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2011 MarsdenLR 1510
HIGH COURT MALAYA, JOHOR BAHRU
MOHD ASRUL FANDI TAKAYU – Appellant
Versus
SAZALEE YUNUS & ANOR – Respondent
[Civil Appeal No. 12B-83-2011]
The court determined that a trial judge must avoid speculative conclusions about liability and damages, and ensure calculations reflect accurate assessments of earnings and contributions.
Headnote:(A) Liability and quantum in negligence cases - A plaintiff's motorlorry was struck by the defendant's motorlorry, leading to serious damage but not necessarily indicative of speeding or negligence - The trial court's finding of 15% contributory negligence was deemed speculative and unsupported by evidence, resulting in the defendant being wholly liable for the accident. (Paras 1-10)
(B) Quantum - The evaluation of damages is based on principles outlined in previous case law; no errors were found in the loss of earnings calculation, while the award for future earnings should exclude the wife's income, leading to a total future loss adjustment of RM112,000.00 and an additional RM12,800.00 for loss of bonus. (Paras 11-16)
Facts of the case:
The plaintiff was involved in a collision caused by the defendant's motorlorry encroaching into the plaintiff's lane without warning, resulting in significant damage.
Findings of Court:
The Sessions Court Judge's liability finding was overturned, placing full liability on the defendant; adjustments to quantum were also suggested based on considerations of loss of earnings and bonuses.
Issues: Did the trial court correctly apportion liability and calculate damages in accordance with legal principles?
Ratio Decidendi: The court ruled that speculative inferences without evidence cannot dictate findings; liability shifts entirely to the defendant when such evidence is absent.
Result: Appeal allowed in part with costs, liability found entirely on the defendant, and specific adjustments to the quantum of damages stated.
| Table of Content |
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| 1. defendant's full liability established. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8) |
| 2. scj's findings on contributory negligence are unsupported. (Para 9 , 10) |
| 3. principles of quantum established from topaiwah case. (Para 11 , 12) |
| 4. scj's calculations on loss of earnings found consistent. (Para 13 , 14) |
| 5. scj's errors in loss of future earnings and bonuses. (Para 15) |
1. It is not disputed that on the day of the accident the plaintiff was driving his motorlorry along the rightful traffic lane when the defendant's motorlorry suddenly encroach into the plaintiff's path and collided into the plaintiff's motorlorry.
2. The accident happened without any prior warning.
3. The fact that the plaintiff's motorlorry sustained serious damage did not necessarily indicate that the plaintiff's motorlorry was speeding.
4. It is to be expected that when 2 motorlorries collide head-on, the damages will be serious as both motor vehicles are big and heavy motor vehicles and the combined forces of the impact would have been very substantial.
5. Secondly, the fact that there was no brake marks also does not necessarily mean that the plaintiff failed to keep a proper lookout.
6. The plaintiff testified that he applied his brakes but to no avail.
7. The absence of brake marks is not conclusive proof that the plaintiff failed to apply his brakes.
8. In the circumstances in which the defendant's motorlorry suddenly encroached into the plaintiff's traffic lane, the plaintiff had very little time to respond.
9. Thirdly, the SCJ's opinion that had the plaintiff been driving on the left lane, the accident could have been avoided. With respect, this view cannot be supported by any account as it is purely speculative and ignores the material evidence on the cause of the accident. In addition, there is also no evidence from the investigation officer to support any of the inferences drawn by the SCJ.
10. By reason of the foregoing, it is clear that the SCJ had misdirected himself on the law and the evidence in finding the plaintiff 15% contributory negligent.
Accordingly, the SCJ's finding on liability is set aside. The Court finds that the defendant is wholly liable for the accident.
Quantum
11. The guiding principle when considering an appeal on quantum has been clearly enunciated in Topaiwah case - to justify an inteference, it must be shown that the trial judge must have acted on some wrong principle of law, or that the amount awarded was such sum as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled.
12. The appeal relates to 2 main items - (i) loss of earnings, and (ii) loss of future earnings.
(i) Loss of earnings
13. The plaintiff contended that the SCJ should have awarded loss of earnings for a period of 12 months from 1.7.2008 to 3.6.2009. Instead of deducing RM300.00 for cost of living allowance at RM10.00 a day, the SCJ ought to have only deducted RM250.00 as the plaintiff was off once a week with a half day on Saturdays.
14. In this case, the plaintiff was on medical leave for 10 months; the SCJ allowed a period of 6 months after deducting 4 months during which the plaintiff received his monthly salary.
There is nothing to indicate that the SCJ acted on any wrong principle of law in making the award for loss of earnings.
(ii) Loss of future earnings
15. On this point, the SCJ erred when he took the wife's earnings into account when calculating the plaintiff's loss of future earnings. Adjusting for that factor, the future loss of earnings should be calculated at RM700.00 x (192 - 32 months) = RM112,000.00
