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2021 MarsdenLR 2956
HIGH COURT MALAYA KUALA LUMPUR
SHEREENA VIJAYAN & ANOR – Appellant
Versus
FADLY AFIQ FAHMIMAHZAN & ANOTHER CASE – Respondent
[Civil Suit Nos: WA-11BNCVC-30-10/2020 & WA-11BNCVC-31-10/2020]
The absence of a valid riding license by the motorcycle rider contributed to the determination of liability, resulting in the dismissal of the plaintiffs' claims against the defendants.
Headnote:(A) Road Transport Act 1987 – Liability in road accidents – Appeals arising from a road accident where the rider and pillion rider sued the driver and owner of a motorcar. The trial court apportioned 50% liability against both parties. The court found that the first plaintiff was not licensed and was riding a high-powered motorcycle, impacting liability considerations. (Paras 1-10, 12-29, 69-75)
(B) Principle of appellate intervention – An appellate court's role is to cautiously interfere with the trial judge's determinations unless plainly erroneous. The court emphasized that evidence evaluation in road accident cases should discern inherently probable accounts rather than merely choosing more believable testimonies. (Paras 11, 20-22)
Facts of the case: Two appeals concerning a road accident on December 15, 2017. The first plaintiff was the motorcycle rider, and the second was the pillion rider, both involved in a collision with a motorcar driven by the first defendant. The Magistrate apportioned liability equally at 50% against both plaintiffs and defendants.
Findings of Court: The appellate court determined that the plaintiffs failed to establish their claims on a balance of probabilities, concluding that the first plaintiff was wholly liable for the accident.
Issues: Main issues included the determination of liability, the credibility of witness testimonies, and the first plaintiff's lack of a valid riding license.
Ratio Decidendi: The court ruled that the first plaintiff’s lack of a license and the circumstances surrounding the accident negated the claims against the defendants, emphasizing the importance of independent evidence in liability determinations.
Result: Appeals allowed, no liability found against defendants.
[1] This judgment concerns two appeals which were heard together, which arose from the same road accident. They are against the decision of the Magistrate Court which had partly allowed the claim of the plaintiff motor cycle rider in the first appeal on the basis of 50% liability and allowed the whole claim of the plaintiff pillion rider in the second appeal against the same defendants.
[2] At the end of the appeal hearing which was conducted via Zoom video technology, I allowed the appeals and highlighted the main grounds for my decision. This judgment contains the full reasons for the same. The parties are referred to herein as they were at the Magistrate Court.
Key Background Facts
Parties
[3] The suits which led to these appeals emanated from a road action which occurred at Jalan Tun Tan Cheng Lock, Kuala Lumpur on 15 December 2017 on the one part, between the plaintiff who was riding a motorcycle and the first defendant who was driving a motorcar, and on the second part between the plaintiff in the other suit who was riding pillion on the motorcycle ridden by the first-mentioned plaintiff and the same first defendant.
[4] In other words, the rider sued the first defendant as the driver of the car (and the second defendant, being the registered owner of the car), and in the other suit the plaintiff (the lady friend and colleague of the rider) who was riding pillion on that same motorcycle sued the same defendants. Hence the two appeals to the two suits were heard together. Both suits were also tried together at the Magistrate Court (but not consolidated by the learned Magistrate on the basis that counsel for the plaintiffs were different). For better clarity, for the purposes of this judgment, I shall refer to the rider as the first plaintiff and the pillion rider, the second plaintiff.
The Accident
[5] The collision happened near the traffic lights at Jalan Tun Tan Cheng Lock. The plaintiffs' version is that the motorcycle ridden by the first plaintiff (with the second plaintiff as the pillion rider) was traveling from Jalan Sultan Ismail to Maybank Jalan Pudu and as they were approaching Jalan Tun Tan Cheng Lock, whilst riding on the middle lane in a straight path, the motorcar driven by the first defendant, which was in front of the motorcycle, suddenly changed lanes from the right to the left into the path of the motorcycle in the middle lane. This resulted in the collusion as the first plaintiff's motorcycle could not avoid colliding into the rear of the car driven by the first defendant.
[6] The first defendant on the other hand claimed that she travelling from Menara AmBank to Jalan Yap Kwan Seng, where upon reaching Jalan Tun Tan Cheng Lock, whilst she was driving in the middle lane, and was slowing down to stop at the traffic lights which had turned red, the motorcycle ridden by the first plaintiff suddenly knocked into the rear of her car.
The Verdict Of The Trial Court
[7] The learned Magistrate at the conclusion of the trial of the first suit apportioned liability equally at 50% against the first plaintiff and 50% against the defendants. In respect of quantum, the Court awarded (on a 50% liability basis) general damages of RM29,000.00 and special damages of RM27,505.50.
[8] In relation to the other suit instituted by the second plaintiff (pillion rider) against the same defendants, having determined liability of the first plaintiff and the defendants to be at 50%:50%, the learned Magistrate decided to award a quantum on 100% in favour of the second plaintiff being the pillion rider who was considered as an innocent bystander. The sum of RM73,000.00 was awarded as general damages and RM9,000.00 as special damages.
[9] The defendants were dissatisfied with these decisions. The defendants appealed. Hence the proceedings now before me.
The Principal Grounds Of Appeal
[10] The appeal is essentially attacking the findings which favoured the version of the plaintiffs. The defendants instead argued
