1. ) Abu Talib Bin Nozirahmad v 1. ) Kast Construction Sdn Bhd (BL-A53KJ-385-10/2022)

This case arises from a tragic road accident involving a bicycle and a van, an encounter that claimed the life of a 21-year-old Myanmar refugee and cast a lingering shadow of sorrow.

Upon in-depth consideration of the opposing contentions, the full spectrum of the pleadings, and a thorough examination of the web of evidence, I find that the Plaintiffs have failed to prove their claims against the Defendants on the balance of probabilities. Accordingly, I dismiss the Plaintiffs’ claims with costs.

My reasons for so concluding are set out in the analysis that follows.

The Plaintiffs are the parents of Monir Ahmad Bin Abu Talak @ Abu Talib (the Deceased Cyclist), who was riding a bicycle (the bicycle) at the material time, and whose journey was tragically cut short by the collision forming the basis of this claim.

The First Defendant is the registered owner of the van bearing registration number MBV 7988 (the Van).

The driver of the van at the material time, Muhammad Yassin Shafik Bin Sarif (the Deceased Driver) survived the accident but passed away some three years later on 29.2.2024 due to chronic diabetes which is unrelated to the accident (See: Enclosure 14 - Affidavit in Support). He was originally named as the Second Defendant. Following his passing, his estate was substituted in his place and now stands as the Second Defendant in these proceedings.

The incident occurred shortly after dawn on 11.10.2021, at approximately 7:30 a.m., along KM 14 of Persiaran Setia Alam.

The parties have presented conflicting versions of how the collision unfolded, with each side attributing fault to the other. These conflicting versions will be examined in a later segment of this judgment.

The twin issues at the heart of this dispute are liability and the quantum of damages, as the parties contest both the question of fault and the entitlement to damages.

In support of their claim, the Plaintiffs adduced evidence from the following witnesses: PW1 - Inspector Abdul Azim Bin Mazlan, the Investigating Officer, who provided the investigative foundation of the case; PW2 - Ch’ng Zhin Pao, a representative from the Deceased Cyclist’s purported employer, who was summoned to speak to the nature of his work; and PW3 - Shobulalam Bin Abutalek, the Deceased Cyclist’s brother, who testified to the personal impact of the loss.

The Defendants did not call any witnesses, as the Deceased Driver has since passed away.

It is necessary at this juncture to set out the parties’ conflicting versions as derived from the pleadings, for they serve to frame the central dispute in this action and to illuminate the factual terrain over which the parties are at odds, as follows: The Plaintiffs' version

The Plaintiffs’ version runs as follows: "5. Pada 11/10/2021 lebih kurang 7.30 pagi, Monir Ahmad Bin Abu Talak @ Abu Talib (sekarang simati) telah menunggang basikalnya daripada Meru menghala ke Setia Alam dan apabila beliau sampai di Persiaran Setia Alam sebuah motorvan No. MBF 7988 yang di pandu oleh Defensdan (sic) Kedua dari arah yang sama telah melanggar basikal tersebut dari arah belakang. Akibat kemalangan tersebut Monir Ahmad Bin Abu Talak @ Abu Talib telah meninggal dunia di tempat kejadian. Ini mengakibatkan Plaintif-Plaintif mengalami kesedihan dan kedukacitaan yang amat teruk.

Kemalangan tersebut berlaku semata-mata dan/atau disumbangkan oleh kecuaian Defendan Kedua sebagai ajen/ pekerja dan/atau memandu motorvan dengan keizinan Defendan Pertama…” (See: Paragraphs 5 and 6 of the Plaintiffs’ Amended Statement of Claim) The Defendants' version

The Defendants’ version runs as follows: “6. “Defendan Kedua menyatakan bahawa semasa beliau memandu motorvan No. MDF 7988 dari tempat kerja di Jalan Abdul Manan menghala balik ke rumah di Subang, apabila sampai di Persiaran Setia Alam, Defendan memandu di jalan terus di laluan sebelah kanan, tiba-tiba basikal dari arah jalan bertentangan telah melintas besi pembahagi jalan yang berada di tengah jalan lalu masuk ke laluan Defendan dan oleh kerana jarak terlalu dekat, Defendan tidak sempat brek dan telah melanggar basikal tersebut dan akibat dari kemalangan telah mengakibatkan motorvan Defendan mengalami kerosakan pada bumper hadapan, body hadapan, cermin sisi sebelah kiri rosak dan lain-lain kerosakan lagi.” (See: Paragraph 6 of the Defendants’ Amended Statement of Defence)

Before addressing the competing arguments, I find it convenient to set out below the well-established principles governing the burden of proof, to which I shall immediately turn. Statutory provisions

Elementary as it is, it is worth noting at the outset the burden and standard of proof, which is the legal burden on the balance of probabilities, as prescribed by sections 101 and 102 of the Evidence Act 1950 (the Act). Section 101 of the Act reads: “101 Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

And Section 102 of the Act reads: “102 On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

Guidelines have been developed over the years in precedents concerning the centrally relevant burden of proof. Elucidating the relevant subject succinctly, the Federal Court, speaking through Ong CJ (Malaya) in the case of Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151; [1971] 2 MLJ 175 observed: “In a negligence action the onus of proof rests wholly on the plaintiff, whether or not the defendant gives evidence. The plaintiff cannot succeed without proof of the defendant's negligence. Evidence is the foundation of proof, with which it must not be confounded. Proof is that which leads to a conclusion as to the truth or falsity of alleged facts which are the subject of inquiry. Evidence, if accepted and believed, may result in proof, but it is not necessarily proof of itself.”; see 15 Halsbury (3rd Edn.) p. 260.”

As well, a terse summation of the law was given by K C Vohrah J (later JCA) in the case of Krishna Murthey & Anor. v. Law Lye Chua [1992] 2 CLJ Rep 668, wherein His Lordship cited Ng Chui Sai v. Maimon Bt. Ali [1983] 1 MLJ 110 and observed: “The onus is not on the defendant to prove that he was not negligent. As was succinctly pointed out by Hashim Yeop A. Sani J (as he then was) in Ng Chui Sai …: In an action for negligence the onus of proving the allegation of negligence rests on the person who makes it unless there are disclosed facts which raise a presumption in favour of the plaintiff. The plaintiff must show affirmatively that there has been a breach of a specific or genuine duty by the defendant and this resulted in the damage to the plaintiff. If he fails to prove this the action must fail.”

I furthermore place considerable reliance on the statement of principles by RK Nathan J in the case of Jafri Elias v. Khor Tang Seah [1992] 2 CLJ Rep 601, wherein His Lordship observed: “In my view it was unjustified for the Judge to put liability at all on the defendant when the plaintiff had not discharged the onus of proof on him on balance of probabilities that the accident was caused by the negligence of the defendant either wholly or partially and I therefore allowed the appeal of the defendant with costs.”

And I add, incidentally that sections 101 and 102 of the Evidence Act were referred to in MGI Securities Sdn Bhd v. Teong Teck Leng & Ors [2000] 5 CLJ 163; [2000] 1 MLJ 354 by K L Rekhraj J wherein His Lordship observed: “...sections 101 and 102 of the Evidence Act 1950 require 'whosoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove those facts do exist'; and here the plaintiff having chosen and elected not to lead the evidence of the oral agreements through its witnesses, the court could only hold that there was no evidence of the plaintiff's before the court to adjudicate upon; and accordingly dismissed the plaintiff's claim with costs.”

On the parallel subject matter, I shall in the same score direct myself in accordance with the concise statement of the law in the Federal Court case of U Television Sdn Bhd & Anor v. Comintel Sdn Bhd [2017] 10 CLJ 580; [2017] 5 MLJ 292, wherein it was observed: “35. On the meaning and application of the term "burden of proof" s. 101 of the Evidence Act 1950 ("the Act") states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The "burden of proof" in s. 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The "burden of proof" in s. 102 of the Act shifts from one side to the other according to the weight of the evidence." ARGUMENT ON LIABILITY FIRST ISSUE: WHETHER THE PLAINTIFFS HAD DISCHARGED THE BURDEN OF PROOF ON THE BALANCE OF PROBABILITIES PROVING THAT ACCIDENT WAS CAUSED BY NEGLIGENCE OF THE DECEASED DRIVER - ASSESSING THE MORE

Having set out the competing versions, I now return to the central issue of liability. As is trite, the Court must consider the evidence as a whole, not simply in terms of assertion, but of substance tested against careful scrutiny. Opposing Contentions in brief

Learned counsel for the Plaintiffs submitted that the accident was caused by the negligence of the Deceased Driver, who allegedly struck the Deceased Cyclist from behind while both were travelling in the same direction. They urged the Court to infer negligence from the nature of a rear-end collision, the location of the impact on the front left side of the van, and the relative vulnerability of the Deceased Cyclist, who was said to have been riding lawfully on the road at the material time.

