In a road traffic accident, the driver of a turning vehicle has a duty to yield the right of way; contributory negligence can reduce the plaintiff's recovery.

JUDGMENT

Prabakaran Rajoo M:

(After Full Trial)

Introduction

[1] This case concerns a road accident involving the plaintiff, a motorcyclist riding motorcycle registration number BNU 252 ("plaintiff's motorcycle"), and the first defendant, who was driving a military jeep registration number ZC 2851 ("military jeep"). This accident happened at Jalan Istana Larut, Taiping, on 10 November 2020 at around 6:55 pm.

[2] The first defendant is a military officer who works with the second defendant and is employed by the third and fourth defendants. Under ss 5 and 6 of the Government Proceedings Act 1956 , the plaintiff has brought this action against the second, third, and fourth defendants as well.

[3] The plaintiff claimed that the accident was caused by the first defendant's negligence when the military jeep turned across his path, while the defendants argued that the plaintiff was speeding and contributed to the collision. Upon full trial, this court found that the defendants are 80% liable, with the plaintiff bearing 20% contributory negligence.

[4] Dissatisfied with this decision, the defendants have appealed to the Taiping High court against the entire judgment. This judgment contains the full reasons for the court's decision.

The Plaintiff's Case

[5] The plaintiff's case is as follows (from the pleadings filed as well as the evidence led during trial):

(i) The plaintiff asserts that the military jeep driven by the first defendant unexpectedly turned right into the plaintiff's path without signalling or stopping, leading to a collision with plaintiff's motorcycle.

(ii) The plaintiff testified that he was riding his motorcycle straight when the military jeep suddenly turned right into his lane and entered the left junction in front of the plaintiff. He had to brake and attempt to avoid the collision, but he still struck the left side of the military jeep.

(iii) The Investigation Officer (PW2) testified that the military jeep was at fault for failing to give way to the plaintiff's motorcycle and further testified that the plaintiff's motorcycle had the right of way at the time of the accident. PW2 also noted that the first defendant was issued a summons which the first defendant subsequently paid.

(iv) The plaintiff pleaded for compensation for damages from the accident, including general damages and special damages due to the injuries and recovery time.

The Defendants' Case

[6] The defendants' case is as follows:

(i) The first defendant testified he was on official duty on 10 November 2022. On that day, he was driving the military jeep from Army Camp (9 RRD Taiping) towards the military officer housing area at Tate Hill, Taiping.

(ii) He had turned on the jeep's headlights and signaled to turn right at the junction leading to the officer housing on Jalan Istana Larut. After stopping and checking that the road was clear, he began to turn slowly. When the military jeep was halfway through the turn, the first defendant heard a loud bang from the left rear side of the military jeep.

(iii) The first defendant stopped and found that the plaintiff's motorcycle had collided with the left rear side of the military jeep. The defendants submitted that the plaintiff was speeding and driving recklessly in the rainy weather, and that he did not pay attention to his surroundings, among others.

Analysis And Finding

IDD 19

[7] Before deciding on the issue of liability, the court first addressed whether a document marked as IDD 19, which relates to the size of the military jeep (Jadual Rawatan - Trak ¾ Ton GS Cargo Single Cab ISUZU D-MAX 4x4 Weststar D), should be admitted as evidence. The learned counsel of Plaintiff strongly objected to admit this document as exhibit "P" arguing that the maker of the document was not called as a witness to verify its contents.

[8] The learned Federal Counsel, representing the defendants, argued that IDD 19 should be admitted under s 73A(2) of the Evidence Act 1950 , even though the maker of IDD 19 was available but not called as a