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2024 MarsdenLR 874
MAGISTRATE COURT BENTONG
NALINY SAMINATHAN – Appellant
Versus
NURUL NORDIANA NORDIN & ORS – Respondent
[Civil Suit No: CF-A73KJ-19-01/2022]
The Plaintiff established negligence on the part of the Defendants, resulting in a 90% liability for the Third Defendant and 10% for the Plaintiff in a motorcycle collision case.
Headnote:(A) Road Transport Act 1987 – Section 121 – Evidence Act 1950 – Section 101 – Negligence – Plaintiff riding motorcycle collided with Defendant's motorcycle – Plaintiff proved her claim against Defendants on balance of probabilities – Third Defendant 90% liable, Plaintiff 10% liable for accident – Evidence from police report and witness statements considered. (Paras 11, 13, 14, 75, 123)
(B) Liability – Onus of proof lies with Plaintiff to establish negligence – Plaintiff's consistent testimony supported by evidence – Defendants failed to maintain safe distance and exercise due caution. (Paras 12, 47, 60)
(C) Quantum – General damages awarded for injuries sustained – RM25,000 for closed fracture, RM4,000 for soft tissue injury, RM4,000 for muscle wasting – Special damages awarded RM1,100. (Paras 89, 122)
JUDGMENT
A) Introduction
[1] This is my grounds of judgment in respect of the appeal filed by the Defendants on the issue of liability and quantum.
B) Background Facts
i. Parties
[2] At the time of the accident, the Plaintiff was riding her motorcycle bearing a registration number of BFJ 5369.
[3] The First Defendant is the registered owner of a motorcycle bearing a registration number of CEJ 794 and at that material time, the Third Defendant was riding the said motorcycle.
[4] The Second Defendant on the other hand is the father of the Third Defendant who was sued as the Third Defendant's father and guardian ad litem.
ii. Plaintiff's Version
[5] On 26 February 2021 at approximately 7.10 pm, the Plaintiff was riding a motorcycle bearing a registration number BFJ 5369, heading from her home to Pasaraya Sri Tahan, Karak.
[6] As she was riding along KM 80.8 of Jalan Kuala Lumpur to Kuantan, and getting ready to make a right turn onto the Pasaraya Sri Tahan Junction, a motorcycle ridden by the Third Defendant, with registration number CEJ 794, collided with her motorcycle from the rear.
iii. Defendants' Version
[7] It is the Defendants' version of the accident that the Third Defendant was riding a motorcycle bearing a registration number CEJ 794 along KM 80.8 of Jalan Kuala Lumpur to Kuantan.
[8] It is also the Defendants' version of the accident that Plaintiff was riding a motorcycle bearing registration number BFJ 5369 in front of the Third Defendant's motorcycle.
[9] It is the Defendants' case that upon reaching the Pasaraya Sri Tahan Junction, the Plaintiff was about to turn right without providing any signal or indication and caused the Third Defendant to be unable to evade the accident.
[10] Consequently, both motorcycles collided.
C) Findings
1. Liability
Whether The Plaintiff Had Proved On The Balance Of Probabilities, Her Claim Against The Defendants
[11] The issue before this court is whether the Plaintiff had proved on the balance of probabilities, her claim against the Defendants.
[12] In accident matters, it is the duty of the Plaintiff to establish negligence on the part of the Defendant. The legal principle with respect to this issue has been succinctly enunciated in the High court case of Che Pah Itam v. Chang Bek Lee , as follows:
It is trite law that the onus of proving negligence lies on the plaintiff. In Wong Thin Yit v. Mohamed Ali , Ong CJ (as he then was) held:
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 defendant's negligence.
Hashim Yeop A Sani J (as he then was) addressing the same issue in Ng Chul Sia v. Maimon Ali , had this to say at p 111:
When an accidental harm is done it is not for the doer to excuse himself by proving that the accident was inevitable and that there was no negligence on his part.
It is for the person who suffers the harm to prove affirmatively that the accidental harm was due to the negligence of the other person.
[Emphasis Added]
[13] I have perused all the documents filed by parties, exhibits tendered in court, evidence given by the witnesses as well as the written submissions filed by both parties and found that the Plaintiff had proved on the balance of probabilities, her claim against the Defendants. Accordingly, I have allowed the Plaintiff's claim against the Defendants with costs.
[14] It is my finding that the Plaintiff is 10% liable for causing the accident and the Defendants are 90% liable for causing the accidents. My findings stem from the following reasons.
a. The Evidence Given By The Plaintiff To Support Her Version Of How The Accident Occurred Is Consistent With Exhibit P3 (Laporan Polis Trafik Bentong/462/21)
[15] In our present case, both parties had come out with their respective versions of how the accident had occurred. Hence, this court was guided by the judgment of Abdul Malik Ishak J (as he then was) in Tabarani Mohd Arsad & Anor v