Opposing the preceding argument, learned counsel for the Defendants contended that the Deceased Driver had not breached any duty of care and that the Plaintiffs had failed to establish any negligence on his part. He relied on physical evidence, particularly the location of the impact damage, the Chemist’s Report (Exhibit D4), and the outcome of the police investigation to demonstrate that the collision was lateral in nature rather than a rear-end impact as alleged by the Plaintiffs. Legal framework

I find it apt to note, by way of a curtain-raiser, the observation on the duty of the court to assess the inherent probability or improbability of a version from a set of facts by FA Chua J in the Chua Chong Cher v. Teo Lang Keow & Ors[1970] 2 MLJ 27; [1970] 1 LNS 18, wherein His Lordship observed: “As often happens, a Court on the evidence before it, has to decide which of two conflicting versions is the version to accept. In such a case, a Court in considering which is the more probable one, ought to try and derive what assistance it can get from undisputed facts, if any, which are relevant for the purpose. A Court also ought to consider, from undisputed facts, whether a version put forward as evidence is one which is inherently improbable or not.” (Emphasis added)

Similarly, the observation by Lim Beng Choon J in Chong Keow @ Chong Seaw Oon (suing The Administrator of The Estate of Wong Kooi Tai @ Wong Foo Keak-Deceased v. Shaari Yaacob) [1988] 1 CLJ 325, wherein His Lordship observed: "… the function of the trial court is to carry out a searching evaluation and assessment of the totality of the oral and documentary evidence in order to determine the truth. In the final analysis, it is not merely a question of whom to believe but rather whose version is more inherently probable which is that prime conclusion.” (Emphasis added)

As is strikingly apparent, there are two conflicting versions of the narrative, namely:

The Plaintiffs’ version - the bicycle was struck from behind by the van while both were travelling in the same direction on the same road, resulting in a rear-end collision.

(ii) The Defendants’ version - the Deceased Cyclist’s bicycle crossed over the central guardrail from the opposite direction and entered the Deceased Driver’s lane from the right, resulting in a lateral collision.

As against that, I shall forthwith advert to the issue directly under contemplation. Upon being confronted with two conflicting versions, it is my duty to assess which version is more inherently probable or improbable (See: Tabarani Mohd Arshad & Anor v. Chan Tenn Yeu [1999] MLJU 126; [1999] 3 CLJ 188).

Considered in light of the afore-cited observations, and weighing them with the factual scores and circumstantial peculiarities of the present case, I respectfully find that the cumulative force of the evidence establishes on the balance of probabilities that the Defendants’ version is more inherently probable than that of the Plaintiffs.

With neither the Deceased Cyclist nor the Deceased Driver having survived to testify, and in the absence of any CCTV or dashcam recording or any eyewitness, the evidence of Inspector Abdul Azim Bin Mazlan, who testified in his capacity as the Investigating Officer (PW1), stands at the centre of the evidentiary matrix. As I assess the evidence, it is apparent to me that PW1 undertook a comprehensive investigation covering all relevant aspects, including visiting the collision scene, preparing a sketch plan, assessing contemporaneous reports and relevant statements, photographing the scene and vehicles involved, and sending the vehicle for chemical analysis, the entirety of which demonstrates that the investigation was both thorough and methodical, as reflected in his investigative findings (PW1’s investigative findings). And I find it worthwhile to state here the observation by Wong Kian Kheong J (now JCA) concerning the evidence of an investigating officer in the case of Lim Jeh Haur v. Nicholas Thomas Philip & Anor [2019] MLJU 1016; [2019] 1 LNS 1351, wherein His Lordship observed: “23. Firstly, a police officer investigating a road accident may give evidence regarding the result of his or her investigation, such as (which are not exhaustive)-

the nature and extent of the damage to the vehicles in question;

the results of an examination of the scene of accident, e.g.-

whether there were skid marks on the road;

whether the traffic lights and/or street lights were functioning at the material time; and

whether there were traffic signs at the scene of the accident; and

a sketch plan of the place of the accident.

The court should not attach any weight to the evidence of an IO that a particular party has been negligent or not (or words to that effect) because:

whether a party is liable for negligence or otherwise is to be decided by the court;

an IO has no personal knowledge regarding the accident. The IO's knowledge of the accident is derived solely from the results of the IO's investigation … and

an IO's evidence regarding who is negligent or otherwise, is purely his or her opinion. The court cannot accept opinion evidence unless there is a relevant issue before the court which is beyond the court's competence wherein the court may accept an expert opinion under s. 45(1) EA. Section 45(1) EA provides as follows – Opinions of experts 45(1). When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts."(emphasis added).

As explained in the above paragraph 24, no weight should be attached to the opinion evidence of the 2 IO's that the Defendant was not at fault regarding the Incident.”

Addedly, another critical spectrum of consideration, apart from PW1’s investigative finding, lies in the contemporaneous physical evidence, including the photographs (Exhibit P2A-N), the Sketch Plan (Exhibit P1), and the pattern of vehicle damage which, as established by the Court of Appeal in the more than half-century-old case of San Seong Chay & Ors. v. Yuson Bien [1963] MLJ 235; [1963] 1 LNS 117, offers reliable means of testing and evaluating conflicting versions of events.

Through the preceding authoritative prism, the considerations that ground my determination on liability boil down to these:

Investigative Neutrality of the Investigating Officer (PW1)’s

To my mind, PW1’s evidence aligns with the Defendants’ version in every material respect, from the post-collision positioning of the van and bicycle to other physical observations made at the scene. While the precise point of impact cannot be determined with certainty (given that both the Deceased Cyclist and the Deceased Driver are no longer able to testify), PW1’s conclusions were nonetheless based on tangible observations made during the investigation.

What I find particularly significant is that PW1, as the Investigating Officer with no personal interest in the outcome of this case, presented an account that closely reflects the Defendants’ version. His findings were not shaped by personal recollection or affected by trauma, but emerged from his objective and professional assessment of the scene and related materials. In the words of Lim Beng Choo J (later JCA) in the case of Chan Sau Chuan v. Choi Kong Chaw & Yap Yun Chan [1990] MLJU 9; [1991] 2 CLJ Rep 394: “… although … not an expert witness in the strict sense of the words nevertheless he is more than competent to give his views because of his experience as an investigation officer in traffic accidents and the quality of the evidence he gave in this trial.”

Further, I find that PW1’s demeanour in the witness box was calm, forthright, and consistent with the impartial role expected of an investigating officer, showing no signs of evasiveness or partiality in the manner he responded to questions during cross-examination. His consistency and unfaltering composure throughout the proceedings lent additional weight to the reliability of his testimony.

That said, I remain tethered to the caution expressed by Ong Hock Thye FJ in the Federal Court decision of Ah Mee v. Public Prosecutor [1967] 1 MLJ 220; [1967] 1 LNS 3, wherein His Lordship observed: “To avoid undue emphasis on demeanour, it may be well to remember what was said by Lord Wright, and often quoted, from his judgment in Powell and Wife v. Streatham Manor Nursing Home [1935] AC 267 of the possibility of the Judges being deceived by adroit or plausible knaves or by apparent innocence.” That wise admonition is not lost on me.

And having had the inestimable benefit of observing the trial first-hand, I respectfully find that PW1’s evidence was neither “inherently improbable” as that phrase is used in the law, nor in direct conflict with other evidence, and therefore worthy of acceptance. Accordingly, I found PW1 to be a credible and measured witness whose testimony withstood scrutiny.

Flowing from the above, I place reliance on the more than a half-century observation by Thomson CJ in the case of PP v. Mohamed Ali [1962] 1 MLJ 257; [1962] 1 MLRH 79, wherein His Lordship observed: "When a Police witness says something that is not inherently improbable his evidence must in the first instance be accepted. If he says he saw a cow jumping over the moon his evidence is, of course, not to be accepted, but if he says he saw a cow wandering along one of the main streets of Kuala Lumpur (the sort of thing we all see every day of our lives) there is not the slightest justification for refusing to believe him. Of course, if his evidence is contradicted by other evidence or is shaken by cross-examination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether a Police witness or not, who gives evidence on affirmation, should normally be accepted." (Emphasis added)

Thus, in my judgment, when a neutral investigator independently arrives at a conclusion that closely mirrors one of the conflicting versions, that version gains added plausibility. Given that both parties relied on the same investigative material, the fact that PW1’s professional conclusions align with the Defendants’ version lends it added weight, whereas the Plaintiffs’ version finds no equivalent support within the same body of evidence, rendering it comparatively less probable.

