Low Hop Bing J:

On 1 August 1995, the learned sessions court judge in Shah Alam gave judgment for the plaintiff in the sum of RM22,000 by way of general damages and RM300 by way of special damages. The learned sessions court judge held that the defendants were 10% liable for the accident in question and since the plaintiff was an innocent passenger at all material times, the plaintiff was entitled to damages on a 100% basis, ie the defendants were 100% liable for the plaintiff's claim. The award, viz, RM22,000 for general damages and RM300 for special damages were indeed based on 100% liability. The defendants (the appellants) appealed against the whole of the said decision.

The Issue

The appeal herein involves a pure question of law, ie whether the plaintiff, as the registered owner of the car in which he was travelling with his son as the driver and which was involved in the accident, is an innocent passenger and so is entitled to damages on a 100% basis?

Undisputed Facts

The plaintiff was the registered owner of and a passenger in motor car No BW 6197 at the time of the accident on 29 September 1991. The driver was the plaintiff's son who was authorised by the plaintiff to drive the said car. The first defendant was the registered owner of motor car No BCD 23 at all material times, which was driven by the second defendant as the first defendant's servant and/or agent. On the said date, a collision occurred between these two motor cars.

The Defendants' Submission

It was submitted for the defendants that since the plaintiff was the registered owner of motor car BW 6197 and that his son (SP2) was driving the said motor car with the authority of the plaintiff - who was seated in the front passenger seat beside SP2 - the plaintiff had control over the conduct of SP2.

Further, the journey undertaken by the plaintiff and SP2 was for a common purpose, ie to return from Kuantan to their house at 76 Lorong 6/30, 46000 Petaling Jaya. Hence, the plaintiff is vicariously liable for the negligence of the driver, SP2. Since the learned sessions court judge apportioned 10% liability on the part of the defendants, it would follow that SP2, the driver of the plaintiff's car, was 90% liable. Therefore, the plaintiff as the registered owner of the car and the principal of SP2 is vicariously liable for the negligent driving of SP2, to the extent of 90%, in which event there should be a proper apportionment of liability.

The Plaintiff's Submission

It was submitted for the plaintiff that the defendants have neither specifically pleaded the issue of vicarious liability in the statement of defence nor raised this issue prior to the appeal herein. Further, the defendants have failed to add SP2 as a co-defendant or a third party to these proceedings. In any event, the plaintiff was an innocent passenger and as such he could not be held vicariously liable for the negligence of SP2.

Decision Of The Court

The issue to be decided has been formulated above. The question as to whether a person is an innocent passenger is one of mixed law and fact. Once a person has proved that he is an innocent passenger, he is entitled to a claim based on 100% liability. It is the personal prerogative of the innocent passenger to sue the negligent party responsible for causing damage or injury to him in the accident.

In Oli Mohamed V. Keith Murphy & Anor. [1969], the plaintiff was the owner of premises known as No 196, Bencoolen Street, Singapore. On the day of the accident, the first defendant drove his car and the second defendant drove his taxi so negligently, thereafter ran into, collided with and damaged the plaintiffs premises. The collision took place at an intersection, whereby both vehicles went off the road and hit the plaintiff premises. Choor Singh J of the Singapore High Court held that as the plaintiff is an innocent third party, it is enough for him to prove negligence against the second defendant even if it is not the whole of the negligenc