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2025 MarsdenLR 5961
HIGH COURT SABAH & SARAWAK KUCHING
BOXIONI LUBONG & ANOR – Appellant
Versus
RODRICK ALE – Respondent
[Civil Appeal No: 12BNCvC-7-6/2023]
In cases of rear-end collisions, liability can be apportioned based on contributory negligence where both parties demonstrate a failure to exercise reasonable care.
Headnote:(A) Civil Liability - Negligence - Determining liability in a rear-end collision - Legal principles regarding apportionment of fault and contributory negligence laid out in previous case law - Appellants found to bear 50% liability, with respondent also equally liable for the accident. (Paras 3, 34-35, 55)
(B) Hearing of Appeal - Appellate courts are reluctant to overturn findings of fact unless fundamentally misdirected - The appellate court adequately assessed the credibility of conflicting versions of the accident and found contributory negligence on the part of the plaintiff. (Paras 10-14)
Facts of the case:
An accident occurred on 5 June 2016 involving a motorcycle and a car, where the plaintiff alleged the vehicle changed lanes unexpectedly leading to a collision. The trial court initially held the defendant fully liable. (Paras 6-7)
Findings of Court:
The appellate court reversed the initial finding of full liability against the 1st defendant and apportioned liability equally between both the plaintiff and the 1st defendant. (Paras 34-35, 55)
Issues: The key issues included the proper apportionment of liability in a rear-end collision, the evaluation of conflicting testimony, and determination of contributory negligence. (Paras 19, 49)
Ratio Decidendi: The court reaffirmed that liability should be determined based on evidence presented and that both parties must exercise reasonable care. It held that the plaintiff was not entirely blameless for the accident, thus allowing for apportionment of liability. (Paras 34, 55)
Result: The appeal was partially allowed; liability was apportioned equally. The quantum of damages awarded remained unchanged. (Paras 55)
| Table of Content |
|---|
| 1. appeal overview and decisions (Para 1 , 2 , 3 , 4 , 5) |
| 2. factual background of the accident (Para 6 , 7) |
| 3. court's analysis on liability determination (Para 9 , 10 , 11 , 12 , 13 , 14) |
| 4. plaintiff's contributory negligence recognized (Para 26 , 29 , 30 , 31 , 36 , 40 , 50) |
| 5. final decision on liability and damages (Para 55) |
Introduction
[1] This is an appeal by the Appellants, Boxioni anak Lubong and Refee anak Lubong against the decision of the learned Sessions Court Judge (SCJ) who had on the 14th June 2023 found the 1st appellant (Boxioni anak Lubong) 100% liable for causing the accident and the 2nd appellant (Refee anak Lubong) is vicariously liable.
[2] The Appellants are also appealing against the quantum of general and special damages awarded to the respondent.
[3] Having heard and considered the submissions and arguments from both parties and also after perusing the grounds of Judgment of the learned SCJ, I decided to allow the appeal, reverse the decision of the learned SCJ, and decide that the respondent is found to be equally liable for the said accident. I thereby apportioned 50% liability against the 1st defendant and 50% contributory negligence against the respondent for causing the accident. The 2nd appellant is to be vicariously liable for the 1st defendant's negligence.
[4] The Respondent, being dissatisfied with my decision, is applying for leave from the Court of Appeal to appeal on the issue of liability only (see: Notice of Motion dated 16th May 2025).
[5] For ease of reference, in this Ground of Decision, the appellants will be referred to as defendants and the respondent as plaintiff respectively.
Brief Background Facts
[6] On the 5 June 2016, an accident occurred involving a motorcycle ridden by the plaintiff and a motorcar driven by the 1st defendant.
[7] Based on the learned SCJ finding of facts, she found that both parties gave a conflicting version of how the accident happened. The learned SCJ's summary of the plaintiff's and defendants' case is as follows:
"Plaintiff's Case;
[2] It is the plaintiff's case that the said accident was caused by the negligence of the 1st defendant. Plaintiff pleaded that on the material day, he was riding the said motorcycle along Kampung Pichin heading to Samajaya Zon, Kuching when upon reaching the traffic light junction at Mile 17 Jalan Kuching/Serian, his motorcycle was obstructed by the said car which suddenly changed lanes from the right towards the left and abruptly stopped causing the said motorcycle collided against the rear of the said car.
Defendants' Case;
[3] The Defendant pleaded that at the material time, he was travelling along the said road from Serian Town heading towards Kuching International Airport. He stopped at the traffic light intersection at Mile 17, Kuching/Serian Road at the middle lane when the traffic light turned red. Shortly after, the said motorcycle collided into the rear bumper of the said car."
[8] The learned SCJ also found that it is a rear collision when the 1st defendant suddenly changed lane from right to left lane and stopped abruptly at the traffic light.
"How The Accident Occurred
[8] There is no doubt that this is a case of a rear collision. The plaintiff had collided into the rear of the car driven by the defendant. The plaintiff alleged that the 1st defendant had changed lane from right to left lane and abruptly stopped at the traffic light which caused him unable to avoid the collision."
[9] On the issue of who is at fault, the learned SCJ found that the 1st defendant is to be blamed. The relevant part of the Grounds of Decision is reproduced below.
"Who Is At Fault?
[10] From the totality of the evidence adduced, I find that the 1st defendant is liable for causing the accident. The reasons are as follows;
10.1 It is not disputed that this is a case of a rear collision between the plaintiff and the 1st defendant. PW5, the AIO SM Lan Peter anak Ujang, in QA171 at p 42 of the NOP opined that based on
