The Plaintiffs failed to prove negligence on the Defendant's part, resulting in a revised liability apportionment of 20% against the Defendant.

Alwi Abdul Wahab J:

Introduction

[1] This is an appeal by the 1st and 2nd Appellants/Plaintiffs being dissatisfied with the decision given by the learned Sessions Court Judge ("SCJ") on 19 January 2021 on liability and quantum in respect of a motor vehicle accident between a motorcycle bearing registration No. QRA5826 ("the Appellants' Motorcycle") which was ridden by the 1st Appellant/1st Plaintiff whereas the 2nd Appellant/2nd Plaintiff being the pillion on the 1st appellant/1st Plaintiff's motorcycle and a motorcycle bearing registration No. QRG3226 ("the Respondent/Defendant's motorcycle") which was ridden by the Respondent/Defendant along Jalan Ulu Krian, Saratok on 6 August 2013 at about 1700 hours.

[2] There was also a cross-appeal by the Defendant on liability and quantum.

[3] For the purpose of this judgment, the appellants are referred to collectively as the Plaintiffs unless they were referred to as the 1st Plaintiff or the 2nd Plaintiff respectively and the respondent is referred to as the Defendant as they were named in the Sessions Court.

The Decision Of The Sessions Court

[4] The learned SCJ held that the liability between the Defendant and the Plaintiff is to be apportioned by 50:50. In other words, the Defendant is liable towards the 1st and 2nd Plaintiffs on the apportionment of 50% liability over 50% contributory liability on the part of the 1st and 2nd Plaintiffs. Therefore, he awarded the Plaintiffs damages against the Defendant on a 50% liability basis.

[5] The Defendant is ordered to pay general damages to the 1st Plaintiff of RM497,000.00 and special damages of RM665,975.90.

[6] The Defendant is ordered to pay general damages to the 2nd Plaintiff of RM25,000.00 and special damages of RM5,398.00.

The Facts

[7] Both the Plaintiffs and the Defendant have their own version in respect of the facts of the case leading to the accident.

[8] The Plaintiffs' version was that the accident occurred when the Defendant's motorcycle which was travelling in front of the Plaintiffs' motorcycle and the Defendant's motorcycle suddenly lost control and fell, thereby causing the Plaintiffs' motorcycle to collide against the Defendant's motorcycle and fell as well. Due to the said collision, both the 1st and 2nd Plaintiffs sustained injuries. The Plaintiffs contended that the Defendant was negligent in failing to control his motorcycle while riding it under the influence of alcohol and falling down resulted in the motorcycle ridden by the 1st Plaintiff which was travelling behind the Defendant's motorcycle to lose control after colliding against the Defendant's motorcycle and fell.

[9] The Defendant's version was that the accident was a self-accident. The injuries sustained by the Plaintiffs were due to self-accident of losing control and neglect in managing the 1st Plaintiff's motorcycle as a result of avoiding the Defendant's motorcycle. There was no collision between the 1st Plaintiff's motorcycle and the Defendant's motorcycle.

This Court's Decision

[10] In my view, this is a proper case for this Court's interference where there was insufficient judicial appreciation of the evidence by the learned SCJ.

[11] I agree with the learned counsel for the Defendant/respondent's submission that the learned SCJ had failed to consider the 2nd Plaintiff's inconsistent evidence on what transpired on that material day of the accident ie 6 August 2013. There were no eye-witnesses. The 2nd Plaintiff lodged a police report about two weeks later ie 19 August 2013 (Exh 71) stating:

"...Semasa dalam perjalanan balik Motosikal Tambi telah mengalami kemalangan. Saya dengan Empading yang dibelakangnya menunggang Motosikal juga telah terlanggar Motorsikal Tambi tersebut. Saya sebagai pembonceng telah melompat dari Motosikal tersebut sebelum berlanggar dibawa oleh Empading...".

[12] From the above police report, it is clear that the 1st Plaintiff's motorcycle had collided against the Defendant's motorcycle from behind which means that the Defendant's mot