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HIGH COURT MALAYA JOHOR BAHRU
TABARANI MOHD ARSAD & ANOR – Appellant
Versus
CHAN TENN YEU – Respondent
[Civil Appeal No: 12-17-1997]
Introduction
[1] On 23 May 1993 at about 11.30am an accident occurred between motorcycle no: JCW 4944 ridden by Chan Tenn Yeu - the respondent plaintiff and motorlorry no: JAW 4621 driven by Tabarani Bin Mohd Arsad - the first appellant defendant as the servant or agent of Mohd Nasir bin Sampuro (T/A Mohd Nasir Enterprise) - the second appellant defendant. The learned sessions court judge ("trial court") apportioned the first appellant defendant's liability at 75% while the respondent plaintiff's blame was listed at 25%. On the basis of 100% liability, the trial court awarded general damages for the following injuries:
(1) Multiple abrasions and lacerations and degloving injury at RM5,000.
(2) Compound fracture of calcaneum and fracture of navicular and disabilities at RM15,000.
(3) Multiple scars and skin grafting at RM10,000.
[2] The sum total came up to RM30,000 and with 10% overlapping the figure as computed by the trial court came up to RM27,000. The trial court too awarded an agreed special damages at RM1,542 and it further awarded RM2,896 as the costs of the specialist treatment. The parties were unhappy with the decision of the trial court. The appellants, who were the defendants before the trial court, appealed in regard to the liability; while the respondent, who was the plaintiff before the trial court, cross-appealed in regard to the quantum of damages.
[3] There were two versions of the accident. One version came from the respondent plaintiff himself while the other version was that of the first appellant defendant. The trial court fell in error when it approached the case solely on the basis of deciding which story to be believed. When confronted with two conflicting versions, the duty of the trial court was to consider which version was inherently probable or improbable. The trial court should have been more meticulous and considered other probable versions provided they were within the scope and ambit of the pleadings and supportable by admissible evidence including the neutral ones. This approach provides a wide leverage for the trial court to manoeuvre bearing in mind, always, the testimony of the credible witnesses. Spenser Wilkinson J castigated the magistrate in Koay Teik Choo & Ors v. Reg, [1956] MLJ 52, for approaching the case upon the basis of which of the two conflicting stories he should believe. His Lordship remarked at p 53 of the report that:
One of the dangers of this approach is that it leaves entirely out of account the possibility (which in my opinion existed in a very high degree in the present case) that what has really been proved is something between the two stories.
[4] In Noorianti Zainol Abidin & Ors v. Tang Lei Nge, [1990] 2 MLJ 242, Lim Beng Choon J had occasion to say that the trial judge should not approach the case on the basis of deciding which story out of the conflicting stories that should be believed, but rather to consider which version was inherently probable or improbable. All things being equal, it is trite law that if the version of one of the parties is inherently probable, then the judge has no choice but to accept that version forthwith (Chua Chong Cher v. Teo Lang Keow & Ors; [1970] 2 MLJ 27).
[5] The principles governing the duties of an appellate court have been crystallised in a number of authorities. Foremost would be the decision of the House of Lords in Watt or Thomas v. Thomas [1947] AC 484, where Lord Thankerton at p 487 to p 488 succinctly said:
"I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus: I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of h
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