(ii) Scientific Corroboration from the Chemist’s Report

The Chemist’s Report (Exhibit D4) states: “Berdasarkan kepada kerosakan dan penemuan tersebut, saya berpendapat sisi kiri belakang basikal 'A' dan bahagian hadapan kiri van MDF 7988 konsisten telah berlanggar. Kedudukan relatif paling mungkin bagi perlanggaran pertama antara kedua-dua kenderaan tersebut ditunjukkan oleh Fotograf 3.”

And Photograph 3 depicts the most probable relative positions of the bicycle and the van at the moment of initial impact. As clearly seen, it suggests that the collision was lateral in nature.

In my view, the Chemist Report (Exhibit D4) serves as a neutral and objective point of reference that supports the Defendants’ version. The fact is not lost on me that it was prepared by Mohd Azhan bin Md Deros, the Chemist from the Department of Chemistry pursuant to Section 399 of the Criminal Procedure Code which is a body wholly independent of both PW1, who acted as the investigative authority in this case, and the parties themselves.

That independence, viewed in light of the totality of circumstances, is not merely procedural, but it lends real evidential force. While PW1’s investigative conclusions were already grounded in physical observations, the Chemist’s Report (Exhibit D4) elevates those findings by providing scientific confirmation from an external source. To my mind, that distinction is important. It transforms the Defendants’ version into one that is, in all the circumstances, more probable.

I have also considered learned counsel for the Plaintiffs’ argument that the Chemist’s Report (Exhibit D4) should be disregarded on the basis that its maker was not called to testify. Foremost in my mind is the principle that inadmissible evidence does not gain admissibility merely because no objection was raised. (See: Popular Industries Ltd v. Eastern Garment Manufacturing Sdn Bhd [1990] 1 CLJ 133; [1989] 3 MLJ 360 and Mui Bank Bhd Johore v. Tee Puat Kuay [1993] 4 CLJ 69; [1993] 3 MLJ 239).

Viewed, however, against the particular contours of this case, I find the argument lacking in persuasion for the following reasons. First, no objection was raised at the point of tender, and in my view, that silence is not without consequence. Procedural lapses, however subtle, may alter the evidentiary weight in a manner the Court must consider. Second, learned counsel for the Plaintiffs themselves placed considerable reliance on the Chemist’s Report (Exhibit D4), anchoring the Plaintiffs’ version firmly upon its contents in submission. Third, to raise the issue only at the submission stage appears to me not only to be a direct afterthought but also a belated and tactical manoeuvre. Fourth, this selective disavowal of a document once found useful strikes me as inconsistent with a fair and forthright litigation posture. And Fifth, the Plaintiffs had ample procedural latitude to challenge the Chemist’s Report (Exhibit D4) admission at trial by invoking section 135 of the Evidence Act 1950 or applying for a subpoena to secure the Chemist’s attendance. Regrettably, however, such step was not taken.

As a whole, the Plaintiffs’ failure to object at the material time, particularly given the centrality of the Chemist’s Report (D4) to the forensic narrative, materially weakens the force of their present challenge. In my judgment, to allow the matter to be reopened willy-nilly, after full opportunity was afforded to raise objections during trial, would be unjustified and incompatible with the orderly structure and procedural discipline that the trial process demands.

I take guidance from the following passage of the Court of Appeal in Kay Hian Pte Ltd v Ma Boon Lan [2003] 4 MLJ 603, wherein PS Gill JCA (as His Lordship then was) cited with approval of the Court of Appeal case of Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd [1996] 2 MLJ 57; [1997] 2 CLJ 104 and observed: “At the outset, it must be borne in mind, that when the abovementioned documents were introduced as exhibits at the trial before the 1st trial judge, counsel for the defendant raised no objection, and as such they were properly admitted, and marked accordingly. More pertinently, however, was the fact that these very documents later formed the basis of serious objection by counsel for the defendant in his submission at the close of the case before the 2nd trial judge who then overruled the ruling of the 1st trial judge on the admissibility of the said exhibits. We begin by addressing the second issue, and can do no better than reiterate the principles enunciated in the case of Hartecon JV Sdn Bhd & Anor v Hartela Contractors Ltd … on the issue of a finality of a ruling made by a judge on issues of procedure such as the admissibility of documents as in the present case. This court has stated in clear and lucid terms as follows: We cannot over emphasize the proposition that once a judge makes a ruling substantive or procedural, final or interlocutory, it must be adhered to and may not be reopened wily-nilly.”

Reverting to the Chemist’s Report (Exhibit D4) at hand, I find it not only corroborates PW1’s investigative findings, making it align well with the Defendants’ version, but also provides objective, scientific support that further strengthens the probability of their version.

(iii) Damage to the Vehicles and Mechanics of the Collision

The Chemist’s Report (Exhibit D4) describes the damage to the bicycle as affecting its “Bahagian sisi kiri belakang”, as shown in Photograph 1, and the damage to the van as affecting its “Bahagian hadapan kiri”, as shown in Photograph 2. Based on these findings, I have formed the following analysis, not by adopting the lens of an expert, but by considering what the physical evidence reveals to me.

Inference from Damage Location and Movement Trajectories

The damage to the van’s front-left section is, as I assess it, telling. It is broadly consistent with a scenario in which the Deceased Cyclist crossed into the Deceased Driver’s lane laterally from the right, while the van was proceeding along its lawful lane. Both the Deceased Driver and the Deceased Cyclist were no longer available to testify, leaving no living eyewitnesses from either party’s vantage point. In such circumstances, the pattern of damage and PW1’s investigative findings assume particular importance in drawing reliable inferences as to how the incident unfolded. To my mind, the location of the damage more probably corresponds to the movement paths of both parties at the time of collision, rather than to the side of the Deceased Cyclist’s initial entry.

In assessing this configuration, I bear in mind that the van was in forward motion at the material time. The Deceased Cyclist’s lateral entry from the right, when juxtaposed against the van’s advancing trajectory, would result in an angled point of impact. As the bicycle crossed diagonally into the van’s lane, the collision would occur not at the van’s centre-front or right side, but at its advancing left-front quadrant. The van’s momentum carried the point of contact forward and laterally from the Cyclist’s original path of entry. In this light, the presence of the dent on the front-left of the van is not only plausible but directly consistent with a lateral intrusion. The forensic pattern coheres more persuasively with this dynamic sequence than with any static assumption of head-on or rear-end contact.

This assessment is further supported by the location of the dent on the left side of the van, which is situated at a height notably above that of a standard bicycle tyre. Having regard to the available evidence and surrounding circumstances, I infer that the damage was not caused by contact with the bicycle’s wheel, which lies substantially lower, but rather by the Deceased’s Cyclist body striking the side of the van at the point of collision. This inference strengthens the conclusion that the impact resulted from a lateral intrusion into the van’s lane, as opposed to a rear-end collision.

Condition of the Bicycle and Its Forensic Implication

As I see it, the damage pattern on the bicycle, though limited, also lends supportive context. The concentration of impact on its left flank, rather than on its front or rear, is not inconsistent with a lateral collision. While the evidence does not permit a definitive account of the collision, the absence of crushing at the rear or indication of frontal impact suggests that the bicycle was not struck from behind while moving in the same direction. Had that been the case, one might reasonably expect signs of what is often referred to as forward-propulsion damage such as rear-end crushing, dislodged components like the chain, or scrape marks consistent with forward momentum. To my eyes, these features are not evident on the bicycle in this case.

Geometry of Impact as Shaped by Forward Motion

At the outset, learned counsel for the Plaintiffs submitted that if the Deceased Cyclist had crossed over the central guardrail from the opposite direction and entered the Deceased Driver’s lane from the right, damage would more likely appear on the van’s right side. In my view, this submission rests on an assumption of static collision geometry, and fails to account for the van’s forward motion. It is akin to expecting a train to strike an object only at its frontmost point, when in truth, depending on the angle and timing, the object may collide with any part of the train’s advancing side. Similarly, based on the Deceased Cyclist’s angle of entry and the van’s momentum, it is not inherently improbable that contact occurred at the van’s left-front corner as it moved forward.

Absence of Rear Tyre Damage as an Evidentiary Indicator

Next, learned counsel for the Plaintiffs argued that, given the collision involved the van and the bicycle, any rear-end impact on the bicycle would be difficult to detect, as the rear part consists of the tyre, which tends not to retain visible signs of impact due to its material. While I agree that the tyre is indeed made of rubber, I am not satisfied that this alone explains the absence of collision marks. It is a matter of common sense that a significant rear-end impact from the van would transfer force beyond the tyre to the rim and rear frame. Even if the tyre absorbs some force, that does not necessarily mean no physical damage would result. The complete lack of damage to the rear side of the bicycle, as confirmed in the Chemist’s Report, makes the Plaintiff’s version of a rear-end collision less probable.

