The court established that both the defendant and plaintiff shared liability in the motorcycle accident due to negligence, emphasizing the need for highway safety measures.

JUDGMENT

Muniandy Kannyappan JC:

Background Facts

[1] It was an accident case which occurred on 11 Mac 2016, at about 7.30 am when Mohamad Rasul, first plaintiff was on a motorcycle on his way to work at Kamunting, Taiping. He worked as a technical inspector with his employer Empayar Indera Sdn Bhd, second plaintiff, to whom the motorcycle that he was riding on that fateful day belonged.

[2] According to Mohamad Rasul, as he was exiting towards the Changkat Jering tol, he allegedly encountered an oil spill at 220. 7 km, which resulted in the road being slippery. Consequently, he lost control of his motorcycle and hit a road divider. He suffered serious injuries and was admitted to hospital Kuala Kangsar and Taiping for one and a half month.

Injuries Suffered

[3] He was also referred to an orthopaedic specialist who had diagnosed severe injuries to the hip, right knee and leg which would severely impede his movements. He will not be able to walk properly, bend his knee, or stand for long hours. Specifically, according to the orthopaedic specialist, Dr v. Moorthy, his current health condition is: right thigh and knee pain, right knee stiffness, limping gait, right leg shortening, unable to squat, needs sitting toilet and needs a chair to pray. In short, his mobility has been severely restricted.

Proof

[4] A key point to the case was that the accident occurred supposedly because of an oil spill which made the road slippery, hence the victim's motorcycle skidded and hit a road divider.

[5] It was difficult to prove there was an oil spill at the accident site. This onus was a heavy one on the first plaintiff as there were no witnesses to the incident. Furthermore, no physical traces of the oil spill were evident.

[6] To make matters denser, the Investigating officer (IO) for the case, Sergeant Khalid bin Sharif, SP2 visited the site three days after the accident. Certainly, any traces of the oil spill, if any, would have disappeared by then. SP2 could not provide essential testimony to the case as it was post event. This definitely dented the plaintiff's case as SP2's testimony could have some traction in court.

[7] Even more, he did not inspect the road divider which the plaintiff claimed had hit in the accident. If the divider had been examined, the damages on it could perhaps correlate with Mohamad Rasul's account of the accident. These two loose ends, late and incomplete inspection of accident site, did not give the plaintiff a balanced recount and documentation of the accident.

At The Trial And Decision

[8] Before a clearer picture can be obtained for this case, it is best to assess a few significant take away points from the trial as well as the arguments from both sides of the divide.

[9] The case was first heard at the Sessions court, Taiping. During the trial, the sessions court judge (SCJ) had focused on two issues: the place of the accident and if the defendant and/or third party was responsible for the accident. The first contention was the exact location of the accident; did it occur at KM221 or KM227.5? As stated by the first plaintiff it happened at KM221, whilst the exit to Changkat Jering toll was KM227.5 KM.

[10] To clear this matter, Mohamad Rasul told the court he was told of the location by the police as he was unsure of the exact location. This was resolved when the judge noted during the trial, Mohamad Rasul had described the road where he fell had a bend. This description fitted the road contours at KM227.5, whilst the road was straight at KM221. Therefore, the accident happened at KM227.5, thus clearing the doubt on the exact location of the accident.

[11] The next question addressed by the court was: were the defendant and the third party indeed negligent in maintaining the safety of the highway? Course of this judgment, narrates the events and sequence of the accident to possibly illustrate an answer to this question.

[12] Easing back to the trial at sessions court, the SCJ found the first plaintiff 100% responsible for t