A pedestrian's failure to utilize an available crossing can constitute contributory negligence, impacting liability assessment in traffic accident cases.

[1] This is an appeal by the defendant against the decision of the learned Session Court Judge ("SJ"). In her decision, the learned SJ gave judgment for the plaintiff and found the defendant 100% liable. The defendant, unhappy, appealed against the decision of the SJ on the issue of liability only. I heard the appeal and allowed liability to be apportioned 50:50. The defendant, still dissatisfied appealed against my decision.

Brief Facts

[2] On 13 February 2011 at about 12.00 midnight, the plaintiff was crossing a road while pushing his bicycle. It was at Jalan Batu 18 Rawang ie KL-Ipoh (Rawang) route. The plaintiff crossed from right to left, ie from A2 to A1.

[3] According to the plaintiff (SP1) the collision occurred when he had nearly arrived at the other end of the road and he marked the point of impact as 'X' in the sketch plan.

[4] The plaintiff testified that he looked left and right before crossing the road and he did not see any approaching vehicle. He later then said that he did not see the defendant's motorcycle because it was driven too fast. He said that there was a traffic light located near the road.

[5] The plaintiff averred in his statement of claim that the accident occurred solely due to the negligence of the defendant.

[6] In the statement of defence and at trial, the defendant denied that his motorcycle WTV 1514 was involved in the accident with the plaintiff. The defendant also denied that he was present at the the scene of the accident.

[7] According to the Investigation Officer (SP2), there was a pedestrian crossing footbridge about 200 metres from the site of collision. According to SP2 the plaintiff was knocked down by a motorcycle allegly driven by the defendant.

Submissions by Parties

The plaintiff was represented by Mr.John Kanagarajah while the defendant by Mr. Raj Kumar.

[8] The defendant submitted that he did not drive the said motorcycle on that day and was neither involved in the accident nor was at the scene of the accident.

[9] The defendant argued that it is the plaintiff who is responsible for the accident since the plaintiff refused to use the pedestrian crossing footbridge that was located 200 metres away from the site of the collision and thus the plaintiff had put himself at risk by crossing the road when it was unsafe to do so. The defendant referred to Rule 69 and 73 of the Highway Code.

[10] The plaintiff on the other hand submitted that it was a norm for pedestrians to cross the road without using the pedestrian crossing foot-bridge. This is especially so when he had to push his bicycle which made it not practical for him to use the said foot-bridge.

[11] The plaintiff also testified that he was already near the other side of the road when he was collided into by the said motorcycle.

Evidence Of Witnesses

[11] According to the plaintiff, (SP1):

11.1 He saw the motorcycle with the plate number, WTV 1514 while he was resting at the side of the road after the collision. He testified that he looked left and right before crossing the road;

11.2 In cross-examination, he said he did not see the motorcycle because it must have been driven very fast to have knocked him down;

11.3 At question 23, in cross-examination, he said that the motorcycle was a black Honda (p.11 supplementary appeal record);

11.4 He informed the Court that he and the motorcyclist was brought to the Selayang Hospital by an ambulance;

11.5 Further, he admitted that it was dangerous for him to cross the highway and that he was taking a risk in doing so.

[12] According to the plaintiff's step-sister, Miss Lim Siew