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2019 MarsdenLR 1013
HIGH COURT MALAYA TAIPING
AM GENERAL INSURANCE BERHAD – Appellant
Versus
DESMOND RAJ FREDERICK & ORS – Respondent
[Suit No: AB-24NCVC-106-06/2019]
An insurer cannot seek a declaration if no genuine tort action exists, as there is no cause for liability.
Headnote:This case concerns an appeal stemming from an Originating Summons seeking a declaration under s 96(3) of the Road Transport Act 1987. The court found that no real tort action existed due to the absence of a genuine accident and dismissed the application for a declaration as speculative. Key issues addressed were whether an accident occurred and the consequent legal obligations of the insurer. The court concluded that since the tort action was fictitious, the application was ungrounded, resulting in dismissal.
| Table of Content |
|---|
| 1. civil appeal concerning declaration under act 333. (Para 1 , 3) |
| 2. overview of the parties involved and the events leading to the insurance claim. (Para 2 , 5 , 6 , 7 , 8) |
| 3. establishment of standards for proving damages in tort law. (Para 4 , 9 , 10) |
| 4. no genuine tort leads to no claim for declaration. (Para 14 , 29) |
| 5. application dismissed due to lack of merit. (Para 15) |
| 6. conditions whereby an insurer may disclaim liability and the importance of a tort action. (Para 16 , 18 , 20 , 21) |
| 7. legal requirements for obtaining a declaration under s 96(3) of the road transport act. (Para 27 , 32 , 36) |
[1] This is a civil appeal from the decision of this court which has exercised its original jurisdiction in the determination of the matter before it. It arises out of an application by way of an Originating Summons (OS), seeking a declaration from the court pursuant to s 96(3) of the Road Transport Act 1987 (Act 333). The application was dismissed with costs.
Facts Of The Case
[2] Reproduced below the facts as provided by the plaintiff's counsel in his skeletal submission:
"A. The Parties
1. The Plaintiff in this case is the insurer for motorcar No WKP 6550 under Policy No JVD3832600 (please see exh WHH-1) enforceable for material period between 30 June 2017 to 29 June 2018.
2. The 1st Defendant is said to be the rider of one m/cycle No AFD 5107 (hereinafter referred to as D1 m/cycle') allegedly involved in motor vehicle accident with motorcar No: WKP 6550 (hereinafter referred to as D2 m/car') on 15 October 2017 at approximately 2.00 am near Jalan Saw Ah Chow (hereinafter referred to as 'the alleged MVA').
3. The 2nd defendant is the rightful owner of D2 m/car.
4. The 3rd Defendant is alleged to be the driver of D2 m/car during the alleged MVA.
B. Background Of The Case (By Chronology)
5. One Raymond Raj a/l George Frederick (1st Defendant's brother) lodged police report on 17 October 2017 claiming that on the 15 October 2017 he received information from his friend working in emergency department of Taiping Hospital that his brother (1st Defendant) was involved in road accident while riding D1 m/cycle (please refer to exh WHH-3).
6. The 3rd Defendant on 26 February 2018 (almost 4 months plus after the alleged MVA) lodged his report (hereinafter referred to as 'D3 First Report') stating that on 15 October 2017 while driving D2 m/car, he collided into D1 m/cycle. Point to note, it was clearly reported 'he was not injured' in the alleged MVA (please refer to exh WHH-3).
7. The 1st Defendant then appointed Messrs Raja Suriya to file claim against the 2nd and 3rd Defendant for general and special damages as result of the alleged MVA.
8. Writ Summon and Statement of Claim under Suit No: AB-A53KJ-39-03/2019 (hereinafter referred to as 'the civil suit') dated 4 March 2019 was served to the Plaintiff. The claim was registered under Plaintiff's system as AA-3-18-VKD82108. Thereafter in line with provision of the policy entitling the Plaintiff to have full discretion over conduct, defence and/or settlement of any claim, the Plaintiff appointed Messrs Lim Him Wee & Co to act for the 2nd and 3rd Defendant in the civil suit.
9. Upon perusing through all relevant documents, the Plaintiff's claim examiner noticed few points that raises doubt as to whether the claim is genuine, inter alia:
9.1 The initial medical report dated 29 May 2018 from Taiping Hospital (Emergency & Trauma Department) recorded 1st Defendant's admission to be due to alleged motor vehicle accident, brought in by ambulance call, found by passer-by, lying prone on the road with motorbike nearby; he was unconscious. Unsure mechanism of injury, no eye witness (please refer exh WHH-4) and
9.2 There was delay of 134 days before the 3rd Defendant lodge his report albeit clearly stating in his report that he sustained no injuries from the alleged MVA.
10. Plaintiff then (following the standard procedure) appointed Adjuster to investigate the accident in particular to confirm the involve
