The court affirmed that both the driver and highway authority share liability in negligence cases, emphasizing the importance of highway safety maintenance.

Muniandy Kannyappan JC:

Preface

[1] It was an accident case where the plaintiffs were travelling, and at KM 211.7 of the North-South Expressway, their Motorcar No WJP 817, supposedly hit an iron object which was in their path, on the right lane. As a result of the accident, the 2nd plaintiff who was the front passenger in the car suffered serious injuries to the sole of her feet.

[2] The case was first heard at the Magistrates' court, Taiping, where the presiding Magistrate had dismissed the plaintiffs' claim. Being dissatisfied, they had appealed against that decision to the High court, Taiping. After hearing the appeal, this court found appellate intervention was justified and has reversed decision of the Magistrate. On reversal, liability is now apportioned on a 60/40 percentage basis, wherein the 1st plaintiff is 60% liable and defendant 40% liable for the accident. As the 2nd plaintiff is an innocent passenger in the vehicle she was travelling, she is not liable at all. On her claim for damages, in law she is entitled to claim fully from the other tortfeasor, the defendant who is responsible for maintenance and safety of vehicles and motorist travelling on the highway. The case of Jayakuma Kuppusamy & Anor v. Chen Kit Hong & Anor, 1983 MarsdenLR 202 is instructive. His Lordship Mohamed Dzaiddin J (as he then was, later Chief Justice) after having referred to Halsbury's Laws of England had decided:

"... where a person travelling as a passenger in a vehicle belonging to a third person is injured by the negligence of the defendant, he is entitled to recover in full against the latter notwithstanding that the driver of the vehicle in which the plaintiff is travelling may also have been guilty of some negligence contributing to the accident.

As far as I am aware, this common law principle is still good law."

[3] The matter did not rest, as the defendant has now evinced its intention to appeal against the decision to the court of Appeal. The precursor to the appeal has to be an application for leave to appeal, since the defendant has no automatic right of appeal pursuant to s 68(1)(a) of the Courts of Judicature Act 1964 (Act 91).

[4] The pertinent facts of the case are revisited to paint a clearer picture of the events on that day. With that, the share of liability between the 1st plaintiff and defendant could be evenly sorted out.

Salient Facts

[5] The 1st plaintiff recounted he was driving his car on the North-South Expressway at a speed of 90 km/h on that fateful afternoon on 5 March 2018. At KM211.7 he claimed his car hit an iron block which was on the road. The car hit the iron block, tossed upward and spun two or three times before hitting the right highway railing and then the left railing before coming to a stop at the left side of the highway.

[6] As a result of the accident, the 2nd plaintiff (who had testified in court as SP4) suffered serious injuries to her foot. The injuries required her to be hospitalised both at the government and private hospitals.

[7] SP2, the Investigating Officer (IO) of the case reported there was considerable damage to the undercarriage of the car - bottom of its engine and gearbox - underscoring the fact that the car could have hit something hard which caused the damages.

The Iron Block

[8] The ensuing paragraphs would show how the iron block became the focal and contentious point in the case. The 1st plaintiff, SP3 alleged that it was the object which made him lose control of the car after hitting it. On queries why he did not take evasive action, SP3 replied that there were cars behind and beside his on the highway at that point in time. He continued to say that although visibility was good, he did not notice the iron block until he was about 5 metres away from it as the block had a similar colour to the road. Thus, this gave the impression that it was difficult for him to make out the iron block from the road, leading him to hit the iron block.

[9] The plot on the iron block deepens when