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2023 MarsdenLR 151
COURT OF APPEAL PUTRAJAYA
TANG LOON PAU & ORS – Appellant
Versus
MOHD SALIHIN KOTNI & ANOR – Respondent
[Civil Appeal No: B-04(W)115-03-2021]
The burden of proof in negligence claims remains with the Plaintiff, regardless of the Defendant's failure to present evidence, and the insurer can appeal findings of liability even if the insured does not.
Headnote:(A) Civil Law Act 1956 - Section 7(3)(A) - Road Transport Act 1987 - Section 96(1) - Appeal regarding liability in negligence for motor vehicle accident - High Court found that Plaintiffs failed to prove on a balance of probabilities that the motorcar was involved in the accident - The SCJ's conclusion that the Defendants were 100% liable was erroneous due to lack of evidence supporting Plaintiffs' claims - Insurer's right to appeal against findings of liability upheld despite insured not appealing. (Paras 9, 18, 45, 46)
(B) Burden of Proof - It remains with the Plaintiff to prove their case even if the Defendant submits no case to answer - The absence of evidence from the Defendant does not shift the burden of proof to the Defendant. (Paras 19, 36)
Facts of the case:
This appeal arose from a motor vehicle accident on 2 September 2015 involving a motorcycle and a motorcar. The Plaintiffs claimed damages for injuries and bereavement, alleging both Defendants were liable. The SCJ found the Defendants 100% liable, which was appealed by the insurer. (Paras 1, 6)
Findings of Court:
The High Court determined that the Plaintiffs did not discharge their burden of proving the motorcar's involvement in the accident, thus overturning the SCJ's ruling of liability. (Paras 45, 46)
Issues: The main issues were whether the SCJ appropriately assessed the evidence regarding the motorcar's involvement and whether the Plaintiffs met their burden of proof. (Paras 18, 19)
Ratio Decidendi: The court held that the Plaintiffs failed to prove the motorcar's involvement in the accident, stating that the burden of proof lies with the Plaintiffs, and the absence of the Defendant's evidence does not shift this burden. (Paras 19, 36)
Result: Appeal dismissed; High Court's judgment affirmed.
| Table of Content |
|---|
| 1. factual background of the case. (Para 1 , 2 , 3 , 4 , 6) |
| 2. overview of the appeal process. (Para 7 , 8) |
| 3. evidence regarding the alleged accident. (Para 9 , 10 , 11 , 12 , 13) |
| 4. court's initial findings on liability. (Para 14 , 15 , 16 , 17) |
| 5. high court's analysis of the scj's findings. (Para 18 , 19 , 20 , 21) |
| 6. arguments regarding insurer's liability. (Para 22 , 23 , 24 , 25 , 26) |
| 7. key legal questions framed for determination. (Para 27 , 28 , 29 , 30) |
| 8. discussion on insurer's rights and obligations. (Para 31 , 32 , 33 , 34) |
| 9. conclusion on insurer's liability based on evidence. (Para 35 , 36 , 37) |
| 10. historical context and legal precedents. (Para 38 , 39 , 40 , 41 , 42) |
| 11. final ruling and affirmation of the high court's decision. (Para 43 , 44 , 45) |
| 12. outcome of the appeal. (Para 46) |
Introduction
[1] This is an appeal by Tang Loon Pau (1st Plaintiff - "P1") and all the dependants of the late Mdm Tan Kiok Sit ("the Deceased") (collectively, "the Plaintiffs") against the decision of the learned Judge of the High Court ("the Judge") dated 13 August 2020 in allowing the appeal by Pacific & Orient Insurance Co Berhad (No. Syarikat: 12557-W) (2nd Defendant- "D2") against the decision of the Sessions Court Judge ("SCJ") dated 17 September 2019 in Klang Session Court Suit No: BL-A53KJ-199-05/2018 ("Suit 199") which held that Mohd Salihin Kotni ("D1") and D2 were 100% liable for the claim in negligence in respect of a motor vehicle accident that took place at KM 59, Jalan Klang, Teluk Intan, Kuala Selangor on 2 September 2015, which involved motorcycle No BMB 5813 ("the motorcycle") and (allegedly) motorcar No WLD 9999 ("the said motorcar").
[2] The Plaintiffs' pleaded case is that the rider of the motorcycle was P1 and that the Deceased was riding pillion. D1 and D2 shall be referred to collectively as "the Defendants". Whilst there is not much dispute that there was an accident involving the motorcycle, there is however an issue in regards to whether the said motorcar was in fact involved. As such, we shall refer to the said event as "the alleged accident".
[3] D1 was the registered owner of the said motorcar and D2 was the insurer of the said motorcar at the material time. The claim against the Defendants was for general damages for injuries suffered by P1 as a result of the alleged accident, damages for bereavement under s 7(3)(A) of the Civil Law Act 1956 for the 2nd-6th Plaintiffs as the husband and children of the Deceased and special damages. Initially, Suit 199 was only against D1 as the sole defendant. However, D2 intervened and was added as a Co-Defendant.
[4] D2's defence was that the said motorcar was not involved in the alleged accident and that there were elements of fraud in the Plaintiffs' claim against D1. D2 had pleaded that D1 collaborated with the Plaintiffs to put up a fraudulent claim in order to get damages, albeit that the said motorcar was not involved in the accident.
[5] D1 was initially represented by solicitors who were appointed by D2. Later the solicitors were asked to discharge themselves and D1 was left unrepresented. D1 did not participate in the trial. It was only D2 which took an active part in the trial before the Sessions Court.
[6] After a full trial, the SCJ found the Defendants to be 100% liable for the accident and awarded the Plaintiffs general damages in the sum of RM33,750.00, bereavement in the sum of RM10,000.00, and special damages in the sum of RM135,287.00.
The Appeal To The High Court
[7] D1 did not appeal but he was a party to the proceedings in the High Court and before the Court of Appeal as well. D2 appealed to the High Court via Notice of Appeal dated 20 September 2019 which read as "merayu kepada Mahkamah Tinggi Shah Alam terhadap keseluruhan keputusan, iaitu atas isu Liabiliti dan Kuantum atas alasan bahawa: Defendan Kedua bertanggugan cuai liabiliti sebanyak 100%,...". The High Court allowed D2's appeal.
[8] The crux of the High Court's de
