The driver of a vehicle is vicariously liable for negligence leading to an accident, as established by the court in determining liability and damages.

The Plaintiff's Claim

[1] This case involved a running down case of a personal injury claim arising out of a motor vehicle collision. Both the plaintiff and defendants were represented by their own advocates. I will simplify the chronology of this case and take into consideration the plaintiff's statement of claim.

[2] At all material times, the first defendant is and was the authorised driver and/or agent and/or servant and/or person driving with the permission of the owner of a motor vehicle bearing registration No QMC 1969 (hereinafter referred to as "the said bus"). The second defendant is and was the registered owner of the said bus.

[3] On 9 December 2009 at or about 2300 hours (11.00 pm.), the plaintiff was lawfully driving a motor vehicle bearing registration No QMH 3115 (hereinafter referred to as "the said cargo lorry") from Beluru, Bakong, Miri, Sarawak towards Miri City at along Jalan Miri/Bintulu, when at KM10, Jalan Miri/Bintulu, the first defendant who was driving the said bus from Miri City towards Lambir and from the opposite direction of the said cargo lorry the plaintiff, had so negligently driven, swerved, managed and controlled the said bus out of a sudden and without warning and/or signal had lost controlled of the said bus and violently skidded and encroached and/or cut across onto the said lorry's lane or way or path and violently collided and/or knocked and/or rammed and/or hit the said cargo lorry. As a direct result of the said collision, the plaintiff sustained injuries and damage to the said cargo lorry.

[4] This case was fixed for trial on August 8 and 9, 2011. On the trial date, the plaintiff produced three witnesses as follows:

(1) Encik Mohd Anuar Aurther bin Abdullah - PW1 (the plaintiff);

(2) Sjn Ravikumar a/ Marimuthu - PW2 (the investigating officer);

(3) D Richard Chen Shyue Woon - PW3 (orthopedic specialist).

[5] On the other hand, the defendant's witnesses are as follows:

(1) Mathew Mumin anak Myalu - DW2 (the first defendant);

(2) Kiang anak Emba (the mechanic).

[6] Before the trial proceeded, the following bundle of documents has been marked as follows:

[7] On 22 August 2011, ruling was delivered. After evaluating all of the evidence and giving both parties liberty to file their submissions, on the balance of probabilities, the plaintiff is entitled to a 100% claim. As the second defendant is the registered owner of the said bus No QMC 1969 it is vicariously liable for the said accident. In respect of quantum of damages, on 100% liability, I hereby allowed a total sum of RM149,600.00 for general damages and RM811.00 for special damages together with interests and costs to be taxed unless agreed. I now give my reasons. The first part is on liability and the second part is on quantum of damages.

First Part: Liability

Submissions On Liability Issues

[8] The plaintiff's submissions can be summarised as follows:

1. The plaintiff's counsel submitted that on 9 December 2009 at or about 2300 hours (11.00 pm.), the plaintiff was lawfully driving a motor vehicle bearing registration No QMH 3115 (hereinafter referred to as "the said cargo lorry") from Beluru, Bakong, Miri, Sarawak towards Miri City at or along KM10, Jalan Miri/Bintulu from the direction of Bintulu (point L of sketch plan) (see exh P3 and P3k) towards the direction of Miri (point K of sketch plan) while the first defendant's vehicle No QMH 3115 ("the said bus") was from the direction of Miri (point K of sketch plan) and these facts are not disputed and/or challenged.

2. It is also not disputed that the plaintiff has the right of way on the said road and it is submitted that the first defendant who was coming from point K had encroached and cut across onto the plaintiff's rightful lane or way and the plaintiff who was traveling on a straight road and who has the right of way from