RK Nathan J:

The Action

This is a recovery action by an injured plaintiff (the 1st plaintiff) and the 2nd plaintiffs are the firm of solicitors that represented her in the earlier action. The defendants in this recovery action are the insurers of the motor car PDJ 1923 which was driven by one Yeow Swee Kee (Yeow) and owned by one Vin Kew Enterprises Sdn. Bhd. (Vin) and who were sued as defendants in the earlier action.

The Earlier Action

The plaintiff who was 54 years old at the time of the accident stated in evidence that on 18 January 1997 at about 7.30pm she was knocked down by a motor car PDJ 1923 driven by Yeow in front of house No. 7, Jalan Bunga Raya Dua, Butterworth (the said house). Although she said that the motor car belonged to her son, it must have belonged to her son's company, Vin. Her daughter-in-law who seldom drove the said car was at the driver's seat. That evening she was returning home to the said house which belonged to her husband. As she reached the gate she noticed that the car was near the gate with the engine running. However she noticed that the rear of the car was already at the five-foot way in front of the house. Realising that the car was going to reverse further she walked to the front by going along the left of the car. As she reached the front, suddenly, instead of reversing, the car moved forward and rammed into her. She could not move anywhere else and she fell unconscious. After calling the investigating officer as her next witness, the plaintiff closed her case.

At the outset of the trial, Mr. Theeba Jothi who also acted for the defendants in the earlier action had informed the Sessions Court that he was instructed to defend without prejudice to the rights of the insurers to disclaim liability in respect of any recovery action to be filed by the plaintiffs against the insurers in respect of their statutory liability to third party claims under s. 90(1) of the Road Transport Act 1987 (the Act) which reads as follows:

90. Motor vehicle users to be insured against third party risks.

(1) Subject to this Part, it shall not be lawful for any person to use or to cause or permit any other person to use, a motor vehicle unless there is in force in relation to the user of the motor vehicle by that person or that other person, as the case may be, such a policy of insurance or such as security in respect of third party risks as complies with the requirements of this Part.

General damages and special damages were agreed to at RM68,000 with interest at 8% per annum from date of filing of the action ie, 11 September 1997 to date of settlement and special damages amounting to RM21,279.95 with interest at 4% from date of accident ie, 18 January 1997 to date of judgment ie, 13 November 1999 and thereafter at 8% per annum from date of judgment to date of settlement and costs of RM11,840 with no order as to interest. There was agreed costs to the 2nd plaintiff amounting to RM7,637.

After the plaintiff had closed her case the defendant driver although present in court, did not testify and elected to offer no evidence. The learned Sessions Judge had no difficulty in finding the defendants liable on a 100% basis and entered judgment for the plaintiffs with interest and costs.

The Recovery Action

The plaintiffs then demanded settlement from the insurers who refused to pay contending that since the accident occurred within the compound of the said house they had no liability to meet.

They relied on the definition of the word " road " as stated in s. 2 of the Act which reads as follows:

(a) any public road and any other road to which the public has access and includes bridges, tunnels, lay-bys, ferry facilities, interchanges, round-abouts, traffic islands, road dividers, all traffic lanes, acceleration lanes, deceleration lanes, side - tables, median strips, overpasses, underpasses, approaches, entrance and exit ramps, toll plazas, service areas, and other structures and fixtures to fully effect its use;