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2025 MarsdenLR 2286
HIGH COURT MALAYA KUALA LUMPUR
MUHAMMAD AZHAM MOHD ROZIK – Appellant
Versus
MOHD FAUZI MUSTAFA & ANOR; MOHD ROZIK WAN DIN (THIRD PARTY) – Respondent
[Criminal Trial No: AB-12BNCVC-1-01/2023]
Court upheld 50:50 liability apportionment in negligence case; emphasized the need for safe driving practices and proper driver qualifications.
Headnote:(A) Negligence - Apportionment of Liability - The court confirmed the Sessions Court's decision apportioning liability 50:50 between the Plaintiff and Defendants for a motorcycle accident due to the circumstances leading to the collision and contributory negligence of both parties. The Plaintiff was found riding without a license and overly fast. (Paras 9, 25, 30, 46)
(B) Quantum of Damages - The court upheld the Sessions Court's awards for general damages and costs for prosthesis, but held that a deduction for contingencies was appropriate based on established principles. (Paras 52, 56)
(C) Third-Party Liability - The assessment of Third-Party liability was acknowledged but not fully addressed as it contributed to the accident through negligent allowance of an unlicensed rider. (Paras 4, 14, 46)
Facts of the case:
The case arose from a motorcycle collision on July 11, 2019, resulting in the Plaintiff's severe injuries, including a right leg amputation. There were conflicting accounts from both parties regarding the circumstances of the accident.
Findings of Court:
The court affirmed the trial findings, maintaining that both parties equally contributed to the accident and confirming the damages awarded by the trial judge.
Issues: The appeals focused on liability and quantum. The Plaintiff argued for 100% liability on the Defendant, and the Defendants contended for an error in apportionment; both sides raised various points concerning evidence and negligence.
Ratio Decidendi: The appellate court, following the established standard of review, found no substantial misdirection or error by the trial court in the apportionment of liability, considering factors like speed and lack of training.
Result: Appeals dismissed with no order as to costs.
| Table of Content |
|---|
| 1. overview of appeals and lower court findings. (Para 1 , 2) |
| 2. issues raised by the plaintiff and defendants in the appeals. (Para 4 , 5) |
| 3. conflicting factual versions of the accident incident. (Para 7 , 8) |
| 4. court's evaluation standards in assessing negligence. (Para 9 , 10 , 18 , 26) |
| 5. burden of proof in establishing liability in negligence. (Para 12 , 14 , 15 , 16) |
| 6. evidence evaluation standards and determinations. (Para 19 , 20 , 21 , 23 , 34) |
| 7. standards for quantum determination in personal injury cases. (Para 51 , 52 , 53) |
| 8. conclusion on appeals and orders for damages. (Para 62 , 63 , 64 , 65) |
Introduction
[1] There were 2 appeals in this case at the High Court ie Appeal No AB-12BNCVC-1-01/2023 and AB-12BNCVC-2-01/2023 filed by the Plaintiff and Defendants (D1 and D2), respectively, against the whole decision of the Sessions Court in Taiping. I will refer to the parties as they were at the Sessions Court. A Third-Party (TP) ie the Plaintiff's father was brought in. But technically, he was already a party in the suit as his son was suing the Defendants through him. The Sessions Court Judge (SCJ) after conclusion of the trial, adjourned it and gave her decision on 6 January 2023, just before her retirement from service. There was no written grounds of judgment by the SCJ but she gave a long speech comprising her decision on the last day of the proceedings as can be seen in the Notes of Evidence.
[2] The SCJ apportioned liability at 50:50 against both parties and awarded general damages of RM198,000.00, special damages of RM2,533.00 and RM1,447,474.00 for the costs of prothesis (less 30% contingency) and interests as well as costs. She held the Third Party to be responsible for the acts of the Plaintiff. The appeal by the Plaintiff was against the decision on liability and quantum. The appeal by the Defendants was also on liability and quantum awarded against them.
[3] The Court heard both appeals together and delivered the decision on 4 March 2025. I agreed with the findings of the SCJ and hence, I dismissed both appeals. I also agreed that the award money for the prosthesis to be paid into the Plaintiff solicitor's client account (which the Plaintiff's solicitor protested). Due to the circumstances of the case I ordered the parties to bear their own costs. Pursuant to the notices of appeals filed, I have prepared this Grounds of Judgment to encompass my decision in regard to both appeals.
Isuues In The Appeal
[4] The Plaintiffs' appeal against the SCJ's decision was on the issues of:
i. the Defendant should have been made 100% liable for the accident;
ii. that no deduction should have been made for contingencies; and
iii. the payment for the costs of the prosthesis should have been made to the Plaintiff directly.
[5] The Defendants' appeal against the SCJ's judgment was as follows:
i. the apportionment of liability of 50:50 between the Plaintiff and the 2nd Defendant (the motor lorry driver); and
ii. failure of the SCJ to make any findings in respect of the Third Party's negligence.
[6] However, the Defendants also were dissatisfied that the SCJ did not allow their expert on prosthesis, one Joel Prabhu, to testify because he was not able to produce his work permit in Malaysia despite chances and adjourments given. Therefore, I will also deal with that complaint in as a third issue raised by the Defendants under the heading of quantum.
Facts Of The Case
[7] The facts of the case as pleaded are straightforward, but as is usually the case, there are 2 versions presented to the Court. The Plaintiff claimed that he was riding his motorcycle No AGX 7564 on 11 July 2019 at about 2.45 pm coming from his school Sekolah Menengah Bukit Jana Kamunting towards home at Taman Kota Wira Ulu Sepetang on Jalan Taiping - Selama, travelling at a speed of 50 - 60 Km/hour. However, at KM7.8 of the said road, he collided into the rear of D2's motor lorry No KDJ 9904 driven by D1 along the same road. He alle