Forensic Weight of a Lateral Collision Finding

Finally, while learned counsel for the Plaintiffs argued that the damage to the left side of the rear tyre, as established in the Chemist Report (Exhibit D4) may have resulted from an impact following a rear-end collision, I view this as merely one possible version of events. It does not, by any coherent reading of the evidence, dislodge the strength of the Chemist’s scientific finding that the collision was lateral in nature. That finding, in my view, lends firm support to the Defendants’ version and renders it more probable.

Cumulative Force of Objective Indicators

Accordingly, I find that the account told by the damage to both the van and the bicycle, when examined in light of the surrounding circumstances, forms a coherent and persuasive narrative. These objective indicators collectively support the version advanced by the Defendants, namely, that the Deceased Cyclist crossed over the central guardrail from the opposite direction and entered the Deceased Driver’s lane laterally, as opposed to the Plaintiffs’ version of a rear-end collision. On a cumulative whole, I am satisfied that the alignment of the physical evidence with the Defendants’ version reinforces its inherent probability.

(iv) Position of the Deceased Cyclist’s Body

The location of the van, which was travelling between the A4 and A5 lanes (the fast lane), was established through the Deceased Driver’s Police Report, PW1’s investigative findings, and the accompanying Sketch Plan (Exhibit P1). The Deceased Cyclist’s body was subsequently found between points A2–A3 which in my assessment, reinforces the inference that he had crossed over the central guardrail from the opposite direction and entered the Deceased Driver’s lane laterally, from right to left. Although no one observed the precise moment of impact, it remains clear to me that this alignment provides a probable account of how the collision occurred. 60 Crucially, the Plaintiffs offered no coherent explanation for how the Deceased Cyclist could have ended up at this final position if he had merely been struck while travelling in the same direction as the van. In my assessment, the absence of a credible alternative trajectory renders the Plaintiffs’ version less probable, as it fails to account for the established resting points. With no competing path or mechanism presented to explain the spatial outcome, this objective alignment lends greater probability to the Defendants' version.

Further, learned counsel for the Plaintiffs submitted that the Deceased Driver, as the operator of the heavier vehicle, ought to bear a greater portion of responsibility for the collision. In support, reliance was placed on Chuah Beng Kong & Anor v Zizah Othman & Anor [2019] 1 LNS 2351; [2019] MLJU 2103, which cited with approval the decision in Mariam binti Ahad v Ernesto A Gacad & Anor [1984] CLJU 149; [1986] 1 MLJ 266. In Mariam, the Court stressed that drivers of large vehicles on narrow roads must exercise a high degree of care and should not cross into opposing lanes unless it is clearly safe to do so.

However, I find such reliance to be misplaced in the context of the present case. The facts here are materially different. Having assessed the evidence and accepted the Defendants’ version as more probable, I am satisfied that the collision occurred when the Deceased Cyclist crossed into the Deceased Driver’s lawful lane, resulting in a lateral impact. There is no suggestion, whether from the scene evidence or from the testimony, that the Deceased Driver drove in a manner falling short of the expected standard or failed to exercise reasonable care. On the contrary, all indicators point to the Deceased Driver remaining within its lane at the moment of collision.

I take a position that to give weight to learned counsel for the Plaintiffs’ argument by imposing liability merely because the van was larger, without any evidence of negligent or improper driving amounting to a breach of the duty of care, would be akin to blaming a stationary train for a cyclist who suddenly veers onto the tracks. The size of a vehicle, without more, cannot create liability where the conduct itself was not negligent. As I understand it, tortious liability arises from how a vehicle is driven rather than how heavy it is. Manifestly, the principle in Mariam does not fit the peculiar factual backdrop of this case.

Evidentiary Significance of the Sketch Plan (Exhibit P1)

I now proceed to consider the evidentiary value of the Sketch Plan (Exhibit P1), a document which seeks to depict the geometry of the collision. It bears emphasis that the markings on this rough sketch are by their very nature approximative. This limitation is especially pronounced in a case such as the present, where both the Deceased Cyclist and the Deceased Driver are no longer available and no eyewitness has come forward to testify. In such circumstances, the Sketch Plan (Exhibit P1) cannot be regarded as reflecting the precise, let alone the exact, point of collision (See: Sang Abui v. Jenuang Nirau & Anor [2016] 1 LNS 925).

That said, even with its limitations, a sketch plan still retains considerable evidentiary significance. As succinctly observed by Wan Suleiman FCJ in the Federal Court case of Mohamed Salleh Bin Awang & Anor v. Low Han Leong & Anor [1982] 1 MLJ 82; [1981] 1 LNS 140, the Court is justified in placing reliance on the sketch plan and drawing the necessary inferences as to who is liable. Where direct testimony is unavailable, such contemporaneous and objective material assumes a vital role in reconstructing the likely sequence of events.

Reverting to the present case, I note here this. PW1’s investigative findings indicate the Deceased Driver was travelling between the A4 and A5 lanes (the fast lane) at the material time when the collision occurred, and that the van was subsequently moved from its original position after the collision. The body of the Deceased Cyclist was subsequently found at its final resting place between the A2 and A3 lanes. The preceding distribution as recorded in the sketch plan (Exhibit P1), when viewed cumulatively with the entire spectrum of evidence, is consistent with a scenario in which the Deceased Cyclist crossed over the central guardrail from the opposite direction and entered the Deceased Driver’s lane from the right side of the highway. It is, in my view, a significant piece of silent evidence that supports the Defendants’ version of events, namely that the Deceased Cyclist was crossing the road unlawfully from the opposing direction.

In his argument, learned counsel for the Plaintiffs relied on Teok Chee Wee v PP [2010] CLJU 776 and pointed to the Sketch Plan (Exhibit P1) prepared by PW1 to show that there were no brake marks, arguing that the Deceased Driver had not applied the brakes to avoid colliding with the Deceased Driver. Addressing the preceding argument, I am mindful of the observation by Gunalan Muniandy JC (later JCA) in Teok Chee Wee that the absence of brake marks or debris on the sketch plan may cast uncertainty over the precise point of impact. That concern however does not arise here. Both the Deceased Cyclist and the Deceased Driver are no longer able to testify and, in the absence of any contemporaneous recording, there is no direct account of how the collision occurred or where exactly the point of impact lay.

And in the same breath, I am not unmindful of the observation by Vernon Ong J (later FC) in Mohd Asrul Fandi Takayu v. Sazalee Yunus & Anor [2011] 1 LNS 1532 that, “The absence of brake marks is not conclusive proof that the plaintiff failed to apply his brakes.”

That said, the evidential landscape in the present case warrants a closer look. Given the nature and moderate damage to the vehicle, I do not find the absence of brake marks or debris surprising. I say this not as one possessed of forensic expertise, for I am bereft of such qualification, but from a common-sense appreciation of what the available evidence reasonably discloses. While brake marks and debris may have some evidential value, they are not definitive indicators of negligence. There are, in my view, reasonable and non-negligent explanations for their absence. As I see it, the proper approach is to assess the matter holistically. Assessed in its composite form, the remaining evidence led in court supports the probability of the Defendant’s version and, in my judgment, is not materially weakened by the absence of brake marks or debris.

(vi) Photographic Evidence Supporting the Defendants' Version

The photographs (Exhibits P2 A - N), though silent, are eloquent in their alignment with PW1’s investigative findings. They illustrate the nature and extent of the damage sustained, and when viewed alongside the Sketch Plan (Exhibit P1), PW1’s investigative findings and the Chemist Report (D4), reinforce the conclusion that the impact occurred laterally. This supports the Defendants’ version that the Deceased Cyclist had crossed over the central guardrail from the opposite direction and entered the Deceased Driver’s lane.

In this regard, I find instructive the observation by Tee Geok Hock JC in Norhasyidan Mohd Nor @ Mohamad Hazani v. Mohd Ridhwan Asmara & Ors [2021] MLJU 627; [2021] 1 LNS 526, wherein His Lordship remarked: “Contemporaneous photographs of the two motor vehicles which show the types, nature and extent of the damages and the parts of each motor vehicle damaged by the collision are very relevant and material evidence to show whether or not a collision between them occurred and if so, the manner in which the collision occurred.… In a case where there are contemporaneous photographs showing the damages and conditions of the two motor vehicles shortly after the incident, the contemporaneous photographs provide the best evidence to establish the existence or non-existence of a collision between the two motor vehicles.”

(vii) Outcome of the Police Investigation and Attribution of Fault

Relevance and Evidentiary Weight of the Police Classification

While the outcome of a police investigation is not determinative of civil liability, it remains a relevant consideration within the broader evidentiary framework. In this case, the classification of the matter as “Tiada Tindakan Lanjut (NFA)/ Rujuk Kepada Majistret (RTM)” - Exhibit D6 (“No Further Action”) followed a detailed investigation by PW1 who examined the scene, reviewed contemporaneous documentation, and recorded a statement from the individual directly connected to the incident.

