The onus of proving negligence lies on the plaintiff, and riding without a license does not inherently constitute negligence if the manner of riding does not contribute to the accident.

JUDGMENT

Qasiratul Jannah Usmani Othman M:

A) Introduction

[1] This is my grounds of judgment in respect of the appeal filed by the Plaintiffs on the issue of liability and quantum.

B) Backgrounds Facts

i. Parties

[2] At the time of the accident, the First Plaintiff was riding a motorcycle bearing a registration number of AGH 1257 and the Second Plaintiff was the motorcycle's pillion rider.

[3] At the material time, Defendant was driving a Hilux bearing a registration number of AHE 6333.

ii. Brief Facts

[4] It is an undisputed fact that the collision occurred whilst the Defendant was trying to overtake another car in front of him. It is also an undisputed fact that there were no eyewitnesses to the collision between the Plaintiffs and the Defendant.

iii. Plaintiffs' Version

[5] On 19 January 2021 approximately at 10 am, the First Plaintiff was riding a motorcycle bearing a registration number of AGH 1257 together with the Second Plaintiff as a pillion rider, heading from Kampung Ubi to Tanah Rata.

[6] It is the Plaintiffs' version of the accident that they were riding the motorcycle heading from Kampung Ubi to Tanah Rata and upon reaching the KM 58.5 of the Jalan Besar Tanah Rata-Ringlet, a Hilux bearing a registration number of AHE 6333 driven by the Defendant suddenly changed its course by cutting off the car in front of him and went into the Plaintiffs' right of lane.

[7] According to the plaintiff, the defendant attempted to pass another vehicle while driving on a double line and caused the plaintiff's motorcycle to collide with the Defendant's Hilux.

Defendants' Version

[8] It is the Defendant's version of the accident that the Defendant was driving a Hilux bearing a registration number AHE 6333 and upon reaching the KM 58.5 of the Jalan Besar Tanah Rata-Ringlet, he collided with a motorcycle bearing a registration number AGH 1257 whilst he was trying to overtake another car in front of him.

[9] According to the Defendant, he had signalled before attempting to overtake the car in front of him.

C) Findings

1. Liability

Whether The Plaintiffs Had Proved On The Balance Of Probabilities, Their Claim Against The Defendant

[10] 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; [1998] 4 CLJ 517 as follows:

It is trite law that the onus of proving negligence lies on the plaintiff. In Wong Thin Yit v. Mohamed Ali; [1971] 2 MLJ 175 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; [1983] 1 MLJ 110 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 persons.

[Emphasis Added]

[11] I have perused all the documents filed by parties, exhibits tendered in Court , evidence given by the witnesses as well as the written submissions, and found that the Plaintiffs had proved on the balance of probabilities, their claim against the Defendant. Accordingly, I have allowed the Plaintiffs' claim against the Defendant with costs.

[12] It is my finding that the Plaintiffs are 10% liable for causing the accident and the Defendant is 90% liable for causing the accidents. My findings stem from the following reasons.

a. The Evidence Given By The Plaintiffs To Support Their Version Of How The Accident Occurred Is Consistent With Exhibit P4 (a to c)

The First Plaintiff's Evidence

[13] In essence, the Plaintiffs PW-2 and PW-3 testified that on 19 January 2021 approximately at 10