1. Claim for personal injuries by minor pedestrian allegedly struck by identified motorcycle — Identity of vehicle and rider disputed. (Para 1 , 5 , 11 )
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2026 MarsdenLR 5817
IN THE MAGISTRATES' COURT AT IPOH
EVANGELIN A/P SIMON SILVARAJ, M
MOHAMMAD FIRDAUS BIN ABDULLAH – Plaintiff
Versus
JEYA A/P THANESWARAN – Defendant
CIVIL SUIT NO. AA-A73KJ-188-03/2025
The plaintiff bears the burden of proving the identity of the tortfeasor. An adverse inference cannot substitute for a prima facie case on identity, and hearsay evidence is insufficient to prove the involvement of a specific vehicle in a road traffic accident.
Headnote:(A) Evidence Act 1950 - Sections 101 to 103 and 114(g) - Burden of proof - The plaintiff bears the legal burden of proving not only the occurrence of an accident but also the identity of the tortfeasor and the involvement of a specific vehicle on a balance of probabilities (Paras 26, 27). An adverse inference drawn from the absence of a witness cannot substitute for a prima facie case or manufacture personal knowledge where no admissible direct proof has been established (Paras 31, 32, 48).
(B) Hearsay - A statement made out of court is admissible to prove that the statement was made, but it cannot be used to prove the truth of the facts asserted therein unless a recognized statutory exception applies (Paras 29, 30).
(C) Vicarious Liability - Registered ownership of a vehicle is insufficient to establish vicarious liability. The plaintiff must prove the existence of an employment or agency relationship and that the driver was acting in the course of such employment or for a delegated purpose (Paras 34, 54).
Facts of the case:
A minor pedestrian claimed to have been struck from behind by a motorcycle. The identification of the vehicle's registration number and the rider was based on information relayed by an unidentified third party to a relative, rather than personal observation. Initial medical records contained a different history of the injury, though subsequent medical evidence supported a road traffic collision mechanism. The registered owner of the vehicle was sued as the employer/principal of the rider.
Findings of Court:
While the court accepted that a road traffic accident likely occurred and caused the injuries, it found that the plaintiff failed to prove that the specific motorcycle and rider sued were involved. The evidence identifying the vehicle was hearsay, and the police investigation lacked independent corroboration such as eyewitnesses or CCTV footage. Furthermore, registered ownership did not establish the pleaded employment relationship necessary for vicarious liability.
Issues: Whether the plaintiff proved the identity of the vehicle and rider involved in the collision; whether the defendants' failure to testify shifted the burden of proof; and whether registered ownership established vicarious liability.
Ratio Decidendi: The burden of proving the identity of the tortfeasor remains with the plaintiff. An adverse inference under section 114(g) can only strengthen existing evidence; it cannot serve as the primary proof of an essential element like identity when no prima facie case has been made. Hearsay information regarding a vehicle's registration number is insufficient to prove its involvement in an accident.
Result: Claim dismissed with costs of RM3,000.00.
Legal Category Hierarchy
Table of Contents
2. Plaintiff contended identification proved by police report and evidence; Defendants denied involvement and challenged sufficiency of proof. (Para 7 , 22 , 23 , 24 )
3. Plaintiff lacked personal knowledge of motorcycle registration; source was unidentified person not called; police investigation yielded no independent identification. (Para 12 , 13 , 39 , 40 , 41 , 42 , 43 , 44 , 45 )
4. Plaintiff bears burden of proving identity of tortfeasor and vehicle; adverse inference cannot substitute for missing proof of essential element. (Para 26 , 27 , 31 , 32 , 48 )
5. Claim dismissed against both defendants with costs; alternative assessment of damages at RM30,093.00 if liability had been established. (Para 64 , 65 , 66 , 67 )
6. What must a plaintiff prove to establish liability in a road traffic accident claim?
The plaintiff must prove not only injury and an accident, but also the identity of the tortfeasor, the vehicle involved, negligence, and causation on a balance of probabilities. (Para 26 , 38 , 50 )
7. Can an adverse inference under section 114(g) of the Evidence Act substitute for missing proof of an essential element?
