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2025 MarsdenLR 4670
MAGISTRATE COURT KUALA LUMPUR
JAMES DIVIT – Appellant
Versus
CHO CHUN CHOONG – Respondent
[Case No: WA-A73KJ-386-03/2024]
Both parties contributed to the road accident, leading to a 50:50 apportionment of liability and a corresponding reduction in damages awarded to the Plaintiff.
Headnote:(A) Road Traffic Rules 1959 - Rule 5 - Negligence - Liability in road accidents - The Plaintiff and Defendant were involved in a motorcycle-car collision, with conflicting accounts of the accident's cause. The Court found both parties contributed to the accident, apportioning liability equally at 50:50. The Plaintiff's claim for damages was reduced accordingly. (Paras 27, 42, 57)
(B) Negligence - Onus of proof - The Plaintiff must establish negligence on the part of the Defendant, which was discussed in Che Pah Itam v. Chang Bek Lee; [1998] 4 CLJ 517 and Wong Thin Yit v. Mohamed Ali; [1971] 2 MLJ 175. (Paras 6, 7)
(C) Contributory Negligence - The principle applies when both parties contribute to an accident, as established in Zurich Insurance Malaysia Berhad v. Satesh Kumar Johnson & Ors [2021] 1 PIR 526 and Mohd Shahril Abdul Rahman v. Ahmad Zulfendi Anuar; [2021] 12 MLJ 36. (Paras 38, 39)
Facts of the case:
The Plaintiff was riding a motorcycle when the Defendant made a left turn, leading to a collision. The Plaintiff claimed damages for injuries and vehicle damage, while the Defendant argued the Plaintiff was at fault for attempting to overtake from the left. (Paras 1-3)
Findings of Court:
The Court found both parties equally liable for the accident, leading to a 50% reduction in the Plaintiff's damages claim. The Plaintiff was awarded RM6,000.00 in general damages after apportionment. (Paras 42, 57)
Issues: The main issues included determining liability, the credibility of witness testimony, and the quantum of damages. (Paras 4)
Ratio Decidendi: The Court ruled that both parties contributed to the accident, with the Plaintiff's actions constituting contributory negligence, thus justifying the apportionment of liability. (Paras 27, 42)
Result: The Plaintiff is awarded RM6,000.00 in damages.
Key Points: - The case involves a motorcycle-car collision where both parties contributed to the accident, leading to a 50:50 apportionment of liability (!) (!) (!) . - The Plaintiff must establish negligence on the part of the Defendant in accident matters (!) (!) . - The principle of contributory negligence applies when both parties contribute to an accident, justifying a proportional reduction in damages (!) (!) (!) . - The Plaintiff's claim for general damages was awarded RM12,000.00 before apportionment (!) (!) . - After a 50% reduction due to contributory negligence, the Plaintiff was awarded RM6,000.00 in general damages (!) (!) (!) . - The Plaintiff failed to produce sufficient evidence to justify an award for special damages, and therefore, none were granted (!) (!) (!) . - No award was made for future medical costs due to a lack of medical evidence supporting the necessity of future treatment (!) (!) (!) . - The Defendant lodged his police report within two hours of the accident, while the Plaintiff lodged his two months later, impacting the credibility of the Plaintiff's version (!) (!) (!) . - Damage to the rear left side of the Defendant's car suggested the Plaintiff was in motion and potentially overtaking from the left at the time of impact (!) (!) (!) (!) (!) (!) . - The Plaintiff admitted to not possessing a valid motorcycle license at the time of the accident (!) .
What is the apportionment of liability in road accidents when both parties contribute to the incident?
What is the onus of proof in negligence cases?
What are the requirements for proving special damages in a legal claim?
JUDGMENT
1. Introduction
[1] This case pertains to a road accident involving a motorcycle (BLC 3038) ridden by the Plaintiff and a car (JUQ 811) driven by the Defendant. The accident took place on 18 August 2023 at Jalan Pahang. The Plaintiff asserts that the Defendant made an abrupt left turn without signalling, resulting in a collision. Conversely, the Defendant argues that the Plaintiff attempted to overtake from the left, thereby violating r 5 of the Road Traffic Rules 1959.
[2] According to the Plaintiff, he was traveling in the left lane when the Defendant, driving in the same direction, suddenly turned left without checking for oncoming traffic. As a result, the Defendant's vehicle collided with the Plaintiff's motorcycle, throwing him off and causing injuries. The Plaintiff maintains that the Defendant's failure to signal and ensure a safe turn was the primary cause of the accident.
[3] On the other hand, the Defendant contends that the Plaintiff was riding at an excessive speed and attempted to overtake from the left, contributing to the collision. The Defendant asserts that he was executing a lawful turn when the Plaintiff, in negligence, tried to manoeuvre past him, leading to the accident. The Plaintiff claims against the Defendant for:
a) General damages;
b) Interest on general damages at a rate of 5% per annum from the date of the filing of the writ until full settlement;
c) Special damages;
d) Interest on special damages at a rate of 2.5% until the date of judgment and thereafter at a rate of 5% until full settlement;
e) Costs to be assessed based on the terms as ordered by this Honourable Court ;
f) Any other relief or order deemed appropriate and just by this Honourable Court .
[4] The Investigating Officer, Sergeant Muhammad Hafiz bin Arifin, classified this case as "RTM" (Refer to Magistrate), indicating that no criminal charges were pursued against either party. Consequently, the Court must consider the following key issues:
(a) Liability - Which party is responsible for the accident?
(b) Credibility of Witnesses - Is the testimony of the Investigating Officer (SP1) admissible as valid evidence?
(c) Quantum of Damages - The amount of compensation to be awarded.
2. Court Documents Referred
A - Ikatan Pliding
B - Ikatan Dokumen Plaintif
C - Ikatan Dokumen Yang Dipersetujui [I]
D - Ikatan Dokumen Yang Tidak Dipersetujui Bahagian [III]
E - Ikatan Dokumen Defendan
F - Ikatan Dokumen Plaintif Tambahan
3. Witnesses Called
[5] The following witnesses were called in this case:
Plaintiff's Witnesses:
a) Sergeant Muhammad Hafiz bin Arifin (SP1)
b) James A/L Divit (SP2)
Defendant's Witnesses: The Defendant did not call any independent witnesses but relied on documentary evidence such as the police report and photographic evidence.
4. Analysis And Findings Of The Court
4.1 Liability
[6] Under Malaysian law, every road user owes a duty of care to others to drive safely and avoid causing harm. The principle of negligence is established when a party fails to exercise reasonable care, resulting in damage or injury. In accident matters, the Plaintiff must establish negligence on the part of the Defendant. This principle was clearly set out in the High Court case of Che Pah Itam v. Chang Bek Lee ; , where the Court held:
"It is trite law that the onus of proving negligence lies on the plaintiff."
[7] Similarly, in Wong Thin Yit v. Mohamed Ali ; , Ong CJ (as he then was) further emphasised:
"In a negligence action, the onus of proof rests wholly on the plaintiff, whether or not the defendant gives evidence. The plaintiff cannot succeed without proof of the defendant's negligence."
[8] In determining liability for this accident, the Court must assess the duty of care owed by both parties, the sequence of events leading to the collision, and whether either party failed to observe traffic regulations. Both parties have provided conflicting versions of events, supported by documentary and testimonial evidence, including police
