JUDGMENT

Elsie Primus SCJ:

Introduction

[1] This is a dependency claim by the 1st and 2nd Plaintiffs in respect of their late husband / father ("the Deceased") due to an accident that occurred on 23 June 2019.

[2] The collision occurred when the deceased was hit by a motorcar No CBE 1004 ("the Motorcar") driven by the 1st Defendant, when the Deceased was about to mount on a motorcycle bearing registration no SYB 206 ("the Motorcycle") which was parked at the place of collision by the motorcycle rider, Amin Bin Selamat ("PW6"). The collision occurred along Jalan Tandek, Kota Marudu.

[3] The Deceased sustained critical injuries and was sent to Hospital Kota Marudu by the public. Shortly thereafter on the same day, the Deceased was transferred to Hospital Queen Elizabeth II to undergo various surgeries and was warded there until 7 July 2019.

[4] The Deceased was subsequently discharged to be cared for by his family at home as he was in a persistent vegetative state and had to fully rely on others to care for him. The Deceased was bedridden and dependent on a feeding tube and tracheostomy tube to help him breathe.

[5] The Deceased succumbed to death on 28 August 2020, about 14 months from the date of the accident on 23 June 2019 due to severe sepsis secondary aspiration pneumonia with traumatic brain injury.

[6] Thus, the 1st and 2nd Plaintiffs are also claiming damages for pain and suffering due to the injuries suffered by the Deceased.

Agreed Issues To Be Tried

[7] The agreed issues agreed by both parties are as follows:

[7.1] Whether the 1st Defendant was under the influence of alcohol at the time of the said accident on 23 June 2019 at about 5.25 am. along Jalan Tandek, Kota Marudu;

[7.2] If the answer is in the affirmative, whether the 1st Defendant was wholly responsible for causing the said accident;

[7.3] If the answer to question (1) is in negative, whether the Deceased was contributorily negligent in the said accident; and

[7.4] Subject to the determination of questions (1), (2) and (3), what are the heads of claim and quantum of damages?

The Issue Of Liability

Agreed Issue No 1: Whether The 1st Defendant Was Under The Influence Of Alcohol At The Time Of The Said Accident On 23 June 2019 At About 5.25 am Along Jalan Tandek, Kota Marudu

[8] It is undisputed that the 1st Defendant was indeed under the influence of alcohol at the time the said accident happened on 23 June 2019 as evidenced by the Chemist Report dated 3 September 2019 [see p 39 (b) of Bundle C]. The chemist report reveals that the 1st Defendant's blood sample shows that there was 104 mg alcohol in 100ml of his blood.

[9] The content of the chemist report was confirmed by the 1st Defendant during the trial as follows:

"Q31: Sila lihat Bundle C ms 39(b). Kamu setuju dengan saya kandungan alcohol dalam darah kamu adalah sebanyak 104 miligram etil alcohol dalam 100 mililiter. Setuju atau tidak?

A: Setuju."

[See Q & A 31 at p 154 of the Notes of Proceeding]

[10] The investigating officer, PW7 testified during the trial that the 1st Defendant was indeed driving under the influence of alcohol:

"Q4: Saya rujuk kamu kepada soalan Cross Examination Q & A Put 29 di baris 21-25 pada ms 107 dan di baris 1 pada ms 108, di mana kamu telah ditanya:

Put 29: Saya letakkan kepada tuan bahawa oleh kerana fakta dan jalan cerita kejadian kemalangan setakat hari ini masih berdasarkan andaian dan pendapat semata-mata sahaja, maka belum ada pihak-pihak yang telah berjaya menentukan pihak yang bersalah di dalam kes kemalangan ini. Setuju atau tidak setuju?

A: Tidak setuju.

Boleh kamu jelaskan kepada Mahkamah jawapan kamu?

A: Sebab menurut laporan kimia bahawa Defendant Pertama ini didapati di dalam 100 mililiter darah terdapat 104 miligram alkohol. Jadi dia memandu di bawah pengaruh alcohol."

[See Q & A 4 at p 113-114 of the Notes of Proceeding]

[11] The 1st Defendant also admitted during trial that he has been drinking before the accident happened. His testimony is reproduced below:

Q7: Kamu telah dirujuk dengan