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2017 MarsdenLR 600
SESSIONS COURT (IPOH)
SUNITA KAUR JESSY, J
Noor Syazwani binti Zabri & Anor – Plaintiff
Versus
Tan Huen Man & Ors – Defendant
SUMMONS NO A53KJ-329–09 OF 2015
Surendran Suppiah (Nurul Syahirah Azman with him) (Surendran & Thiru) for the plaintiff.
Raam Kumaar (KB Tan, Kumar & Partners) for the defendant.
A Iruthaya Raj (Raj Selva & Co) for the third defendant.
Liability for motorcycle accidents lies with the rider who fails to exercise proper control, and the burden of proof rests with the plaintiff to establish negligence by the defendants.
Headnote:(A) Road Traffic Act, 1959 - Rule 10 - Negligence - Accident involving motorcycle and vehicles - Liability wholly against the plaintiff for failure to exercise proper control - All vehicles were moving slowly when the plaintiff collided into the first defendant's car from behind, resulting in her falling under a lorry - Police investigation supported the defendants' version of events as the plaintiff was found to be weaving between vehicles. (Paras 1-19)
(B) Burden of Proof - Plaintiff failed to prove negligence on the part of the defendants - Court emphasized that the burden lies with the claimant to prove their case definitively. (Paras 4, 12)
Facts of the case:
Accident occurred on 15/1/15 involving the plaintiff's motorcycle and vehicles involving two defendants. Plaintiff suffered severe injuries, including amputation. The version put forth by the plaintiff differed significantly from the defendants' accounts, with substantial evidence pointing to the plaintiff's collision with the first defendant's vehicle.
Findings of Court:
Liability found solely with the plaintiff, who failed to appropriately control her motorcycle, causing the accident. Quantum of compensation assessed but was ultimately a failure of the plaintiff to establish the necessary components in her claim.
Issues: The primary issues related to the determination of liability for the accident and the credibility of the evidence provided by the witnesses, including the police.
Ratio Decidendi: The court concluded that the plaintiff's actions in attempting to overtake without proper control led to her injuries, reaffirming the principle that all road users must exercise due care. Expert evidence corroborated the finding that the accident was a result of the plaintiff’s recklessness.
Result: Plaintiff's claim dismissed.
Key Points: - (!) - (!) The burden of proof for negligence rests on the plaintiff; the court held liability wholly against the plaintiff for failure to exercise proper control. - (!) The judge concluded liability is totally against the plaintiff with no contribution from defendants; the claim was dismissed on liability grounds. - (!) - (!) General damages awarded for amputation injuries and the breakdown of special damages (prosthesis costs, etc.) are detailed with specific figures and justification. - (!) - (!) Specific awards: RM70,000 for below-elbow amputation; RM80,000 for above-knee amputation. - (!) - (!) , (!) - (!) , (!) - (!) Prosthesis-related assessments and expert opinions (DW5, DW6, DW4) and their impact on the award. - (!) - (!) , (!) - (!) Dismissal of certain special damages (nursing care, loss of prospects of marriage, earning capacity) for lack of proof. - (!) - (!) General legal principles on compensation and measurement of damages in tort. - (!) - (!) Foundational statements on burden of proof and the role of evidence in establishing negligence.
What is the standard of proof for negligence in a motorcycle accident case and which party bears the burden of proof?
What is the court's finding on liability and why?
What principles govern the assessment of damages (general and special) and prosthesis-related losses in this case?
GROUNDS OF JUDGMENT
This accident occurred on the 15/1/15 at about 7.45 am when the plaintiff’s whilst riding her motorcycle bearing registration number AHB 6908 collided into the first defendant’s car AGV 5100 causing her to fall onto the path of the third defendant’s lorry ABT 6212. She suffered severe injuries resulting in amputation of her arm and leg.
Liability was decided wholly against the plaintiff and this claim was dismissed with costs hence this appeal by the plaintiff on the issue of liability and quantum.
The plaintiff’s version:
The plaintiff’s version was that the first defendant’s car grazed into her motorcycle and this caused her to fall onto the path of the third defendants’ lorry.
The first defendant’s version:
The first defendant’s version was the plaintiff whilst riding her motorcycle at the left lane had shifted to the right lane and collided into the left rear of his car and fell under the third defendant’s lorry. Therefore liability rests solely on the plaintiff.
The second and third defendant’s version:
The plaintiff whilst riding her motorcycle grazed into the first defendants’ car which caused her to fall under his lorry. Their version was that whilst driving his lorry along Jalan Kuala Kangsar, Therefore liability rests solely on the plaintiff.
Findings on the issue of liability:Police investigation
[1]The investigation officer (SP1) testified that all vehicles were travelling in the same direction when this accident occurred along Jalan Kuala Kangsar. SP1 also testified on the damage to all three vehicles. His evidence was-
“Q-apakah kerosakan lori?
Tayar belakang kanan pancit.
Kereta- bahagian lampu belakang, kesan calar kiri kereta.
Q-rujuk gambar-gambar kereta di m/s 16?
Sebelah kiri pintu dan bumper ada kesan.
Q-kesan calar di pintu dapat dilihat dalam penutup tangki minyak? Q-ada kerosakan bahagian belakang kereta?
Tiada.
Q-kerosakan m/sikal?
m/sikal rosak dibahagian belakang lampu pecah, rim belakang bengkok, absorber patah belakang, ekzos belakang bengkok, seat koyak, besi belakang juga bengkok dan lampu depan signal pecah.
Q-rujuk gambar m/sikal m/s 11, 12 dan 14 ada kerosakan depan?
Tiada kerosakan dibahagian depan. Lampu depan sahaja pecah. Pemandu lori tiada disitu tapi maklumat orang awam katakan dia pergi buat laporan polis. FIR dibuat oleh lori. Pemandu kereta juga tiada di tempat kejadian. Maklumat orang awam katakan dia telah larikan diri.”.
The damage to the vehicles was consistent in particular with the damage to the first defendant’s car as it is their version that the plaintiff loss control of her motorcycle when she collided into his car before falling under the lorry. The plaintiff failed to prove that the first defendant grazed (himpit) her which caused her to fall under the lorry. Evidence was lead to show that the plaintiff was weaving in between the car and lorry when this accident occurred. SP1 testified that from his investigations, the first defendant had already moved in front of the motorcycle and it was the plaintiff who came from the rear. The plaintiff failed to exercise proper care and control of her motorcycle to avoid colliding or grazing into vehicles in front.
[2]The evidence given by SP1 supports the version put by the defendants that it was the plaintiff who whilst riding her motorcycle collided to the left rear of the first defendant’s car then she fell under the second defendants’ lorry. His testimony in court-
“Q-ID 2 C dan D m/sikal jatuh di tengah jalan?
Ya selepas di seret dan dilanggar lori.
Q-cdng-sebagai pegawai penyiasat tidak munasabah bahawa defendan memotong m/sikal plaintif dan bergesel sebab defendan boleh lalui di laluan kanan dengan selesa disebabkan kelebaran yang mencukupi?
Setuju ia gesel.
Q-depan kereta tiada kerosakan?
Ya. Dan tepi depan juga tiada rosak. Rosak belakang kiri dan pintu kiri. Ya gambar pintu tiada. Jurufoto ambil gambar secara sendiri.
Q-selain dari kenyataan kamu tiada bukti rosak pintu kereta? Ya betul.
Q-kamu saksi berkecuali jadi ada kemungkinan m/
