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2021 MarsdenLR 2602
HIGH COURT MALAYA JOHOR BAHRU
TAN HAK LIM – Appellant
Versus
MOHD NOOR HEZAM SHAH JAMIL & ANOR – Respondent
[Civil Appeal No: JA-12B-58-11/2019]
The defendant was found 100% liable for the road accident, with no contributory negligence on the plaintiff's part, and the awarded damages were deemed appropriate without any basis for interference.
Headnote:(A) Liability for road traffic accident – The Defendant was found 100% liable for colliding with the Plaintiffs' motorcycle after encroaching onto their side of the road, as indicated by the court's findings (Paras 5, 6).
(B) Contributory negligence – The Defendant's claim of contributory negligence by the 1st Plaintiff was dismissed, as his speed and inability to swerve were justified by the circumstances (Paras 8, 14).
(C) Quantum of damages – The court upheld various damage awards, including RM35,000 for an open fracture and RM15,400 for loss of income, noting that they were consistent with precedents (Paras 17, 24).
Facts of the case: The Plaintiffs claimed damages after a motorcycle accident with the Defendant's car, leading to significant injuries.
Findings of Court: The learned Sessions Court Judge determined the Defendant was fully liable and awarded damages that reflected the severity of the Plaintiffs’ injuries.
Issues: The court addressed liability, contributory negligence, and quantum of damages.
Ratio Decidendi: The appellate court found no reason to disturb the trial court’s findings as they were based on sound evidence.
Result: Appeal dismissed.
Introduction
[1] This is an appeal by the Defendant against the decision of the learned Sessions Court Judge in allowing the Plaintiffs' claim for damages against the Defendant for injuries sustained by both Plaintiffs as a result of a road traffic accident involving the Plaintiffs' motorcycle and the Defendant's car. The appeal is against the decision of the learned Sessions Court Judge on both liability and quantum. The parties will be referred to as they were in the Court below.
Background Facts
[2] Both parties gave conflicting versions of how the accident occurred. In his police report, the 1st Plaintiff said he was travelling from Kukup, and heading towards Pasir Gudang (from top to bottom of the sketch plan). Upon arriving at Jalan Ulu Choh, a car, No JMX 1440, coming from the opposite direction, overtook several vehicles, encroached onto his path, and collided with his motorcycle.
[3] (a) The Defendant's version is that he was driving home at about 9 am on the day of the accident, and that it was raining. Upon arriving at Jalan Ulu Choh, he saw a car in front of him suddenly applying its brakes. He, thus, had to swerve his vehicle onto the right side of the road to avoid hitting the car in front. His exact words were: "Saya cuba membrek dan mengelak ke kanan tetapi tiba-tiba, sebuah motorsikal, nombor JNS 5632, muncul dari arah bertentangan menyebabkan kenderaan saya telah berlanggar dengan motorsikal tersebut. Kerosakan motorkar saya ialah pada bahagian depan kanan, bumper, bonet..."
The Defendant's evidence in Court was that after encroaching onto the Plaintiffs' side of the road, he was in the process of returning to his side of the road when the collision occurred.
(b) I quote verbatim the Defendant's reply under cross examination (at p 103 of the Rekod Rayuan (Bahagian A & B) para 18):
PP: Sekarang I cakap you dengar soalan ya Mr Tan. Kalau you emergency brake tapi tak tarik keluar, jangan tarik keluar ya. Kemalangan motorsikal dengan kamu tak akan berlaku?
SD1: Ya.
PP: Setuju ya. Kemalangan berlaku di dalam lorong motorsikal iaitu dalam arah Pekan Nanas ke Gelang Patah ya?
SD1: Ya.
[4] It is clear from the Defendant's own police report, his evidence under cross examination and the photographs of his car at the scene of the accident (p 258 of the Rekod Rayuan), that the Defendant's car had encroached onto the Plaintiffs' side of the road and collided with the Plaintiffs' motorcycle.
Findings By The Learned Sessions Court Judge
[5] (a) The learned Sessions Court Judge in his grounds found that the Defendant did not deny being on the wrong side of the road when the accident happened (paragraph 9 of the grounds of judgment).
The photographs of the damage to the Defendant's car and the Plaintiffs' motorcycle are consistent with the 1st Plaintiff's version of the accident.
(b) The Defendant, however, denied overtaking several cars while on the wrong side of the road. He claimed he had to encroach onto the Plaintiffs' side of the road because the car in front of him had suddenly applied its brakes. However, from the sketch plan and the evidence of the Assistant Investigating Officer, there were no brake marks on the road to indicate sudden braking by any car.
(c) The learned Sessions Court Judge rejected the Defendant's version (menolak versi Defendan) of how the accident happened since there were no visible brake marks on the road to indicate any sudden applying of brakes by the car in front as alleged by the Defendant.
(d) Having considered the silent evidence, especially the position of the Defendant's car which was clearly on the Plaintiffs' side of the road and the lack of any brake marks on the road, as well as the testimony of the witnesses, including SP1 (the Assistant Investigation Officer), the learned Sessions Court Judge found that the Plaintiffs' version of the accident was more logical and probable. Thus, on a balance of probabilities, the learned Sessions Court Judge found the Defendant 1