Consistent with the preceding outcome, no traffic summons was issued to the Deceased Driver, who was alive at the material time. To my mind, this undermines the probability of the Plaintiffs’ version, which asserts fault on the part of the Deceased Driver despite the absence of any contemporaneous attribution of liability. That omission tilts the probability scale in favour of the Defendants’ version.

Issuance of Summons and Judicial Weight of Investigative

As respects the issuance of summons, it is well-settled that summons is not conclusive of liability. That position is apparent from Mohd Salleh Samad v. Zainuddin Dongking [2001] MLJU 623; [2002] 1 CLJ 139, Rozita Ahmad & Yang Lain lwn. Mohd Yusof Saidin & Satu Lagi [2015] MLJU 1265; [2015] 1 LNS 1289.

But it bears noting that, though not determinative of liability, it is nonetheless a pertinent and telling fact deserving of reliance. (See Bong Chee Min v. Jacknoris Golinjun [2020] MLJU 151; [2020]

For completeness, I do not lose sight of the principle in Lim Jeh Haur, the authority relied on by learned counsel for the Plaintiffs, which states that no weight should be given to PW1’s opinion that the Deceased Driver was not at fault. However, I do not read that decision as excluding all aspects of PW1’s investigative findings from judicial consideration. Rather, it cautions against relying on unsubstantiated and standalone opinion as a sole basis determinative of negligence. Here, PW1’s investigative findings drew not merely from his observations at the scene but were also informed by other evidentiary sources. Insofar as these conclusions reflect objective facts and align with the broader evidential matrix, I consider them to carry probative value. On that basis, Lim Jeh Haur is distinguished on the facts and context of the present case.

Assessment of PW1’s Investigative findings and Its Probative

PW1’s investigative findings that the Deceased Cyclist was at fault was not speculative but grounded in objective findings. Learned counsel for the Plaintiffs did not challenge this aspect of PW1’s evidence, and his finding stands unshaken on the record. And to be clear, lest it be suggested that undue weight has been accorded to PW1’s evidence on the attribution of fault, I make it unequivocally clear that the ultimate determination of negligence lies with the Court. My conclusion is not drawn solely from the police disposition, nor does it rest uncritically upon PW1’s investigative findings. Rather, they arise from a holistic evaluation of the entire evidentiary record, considered within the broader factual matrix and assessed against the applicable standard of proof. That said, PW1’s investigative findings are not without persuasive force, particularly where they are grounded in objective indicators and align with the broader evidential narrative.

When the mosaic is seen as one, I am satisfied that PW1’s investigative findings lend credible support to the conclusion that the Deceased Driver’s conduct was both lawful and reasonable. The “No Further Action” classification, properly understood in its context, serves to weaken the allegation of fault and enhances the overall probability of the Defendants’ version.

(viii) Evidentiary Assessment of the consistency between the Deceased Driver’s Police Report and the broader evidentiary matric.

I shall now analyse the evidentiary coherence and reliability of the Deceased Driver’s narrative as it appears across multiple sources, with particular focus on whether it sustains internal consistency and aligns with other objective material.

Contemporaneous Reporting and Consistency with the

As a starting point, the Deceased Driver’s Police Report serves as the First Information Report which lays the foundational narrative of the accident from his perspective and predates any investigative influence. The fact, as it stands, denotes that the accident occurred at 7.30 a.m. on 11.10.2021. The Deceased Driver lodged his report at 9.38 a.m. on the same day (within approximately two hours), at a time when his mind can reasonably be regarded as still composed and uninfluenced by external factors. It is, therefore, reasonable to hold that the circumstances of the accident were still fresh in his memory at the time of his reporting. A particularly clear statement of principle in regards to the subject at hand is apparent from the admirable observation by Raja Azlan Shah FCJ (as the late Royal Highness then was) in the Federal Court case of Karthiyayani & Anor v. Lee Leong Sin & Anor [1975] 1 MLJ 119; [1974] 1 LNS 61, wherein it was observed: “In the familiar case where a police report is admitted under the law, it is necessary that it should have been made before police investigation has commenced. The reason for this is that this class of statement is admitted upon the principle that it is the natural effusion of a party, who must know the truth, and who speaks upon an occasion when his mind stands in an even position, without any temptation to exceed or fall short of the truth.”

Given its temporal proximity, the report offers a useful reference point for evaluating the probability of the Defendants’ overall version. First, it finds tune with the subsequent statement given to the police pursuant to section 112 of the Criminal Procedure Code (“the 112 Statement”). Second, it forms the foundational basis for the narrative set out in the Defendants' Amended Defence. Third, it resonates with PW1’s investigative findings regarding the sequence and mechanics of the collision. Fourth, it accords with the Chemist’s Report’s finding of a lateral impact pattern (Exhibit D4). Fifth, it aligns with the photographic evidence (Exhibit P2A-N) depicting the physical positioning and damage. Sixth, it corresponds to the Sketch Plan (Exhibit P1) that trace the paths of the vehicles. Taken together, these elements form a coherent and mutually reinforcing evidentiary narrative that supports the Defendants’ version.

In my view, the absence of any conflicting eyewitness testimony or credible alternative account from the Plaintiffs renders the convergence of the documentary, expert, and investigative evidence particularly significant. And by contrast, the Plaintiffs’ version is not anchored to any credible contemporaneous account or evidentiary thread that meaningfully interacts with the surrounding objective material. This lack of internal alignment, in my judgment, diminishes its probability when weighed against the consistent and multi-sourced version presented by the Defendants. As I see it, such internal consistency materially enhances the probability of the Defendants’ version, and I place considerable weight on it in my overall assessment.

Assessing Asserted Inconsistencies between the Deceased Driver's Report and the 112 Statement.

Learned counsel for the Plaintiffs relied heavily on what was described as a contradiction between the Deceased Driver’s contemporaneous Police Report and the 112 Statement. In his Police Report, the Deceased Driver stated that he saw a bicycle suddenly cross from the right into his lane. In the 112 statement, however, he indicated that he did not clearly see the bicycle until the moment of collision.

It stands to reason that this narrative variance does not, in my evaluation, lessen the probability of the Defendants' version. The Police Report was made shortly after the incident and before the onset of litigation. It reflected a spontaneous and instinctive recollection of events, uninfluenced by legal advice or strategic considerations. Courts have consistently recognised the evidentiary weight of such contemporaneous accounts.

By contrast, the 112 statement was recorded under formal police questioning. It may reflect the natural limitations of memory or a more cautious phrasing of what the Deceased Driver could affirm with confidence.

By and large, I do not regard the preceding contradiction as one of substance, but rather as a modest shift in narrative emphasis, neither unusual nor significant in the context of a sudden and distressing event.

Importantly, it is apparent that the Deceased Driver is no longer alive to clarify or reconcile the perceived inconsistency. His silence is not voluntary and, as I apprehend it, it would be unfair to penalise him for being unable to explain what may have otherwise been a trivial divergence. His account must be assessed holistically and in context, not reduced to a single phrase or isolated statement.

More importantly, the 112 Statement was introduced not through the Deceased Driver himself but via PW1. As I assess it, the absence of direct testimony removes any opportunity for clarification and naturally limits the weight that can be given to the statement’s phrasing.

But most importantly, it is worthy of note that PW1 confirmed during trial that his investigative findings on this aspect were based on a holistic reading of the Deceased Driver’s 112 Statement, rather than any isolated answer. As reason compels me to conclude, that lends further confidence to the integrity of his investigative conclusions.

I pause at this juncture to recognise the force of the authority cited by learned counsel for the Plaintiffs. To my mind, they made correct reference to Tabarani which affirms that where there are two conflicting versions before the court, the judge must determine which is more probable. In doing so, the court is required to consider all versions supported by admissible evidence and within the pleadings, including those based on neutral facts.

The preceding line of authority reflects precisely the approach I have taken. I have examined all the evidence and accepted the version I find to be more probable. Respectfully, I cannot endorse their invocation of Tabarani to discredit the probability of the Defendants’ version, which accords with the Deceased Driver’s account, on the strength of so minor a narrative deviation. That case does not support the notion that every inconsistency, especially one that does not go to the heart of the case, necessarily undermines the overall probability of a version.

When considered against the broader evidential context, I find that the Defendants' version remains coherent, internally consistent, and aligned with the objective facts. Having assessed the totality of the evidence in a coherent and contextual manner, I am satisfied that the narrative difference between the Deceased Driver’s Police Report and his 112 Statement is not material. It does not, in my judgment, detract from the overall probability of the Defendants’ version.

Assessing the Evidentiary Impact of Omissions in the

Learned counsel for the Plaintiffs concentrated their fire on the omissions in the Deceased Driver’s Police Report:

that he merely stated he had collided with a bicycle, without disclosing that the collision involved the Deceased Cyclist; and

(ii) that he omitted any mention of having observed the Deceased Cyclist crossing over the central guardrail.

