asserts that the court improperly admitted hearsay evidence, such as police reports and statutory declarations made by interested parties, despite these being inadmissible due to the absence of the maker’s testimony and procedural irregularities (!) (!) (!) (!) (!) (!) . The improper admission of such evidence prejudiced the appellant’s case and contributed to an incorrect finding of negligence.
Thirdly, the appellant argues that the lower court erred in applying statutory provisions regarding the admissibility of documents, particularly by admitting documents that did not meet the necessary conditions under the Evidence Act, especially when these documents were made during ongoing proceedings involving interested parties (!) (!) .
Fourthly, it is contended that the lower court wrongly invoked a presumption under a specific evidentiary provision, despite the fact that the plaintiff’s uncorroborated testimony was sufficient to establish negligence. The court's reliance on this presumption was unwarranted and led to a misapprehension of the burden of proof (!) (!) .
Fifthly, the appellant challenges the lower court’s failure to recognize that the burden of proof on the defendant to disprove negligence was not adequately discharged, as the defendant did not produce credible evidence to rebut the prima facie case established by the plaintiff (!) (!) .
Lastly, the appellant maintains that the damages awarded were excessive or not properly supported by evidence, and that the court did not properly consider all heads of damages, including medical expenses, pain and suffering, loss of earnings, nursing care, and assistive devices (!) (!) (!) (!) (!) (!) (!) (!) .
In summary, the appeal is grounded on procedural irregularities, improper evidentiary rulings, misapplication of legal principles regarding the burden and standard of proof, and inadequate consideration of the evidence, all of which collectively justify the setting aside of the lower court’s decision and the granting of a new judgment in favor of the plaintiff.
The Background
[1] In this judgment the parties are referred to as they were in the court below.
[2] The plaintiff in a writ of summons dated 30 June 2016 sued the 1st defendant for negligence arising out of a road accident. His case was that on 4 September 2015 at about 9:30am while riding motor cycle PKC 6154 at the Perai Industrial Estate, a motor car bearing registration number BCJ 8584, suddenly and without stopping, emerged out of a minor junction and collided into him.
[3] The 1st defendant's defence was that there was no collision between the two vehicles. The 2nd defendant, the insurer of the motor car, intervened as a defendant and pleaded collusion and/or fraud by the plaintiff in making a false claim by way of a fictitious accident.
[4] On 7 December 2018 the Sessions court at Butterworth found in favour of the defendants on a balance of probabilities and dismissed the action. The plaintiff on 11 December 2018 filed a notice of appeal against both liability and the award of quantum. On 17 January 2019 the defendants' separately filed notices of crossappeal against the award of quantum. At the date of the hearing of the appeal the plaintiff proceeded only against the finding of liability.
Appellate Intervention: Liability
[5] It is trite that the High court when exercising its appellate jurisdiction is slow in disturbing the findings of the trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when there is "no or insufficient judicial appreciation" of the evidence by the trial court (see Gan Yook Chin & Anor v. Lee Eng Chin & Ors, and Goh Bak Ming v. Yeoh Eng Kong and Other Appeals ; ).
Decision Of The Sessions court
[6] The learned Sessions Judge found on the totality of the evidence that the plaintiff had failed to prove negligence against the defendants on a balance of probabilities. This means that the evidence led in the defendants' case denying the collision was accepted and had tilted the balance in favour of the defendants. The reasons for the decision were stated in the grounds of judgment as follows:
(i) The evidence of the plaintiff's witnesses: the investigating officer (SP1), the plaintiff's employer (SP3) and the plaintiff's father (SP6) did not favour of the plaintiff's case. SP3 gave conflicting evidence of the identity of the motor car that collided into the plaintiff's motor cycle while SP6 failed to prove the identity of the person who had at the scene of the accident given him photographs via mobile phone of the 1st defendant's motor car and told him that that was the motor car involved in the accident.
(ii) Adverse inference under s 114(g) of the Evidence Act 1950 was invoked against the plaintiff for not calling "Amy" who was present at the scene of the accident to testify.
(iii) The evidence of SD4, an adjuster appointed by the 2nd defendant, who had recorded SP3's statement to the effect that the plaintiff had informed SP3 at the scene of the accident that the motor car that had caused the accident was a Toyota Hilux and not the 1st defendant's motor car, was credible evidence, rebutting the plaintiff's case.
(iv) The police report dated 25 March 2018 and statutory declaration dated 26 March 2018 made by the 1st defendant, both of which were admitted under sub-sections (1) and (2) of s 73A and/or s 77 of the Evidence Act 1950 , establishes that the said motor car was not involved in a collision with the plaintiff's motor cycle.
[7] I find that the issues raised in the amended memorandum of appeal revolve on the admissibility of evidence, the question of judicial appreciation of the evidence, the application of adverse inference and the burden of proof.
Burden Of Proof And Standard Of Proof
[8] In view of the issues raised, I kept in mind the following basic principles with regard to the burden and standard of proof. It is settled law that the burden of proof rests throughout the trial on the part
