The appellate court maintained that the burden of proof for negligence rests with the plaintiff, whose inconsistent evidence, demonstrated elements of fraud, resulting in dismissal of the claim.

JUDGMENT

Julie Lack JC:

Introduction

[1] In this judgment the parties will be referred to as they were in the trial court.

[2] This is an appeal by the Plaintiff against the decision of the learned Sessions court Judge (LSJ) in a running down action. The appeal is in respect of the findings of the LSJ on both liability and quantum.

[3] The case was heard on retrial following the order of the High court in Shah Alam on 8 October 2019.

[4] At the end of the trial, the LSJ dismissed the Plaintiff's claim with costs and allowed the Defendants' Counterclaim.

Background Of The Case

[5] The Plaintiff in her statement of claim sued the 1st Defendant for negligence arising out of a road accident. It is the Plaintiff's case that on 24 May 2013 she was at a parking area at Pasar Sg Chua in Kajang and was about to open the door of her motorcar when she was suddenly collided into from the rear by the 1st Defendant who was the driver of a car No BDS 7317 owned by the 2nd Defendant. As a result of the collision the Plaintiff suffered serious injuries.

[6] The 3rd Defendant is the insurer of the said motorcar.

[7] The Defendants in this case have categorically denied involvement in the accident and have pleaded fraud on the part of the Plaintiff.

Decision Of The LSJ

[8] The LSJ found on the totality of the evidence that the Plaintiff had failed to prove negligence on the part of the Defendants on a balance of probabilities. The LSJ found there was failure to prove the involvement of the 1st Defendant in the accident. The LSJ also found elements of fraud present in the claim.

[9] It was the finding of the LSJ that there were too many inconsistencies and contradictions in the evidence of the Plaintiff especially with regard to the delay in lodging her police report, the suspicious nature of her injuries and initial treatment at the clinic and hospital and especially in the manner in which she described how the accident took place.

[10] The LSJ was also not impressed with the evidence of the investigating officer (IO) which he found was confusing, unsatisfactory and unconvincing. He was also of the view that the IO's evidence did not support the Plaintiff's evidence at all.

[11] The LSJ took into consideration the evidence of the IO who informed the court that his investigations led him to come to the conclusion that the car was not involved in the accident at all.

[12] The evidence is complicated by the fact that the 1st Defendant had at first lodged a police report admitting the accident but later recanted and filed a 2nd police report denying involvement. He also swore a Statutory Declaration (D19) admitting that the contents of the first police report was false and concocted to assist the Plaintiff, his employer to make a false claim. As a result of that the IO lodged a police report (D14) after the 1st Defendant made the 2nd report. The 1st Defendant pleaded guilty to a charge pursuant to s 182 Penal Code and was sentenced accordingly.

[13] The LSJ considered the oral testimony of the 1st Defendant as well as the 2nd police report (D11B) he lodged together with the contents of the said Statutory Declaration (D19) and found the evidence of the 1st Defendant to be more probable. Concurrently the LSJ made the finding that the evidence of the Plaintiff was inherently improbable and came to the conclusion that the Plaintiff had failed to prove her case on a balance of probabilities.

Plaintiff's Contentions

[14] It was the contention of the Plaintiff that the fact of the collision by the motorcar could not be disputed based on a number of reasons. Firstly it was argued that the neutral evidence of the IO supported the evidence of the Plaintiff that she had been collided into by the motorcar driven by the 1st Defendant.

[15] It was contended that the lO's findings were credible because he had gone to the scene of the accident with the Plaintiff and the 1st Defendant some time after the accident and had taken a statement from the 1st Defendant. Counsel for the Plainti