A claimant's lack of a valid driving license, road tax, or insurance does not automatically equate to contributory negligence affecting their right to claim damages for injuries sustained in a vehicle accident.

Mohd Nazlan Mohd Ghazali JCA:

Introduction

[1] The primary focus of this appeal is on the question whether contributory negligence or additional liability ought to fasten on a motorist who suffers injuries in a motor vehicle accident caused by the negligence of another, and whether the former ought not to be entitled to relief, in whole or in part, if at the time of the accident, he did not hold a valid licence to ride a motorcycle which also had no road tax and no policy of insurance against third party risks.

Key Background Facts

[2] This claim for general and special damages, filed at the Sessions Court, was brought by the appellant herein, as the plaintiff at the trial Court, who suffered injuries when the motorcycle he was riding on was involved in an accident with a motorcar driven and owned by the respondent (defendant) at KM 8, Jalan Changkat Jong, Teluk Intan, Perak on 15 December 2017.

[3] The Sessions Court apportioned liability between parties at 70% against the respondent for being responsible for the collision and 30% against the appellant, for contributory negligence. The Sessions Court also allowed the appellant's claim for, among others, loss of future earnings of RM192,000 (with a multiplicand of RM1,000) and actual loss of income of RM28,333.30 (after a one-third deduction from RM2,500).

[4] Following an appeal and cross appeal on both liability and quantum the High Court affirmed the findings on liability in part as well as revised that on quantum.

[5] Significantly, the learned Judicial Commissioner of the High Court ("the learned JC") decided to impose an additional 30% contributory negligence on the appellant, on account of the appellant riding without a valid driving licence, road tax and insurance at the material time. This resulted in a considerable revision in the apportionment of liability between the respondent as the tortfeasor and the appellant, from 70%:30% to 40%:60%.

[6] The matter did not unexpectedly end there, for parties have now taken up their dispute before us, with both appealing and cross-appealing again on liability and the same items on quantum.

Principles Of Appellate Intervention

"[14] In our view, the Court of Appeal in citing these cases had clearly borne in mind the central feature of appellate intervention, ie to determine whether or not the trial Court had arrived at its decision or finding correctly on the basis of the relevant law and/or the established evidence. In so doing, the Court of Appeal was perfectly entitled to examine the process of evaluation of the evidence by the trial Court. Clearly, the phrase 'insufficient judicial appreciation of evidence' merely related to such a process. This is reflected in the Court of Appeal's restatement that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. The Court of Appeal further reiterated the principle central to appellate intervention, ie that a decision arrived at by a trial Court without judicial appreciation of the evidence might be set aside on appeal. This is consistent with the established plainly wrong test."

[8] Thus in the case of Kerajaan Malaysia v. Global Upline Sdn Bhd & Another Appeal, [2017] 1 MLJ 170 the Court of Appeal held that an appellate Court will not intervene unless the trial Court is shown to be plainly wrong in arriving at its conclusion and where there has been insufficient judicial appreciation of the evidence.

[9] In the leading case of Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors, 202