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2021 MarsdenLR 2928
HIGH COURT MALAYA SHAH ALAM
PACIFIC & ORIENT INSURANCE CO BHD – Appellant
Versus
TANG LOON PAU & ORS – Respondent
[Civil Appeal No: BA-12B-135-09/2019]
The burden of proof lies with the plaintiffs to establish their case on the balance of probabilities, including the involvement of the defendants' vehicle in the accident.
Headnote:(A) Civil Law Act 1956 – Section 7(3)(A) – Evidence Act 1950 – Sections 101 to 103, 114(g) – Appellant appealed against the Klang Session Court's decision which found the defendants liable for a 'hit and run' accident and awarded damages. The Court questioned the sufficiency of evidence proving the defendants' vehicle involvement in the accident. Conclusion: Plaintiffs failed to meet the burden of proof regarding the accident's date and vehicle involvement. (Paras 6–42, 81)
(B) Trial Court's Findings – The learned Session Court Judge incorrectly determined liability without sufficient evidence, addressing elements like intoxication and inconsistent witnesses. The appellate court highlighted flaws in the SCJ's application of the law.
Result: Liability against the defendants was set aside, affirming that the burden of proof remained on the plaintiffs throughout. (Paras 94–95)
Facts of the case: The claim arose from a motorcycle accident, with disputes over liability and the quantum of damages awarded for injuries sustained by the 1st Plaintiff and the death of Tan Kiok Sit, the deceased. The SCJ had initially placed 100% liability on the defendants, which the appellate court found unsubstantiated due to insufficient evidence.
Findings of Court: The learned SCJ failed to appreciate critical aspects of the evidence and misapplied legal principles concerning proof of fault and burden of proof.
Issues: Determining whether the plaintiffs proved the occurrence of the accident as alleged and the liability of the defendants.
Ratio Decidendi: The appellate court ruled that the plaintiffs did not prove their assertion of involvement by the defendants' vehicle on the balance of probabilities, adhering to established legal principles.
Result: The appeal was allowed, and the SCJ's decision on liability was overturned.
A. Introduction
[1] This is an appeal by Pacific & Orient Insurance Co Berhad ("the Appellant") against the decision of the learned Klang Session Court Judge ("SCJ") allowing the Plaintiffs' claim against the Defendants for a "hit and run" accident that took place at KM 59, Jalan Klang-Teluk Intan, Kuala Selangor on 2 September 2015, which allegedly involved motorcycle No BMB 5813 ridden by the 1st Plaintiff and his wife, Tan Kiok Sit (the deceased), and the motorcar No WLD 9999 owned by the 1st Defendant and insured by the Appellant, who was the 2nd Defendant in the action in the Sessions Court.
[2] The Plaintiffs had filed a claim against the Defendants for general damages for injuries suffered by the 1st Plaintiff as a result ofthe accident, damages for bereavement under s 7(3)(A) of the Civil Law Act 1956 for the 2nd-6th Plaintiffs as the husband and children of Tan Kiok Sit (deceased) and special damages.
[3] The Appellant, who was the insurer of the motorcar registration No WLD 9999 owned by the 1st Defendant, had intervened in the trial as it believed that there were elements of fraud in the Plaintiffs' claim against the 1st Defendant.
[4] The SCJ, after full trial, had found the Defendants to be 100% liable for the accident and had awarded the Plaintiffs general damages in the sum of RM33,750.00, bereavement damages in the sum of RM10,000.00, and special damages in the sum of RM135,287.00.
[5] The Appellant is appealing against the SCJ's finding of liability against the Defendants and the quantum of damages awarded to the 1st Plaintiff for (i) dislocation of his right patella and injury to his knee ligaments, and (ii) full loss of earnings.
[6] The Appellant had presented 19 grounds of appeal in its Memorandum of Appeal, with its main grounds of appeal being that the learned SCJ had erred in fact and law in concluding that the 1st Defendant was 100% liable for the accident even though the Plaintiffs had failed to prove on a balance of probabilities the involvement of the motorcar No WLD 9999 belonging to the 1st Defendant, in the said accident.
[7] As regards the damages awarded, the Appellant's main grounds of appeal are that quantum of damages awarded by the learned SCJ was too high, in that it was not in line with current trends; that the SCJ had failed to take into account that the Plaintiffs had failed to prove the causal link between the injuries suffered by the 1st Plaintiff with the accident; that the dislocation of patella was only known a month after the accident; and in allowing the 1st Plaintiff's claim for loss of earnings when there was no conclusive proof that the accident had caused his inability to work.
[8] For the reasons set out in this judgment, I found that based on the evidence before the Court, the learned SCJ had erred in fact and in law and was plainly wrong in concluding that Plaintiffs had discharged their burden of proof in proving on a balance of probabilities that the accident took place on 2 September 2015 and that the 1st Defendant's motorcar No WLD 9999 was the car that had hit the 1st Plaintiff's motorcycle during the accident. I also found the SCJ was wrong in law to conclude that the Plaintiffs had discharged its burden of proof and had proven its case on a balance of probabilities by reason of the Defendants' submission that they had no case to answer at the close of the Plaintiffs' case.
[9] For these reasons, I concluded that this appeal merited appellate intervention and accordingly, set aside the SCJ's finding of liability against the Defendants.
[10] I dismissed the Appellant's appeal on the damages awarded to the 1st Plaintiff for (i) right patella dislocation and knee ligaments injury, and (ii) full loss of earnings. I found that that the learned SCJ had not erred either in fact or in law in finding that the 1st Plaintiff had suffered dislocation of his right patella and had injured his knee ligaments because of the accident. Also, the award of the sum of RM