The preceding argument, in my respectful view, casts the matter in overly stark terms. On the Defendants’ version that the Deceased Cyclist was across the road, it is entirely natural that the report would refer to a collision with the bicycle without expressly noting the presence of the Deceased Cyclist. Similarly, the omission of any reference to the Deceased Cyclist crossed over the central guardrail from the opposite direction and entered the Deceased Driver’s lane is unsurprising, as the Deceased Driver’s account describes a sudden impact, not a sequence of events observed in advance.

While I accept the evidential relevance of the police report, as emphasised by learned counsel for the Plaintiffs through the case of Abdul Kadir Mohamad v. Kamarulzaman Mohd Zin & Anor [2000] 4 MLRH 239; [2001] 5 CLJ 249, I remain mindful of the succinct observation by Ong Hock Thye CJ (Malaya) in the Federal Court case of Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209; [1969] CLJU 52, wherein His Lordship remarked that a police report “is not an encyclopaedia” and “is not the beginning and ending of every case.”

Comparatively, and for completeness, I distinguish Abdul Kadir Mohamad from the present case in the following manner. That case involved significant omissions in the first defendant’s police report, namely the fact that he was carrying two passengers, that the plaintiff’s vehicle likewise carried two passengers, that the plaintiff was not the actual driver, and that the plaintiff had allegedly executed a reckless overtaking manoeuvre which precipitated the collision.

By contrast, the omissions in the present case are both insubstantial and peripheral when assessed against the broader evidential matrix. They do not shatter the Defendants’ version of a lateral collision, and nor even do they detract from its overall coherence. As such, the omissions cannot, in the words of Abdul Malik Ishak J (later JCA) in Abdul Kadir Mohamad, be construed “adversely against him.”

On the whole, although the Deceased Driver’s Police Report offers some insight, it ought not to be regarded as an exhaustive or infallible record of the facts. In the circumstances, the respective omissions do not diminish the probability of the Defendants’ version.

(ix) Traffic Law Violations - Evidentiary Implications of the Deceased Cyclist’s Breach and the Plaintiffs’ Evidentially Unfounded Assertion Against the Deceased Driver

The Investigating Officer (PW1)’s testimony that the Deceased Cyclist was present at the collision scene where he ought not to have been stood entirely unchallenged throughout the trial. It was neither contradicted by any witness, nor disputed by learned counsel for the Plaintiff, nor even addressed during re-examination. This silence, in my view, is telling. In the context of a civil claim, where liability is assessed on the balance of probabilities, a failure to contest such a central assertion carries significant weight. In the absence of any evidence to the contrary, I accept PW1’s evidence as reliable and relevant.

Given PW1’s role as the Investigating Officer attached to the Traffic Division of the Royal Malaysia Police, and his professional familiarity with applicable traffic rules and regulations, I attach institutional weight and credibility to his evidence. While this is a civil claim in tort rather than a prosecution for a traffic offence, the underlying factual matrix remains relevant to the Court’s broader assessment. PW1’s testimony, standing unrefuted and grounded in his institutional capacity, enhances the overall probability of the Defendants’ version.

By contrast, the Plaintiffs offered no competing credible factual narrative or evidential anchor to displace PW1’s account. Their version fails to engage with, let alone undermine, the central point that the Deceased Cyclist was at the collision scene in breach of traffic norms. That omission, I am persuaded, materially weakens the probability of their version and shifts it further in favour of the Defendants.

I acknowledge the strength of Desa bin Saad lwn Pendakwa Raya [2022] MLJU 194; [2022] CLJU 241, an authority cited by learned counsel for the Plaintiffs in relation to an appeal against a Magistrates’ Court decision under section 43(1) of the Road Transport Act 1987, concerning a charge of careless and inconsiderate driving, wherein the High Court observed that “… jika berlaku kemalangan dengan kenderaan yang melanggari peraturan lalulintas, maka pelanggaran tersebut adalah bukti prima facie kecuaian pihak tersebut.”

However, the present case is clearly distinguishable. There was no suggestion put, nor evidence adduced at trial by learned counsel for the Plaintiffs, to suggest that the Deceased Driver had breached any statutory provisions under the Road Traffic Rules 1959 (particularly sections 6, 7, 10 or 17). In such an absence, the principle in Desa does not assist the Plaintiffs. The evidential and statutory burden of proving the Deceased Driver’s breach lies with the Plaintiffs, and it has not been discharged.

Having surveyed the prevailing evidence, including the contemporaneous documents, the photographs (Exhibit P2A-N), the Sketch Plan (Exhibit P1), the Chemist’s Report (Exhibit D4), PW1’s investigative findings, the nature of damage to the vehicles, the pattern of injury, and the overall tapestry of material presented as a unified tableau, I find the Defendants’ version to be inherently more probable than that advanced by the Plaintiffs. It aligns consistently with the objective indicators on record and presents a coherent account that resonates with the physical and forensic realities. EVIDENTIARY DEFICIENCY OF SUBMISSIONS FROM THE BAR

I now take a brief detour to consider a discrete aspect of learned counsel for the Defendants’ argument id est the Plaintiffs’ reliance on factual assertions introduced solely through submissions from the Bar.

In this regard, I am fortified in my view by the salutary reminder of Abdul Hamid Mohamad FCJ (later CJ) in Lie Kok Keong v Tang Container & Services Sdn Bhd [2003] 4 CLJ 288; [2004] 1 MLJ 373, wherein His Lordship observed: “… that is merely a statement from the bar. It is not evidence and should not have been accepted as evidence.”

Nonetheless, in the interest of completeness and lest it be found that I have fallen into error by failing to consider them, I shall address these assertions briefly and in the order that follows.

From-the-bar submission concerning the Alleged Impossibility of Crossing the Divider

It runs as follows:

That photographic evidence of the scene shows the central guardrail followed by a stone wall, rendering it difficult, if not impossible, for the Deceased Cyclist to have crossed the road while pushing a bicycle, as suggested.

That any person attempting to cross over the central guardrail would have had to lift the bicycle over it and place it back on the road before resuming the ride.

With respect, I find the assertion of “impossibility” to be overstated. From my perspective, difficulty is not impossibility. Physical barriers (including the central guardrail in the present case) are designed to deter or regulate traffic, not to create impenetrable fortifications. In the absence of direct eyewitness testimony, and when evaluated through the strength of the evidence supporting the lateral collision, I am unable to infer that the Deceased Cyclist was incapable of navigating the central guardrail particularly when there is no evidence that he did not or could not. Upon the canvas of this case, it appears to me that such an assumption invites speculation.

More importantly, the version offered by the Defendants struck me as the more probable account following PW1’s independent investigative assessment, which was in turn supported by the Chemist’s Report (Exhibit D4). That report did not suggest a rear-end collision which I regard as wholly inconsistent with the Plaintiffs’ version that the Deceased Cyclist was ahead of the van on the same side of the road.

(ii) From-the-bar submission concerning the final resting position of Deceased Cyclist's Body as opposed to the Asserted Point of Impact

It runs as follows:

That although the impact allegedly occurred between the A4 and A5 lanes (the fast lane), the Deceased Cyclist's body was found at its final resting position between the A2 and A3 lanes.

That if the collision did indeed occur between the A4 and A5 lanes (the fast lane), it would have been improbable for the Deceased Cyclist's body to be found between the A2 and A3 lanes rather than between the A4 and A5 lanes (the fast lane) or between the A3 and A4 lanes.

I find the preceding submission unpersuasive. While I make no claim to specialist knowledge in accident reconstruction, I am persuaded by logic and observation that the final resting positions of vehicles tend to vary considerably depending on numerous impact-related variables, including momentum, vehicle speed, body trajectory and surface conditions. In this light, the fact that the Deceased Cyclist’s body was ultimately found between the A2 and A3 lanes does not, in my view, negate the probability of lateral collision. On the contrary, such a resting point is entirely reconcilable with the dynamics of a lateral impact, particularly when viewed against the broader evidentiary backdrop.

(iii) From-the-bar Submission Concerning Final Position of the Van Post-Collision

It runs as follows:

That the van was found after the incident on the far left of the road, not far from the Deceased Cyclist’s body, an alleged inconsistency with an impact between the A4 and A5 lanes (the fast lane) and the vehicle subsequently moving across to the far end of the road.

I find this submission to be misconceived. It stands clear to me that PW1’s evidence was clear and unshaken that the position of the van as reflected in the Sketch Plan (Exhibit P1) marked the location after it had been moved following the collision. Unlike the final position of the Deceased Cyclist’s body, which remained undisturbed, the van was repositioned post-impact. Regardless of how or when it was moved, that position does not, in my judgment, diminish the probability of the Defendants' version concerning location of the van at the point of impact which remains coherent and supported by the broader evidentiary matrix.

