In negligence cases, both parties may share equal liability if both contributed to the accident, emphasizing proper lane usage on busy highways.

JUDGMENT

Wong Kian Kheong J:

(Appeal To High Court Against Sessions Court's Decision After Trial)

A. Background

[1] In this judgment, I will refer to parties as they are in the Sessions Court (SC).

[2] On 29 July 20162, there was an accident (Accident) on "Lebuhraya Kemuning-Shah Alam" (Highway) which involved a motorcycle ridden by the plaintiff (Plaintiff) and a car driven by the defendant (Defendant).

[3] This suit was filed in SC by the plaintiff against the Defendant (This Action) wherein the Plaintiff claimed damages for the alleged negligence of the Defendant in the Accident which had caused:

(1) the plaintiff to suffer personal injuries; and

(2) damage to the plaintiff's motorcycle.

[4] At the trial of This Action (Trial):

(1) the Plaintiff testified and called Sgt Nur Nadia Atira Binti Zaini (SP1) to support This Action; and

(2) the Defendant gave evidence to oppose This Action.

[5] The learned Sessions Court Judge (SCJ) decided as follows after the Trial (SC's Decision):

(1) the Defendant is 80% liable in negligence for the Accident while the Plaintiff is 20% responsible regarding the Accident (Liability Award);

(2) assuming the Defendant is 100% liable in negligence for the Accident, a total sum of RM137,000.00 is awarded as general damages for the Plaintiff's personal injuries (Damages Award);

(3) interest on the Damages Award and costs as specified in SC's Decision; and

(4) the amount of damages, interest and costs (Judgment Sum) shall be paid by the Defendant into the client's account of the Plaintiff's solicitors.

[6] The Defendant appealed to the High Court against the Liability Award only (This Appeal). It is clear in this case that both the Plaintiff and Defendant have accepted the Damages Award.

B. Issues

[7] The following questions arise in This Appeal:

(1) whether the learned SCJ had made the following "plain errors of fact" regarding the Liability Award:

(a) the Plaintiff should have used the motorcycle lane which has been expressly provided for in the Highway (Designated Motorcycle Lane);

(b) SC had erroneously taken into account the defendant's payment of a criminal summons issued by SP1 for the Accident (Criminal Summons) when both SP1 and Defendant had given evidence that no payment of the Criminal Summons had actually been made by the Defendant; and

(c) the learned SCJ should not have accepted SP1 as a credible witness; and

(2) whether the learned SCJ had committed the following errors of law when SC considered the following matters in arriving at the Liability Award:

(a) SP1's opinion that SP1's investigation had revealed that it was the Defendant's negligence which had caused the Accident (SP1's Opinion); and

(b) the Criminal Summons had been issued to the Defendant.

C. Did SC Make "Plain Errors Of Fact" Regarding Liability Award?

[8] It is not disputed that an appellate Court should not intervene in respect of a trial Court's apportionment of liability unless there is a "plain error of fact" or a legal error by the trial Court which has caused an injustice and which warrants appellate intervention. I cite the following judgment of Ong Hock Thye CJ (Malaya) in the Federal Court case of Sepang Omnibus Sdn Bhd v. Christina Loh Soo Pang & Ors, 1970 MarsdenLR 358 , at 236:

"To conclude, I think it is useful to remember the principles to be applied in appeals against apportionment of liability for contributory negligence. This has been succinctly stated by Lord Denning MR in Kerry v. Carter [1969] 1 WLR 1372, 1376 as follows:

"We have been referred to cases on this subject, particularly in the recent case of Brown v. Thompson [1968] 1 WLR 1003. Since that case it seems to have been assumed in some quarters that this Court will rarely, if ever, alter an apportionment made by the judge. Such is a misreading of that case. I think that the attitude of this Court was correctly stated in that case, at p 1012, by Edmund Davies LJ when he quoted from the judgment of Sellers LJ in Quintas v. National Smelting Board [1961] 1 WLR 401, 409. T