JUDGMENT

Faridz Gohim Abdullah JC:

Introduction

[1] The Appellant, Peter anak Dion (hereinafter referred to as "Plaintiff") appeals to the High Court against the decision of the learned Sessions Court Judge (hereinafter referred to as "learned SCJ") delivered on the 27 November 2023 in respect of the apportionment of liability and the quantum of damages.

[2] Having heard and considered the appeal, this Court dismissed the plaintiff's appeal and maintained the finding and decision of the learned SCJ.

[3] The Plaintiff, being dissatisfied with my decision, filed an appeal to the Court of Appeal.

[4] Below are the grounds for my decision.

Brief Background Facts

[5] Based on the Plaintiff's pleadings, the brief facts of the case can be summarised as follows.

[6] The Plaintiff was on the 4th day of January, 2020 at about 8.18am (hereinafter referred to as "the material day") present at the premises of Specasts Industries Sdn Bhd at Jalan Tenaga, Kuching where he was working as a watchman.

[7] The 1st Defendant was at all material times the driver, and the 2nd Defendant was the registered owner of a motor lorry bearing registration No QKM 9003 (hereinafter referred to as "the said lorry").

[8] On the material day, the plaintiff was carrying out his regular duties around the vicinity of Specasts Industries Sdn Bhd when suddenly he was collided with by the said lorry, which was said to have been reversing without any warning or signal.

[9] According to the plaintiff, the said collision was solely caused or substantially contributed to by the negligence of the 1st Defendant in the manner of his driving, management and control of the said lorry as the servant and/or agent and/or permitted driver of the 2nd Defendant for whom the 2nd Defendant is vicariously liable.

[10] As a result of the said accident, the Plaintiff suffered injuries as listed in his medical report from Sarawak General Hospital (SGH) dated 30 June 2020 prepared by Dr Bong Chun Haw [pp 564-565 of ROA].

Findings Of The Learned SCJ

[11] The decision of the learned SCJ delivered on the 27 November 2023 is as follows:

[12] The learned SCJ finds that the plaintiff and the 1st Defendant, on the balance of probabilities, equally liable for causing the said accident and the 2nd Defendant is vicariously liable for the negligence caused by the 1st Defendant [refer to para [4] of the Grounds of Decision of the Sessions Court Judge at pp 9 and 10 of SROA].

[13] In respect of quantum, the learned SCJ awarded the plaintiff in the sum of RM590,000.00 for General Damages and RM106,383.30 for Special Damages and also RM262,470.00 for post-trial damages totalling RM958,853.30. Minus the 50% liability against the plaintiff, the total award is RM479,426.65 [refer to para [12] of the Grounds of Decision of the learned SCJ at p 19 of SROA].

Issues Based On Memorandum Of Appeal

[14] In his Supplementary Memorandum of Appeal, the plaintiff contends that the learned SCJ has erred in law and fact in respect of her findings on liability and award of quantum of damages.

Issue Of Liability

[15] On the issue of liability, the plaintiff contends that the learned SCJ had erred in law and fact and had misdirected herself on the issue of liability when she found that the liability was to be apportioned between the plaintiff and the 1st and 2nd Defendants on a 50% basis on each party.

[16] It was alleged that the learned SCJ had erred in law and fact and had misdirected herself on the issue of liability when she found that the liability to be apportioned between the plaintiff and the 1st and 2nd Defendants on 50% basis on each party.

[17] The learned SCJ was said to have erred in law and fact and had misdirected herself on the issue of liability when she found that the plaintiff should have foreseen the danger of standing or putting himself at the rear of the lorry, which was on the elevated platform of the weighbridge at any time.

[18] The learned SCJ had erred in law and fact and had misdirected herself on the issue