(iv) From-the-bar Submissions on Injury Pattern and Collision Dynamics

In runs as follows:

That if the collision occurred in the manner described in the Police Report, the majority of the injuries would be expected on the right side of the Deceased Cyclist’s body, assuming a sideways fall with the bicycle.

That the Deceased Cyclist’s injuries were predominantly on the left side of the body, with the most severe injuries concentrated on the left side of the head.

That if the impact had been limited to the tyre, the Deceased would not have sustained such serious injuries.

I find this submission unsustainable upon scrutiny. The Post-Mortem Report (See: Common Bundle of Documents, Part A) reveals a widespread and bilateral pattern of injuries. The Deceased Cyclist sustained multiple abrasions on both upper limbs, including a 14 × 19 cm abrasion on the left hand and a 13 × 8 cm abrasion on the right. Brush abrasions were present on both shoulders and arms. A blister was noted on the palmar aspect of the left forearm, and further abrasions were observed on both feet and knees. These injuries suggest contact with the road surface at multiple, distinct points, rather than along a singular or linear path.

In my opinion, the internal injuries reinforce this conclusion. Rib fractures were noted on both sides of the thorax, specifically, the left posterior 1st to 6th, 10th, and 11th ribs, and the right anterior 2nd rib. The Deceased Cyclist also suffered severe cranial trauma, including subdural and subarachnoid haemorrhage, and a cervical spine fracture. There were also contusions of the left lung and kidney. These injuries, as I see it, are not readily explained by a minor or indirect impact transmitted solely through the bicycle. Even if the initial contact was with the bicycle, the violent transfer of force to the body cannot be discounted.

Learned Counsel for the Plaintiffs’ submission that no serious injury would have occurred had the impact been limited to the tyre, in my view, similarly fails to consider the real-world mechanics of collisions involving cyclists. The Deceased Cyclist, riding an unprotected two-wheeled vehicle, would have been highly susceptible to the effects of speed, bodily projection, and secondary impact. A collision involving a lower part of the vehicle, such as the tyre, is entirely capable of producing serious, even fatal, trauma in such circumstances (this aspect is addressed in the earlier segment of this judgment, under the heading Damage to the Vehicles and Mechanics of the Collision). From my perspective, the overall pattern of injuries and the observed damage instead support a scenario involving a side-on entry and a multi-point collision trajectory.

And learned counsel for the Plaintiffs’ further argument that the left-side injury arose from the Deceased Cyclist, riding a smaller and lighter bicycle, losing control and falling on his left side upon impact is, in my view, wholly untenable. The attempt to draw a causal link between the direction of the fall and a rear-end impact strikes me as unconvincing and finds no support in the Chemist’s scientific analysis.

Taken together, I find that the injuries were distributed across both sides of the body, with significant trauma present on both the left and right. While I do not purport to have the expertise of a forensic pathologist, the injury distribution appears too diffuse and too bilateral to support the Plaintiffs’ version of a one-sided fall or a bicycle-only impact.

In these circumstances, I do not consider it appropriate to draw firm conclusions based solely on the distribution of injuries. While such material may offer some insight, it must be evaluated in the context of the broader evidentiary record. On balance, the injuries when viewed alongside the Post-Mortem Report (See: Common Bundle of Documents, Part A) and physical evidence, lend greater weight to the Defendants’ version of events. I, therefore, find that version to be the more probable account of what transpired.

I find it necessary to interject a brief observation on the shifting positions advanced by learned counsel for the Plaintiffs concerning this matter as summarised below:

Position Advanced by Learned Counsel for the Plaintiffs in the

Learned counsel for the Plaintiffs advanced the argument that if the collision had occurred as described by the Deceased Cyclist in the Police Report and the Chemist’s Report, the majority of the injuries would have been on the right side of the deceased’s body, as he would have fallen sideways along with his bicycle. In their words, “…jika pelanggaran berlaku sepertimana dikatakan oleh Defendan Pertama dalam Laporan Polis dan Laporan Kimia pihak Polis, kebanyakan kecederaan akan tertumpu di bahagian kanan (Right side) badan Si Mati disebabkan beliau akan jatuh secara melintang bersama dengan basikalnya.”

Position Advanced by Learned Counsel for the Plaintiffs During Online Clarification Proceedings via Zoom on 26.6.2025

Learned counsel for the Plaintiffs argued that if the collision had occurred as described in the Defendants’ version, the injuries would have been more pronounced on the left side of the deceased’s body, given the direction and force of the impact. The clarification runs, “… Itu sepatutnya belah kiri … disebabkan impak…”.

Position Advanced by Learned Counsel for the Plaintiffs in the

Learned counsel for the Plaintiffs contended that if the accident occurred as per the Defendants’ version, the injuries on the Deceased Cyclist should have been more concentrated on the right side of his body due to the impact from the fall onto the road. In their words, “…Plaintif-Plaintif turut hujahkan bahawa sekiranya kemalangan terjadi mengikut versi Defendan-Defendan, kecederaan pada si mati seharusnya lebih tertumpu pada sebelah kanan badan si mati disebabkan hentakan selepas jatuh di jalan.”

At the risk of stating the obvious, the position taken by learned counsel for the Plaintiffs was irreconcilably inconsistent and confused separate strands of argumentation. In my respectful view, their positions oscillate inconsistently between the foregoing alternatives. It appears apparent that the positions subscribed amount to blowing hot and cold, a confounding hotchpotch of inconsistencies. Faced with this position’s ambivalence, they cannot approbate and reprobate in the same breath, nor can they claim the benefit of both narratives by advancing mutually contradictory positions. Support for this principle is found in the words of Sir Nicolas Browne-Wilkinson VC in Express Newspapers PLC v. News (UK) Ltd and Others [1990] 3 All ER 376, wherein it was observed: “…A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back…”, and the words of Mohd Nazlan Ghazali JC (now JCA) in the case of Bakti Dinamik Sdn Bhd V. Bauer (Malaysia) Sdn Bhd [2016] MLJU 916; [2016] 10 CLJ 247, wherein it was observed, “The position taken by the plaintiff on this point may thus be characterised as one which violates the principle against 'approbating and reprobating'. In the Court of Appeal case of Visage Continental Sdn Bhd v. Smooth Track Sdn Bhd [2007] 6 CLJ 570, Richard Malanjum JCA (as his Lordship then was) referred to various authorities and enunciated clearly the rule that a party should not be allowed to approbate and reprobate as it is a practice that is both plainly unconscionable and unfair.” (See also: Boustead Trading Sdn Bhd v. Arab Malaysia Merchant Bank Berhad [1995] 3 MLJ 331; [1995] 4 CLJ 283; and Development & Commercial Bank Berhad v. Aspatra Corporation Sdn Bhd & Anor [1996] 1 CLJ 141).

Notwithstanding the foregoing, even if the argument advanced by learned counsel for the Plaintiffs is taken into consideration, I am in respectful agreement with the submission of learned counsel for the Defendants that it runs in harmony with the Defendants’ version. I find that the location, nature, and distribution of injuries (predominantly on the left side of the Deceased Cyclist’s body) support the inference of a lateral impact from the left, consistent with the Defendants’ version of the lateral collision. The injury concentration suggests that the force was delivered sideways rather than from behind, thereby undermining the Plaintiffs’ assertion of a rear-end collision. When viewed in conjunction with the mechanical dynamics of the incident, this anatomical alignment lends inherent probability to the Defendants’ version, making it more probable.

From-the-Bar Submission Concerning Implausibility of a

It runs as follows:

That given the Deceased Driver was allegedly travelling at approximately 60 km/h, it was implausible that the Deceased Cyclist could have suddenly crossed over the central guardrail from the opposite direction and entered the Deceased Driver’s lane.

In my view, this submission is speculative and unsupported by any expert evidence. As precedents suggest, road accidents frequently arise from abrupt or ill-judged manoeuvres. The Chemist’s Report (Exhibit D4), being an independent and scientifically grounded document, identifies the collision impact as occurring during a crossing movement from the opposite side. To me, that is consistent with the Defendants' version.

The fact that the van was travelling at 60 km/h does not render a sudden crossing inherently implausible. Even at that speed, the Deceased Cyclist crossing into the Deceased Driver’s lane without warning could easily have triggered a collision, particularly where the Deceased Driver’s opportunity to brake or swerve was limited. The damage to the left side of the bicycle’s rear tyre, rather than to its rear end, also points to a lateral impact, undermining the suggestion of a rear-end collision.

(vi) From-the-Bar Submission Concerning Asserted Communication Barriers and Travel Constraints

It runs as follows:

That the hearing via Zoom could not be conducted due to the prevailing conditions in the Plaintiffs’ home country, which do not permit any form of communication.

