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2019 MarsdenLR 1691
HIGH COURT MALAYA SHAH ALAM
LIM HOCK BOON – Appellant
Versus
AW CHEE KEONG & ORS – Respondent
[Appeal No: 12B-185-11/2017]
The burden of proof in negligence lies solely with the Plaintiff, and conflicting versions of the event do not justify shared liability.
Headnote:This appeal concerns a liability determination following a motorcycle accident where the Defendant contested the lower court's ruling of shared liability (50:50) and negligence. The court found that the Appellant failed to discharge the burden of proof over negligence, leading to a reversal against the Plaintiff.
Key Points: - (!) Background of the claim and the collision context at Jalan Meru traffic lights. - (!) Appellant contends trial court erred in burden of proof and in comparing police reports to in-court evidence. - (!) Trial court apportioned liability 50:50; focus on whether appellate court should assess inherent probability rather than mere believability. - (!) - (!) The onus of proving negligence remains with the plaintiffs; inconsistencies in police reports and witness testimony are considered in appellate review. - (!) Citing Sivalingam v. Periasamy and Tengku Ibrahim Petra v. Petra Perdana on appellate intervention principles. - (!) - (!) Federal Court and board-of-appeal principles: when to accept inherently probable version versus rejecting based on misapplication of burden of proof. - (!) - (!) Discussion of damages awards (quantum) and whether LSCJ’s awards were manifestly low/high or based on wrong principle. - (!) - (!) Review and potential adjustment of individual head damages for 1st and 3rd Plaintiffs, including private hospital bills, future operation costs, and 3rd Plaintiff injuries. - (!) - (!) Heads of head injury damages and comparison to authorities for appropriate ranges. - (!) - (!) Use of the 1/3 rule for private hospital bills and rationale for adjustments. - (!) Final decision structure: appellate review of liability and quantum.
What is the correct approach to appellate interference in a negligence case where conflicting versions of events are presented at trial?
What is the burden of proof in negligence, and how should police reports and inconsistent versions affect liability findings on appeal?
What are the standards for quantum awards and for when an appellate court may disturb damages in a running-down negligence case?
| Table of Content |
|---|
| 1. determination of liability based on the evidence presented. (Para 1 , 2 , 3) |
| 2. analysis of conflicting evidence and reliance on police reports. (Para 4 , 5 , 6) |
| 3. details regarding the incident and the conflicting versions presented. (Para 7) |
| 4. the role of appellate courts in reviewing lower court decisions on points of law. (Para 9 , 10 , 11) |
| 5. legal framework on burden of proof and appellate jurisdiction. (Para 12 , 13) |
| 6. the necessity to establish negligence through evidence. (Para 14 , 15 , 16) |
[1] This is an appeal brought by the Defendant against the decision of the Learned Sessions Court Judge ('LSCJ') after a full trial of a running down claim. The motor vehicle accident ('MVA') was between a motorcycle ridden by the 1st Plaintiff and a motor lorry driven by the Defendant. The Defendant's appeal was on both issues of liability and quantum.
[2] On the issue of liability, being dissatisfied with the finding of the LSCJ that the 1st Plaintiff and the Defendant should be held equally liable for the collision the Defendant brought this appeal on the premise that negligence had not been proved against him.
[3] The Respondents/Plaintiffs cross-appealed on the issue of liability on the premise that the Appellant/Defendant must be held 100% liable for causing the road accident as Respondents/Plaintiffs had proven the case that the Appellant/Defendant was driving the motorlorry negligently, without due care and attention towards the presence of motorcycle No BMF6646 and/or in breach of the red light signal at the intersection of Jalan Meru, thereby colliding into the Respondents/Plaintiffs and motorcycle No BMF 6646.
[4] The Respondents/Plaintiffs contend that:
"the LSCJ had erred in apportioning 50% against the Respondent/1st Plaintiff, despite the fact that the evidence of the 1st Plaintiff/rider (SP1) and 3rd Plaintiff/pillion rider (SP2) and Investigating Officer (SP3) which tilts the balance of probabilities in favour or Respondents/Plaintiffs that the Appellant/Defendant was the 'cause causa' for the aforesaid road accident.
The LSCJ erred when he failed to give due consideration pertaining to the fact the Appellant/Defendant gave two conflicting versions that contradict his police report which was lodged 5 hours after the road accident when he gave evidence before the trial Court."
Background Of The Plaintiffs' Claim
[5] Based on the Plaintiffs' written submission, the factual background of the claim is this:
"The Respondents/Plaintiffs' claim arises from personal injury damages which emanates from a road accident on 25 October 2013, between the Respondent/1st Plaintiff who was riding motorcycle No BMF 6646 with Respondent/ 3rd Plaintiff as pillion rider and motorlorry No BHW 1722 driven by Appellant/Defendant, at the traffic lights intersection of Jalan Meru which is located opposite the Pasar Borong Meru in Klang, Selangor.
The road accident occurred when Appellant/Defendant breached the red traffic lights on his lane before swerving right, out of sudden and without warning and/or signal, and encroaching into the rightful path of Respondents/Plaintiffs."
[6] The Plaintiffs also contended that they did mention that the traffic light indicated green on their lane at the material time of the accident when the IO recorded their statements. There were material contradictions in the evidence of the Defendant as in the report it was stated that upon reaching the intersection, the traffic light was indicating green, but in his version before the Court, he said that the traffic light was indicating red and then turned green before turning into the junction. This shows the inconsistency of the Defendant's version. The fact of the 1st Plaintiff having ridden the motorcycle without a valid licence does not amount to negligence.
[7] The trial proceeded before the LSCJ who had seen and heard the testimonies of 3 witnesses for the Respondents/Plaintiffs and 1 witness for the Appellant/Defendant. At the conclusion of the trial,
