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2026 MarsdenLR 301
HIGH COURT MALAYA JOHOR BAHRU
BUDIMAN LUTFI MOHAMED, JC
MOHD FIRDAUZ MOHD KAMARUZAMAN & ANOR – Appellant
Versus
NOR HAMIDI SADIMIN & ORS & ANOTHER CASES – Respondent
[Civil Appeal Nos: JA-12B-32-06/2025 & JA-12B-33-06/2025]
Appellate courts may intervene in liability apportionment if the trial court fails to properly evaluate material eyewitness and objective physical evidence. Furthermore, an innocent passenger cannot recover damages from a defendant who is found to be entirely non-negligent.
Headnote:(A) Tort - Negligence - Motor vehicle accident - Apportionment of liability - Finding of equal liability (50:50) by trial court - Appellate intervention warranted where finding is unsupported by evidence, contrary to the weight of evidence, or results from a failure to consider material evidence (Paras 50-53) - Reliance on a factual premise not established by testimony constitutes a plainly wrong decision (Paras 70 and 113).
(B) Evidence - Witness credibility - Evidence of an independent eyewitness should not be rejected merely because the witness's vehicle was also involved in the accident - Such evidence must be tested against objective "silent evidence" including vehicle damage patterns, distribution of debris, and final positions of vehicles (Paras 77-81, 88-92).
(C) Tort - Passenger's rights - Innocent passenger principle - A passenger is not personally contributorily negligent merely because the driver of the vehicle travels is negligent - However, this principle only determines recovery against established tortfeasors and does not impose liability upon a defendant who was not negligent (Paras 115-119).
(D) Pleading and Proof - Special damages - Requirement that special damages be specifically pleaded and strictly proved - Failure to state a final quantified amount in the pleading does not defeat a claim if the nature of the loss was pleaded, evidence was disclosed, and the opposing party had a fair opportunity to contest the valuation without material prejudice (Paras 123-130).
Facts of the case:
Two vehicles, a passenger car and an ambulance, collided on a straight road separated by double centre lines. The trial court found both drivers equally liable and apportioned liability at 50:50, reducing the damages for the passenger in the car accordingly. The trial court also allowed a counterclaim for the total loss of the ambulance and its medical equipment. Both parties appealed: the plaintiffs challenged the reduction of the passenger's damages and the counterclaim, while the defendants challenged the 50% liability finding.
Findings of Court:
The court found that the trial judge erred by assuming the collision occurred in the middle of the road without supporting testimony. The evidence of an independent eyewitness, corroborated by the specific damage to the right-front of the ambulance and the distribution of debris, proved that the car entered the ambulance's lane. Consequently, the ambulance driver was not negligent.
Issues: Whether the trial court's finding of equal liability was sustainable; whether an innocent passenger can recover damages from a non-negligent defendant; and whether the counterclaim for the ambulance's value was adequately pleaded and proved.
Ratio Decidendi: The court ruled that the defendants were not negligent as the objective physical evidence and independent eyewitness testimony established the car had crossed the centre line. The innocent passenger principle does not create liability where no tort was committed by the defendant. Regarding the counterclaim, strict proof of special damages is satisfied when the valuation is based on official government records and expert testimony, provided there is no prejudice to the opposing party due to pleading omissions.
Result: Defendants' appeal allowed; plaintiffs' appeal dismissed; liability apportioned 100% against the 1st Plaintiff; defendants' counterclaim allowed in full.
Legal Category Hierarchy
-
tort
-
negligence
- road traffic accident
- contributory negligence
- innocent passenger
-
damages
- personal injury
-
property damage
- total loss of vehicle
- valuation
-
negligence
-
practice and procedure
-
appeal
- appellate intervention in findings of fact
-
evidence
- eyewitness testimony
- objective evidence
-
pleadings
- special damages
-
appeal
JUDGMENT
Introduction
[1] These are two related appeals against the decision of the learned Sessions Court Judge at Kota Tinggi ("the learned SCJ") delivered on 27 May 2025 following a full trial of a claim arising from a road traffic accident.
[2] For convenience and to avoid confusion arising from the reversal of the parties' positions in the respective appeals, Mohd Firdauz bin Mohd Kamaruzaman and Mohd Fairuz bin Esa will be referred to as the 1st and 2nd Plaintiffs respectively, while Nor Hamidi bin Sadimin, the Ministry of Health Malaysia and the Government of Malaysia will be referred to collectively as the defendants.
[3] The 1st Plaintiff was the driver of a Proton Saga bearing registration number JMR 6603. The 2nd Plaintiff was a front-seat passenger in that vehicle.
[4] The 1st Defendant was the driver of an ambulance bearing registration number BPJ 8769. The ambulance was operated under the Ministry of Health Malaysia.
[5] The learned SCJ found the 1st Plaintiff and the 1st Defendant equally liable and apportioned liability at 50:50. Damages were awarded to the plaintiffs subject to that apportionment. The learned SCJ also allowed the defendants' counterclaim for the value of the ambulance and its medical equipment.
[6] The plaintiffs, through Civil Appeal No JA-12B-32-06/2025, principally challenged:
(a) the reduction by 50% of the damages awarded to the 2nd Plaintiff, who was merely a passenger;
(b) the allowance of the defendants' counterclaim;
(c) the assessment of the counterclaim at RM339,850.00; and
(d) the consequential orders on interest and payment under the counterclaim.
[7] The defendants, through Civil Appeal No JA-12B-33-06/2025, challenged the finding that the 1st Defendant was 50% liable. Their case was that the accident had been caused wholly by the 1st Plaintiff entering the ambulance's lane of travel.
[8] Both appeals were heard together because they arose from the same accident, trial and judgment. The determination of liability would have a direct and material bearing upon the remaining issues.
The Accident And The Competing Versions
[9] The accident occurred on 18 November 2021 along a straight stretch of road at KM 68.5, Jalan Sungai Rengit-Kota Tinggi.
[10] The opposing lanes were separated by double centre lines. There were road shoulders on both sides. The road was dry and visibility was not shown to have been materially impeded. The Proton Saga and the ambulance were travelling in opposite directions.
[11] The plaintiffs' version was that the ambulance suddenly entered the Proton Saga's lane and caused the collision. The defendants' version was the converse. They contended that the Proton Saga crossed into the ambulance's lane and struck the front-right section of the ambulance near the driver's side tyre.
[12] The learned SCJ concluded that the accident had occurred in or around the middle of the road and, in the absence of a sufficient basis to prefer one driver's version over the other, apportioned liability equally.
[13] The central question before this Court was whether that finding was sustainable upon a proper evaluation of all the oral, documentary and objective evidence.
The Decision Of The Learned Sessions Court Judge
[14] The learned SCJ assessed general damages of RM301,500.00 and special damages of RM11,224.98 in favour of the 1st Plaintiff on a 100% basis before applying the 50% reduction for liability.
[15] The 1st Plaintiff's general damages included awards for head injury, facial fractures, nasal injury, dental injury, eye injury, rib fractures, a left humerus fracture, splenic injury, pelvic injury, a right femur fracture, muscle wasting, scarring and pain and suffering associated with future surgery.
[16] The learned SCJ assessed the 2nd Plaintiff's general damages at RM154,500.00 on a 100% basis but ordered the defendants to pay only RM77,250.00 after applying the 50% apportionment.
[17] The learned SCJ further allowed the counterclaim for the value of the ambul
