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2018 MarsdenLR 3206
HIGH COURT SABAH & SARAWAK KUCHING
JENNIFA GAWAI & ORS – Appellant
Versus
CHAI YU HIUN – Respondent
[Case No: KCH-12B-19/12-2017]
The court emphasized the necessity of evaluating evidence in light of statutory duties when assessing negligence in road traffic accidents.
Headnote:In this appeal, the court analyzed the findings of the lower court regarding liability for a road accident. The main statute considered was Rule 3(2)(b) of the Road Traffic Rules 1959, stating that drivers must give way to traffic proceeding straight. The court assessed the evidence, including a concession of partial liability by the defendant, and found that the lower court had erred in its conclusion that the defendant was not liable. Ultimately, the court found that the defendant was 100% liable for the accident and awarded damages to the plaintiffs.
| Table of Content |
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| 1. background facts establish the context of the accident. (Para 1 , 2 , 3 , 4 , 5) |
| 2. arguments regarding the concession of liability were presented. (Para 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 3. court's observations validated the claimant's position. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 4. normalized compensation approach for damages was taken. (Para 27) |
| 5. evidentiary standards for proving claims of injury and associated damages. (Para 28 , 29 , 30 , 31 , 32 , 33) |
| 6. establishing standards for awarding costs and interest. (Para 62 , 64 , 66) |
| 7. final verdict statement confirms liability and awards. (Para 69) |
[1] This is the appeal by the 1st, 2nd and 3rd Appellants [hereinafter "1st, 2nd and 3rd Plaintiffs"] against the decision of the learned Sessions Court Judge, given on 8th December 2017, after a full trial, as follows [as per the Notice Of Appeal, (AFTER TRIAL) p 53 Record of Appeal ("RA") [Enclosure 2]:-
(1) Against part of the said decision in respect of liability as decides that the 1st, 2nd and 3rd Plaintiffs' claim are dismissed with costs;
(2) Against part of the said decision in respect of the 1st Plaintiff's Quantum of General Damage as decides that the claim for scars is disallowed;
(3) Against part of the said decision in respect of the 2nd Plaintiff's Quantum of General Damage wherein RM1,000.00 was awarded for abrasion wound over right knee;
(4) Against part of the said decision in respect of the 2nd Plaintiff's Quantum of General Damages wherein RM1,000.00 was awarded for open wound over skin index finger;
(5) Against part of the said decision in respect of the 2nd Plaintiff's Quantum of General Damage as decided that the claim for scar for the open wound at index finger is disallowed;
(6) Against part of the said decision in respect of the 2nd Plaintiff's Quantum of Special Damage as decides that the claim for costs of transportation for family to visit during admission for 15 visits is disallowed;
(7) Against part of the said decision in respect of the 2nd Plaintiff's Quantum of Special Damage as decides that the claim for cost of transportation for follow up and attend physiotherapy is disallowed;
(8) Against part of the said decision in respect of the quantum for the 2nd Plaintiff as decided that the cost of repair of the said motorcycle is disallowed; and
(9) Against part of the decision in respect of the Special and General Damages as decided that the rate of 5% p.a. will accrue from Judgment until settlement.
Background Facts
[2] The Plaintiffs' claim against the Defendant arose from a road accident that occurred on 23 January 2016 at about 8.20 pm at KM10 Jalan Datuk Mohd Musa involving a motorcycle No QKK4520 ["the Motorcycle"] ridden by the 1st Plaintiff with the 2nd Plaintiff as pillion rider and the motor vehicle No QKA2462 ["the Car"] driven by the Defendant.
[3] The accident happened while the Defendant was about to turn into the junction in front of Farley Supermarket and the Motorcycle ridden by the 1st Plaintiff knocked into the Car. At the material time the 1st Plaintiff was travelling on the straight road.
[4] At the material time the weather was fine but there was a power outage.
[5] The 1st Plaintiff was riding the Motorcycle which belonged to the 3rd Plaintiff, without a valid license and without the permission of the 3rd Plaintiff.
Finding Of Liability
[6] At the conclusion of the trial, learned Sessions Court Judge made a finding that the Plaintiffs had failed to prove negligence on the part of the Defendant in causing the accident and that based on the evidence, it is more probable that the 1st Plaintiff was to be blamed for the accident.
The Appeal
Ground No 1 Of The Memorandum Of Appeal [MOA]: The Learned Sessions Court Judge Erred In Fact And In Law In Failing To Consider That Liability Is Not In Issue As The Defendant Conceded To Liability Up To 50%.
[7] It is to be noted that in para 16 of the Defendant's submission in the Court below [p 231 of the RA], th
