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2022 MarsdenLR 425
SESSIONS COURT SHAH ALAM
SHIRAZ MIKAEL KHAN MOHD RAFIK KHAN – Appellant
Versus
PROJEK LEBUHRAYA USAHASAMA BERHAD & ORS – Respondent
[Suit No: BA-A53-11-07/2019]
The Plaintiff failed to prove negligence against the Defendant, whose duty of care related to highway safety was not considered breached during an unforeseen inclement weather event.
Headnote:(A) Highway Authority Malaysia (Incorporation) Act 1980 – Section 3(1), Federal Roads (Private Management) Act 1984 – Section 5, Evidence Act 1950 – Sections 101, 102, 103, 114(g) – Negligence action against highway concessionaire – Plaintiff's vehicle damaged when a tree fell during inclement weather – Claim dismissed due to Plaintiff's failure to prove that Defendant breached its duty of care or that the incident was foreseeable – Weather described as an 'act of God' and beyond Defendant's control. (Paras 1-118)
(B) Liability – Burden of proof lies with the Plaintiff to establish negligence by the Defendant – Plaintiff failed to provide credible evidence tying the incident to potential negligence or breach of duty by the Defendant. (Paras 116-117)
(C) Damages – A Plaintiff must prove the defendant’s negligence on a balance of probabilities, failing which, no damages can be awarded. (Para 115)
JUDGMENT
A. Background
[1] Plaintiff has filed a Writ and Statement of Claim dated 4 July 2019 against Defendants due to the Defendants' failure to exercise reasonable duty of care to the Plaintiff as user of ELITE Highway causing an accident in which the Plaintiff has suffered bodily injuries and his car was damaged when a tree collapsed on the Plaintiff's car.
[2] The Defendant is a body corporate established under s 3(1) of Highway Authority Malaysia (Incorporation) Act 1980 (the Act) and is the highway concessionaire of North South Expressway including ELITE Highway.
[3] It is pleaded in the Plaintiff's Amended Statement of Claim as follows:
5. Sebelum kejadian tersebut, pokok tersebut kononnya telah ditanam dan/atau tumbuh dan terletak di atas sebahagian tanah yang dimiliki oleh Defendan Ketiga dekat pagar pautan rantai yang memisahkan tanah Defendan Ketiga dengan tanah dalam urusan Defendan Pertama di tepi bahu lebuhraya di kilometre 34.5 Lebuhraya ELITE. Secara alternatif Pokok tersebut tumbuh dan terletak di atas tanah yang diuruskan oleh Defendan Pertama di kawasan tersebut.
7. Plaintif menuntut terhadap Defendan Pertama sebagai pengurus tanah di atas mana Pokok tersebut tumbuh dan/atau pihak yang mengekalkan dan memegang konsesi Lebuhraya ELITE berdasarkan kecuaian dan/atau kecuaian sumbangan di mana Defendan Pertama adalah cuai kerana ia telah gagal melaksanakan kewajipan penjagaan yang munasabah (reasonable duty of care) kepada Plaintif yang merupakan pengguna Lebuhraya ELITE yang telah membayar tambang yang dikenakan oleh Defendan Pertama bagi Lebuhraya tersebut..
[4] The Plaintiff is claiming for special damages of RM274,763.31 and general damages for injuries and damage suffered by the Plaintiff in the accident happened during rainfall on KM34.5 of the Highway.
[5] The Plaintiff has withdrawn his claim against the Second and 3rd defendants and now the suit is between the Plaintiff and the 1st defendant.
[6] With the movement restriction during Covid-19 virus pandemic in 2021 imposed by Government of Malaysia, the trials of this suit were conducted in hybrid manner as agreed by both parties.
[7] Shiraz Mikael Khan Bin Mohd Rafik Khan is the Plaintiff (PW1). PW1 had appeared in-person and given his evidence in court room.
[8] Ali Sadeq Aki Hazaea (PW2) who was in Yemen and all the three Defendant's witnesses have testified in proceedings by means of a remote communication technology via zoom meetings as provided under O 33A of Rules of (ROC) 2012.
B. Facts Of The Case
[9] On 7 May 2016 at about 730 pm, the Plaintiff (PW1) was driving alone in his car, Toyota Hilux Double CAB (A) registration number WMQ 911 on ELITE Highway in the direction of Nilai, Negeri Sembilan to Shah Alam Selangor.
[10] It was the PW1's normal route used from his work place in Mantin, Negeri Sembilan to his house in Subang Permai, Shah Alam.
[11] According to PW1, he was driving in the middle lane of the Highway at the speed of 50-60km/h. While he was driving, the rain started to fall heavier and PW1 has changed the lane to the left lane. At approximately KM34.5, while PW1 was concentrating of looking ahead, at the next moment PW realized that he was wet, his car roof collapsed on him and a tree had fallen on his car roof with shards of glass, branches and twigs on him.
[12] As a result of the incident, the PW1 has suffered serious bodily injuries and his car was badly damaged.
[13] PW2 was driving alone in a rented car and was few meters behind PW1's car. According to PW2, the weather was raining and windy. PW2 heard huge sound and saw the tree on left hand shoulder of the road fell on the top of the PW1's car.
[14] It was a huge tree, closing the whole road and covering PW1's car. PW2 stopped his car to help PW1 who was in bad condition, out of his car and transferred PW1 to his car. PW2 has a photo of PW1 when PW1 was inside PW2's car.
[15] After the accident, the Plaintiff was taken by an ambulance to Serdang Hospital and his dam
