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2021 MarsdenLR 1282
HIGH COURT MALAYA IPOH
MOHD SHAHRIL ABDUL RAHMAN – Appellant
Versus
AHMAD ZULFENDI ANUAR – Respondent
[Civil Appeal No: AA-12BNCvC-2-01/2020]
In negligence claims, a plaintiff's lack of a valid driving license, road tax, and insurance can negate or reduce liability and entitlement to damages as a matter of public policy.
Headnote:(A) Road Transport Act 1987 – Sections 90 and 26 – Plaintiff in a running down action claimed damages for injuries sustained in an accident while riding a motorcycle without a valid license, road tax, or insurance policy – Court held the Plaintiff's lack of compliance with statutory requirements negated entitlement to relief, applying the Patel v. Mirza test regarding public interest and illegality – Liability apportioned 40% to Defendant and 60% to Plaintiff. (Paras 60 and 62-64)
(B) Negligence – The trial judge's finding of contributory negligence and liability was affirmed by appellate court – Conflicting evidence necessitated reliance on corroborative evidence such as sketch plans and vehicle damages to ascertain liability. (Paras 21, 24, and 32)
Facts of the case: Plaintiff sustained serious injuries in an accident while riding a motorcycle, which he claimed was due to the negligence of the Defendant. The accident occurred when the Defendant allegedly made a U-turn. The Plaintiff had no valid driving license, road tax, or insurance at the time of the accident.
Findings of Court: The Plaintiff was ruled to have contributed to the accident due to lack of insurance and valid licenses, resulting in reduced liability and denial of full relief in damages.
Issues: The key issues revolved around the Plaintiff's eligibility for damages given his illegal conduct at the time of the accident and the apportionment of liability between the parties.
Ratio Decidendi: The Court emphasized that public policy dictates that individuals unable to comply with legal requirements for road use cannot expect judicial relief for resulting harms, thereby applying the principle from Patel v. Mirza. (Para 60)
Result: Plaintiff's claims were reduced, with the ruling that lack of a valid license, road tax, and insurance significantly impacted his entitlement to claim. (Paras 60 and 72)
JUDGMENT
Query: In a running down action, should the Plaintiff who at the time of the accident had no driving license, no motor vehicle license (or commonly known as road tax) and no policy of insurance against third-party risks be entitled to any relief from the Court?
Introduction
[1] This is an appeal by the Appellant who was the Defendant in the Court below and a cross-appeal by the Respondent who was the Plaintiff against the whole of the decision of the Sessions Court Judge (SCJ) given on 27 December 2019 in a running down claim. In this judgment the parties shall be referred to as they were in Court below.
[2] Liability was apportioned with 70% cast upon the Defendant and 30% onto the Plaintiff.
[3] Each party contends that the other party ought to be found wholly liable for the accident.
[4] As a result of the accident, the Plaintiff suffered serious personal injuries.
[5] The Sessions Court's award of future loss of earnings and loss of earning capacity in favour of the Plaintiff was assailed by the Defendant as being baseless and speculative whereas the Plaintiff attacked it on the ground that there was too much deduction for living expenses.
[6] After hearing parties, on 6 May 2021 this Court pronounced its brief decision which is subject to amplification, that:
i) on the issue of liability, the Court agrees with the Learned Trial SCJ that the accident was in the main caused by the Defendant and the LTJ's apportion of liability at 70:30 premised upon the evidence is fair.
ii) however, by reason of the Plaintiff not having any motor insurance policy on foot, no motor and driving license at the time of the accident and with him having been riding without a license for many years, the Court denies the Plaintiff his full entitlement to 70% liability on the part of the Defendant and will discount the same by a further 30%;
iii) accordingly, the Defendant's appeal is allowed, with the decision of the SCJ varied with liability to be apportioned as between Defendant and Plaintiff at 40:60;
iv) the Court concludes that in a running down action, the Plaintiff who at the time of the accident had no riding license, no road tax and more importantly, no policy of insurance against third-party risks ought not to be entitled to relief, in whole or in part as may be determined by the Court based upon the considerations that obtain in the Patel v. Mirza test laid down by the UK Supreme Court and reported in [2017] 1 All ER 191 and which has been adopted by our Courts in Malaysia in a variety of cases;
v) on the issue of quantum of damages, the Defendant's appeal against loss of future earnings is allowed and the decision by the Sessions Court on this award is set aside;
vi) The Plaintiff's cross-appeal on the issue of both liability and quantum is dismissed.
vii) With the Defendant having succeeded substantially in his appeal as well as against the Plaintiff's cross-appeal, the decision of costs by the SCJ is set aside with costs of this appeal by the Defendant and the cross-appeal by the Plaintiff to be borne by the Plaintiff. For the avoidance of any doubt, there is no order for costs in the Sessions Court;
viii) After hearing parties with the Defendant/Appellant seeking costs of RM10,000.00 for this appeal and the Plaintiff/Respondent offering RM3,000.00, this Court awarded costs of RM10,000.00 subject to allocatur, to the Defendant.
[7] Dissatisfied, by notice of appeal dated 17 May 2021, the Plaintiff appeals to the Court of Appeal and the following are the full grounds of judgment for the decision made.
Background Facts
Diametrically Opposing Stories
[8] The Plaintiff pleaded that on 5 July 2018 at about 2.00 am., he was riding his motorcycle registration number AFM 2979 from the Tapah Road on the way to Langkap and upon reaching the 30 KM mark of Jalan Langkap - Kampar, he stopped at a T- Junction and after ensuring there were no vehicles from the direction of Kampar, he came out of the junction. (Encl 5 pp 4 and 5)
[9] The Plain
