Negligence requires proof of liability beyond mere absence of a driving license; failure to plead material facts can be fatal to a defense.

Shairil Farhana Ruslan M:

A. Background Facts

[1] The Plaintiff had filed a suit against the Defendant for an accident that had allegedly occurred on 10 October 2021 around 6:00 pm between Plaintiff (who was riding a motorcycle registered under WJW 190) and the Defendant (who was riding his motorcycle registered under WUY 3726) at KM 0.8 Lebuhraya Duke.

[2] Plaintiff claims that while he was riding from Greenwood heading towards Keramat, the Defendant had ridden his motorcycle negligently when the Defendant tried to overtake the Plaintiff from behind on Plaintiff's right side, the Defendant had obstructed the Plaintiff's rightful way and subsequently cause the collision to happen between the two motorcycles.

[3] Whereas the Defendant pleads that while he was riding his motorcycle in the left most lane, he was hit from the back by the Plaintiff.

[4] At trial, the Plaintiff had called 2 witnesses while counsel for the Defendant did not call any witness (the Defendant himself failed/refused to attend trial). The list of witnesses is as follows:

[5] For the record, the Defendant himself failed to attend the two trial dates set by the Court for no clear reason. However, since his counsel was present on both dates, this Court had proceeded with the trial as allowed under O 35 r 1 of the Rules of Court 2012 ( ROC 2012). At the end of the Plaintiff's case, the Defendant closed their case as the Defendant himself did not attend and without calling any other witnesses on the basis of "no case to answer".

Decision Of This Court

[6] After perusing all the cause papers, after hearing all the testimonies of witnesses and evidence adduced by parties, also after reading the written submissions from both parties, this Court, on the balance of probabilities, finds that the Plaintiff had only managed to prove part of his claims Therefore, this Court only granted awards for the proven/relevant parts only.

[7] As with all other running down cases, there is only 2 issues to be determined at Court which are; 1) Whether the negligence/cause of the accident is to be imputed on the Defendant, and, if the answer to issue (1) is in the affirmative, 2) How much award should the Plaintiff be given for the losses suffered due to the negligence caused by the Defendant.

[8] On the first issue, this Court had imputed 100% liability upon the Defendant. Whereas, for the second issue, this Court had only granted awards for several claims (not all) as this Court finds that the Plaintiff had failed to prove the other claims satisfactorily.

[9] The Defendant was dissatisfied with the decision of this Court with regards to the issue of liability (only). The Defendant then filed Notice of Appeal on 4 July 2023. For this appeal, this is my Grounds of Decision on the issue of liability.

Preliminary Point: Insufficient Pleading As To The Facts In Statement Of Defence

[10] At first reading of the Defendant's Statement of Defence, the pleadings states that Defendant is denying that he was involved in the accident at all. Even if the Plaintiff were able to prove that the Defendant was involved in the accident, the Defendant pleads that the Plaintiff had caused or at least, had contributed substantially to the occurrence of the accident. It is to be emphasized here that the Defendant's version of how the accident occurred was never specifically pleaded in the Statement of Defence.

[11] However, during the course of the trial, both partie