The court ruled that negligence liability is established against a defendant involved in a road accident, dismissing appeals on decisions regarding third-party proceedings, contributory negligence, and damages awarded.

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

[2] The first plaintiff (1st Plaintiff) was a ten-year-old boy when he suffered serious personal injuries in an incident on 17 September 2010 (Incident). The second plaintiff (2nd Plaintiff) is the 1st Plaintiff's father.

[3] The 1st, 2nd Plaintiffs (collectively referred to as the "Plaintiffs") and defendant (Defendant) stay in "Sierra Damansara", Kota Damansara, Petaling Jaya (Sierra Damansara), a gated residential community.

[4] Regarding the Incident-

(1) at about 5.30 pm, the 1st Plaintiff was riding a bicycle on Jalan Camar 4/14 (within Sierra Damansara) when there was a collision between the 1st Plaintiff's bicycle and a car driven by the Defendant;

(2) there was a conflict between the testimonies of the 1st Plaintiff and Defendant on how the Incident occurred;

(3) according to the 1st Plaintiff's evidence, the Defendant's car crashed into the rear of the 1st Plaintiff's bicycle; and

(4) the Defendant testified that as the Defendant approached a road junction on the Defendant's right in Sierra Damansara, the 1st Plaintiff's bicycle suddenly emerged from the left side of the road and encroached onto the Defendant's right of way. Hence, the Defendant's car could not avoid the 1st Plaintiff's bicycle and crashed into the right side of the 1st Plaintiff's bicycle. The Defendant alleged that he was not driving at a high speed at the time of the Incident.

[5] The Plaintiffs filed a suit in the SC (Original Action) based on the tort of negligence to claim for damages regarding the personal injuries and loss suffered by the 1st Plaintiff as a result of the Incident (1st Plaintiff's Damage).

[6] The Defendant obtained leave of SC to file third party proceedings against the 2nd Plaintiff (TP Proceedings) for a contribution or indemnity in respect of the Defendant's liability in the Original Action. In the TP Proceedings, the Defendant claimed that the 2nd Plaintiff, as the 1st Plaintiff's parent, was negligent in allowing the 1st Plaintiff to ride a bicycle on the road without any supervision.

[7] The peculiar feature of this case was that the Plaintiffs, Defendant and TP agreed for the TP Proceedings to be decided before the disposal of the Original Action (Parties' Agreement).

[8] After a trial regarding the TP Proceedings, the learned SC Judge (SCJ) dismissed the TP Proceedings with costs (1st SC Judgment). The Defendant has appealed to this Court against the 1st SC Judgment by way of Civil Appeal No BA-12B-205-12/2017 (1st Appeal).

[9] After the 1st SC Judgment, the SC then heard the Original Action and decided as follows, among others (2nd SC Judgment):

(1) the Defendant was 100% liable in negligence to the Plaintiffs for causing the Incident and the 1st Plaintiff's Damage;

(2) a total sum of RM686,257.90 was awarded as damages for the 1st Plaintiff's Damage (Damages Award) which consisted of the following-

(a) RM412,000.00 constituted general damages (General Damages); and

(b) special damages was assessed to be at RM274,257.90 (Special Damages); and

(3) interest on the General and Special Damages as well as costs were awarded to the Plaintiffs.

[10] By Civil Appeal No BA-12B-91-06/2018, the Defendant appeals to the High Court against the 2nd SC Judgment (2nd Appeal).

[11] All the parties consent to the 1st and 2nd Appeals (2 Appeals) be disposed together by this Court.

B. Issues

[12] The 2 Appeals raise the following questions:

(1) should the TP Proceedings be decided before the Original Action pursuant to O 16 r 4(3) of the Rules of 2012 (RC)? This appears to be a case of first impression. If the TP Proceedings should not have been tried before the Original Action-

(a) is the Defendant estopped by the Parties' Agreement from contending that the 2 Appeals should be allowed b