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2011 MarsdenLR 553
SESSIONS COURT KUCHING
SAIFUDEEN APANDI & ANOR – Appellant
Versus
LENGGANG NUING – Respondent
[Summons No: 53-18-2010-III]
Liability in road traffic accidents is primarily established through evidence such as sketch plans, while contributory negligence impacts damage awards proportionally, illustrating shared fault in accident scenarios.
Headnote:(A) Civil Law Act 1956 - Section 10(1)(c) - Road Traffic Accident - Claim by plaintiffs against defendant for negligence leading to two plaintiffs experiencing severe injuries from an accident. Defendant alleged the second plaintiff contributed to the accident by encroaching into the lane. Court emphasized the importance of sketch plans in determining liability. The point of impact was found to be within the motorcycle's lane, establishing the defendant's liability to pay damages. Second plaintiff held 20% liable due to contributory negligence. (Paras 1-24, 77-81)
(B) Negligence - Establishing liability - The determining of fault in road accidents requires careful consideration of evidence like sketch plans and eyewitness testimonies. The court ruled the defendant fully liable for the first plaintiff’s injuries, while the second plaintiff bore some responsibility due to alcohol consumption while riding. The court established that where encroachment is proven, liability shifts towards the encroaching party. (Paras 5, 11-21, 23)
(C) Quantum of Damages - Court assessed damages for the first plaintiff's extensive medical needs resulting from severe injuries at RM225,000 for general damages and RM3,913,536.80 for future care. Second plaintiff awarded RM142,200. (Paras 74-80)
Facts of the case:
Accident occurred on June 18, 2009; plaintiffs suffered serious injuries, and defendant denied responsibility claiming the second plaintiff's negligence.
Findings of Court:
The court accepted the sketch evidence and established the point of impact not on the edge of the second plaintiff's lane; ruled the defendant 100% liable for injuries to the first plaintiff and 80% for the second plaintiff's injuries while placing 20% liability on the second plaintiff.
Issues: Determining primary fault for the accident, the relevance of alcohol consumption in apportioning liability, and the extent of general and special damages.
Ratio Decidendi: The evidence indicates the defendant’s negligence caused the accident, with adequate proof of the point of impact and contributory negligence on part of the second plaintiff, affecting award distribution.
Result: First plaintiff's total awarded damages: RM4,138,455.26; Second plaintiff's total awarded: RM143,930.
Introduction
[1] This is a claim by the first and second plaintiffs against the defendant on an accident on June 18, 209 at 3.45 am along Jalan Batu Kawa/Malihah/Matang. The plaintiffs alleged that the defendant had encroached into their lane and caused the collision which resulted the first plaintiff to suffer from serious head/brain injuries, pain and sufferings, loss and damages and whereas for the second plaintiff, he had suffered from severe injuries as stated in the statement of claim. On the other hand, the defendant alleged that the accident was solely caused or contributed by the negligence of the second plaintiff.
Liability
Who Had Caused The Accident
[2] In the instant case, the main argument, among other issues, by the plaintiffs and the defendant is on the accuracy of the sketch plan (exh P1(5)-(9)). The plaintiffs claimed that the point of impact ("POI") was at the "Bekas Calar" and whereas the defendant claimed that it is marked "Z" after the black arrow which can be seen in p 147 bundle B.
[3] PW1 who was the IO in the instant case testified that the "Bekas Calar" are fresh marks - zig-zag marks on the road along the motorcycle's right of way. His evidence was supported by the evidence of PW3 who was at the scene of the accident. In the instant case, I have no doubt that PW1 as the IO was the first person who arrived at the scene, took the measurement and drew the sketch plan and therefore, I have no doubt on the sketch plan that he has drawn.
[4] It was adduced in the evidence during cross-examination of DW5, ASP Razak Musa, Head of Traffic in Kuching that he does not think the sketch plan is false because PW1 himself was at the scene.
[5] Therefore, I am of the view that the sketch plan would be one of the prime evidence to be relied on at this juncture in order to determine the liability of the parties. The facts that no pictures were taken in respect of the broken glass splinters at the "Bekas Calar" on P1(5)/P1(6) as the glass were tiny and transparent as adduced in the evidence of PW10 in my considered view is justifiable and does not affect the credibility of the sketch plan.
[6] In Ngooi Kim Chong v. Subramaniam Maruthan & Anor, [1990] 2 CLJ (Rep) 533 where it was held at p 533: The evidence of PW2 (the investigating officer) and the contents of the sketch plan clearly substantiated the version of the plaintiff. At p 535, it was held: The evidence of PW2 and the contents of the sketch plan clearly substantiates the version of the plaintiff (see Teh Leong Cheh v. R; [1947] MLJ 71) that the accident was caused by the driver of the motor car who had encroached on the wrong side of the road.
[7] In respect of the clay colored long mark and spot about the bottom centre of the photographs as shown in exh P28, it has been clearly explained by PW11 as an expert, whereby he concluded that the mark is dirt/mud and nothing to do with the scrape mark made by the motorcycle. The evidence of the zig-zag marks was further supported by the evidence of PW16 in his report exh P33 which read as follows:
At p 17 last two lines to p 18 line 16: From the sketch plans, drawn by the IO, it is clear that the zig-zag, mark is probably made by the 2 ends of the front "fork" of the motorcycle. This fork as seen from the photographs was disloged from its housing. The protruding parts at the pedals and stand of the motorcycle may also make small scratch marks.
[8] for the aforesaid reasons, it is my finding that the sketch plan is reliable and credible. The point of impact is at the "Bekas Calar" and no other place as alleged.
On Whose Lane The "Bekas Calar" Was Created
[9] From the sketch plan, the width of the road is 7 meter and therefore, each lane should be measured 3.5 meter. Looking at the "Bekas Calar" it was measured 3.3 meter from the left side of the road as shown in p 147 bundle B. Therefore, it is clear that the point of impact was in the motorcycle lane.
[10] In Abdul Kadir Mohamad v. Kamarulzaman Mohd Zin
