Wong Kian Kheong J:

JUDGMENT

(appeal to High Court against Sessions Court’s decision after trial)

A. Background

[1]I will refer to parties as they are in the Sessions Court (SC).

[2]At about 12.15 am, 10.7.2015 -

(1)a collision occurred at Padang Jawa, Shah Alam (Accident) between motorcycle no. BHA 211 (1^st Motorcyle) and motorcycle no. BNE 5096 (2^nd Motorcyle);

(2)the third party (TP) (the second respondent in this appeal) rode the 1^st Motorcyle while the plaintiff (Plaintiff) was the pillion passenger; and

(3)the defendant (Defendant) rode the 2^nd Motorcycle.

[3]The Plaintiff suffered personal injuries as a result of the Accident and filed a negligence suit in SC against the Defendant only (Original Action).

[4]The Defendant obtained leave of SC to commence third party proceedings against the TP (TP Proceedings).

[5]The Original Action and TP Proceedings were heard together and after a trial, the learned Sessions Court Judge (SCJ) decided as follows, among others (SC Judgment):

(1)in the Original Action -

(a)the Defendant is 100% liable for the tort of negligence to the Plaintiff (Defendant’s Liability);

(b)the Defendant shall pay to the Plaintiff the following damages (Damages Award) -

(i)general damages amounting to RM226,000.00; and

(ii)special damages in the sum of RM319,320.50;

(c)the Defendant shall pay interest on the Damages Award as specified in SC Judgment;

(d)costs amounting to RM48,419.30; and

(e)the judgment sum shall be paid into the client account of the Plaintiff’s solicitors; and

(2)the Third Party Proceedings is dismissed.

[6]The Defendant has appealed to this court against the entire SC Judgment (This Appeal).

[7]The TP did not appear in the This Appeal.

B. Issues

[8]This Appeal raises the following questions:

(1)whether the Defendant can proceed with This Appeal against the TP after leaving the following documents on the TP’s last known address -

In this regard, is the Defendant required to effect personal service of the NA, Draft Index and RA on the TP under O 55 rr 3(4), 4(4) and (8) of the Rules of Court 2012RC)?;

(a)the Defendant’s notice of appeal (NA);

(b)the Defendant’s draft index (Draft Index) of documents to be included in record of appeal (RA); and

(c)the RA.

(2)from the view point of the stare decisis doctrine, what is the effect of a sealed or draft judgment or order of a court in a case where the court has not delivered a written judgment?;

(3)should the High Court intervene regarding the Defendant’s Liability? To decide this question, the following issues arise -

(a)who was negligent and caused the Accident? In this regard -

(i)could the Defendant’s learned counsel cross-examine TP on communications made between TP and TP’s former solicitor?; and

(ii)whether the court should have considered the fact that the TP had no valid license to ride the 1^st Motorcycle at the time of the Accident; and

(b)if the Defendant and TP are jointly liable in negligence to the Plaintiff regarding the Accident, whether the Plaintiff, an “innocent passenger” of TP, has the right according to Malaysian case law to claim for 100% liability in damages from only the Defendant (without claiming anything from the TP) (Malaysian Case Law Position). In this respect, has the Malaysian Case Law Position been overruled by s 96(1)Road Transport Act 1987RTA);

(4)whether the learned SCJ has committed a plain error of fact in dismissing the TP Proceedings without considering the fact that the TP is negligent in respect of the Accident which entitles the Defendant to a contribution from the TP as regards the Defendant’s Liability;

(5)is there any ground for appellate intervention regarding the Damages Award?; and

(6)whether the SC has committed an error of law in ordering the judgment sum to be paid into the client account of the Plaintiff’s solicitors.

C. Can This Appeal be heard against TP?

[9]The Defendant’s solicitors have filed affidavits which proved that the NA, Draft Index and RA have been served on TP’s last known address (the address given by TP in SC when