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2024 MarsdenLR 1852
SESSIONS COURT SEPANG
AHMAD FARHAN AHMAD GHAZALI – Appellant
Versus
TAI SIEW MOI & ANOR – Respondent
[Summons No: BK-A53KJ-220-10/2021]
The burden of proof in negligence claims lies with the plaintiff, who must establish liability while also accounting for any contributory negligence.
Headnote:(A) Evidence Act 1950 - Section 102 - Road Transport Act 1987 - Section 48(1) - Personal injury claim from a road traffic collision - Plaintiff suffered multiple injuries and claimed damages against both defendants - Court found second defendant negligent and first defendant vicariously liable, but plaintiff also contributed to negligence, reducing award by 10%. (Paras 1-3, 120)
(B) Liability - The burden of proof lies on the plaintiff to establish negligence - Court examined conflicting versions of the accident and determined the more probable scenario based on evidence and witness testimonies. (Paras 9-30)
(C) Quantum - Awards for damages must be fair and reasonable, guided by compendium and previous cases - Court allowed claims for specific injuries and expenses while dismissing others for lack of evidence. (Paras 42-119)
Facts of the case:
The plaintiff was involved in a collision with a four-wheel drive vehicle driven by the second defendant, resulting in multiple injuries. The plaintiff claimed damages against both defendants, asserting full liability on them. (Paras 1-4)
Findings of Court:
The court found the second defendant negligent and imposed vicarious liability on the first defendant, but also determined that the plaintiff was 10% contributory negligent, leading to a reduction in the damages awarded. (Paras 120)
Issues: The primary issues were the determination of liability between the parties and the assessment of damages for the plaintiff's injuries. (Paras 4, 120)
Ratio Decidendi: The court ruled that the plaintiff bore the burden of proof regarding negligence, and after evaluating the evidence, concluded that the second defendant's actions were negligent while also recognizing the plaintiff's contributory negligence. (Paras 9-30, 120)
Result: The court awarded damages to the plaintiff, reduced by 10% for contributory negligence, along with interest and legal costs. (Paras 120, 121)
JUDGMENT
A) Introduction
[1] This is a personal injury claim arising from a road traffic collision between the plaintiff (SP3) and the second defendant (SD1). The first defendant was the owner of a four-wheel drive Hilux driven by the SD1. The SP3 suffered multiple injuries in the said collision. SP1 claimed damages against both defendants before this court.
[2] I have striven to consider all evidence in context, had close regard to the consistency of witnesses' testimonies and the reliability of the documentary records produced before this court. I find that SP3 has proven his case on the balance of probability against the defendants. I allow the SP3's claim for general damages, special damages, the costs for documents and interests.
[3] I find that the SD1 was negligent and breached his duty of care towards SP3 and the first defendant being the owner of the Hilux driven by the SD1 is vicariously liable. It is my considered finding that SP3 also contributed to the negligence and therefore, the award for the SP3 should, accordingly be reduced by 10%. SP3 did not file any appeal against the decision of this court.
[4] However, the defendants were dissatisfied with this court's findings on liability and quantum. They are now appealing on the same before the High court. The reasons for my findings on liability and quantum are explained below.
B) Key Background Of Facts
[5] For the completeness of this judgment, suffice for me to narrate the facts of this case in brief based on what had been presented by both parties. Some of the facts however, will emerge later in the analysis section as they would be better understood when mentioned in such fashion.
[6] On 22 February 2019 around 10.00 am, SP3 and SD1 were travelling in their respective vehicles along Jalan Baru Dengkil towards Kota Warisan, Sepang. SP3 was riding on his motorcycle bearing registration number WYN 8846 and SD1 was driving a four-wheel drive Hilux bearing registration number W718C (Hilux) owned by the first defendant. SP3 and SD1 were travelling straight in the same direction along the same stretch of road.
[7] It was undisputed that SP3 had collided into the rear end on the Hilux driven by SD1. However, both parties had presented a diametrically opposing versions about how the collision happened. The opposing versions led the Assistant Investigation Officer (SP1) to classify this case as Refer to Magistrate (RTM). I shall elaborate further in the succeeding paragraphs.
[8] SP3 insisted this court to impute 100% liability on the defendants for this accident. Whilst the defendants proposed for equal liability on both parties because this collision had been classified as RTM by SP1.
C) Analysis By This court
i) Liability
[9] I have considered all testimonies given by the witnesses and exhibits tendered before this court to determine the liability and quantum of this case. Throughout the trial, four witnesses were called to give evidence namely:
i) SP1 Sargeant Mohd Shukri Fadzil bin Senek Assistant Investigating Officer (AIO) ii) SP2 Umira Syafiqah Binti Hairudin Clerk at Bunga Serai Corporation iii) SP3 Ahmad Farhan bin Ahmad Ghazali Plaintiff iv) SD1 Chong Chee Kang Second Defendant
[10] Documents tendered and admitted by this court as exhibits were:
i) Exhibit P1 Sketch Plan Bundle B, p 91 ii) Exhibit P2 (a-i) 9 pictures of the accident taken by the SP1 Bundle B, p 86-90 iii) Exhibit P3 Findings of the accident issued by SP1 Bundle B, p 92 iv) Exhibit P4 Letter from Bunga Serai Corp giving authority to SP2 to give evidence in court Tendered by SP2 during trial v) Exhibit P6 Letter from Bunga Serai to SP3's Solicitor Bundle B, p 39 vi) Exhibit P7 SP3's police report Bundle B, p 94 vii) Exhibit D1 Second Defendant's police report Bundle B, p 93
[11] There were two versions presented by both parties on how the collision happened.
(i) First Version: The first version was presented by SP3. According to SP3, he was riding on his motorcycle in the motorcycle lane along Jalan Baru Dengkil towards Kota Warisan.
