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2013 MarsdenLR 298
GABRIEL TAN – Appellant
Versus
CHIN VOON THON & ANOR – Respondent
[-]
A minor passenger in a vehicle cannot be held liable for contributory negligence; the driver who encroaches into the passenger's lane bears full responsibility for the collision and resulting injuries.
Headnote:(A) Road Traffic Act, 1956 - Liability in negligence for a motor vehicle accident - First defendant found 100% liable for encroaching into plaintiff's lane causing collision, while the second defendant held vicariously liable - Evidence supported by police reports confirming defendants' fault - Citing precedents establishing duty of care owed by drivers. (Paras 10, 13, 24, 39)
(B) Contributory negligence - Plaintiff, an innocent minor passenger, cannot be attributed any negligence under the circumstances - Duty of care expectations from a child under three years - Established principles outlined in various precedents. (Paras 22, 26)
Facts of the case:
Plaintiff, a minor, was a back seat passenger in a motorcar when it collided with a motorlorry that suddenly encroached into the vehicle's lane on 3 October 2011. Plaintiff suffered significant injuries necessitating medical treatment and thereafter claimed damages against defendants. (Paras 2-6)
Findings of Court:
Court found first defendant solely liable for the accident with damages awarded due to the significant injuries suffered by the plaintiff, encompassing medical costs, general damages, and special damages. (Paras 39, 101-103)
Issues: Whether the first defendant was negligent in causing the accident and if the plaintiff can be held contributorily negligent given his age. (Paras 22, 39)
Ratio Decidendi: Findings indicated that the first defendant's encroachment constituted negligence resulting in liability, with the court emphasizing the culpability percentage assigned solely to the defendants, not the minor plaintiff. (Paras 39, 39)
Result: Plaintiff awarded damages totaling RM 122,400.00, inclusive of costs.
| Table of Content |
|---|
| 1. accident details and parties involved. (Para 1 , 2 , 3 , 4) |
| 2. evidence of the accident and liability. (Para 5 , 6 , 7 , 8 , 9) |
| 3. legal precedents on responsibility and negligence. (Para 10 , 13) |
| 4. legal precedent on liability and negligence. (Para 11) |
| 5. testimonies supporting liability and procedural observations. (Para 12 , 14 , 15 , 16 , 22 , 30 , 32 , 34) |
| 6. defendant's police report acknowledgment. (Para 17) |
| 7. plaintiff's account of the accident. (Para 20 , 21) |
| 8. contributory negligence of minor plaintiffs. (Para 23) |
| 9. determining contributory negligence of an infant. (Para 24 , 25) |
| 10. innocent passengers entitled to full damages. (Para 26 , 27 , 28) |
| 11. failure of defendants to substantiate their claims. (Para 31 , 33) |
| 12. finding of liability and percentage. (Para 38) |
| 13. final ruling on damages and liability. (Para 39) |
Introduction
[1] This is a running down case involving a collision between the motorcar bearing registration No QAR 7971 (hereinafter referred to as "the said motorcar") and the motorlorry bearing registration No QKA 5021 (hereinafter referred to as "the said motorlorry") on 3 October 2011 at about 5.30 pm. along KM 6, Jalan Kota Samarahan/Asajaya (Jalan Pengkalan Feri) (hereinafter referred to as "the said road").
[2] The plaintiff was the passenger of the said motorcar driven by Arne Balang from the direction of Kota Samarahan heading towards Sadong Jaya.
[3] The first defendant was the driver and the second defendant is the registered owner of the said motorlorry. The first defendant was driving the said motorlorry from Asajaya heading towards Kuching.
[4] As a result of the said accident, the plaintiff had sustained injuries and he took out this civil action against the defendants. The plaintiff is a minor and he is represented by his lawful mother and next friend, Arne Balang.
Liability
[5] The evidence adduced by PW2, Arne Balang, that she was driving at a normal speed 40-50 kmp/h and the plaintiff was seated at the back seat. Both of them were traveling from Kota Samarahan heading towards Sadong Jaya.
[6] When they reached KM 6, Jalan Kota Samarahan/Asajaya (Jalan Pengkalan Feri) all of sudden the said motorlorry coming from the opposite direction so suddenly without any warning, encroached into the plaintiff's motorcar lane and knocked the said motorcar and the collision took place at the plaintiff's motorcar traveling lane.
[7] This evidence was further supported with the police report which she had lodged. The police report of Arne Balang of exh P1(5) read as follows: semasa kereta saya terus bergerak tiba-tiba sebuah lori plet No QKA 5021 yang dipandu datang dari arah bertentangan memotong lalu masuk ke laluan saya memandu dan saya tidak sempat mengelak lalu berlanggar dengan lori tersebut... (Emphasis added.)
[8] The fact that the motorlorry had encroached into the plaintiff's lawful lane further corroborated with the first defendant's own police report. The police report of the first defendant of exh P1(6) clearly stated the following:... apabila lori saya pandu mula bergerak masuk ke sebelah lorong kanan tiba-tiba sebuah kereta plet No QAR7971 yang dipandu datang dari arah bertentangan melanggar bahagian tayar hadapan sebelah kanan lori saya pandu... (Emphasis added.)
[9] Upon reading the police report of the first defendant, it is clearly showed that the said motorlorry had encroached into the plaintiff's motorcar lane while travelling along the said road and knocked the plaintiff's motorcar. It was adduced by PW1 that the first defendant's himself had admitted that he had encroached into the plaintiff's lane prior to the collision.
[10] In Tan Kheng Kuan v. Lim Chen Teik & Ors, , the court held that it was a grave fault to turn a vehicle across general route of traffic without first ensuring there is a clear passage available.
[11] PW1 Sergeant Zainudin bin Samad (IO) testified that the point of impact was at the plaintiff's traveling path and marked as symbol "
