The highway authorities have a duty of care to ensure road safety and can be held liable for accidents caused by failure to remove foreseeable hazards.

Introduction

[1] The Plaintiffs, in their Statement of Claim, sued the Defendants for negligence arising from a road accident that occurred on 14 October 2022 at KM 221.2 (Northbound) of the North-South Expressway (PLUS). The accident involved a motorcycle, bearing registration number VHC 7510 ridden by the First Plaintiff from Alor Gajah towards Seremban and he collided with a traffic cone that was present on the highway. The Second Plaintiff, as the registered owner of motorcycle VHC 7510, sustained damage to the motorcycle, whilst the First Plaintiff suffered injuries as a result of the accident.

[2] During the trial:

(a) the Plaintiffs called two witnesses to support their case:

(i) PW1 - Sarjan Amir Firdaus (Investigating Officer); and

(ii) PW2 - the First Plaintiff;

(b) the Defendants, on the other hand, called three witnesses to testify as follows:

(i) DW1 - Shahrul Nizam (PLUS Patrol);

(ii) DW2 - Azmi Nor (PLUS Patrol); and

(iii) DW3 - Mohd Zahiruddin (Section Manager for operations and maintenance management).

[3] After a full trial and thorough consideration of the submissions from both parties, this court allowed the Plaintiff's claim with apportioned liability at 60/40, where the First Plaintiff was found to be liable for 60%, and the Defendants were found to be liable for 40%, with the First Defendant and the Second Defendant each being equally liable for 20%. These grounds set out the reasoning behind this court's decision.

The Plaintiffs' Case

[4] The Plaintiff lodged a police report (P3) on 27 October 2022 and stated that he was riding motorcycle number VHC 7510 from Alor Gajah towards Seremban. Upon reaching KM 221.2 (Northbound) of the highway, where it was dark, he was traveling in the motorcycle lane when he suddenly encountered a PLUS traffic cone in the middle of the lane. Unable to brake or swerve in time, he collided with the traffic cone and crashed onto the roadside. He was then taken to Hospital Seremban by ambulance and was granted 42 days of medical leave, from 14 October 2022 to 24 November 2022.

[5] The Plaintiffs claimed that it was the Defendants' responsibility to ensure that the highway was free from any obstructions that could endanger the road users. Additionally, the Plaintiffs submitted that the facts presented in the First Plaintiff's (PW2) testimony before the court were consistent with those in his police report (P3), as well as evidenced in the first information report (P2) lodged by L/KPL Amirul Aizat from Alor Gajah Traffic Polis Station. In essence, the Plaintiffs argued that the accident occurred in the early morning at approximately 1:30 am at KM 221.2 (Northbound) of the North-South Expressway. The accident site was dark, with no streetlights. Prior to the accident, the First Plaintiff was riding motorcycle VHC 7510 in the left lane at "A1-A2" (as indicated in the sketch plan, P1). The sketch plan (P1) was reproduced as follows for ease of reference:

[6] According to the First Plaintiff's testimony before this court, he the emergency lane to avoid a motor-lorry and collided with a traffic cone at point "K" which was sketch plan (P1) in the middle of the emergency lane at "B1 - A1". After the accident, several bystanders stopped to assist, and PLUS patrol arrived before the ambulance reached the scene. PW2 stated that he was informed by the PLUS patrol team, who arrived at the scene after the accident, that a car had broken down at the same location before the incident.

[7] I