No. An adverse inference is ancillary and operates upon evidence already adduced; it cannot create a cause of action or substitute for proof of an essential element. (Para 32 , 48 , 49 )
8. What is the evidential value of a police report in a civil negligence claim?
A police report is not substantive evidence of its contents; it may prove that the report was made but not the truth of its assertions unless a hearsay exception applies. (Para 28 , 40 , 44 , 45 )
9. Does a registered owner of a vehicle automatically incur vicarious liability for the driver's negligence?
No. The plaintiff must prove the necessary employment or agency relationship and that the driver was acting in the course of employment or for a delegated purpose. (Para 34 , 54 )
10. When does the doctrine of res ipsa loquitur apply in a road traffic accident case?
The doctrine permits an inference of negligence where the instrumentality was under the defendant's management, but does not identify the instrumentality or tortfeasor. (Para 51 )
GROUNDS OF JUDGMENT
A. INTRODUCTION AND DISPOSITION
[1] The Plaintiff, a minor at the material time, claimed damages for personal injuries said to have been sustained when he was struck from behind by motorcycle registration number AMU 4473 on 29 September 2023 at Jalan Kampung Lahat Baru, Lahat. The First Defendant was alleged to be the rider. The Second Defendant was alleged to be the First Defendant's employer and/or principal.
[2] After a full trial, I dismissed the Plaintiff's claim against both Defendants with costs of RM3,000.00. As the Plaintiff has appealed, these are the full reasons for that decision.
[3] The dismissal did not rest on a finding that the Plaintiff fabricated the occurrence of every road traffic accident, nor on a finding of fraud. I was prepared to accept that the Plaintiff suffered a serious left femoral fracture and that the medical evidence was capable of supporting a road traffic mechanism. The claim failed at a different and essential link: the Plaintiff did not prove, on a balance of probabilities, that the motorcycle which struck him was AMU 4473 or that the rider was the First Defendant.
[4] For completeness, and so that the appellate court has the benefit of this Court's assessment should the finding on liability be disturbed, I assessed damages at RM30,000.00 as general damages and RM93.00 as special damages, making a total of RM30,093.00 before interest.
B. THE PLEADED CASES
[5] The Plaintiff pleaded that at about 3.00 p.m. on 29 September 2023 he was walking alone from his house towards a shop, on the left side of Jalan Kampung Lahat Baru. It was pleaded that motorcycle AMU 4473, ridden by the First Defendant as agent and/or employee of the Second Defendant, approached from behind and struck him.
[6] The pleaded particulars of negligence included failure to keep a proper lookout, excessive speed, failure to give warning, failure to keep a safe distance, failure to brake, failure to maintain proper control and striking the Plaintiff from behind. The Plaintiff also pleaded reliance on res ipsa loquitur if necessary.
[7] The Defendants denied involvement in the accident and put the Plaintiff to strict proof. In the alternative, they pleaded that the occurrence was caused or contributed to by the Plaintiff's own negligence, including walking on the roadway, failing to use the available footpath, failing to keep a proper lookout and failing to take evasive action.
[8] The Plaintiff pleaded a closed fracture of the left peritrochanteric femur, a left clasp-thumb deformity, other injuries, general damages and several heads of special damages. The Defence did not admit the alleged injuries or losses.
C. THE EVIDENCE AT TRIAL
[9] The Plaintiff called five witnesses: Sergeant Mohd Tajudin bin Ariffin, the investigating officer (SP1); Dr Madihah binti Zamri of Hospital Raja Permaisuri Bainun (SP2); Dr Satira binti Roslan of Hospital Batu Gajah (SP3); Balbir Kaur a/p Naranjan Singh, the Plaintiff's grandmother (SP4); and the Plaintiff himself (SP5). The Defendants called no witnesses.
[10] The sketch plan and key were marked P1, a photograph of the alleged location was marked P2, the police investigation result classifying the matter as RTM (refer to Magistrate) was marked P3, and the police letter dated 27 July 2024 was marked P4. The medical report from Hospital Raja Permaisuri Bainun was P5; the radiology forms were P6 and P7; the discharge note was P8; medical certificates were P9(a) to P9(c); and the clarification report from Hospital Batu Gajah was P10.
[11] The Plaintiff's police report dated 31 October 2023 was marked P11. That report was made approximately one month after the alleged accident. It states that the Plaintiff was struck from behind by a motorcycle, after which an unidentified person riding another motorcycle brought him home. Crucially, the report states that this unidentified person informed the Plaintiff's aunt, Puvaneswary, that motorcycle AMU 4473 had struck the Plaintiff.
[12] The Plainti
