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2010 MarsdenLR 2299
COURT OF APPEAL PUTRAJAYA
ANNAMALAY RETNAM – Appellant
Versus
MAH CHONG PENG & ANOR – Respondent
[Civil Appeal No: B-04-200-2004]
The court emphasized the importance of evidence evaluation by trial judges and clarified that a charge under section 43(1) is not an admissible admission without a guilty plea.
Headnote:(A) Road Transport Act 1987 - Section 43(1) - Liability in motor vehicle accident - The trial judge found the defendant wholly liable. The High Court set this aside, indicating 80% contributory negligence of the plaintiff, which the appellate majority reversed - Emphasis on the importance of evidence evaluation by the trial judge noted. Contributory negligence assessed under legal principles relating to police reports as relevant evidence. (Paras 1-4, 6-12, 16-30, 66-107)
(B) Admissibility of evidence - Evidence of a charge under s 43(1) without a guilty plea not admissible as an admission - Potential misconduct regarding the procedural handling of the charge - The relevance of the first information report properly articulated by dissenting opinion. (Paras 17, 18, 20-30, 106-119)
Facts of the case:
Accident on 8 December 1995 involving the plaintiff's motorcycle and a defendant's motor lorry - Plaintiff claimed defendant's negligence in overtaking resulted in collision - Police report and testimonies established the accident dynamics, but discrepancies in account noted.
Findings of Court:
The High Court's apportionment of negligence was flawed; the trial court's consistent findings upheld by majority view - Evidence handling emphasized the inherent right of trial courts to evaluate facts.
Issues: Was the High Court correct in finding contributory negligence on part of the plaintiff? Did the trial judge appropriately consider all evidence?
Ratio Decidendi: Court reaffirmed trial judge’s privilege in assessing witness credibility and evidence weight, urging careful approach to factual determinations - The most recent evidence, including police and witness statements, must be given due evidence treatment, especially regarding negligence assessments - In absence of a guilty plea, evidence related to s 43(1) did not signify admission but must be substantively evaluated.
Result: Appeal allowed; trial court's findings reinstated.
| Table of Content |
|---|
| 1. overview of liability decisions between courts. (Para 1 , 2) |
| 2. description of the accident and circumstances. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 3. arguments regarding admissibility of charges. (Para 18 , 19 , 20) |
| 4. court's reasoning on evaluating evidence. (Para 32 , 66 , 70) |
| 5. discussion on evidence's relevance to liability. (Para 110 , 119) |
Appeal
[1] Parties are referred to in their capacities as in the trial court, ie, the sessions court. The trial concerns a motor vehicle accident. The learned sessions court judge ("the trial judge") found the defendant wholly liable to the plaintiff ("the sessions court decision").
[2] On appeal, the learned High court judge set aside the sessions court decision, and substituted it with an order that there was 80% contributory negligence on the part of the plaintiff and 20% negligence on the part of the defendant ("the High court decision").
[3] This is the plaintiff's appeal against the High court decision. It revolves around the issue of liability only. Heliliah bt Mohd Yusof JCA (now FCJ) and I had, by a majority, allowed the appeal, set aside the High court decision and affirmed the sessions court decision. Abdul Malik Haji Ishak JCA delivered a dissenting judgment.
[4] We now give the grounds of the majority judgment.
Factual Background
[5] The trial judge's finding of facts may be unfolded in the following narrative.
[6] The accident occurred on 8 December 1995.
[7] In his police report, the plaintiff stated that he was on his right of way on the left side of the road facing north, from Kuala Lumpur to Ipoh. On approaching the Serendah Emkay Golf Course, the defendants' motorlorry bearing registration No ABM 7059 suddenly emerged from the opposite direction and overtook a motorcar, the registration number of which the plaintiff could not remember. The motorlorry collided into the plaintiff, as a result of which the plaintiff sustained fracture of his right hand and leg. He was treated in the Kuala Lumpur Hospital for about a month. His motorcycle was drastically damaged.
[8] In essence, the plaintiff pleaded in his statement of claim that the defendant has overtaken a vehicle in front of him and encroached onto the plaintiff's proper side of the road and then the collision took place.
[9] The plaintiff's police report and pleadings were consistent. His evidence has also established the same version, ie, the defendants' motorlorry overtook a motorcar and collided into him on his side of the road.
[10] The sketch plan and the key thereto supported the plaintiff's version that the collision had taken place on the plaintiff's side of the road, as all the glass fragments, blood spots, broken motorcycle parts and the motorcycle are on the plaintiff's side of the road.
[11] In his evidence, the investigating officer described the damage to the plaintiff's motorcycle as "tayar hadapan pecah dan bocor, fork depan bengkok, roda depan bengkok, handle depan bengkok, lampu besar depan pecah dan pecah lampu belakang" ("front tyre was broken and leaking, front fork was bent, front wheel, front handle, front headlight and rear lamp were broken").
[12] The investigating officer also testified that the front right mudguard of the motorlorry was scratched and slightly dented. The broken glass is from the headlight and the tail light of the plaintiff's motorcycle.
Plaintiff's Version
[13] Having regard to the plaintiff's police report, pleading, and evidence, as well as the investigating officer's sketch plan and the key thereto, in particular the markings in relation to the broken glass, the trial judge had justifiably accepted the plaintiff's version as more probable. It is an established principle that the position where the broken glass was found would probably indicate the point of impact: per Abdoolcader J (later SCJ) in Yahaya bin Mat & Anor v. Abdul Rahman bin Abu, ; [1982] CLJ (Rep) 363 FC; and per VC George J in Loh Chee Keong v. Syarikat Bee Huat Sdn Bhd & Anor; [19