That both Plaintiffs are without valid travel documents, thereby further impeding their ability to participate meaningfully in these proceedings.

While I take cognisance of the preceding argument, I find it carries limited persuasive weight. PW3 gave evidence that the Plaintiffs were unable to testify in court due to the prevailing war conditions in Myanmar. However, no evidence was adduced at trial to substantiate learned counsel for the Plaintiffs’ assertion that communication via Zoom was unfeasible due to those conditions, nor that the Plaintiffs lacked valid travel documents.

Accordingly, I do not regard any of the submissions advanced from the Bar table (whether taken individually or collectively) as sufficient to undermine the probability of the Defendants’ version. Each rest on speculation, untested assertions, or selective readings of the evidence. I find that when weighed against the totality of the credible, contemporaneous, and forensic evidence on record, these submissions fail to displace the well-supported narrative advanced by the Defendants, which remains the more probable version of the events in question. WHETHER DECEASED DRIVER WAS CONTRIBUTORY NEGLIGENT?

Learned counsel for the Plaintiffs advanced the argument that contributory negligence should be attributed to the Deceased Driver, asserting that a measure of fault ought to be ascribed to him.

Rebutting the preceding argument, learned counsel for the Defendants contended that there was no contributory negligence on the part of the Deceased Driver, maintaining that the sole cause of the collision was the Deceased Cyclist’s own conduct.

I find it apposite to state, at this outset, a succinct and concise summation of the law by Faizah Jamaludin J (now JCA) concerning the authoritative precedents on contributory negligence in the High Court case of Gurisha Taranjeet Kaur & Anor v. Dr Premitha Damodaran & Anor [2020] 9 MLJ 409; [2020] 6 CLJ 446, wherein Her Ladyship observed: “[122] What is contributory negligence and what is the test to determine whether there was contributory negligence? Clerk & Lindsell on Torts, 12th edn., Sweet & Maxwell, referring to Ellerman Lines Ltd v. H & G Grayson Ltd [1919] 2 KB 514 at 535; and [1920] AC 466 at 477; Lewis & Denye [1939] 1 KB 540 at 544; Davies v. Swan Motor Co (Swansea) Ltd [1949] 2 KB 291 at 309; Jones v. Livox Quarries Ltd [1952] 2 QB 608 at 615 states that: Contributory negligence does not mean that claimant commits a breach of duty towards the defendant,... it means that the claimant failed to use reasonable care for his own safety and so contributed to his own damage. [123] The Federal Court in Ong Ah Long v. Dr. S Underwood [1983] CLJ (Rep) 330; [1983] 2 MLJ 324 held that the learned High Court Judge had applied the correct test in determining whether there was contributory negligence. Syed Agil Barakbah FJ at p. 304 (CLJ); p. 327 (MLJ) held: The learned Judge applied the correct test in that the appellant had failed to prove that the respondent did not on his own interest take reasonable care of himself and contributed by that want of care to his own injury. [Lewis v. Denyé [1939] 1 All ER 310]. The test for contributory negligence in the case of a pedestrian is not whether he is under a duty of care towards the defendant, but whether he was acting as a reasonable man and with reasonable care. (Per Denning LJ in Davies v. Swan Motor Co [1949] 1 All ER 620.) (emphasis added) [124] In Ong Ah Long, the Federal Court referred to an English Court of Appeal case of Lewis v. Denyé [1939] 1 All ER 310, where the court held: In order to establish the defence of contributory negligence, the defendant must prove (i) that the Plaintiff failed to take "ordinary care for himself," or, in other words, such care as a reasonable man would take for his own safety, and (ii) that his failure to take care was a contributory cause of the accident. The doctrine of contributory negligence "cannot be based upon a breach of duty to the negligent defendant": Craze v. Meyer - Dumore Bottlers' Equipment Co Ltd, Salmond on Torts, 9th Edn, at pp 472, 473, and

Grayson (H & C) v. Ellerman Line Ltd, per Atkin LJ, at pp 535, (emphasis added) [125] In Jones v. Livox Quarries LD [1952] 2 QB 608, Lord Denning said the following as regards contributory negligence: Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless. Once negligence is proved, then no matter whether it is actionable negligence or contributory negligence, the person who is guilty of it must bear his proper share of responsibility for the consequences. The consequences do not depend on foreseeability, but on causation. The question in every case is: What faults were there which caused the damage ? Was his fault one of them? (emphasis added) [126] The test in Jones v. Livox Quarries LD, was adopted by Lamin Yunos J (as he then was) in Ruhani Mohiat & Anor v. Abdul Karim

Mat Ali & Anor [1993] 3 CLJ 524; [1993] 2 AMR 1339; [1993] MLJU ”

Having collated and assessed most carefully the preceding authorities, Her Ladyship tersely observed: “[127] It is clear from these aforementioned cases that contributory negligence is not based on the claimant's duty of care to the negligent defendant. It is dependent on whether the claimant ought to have reasonably foreseen the harm to himself if he failed to take reasonable care of himself. A person is contributory negligent for the harm caused to himself if he ought reasonably to have foreseen the injury and he did not take reasonable care of himself.”

I shall begin by stating this. As opposed to the Plaintiffs’ assertion, which either directly attributes fault to the Deceased Driver or alternatively pleads contributory negligence, the Defendants have from the outset (as reflected in their Amended Defence) unequivocally asserted that the accident was solely the result of the Deceased Cyclist’s own negligence. They have denied any liability whatsoever, maintaining that the Deceased Cyclist’s conduct was the sole cause of the collision. For clarity, it reads: "7. Defendan Pertama dan Kedua menegaskan dan akan menyatakan pada perbicaraan bahawa kemalangan tersebut hanya disebabkan oleh kecuaian MONIR AHMAD BIN ABU TALAL @ ABU TALIB (simati), pengayuh basikal yang telah menyebabkan kemalangan tersebut berlaku.

Defendan Pertama dan Kedua menafikan perenggan 6 Penyataan Tuntutan Plaintif dan "Butir-Butir Tentang Kecuaian Yang Dilakukan oleh Defendan Kedua" dan Plaintif hendaklah membuktikannya dengan kukuh semasa perbicaraan kelak."

And throughout the trial, the Defendants have remained firm in their position, consistently maintaining that the Deceased Cyclist was solely at fault for the accident and rejecting any claim of contributory negligence.

Having carefully examined the totality of the evidence, I find no basis to attribute any contributory negligence to the Deceased Driver. On the contrary, the evidence establishes that he was driving lawfully and within his designated lane when the collision occurred. The events that unfolded were precipitated entirely by the actions of the Deceased Cyclist. In my judgment, the Deceased Driver bore no fault whether direct or contributory for the tragic incident.

What follows is my analysis of the principal factors that, in my view, demonstrate the Deceased Driver's absence of contributory negligence:

The Deceased Driver’s Lawful Manner of Driving

As a threshold matter, I find that the Deceased Driver was, at the material time, operating his vehicle in a lawful and proper manner. The evidence establishes that he was driving within his designated lane, with no indication of speeding, erratic movement, or any other form of negligent conduct. There is no credible suggestion, and nor any evidential basis, for asserting that he was distracted or failing to comply with traffic norms. Accordingly, I find no footing upon which to attribute any share of fault to him at this preliminary stage of analysis.

(ii) Suddenness and Unlawfulness of the Deceased Cyclist’s Entry

Turning now to the nature of the hazard faced by the Deceased Driver, I find that the Deceased Cyclist’s act of crossing over the central guardrail from the opposite direction and entered the Deceased Driver’s lane was both abrupt and unlawful. The law recognises that a motorist cannot reasonably be held liable for failing to avoid a danger that arises suddenly, unexpectedly, and without warning, in circumstances that render it unavoidable. Here, the hazard was externally introduced in a manner that no reasonable driver could have anticipated. Such a scenario militates strongly against any inference of contributory negligence, as the danger arose entirely outside the Deceased Driver’s control.

(iii) Investigative Outcome and Chemistry Report Aligned with the Defendants’ Version

I find that the investigative outcome sit comfortably with the overall evidential picture before me. The conclusion reached by PW1 that the Deceased Cyclist was at fault and the consequent classification of the case as “No Further Action” lend further support to the view that no viable assertion of fault can be sustained against the Deceased Driver.

The preceding assessment is reinforced by the Chemist’s Report (Exhibit D4), which independently corroborates the sequence of events consistent with the lateral collision. Viewed cumulatively, these findings not only strengthen the Defendants’ version but also leave no evidential foothold for attributing any measure of contributory negligence to the Deceased Driver. In my judgment, nothing in the evidence meaningfully dislodges that conclusion, and I am persuaded that the Defendants’ narrative remains the more probable version of events.

(iv) No Realistic Opportunity for Evasive Action

Assuming, for argument’s sake, that the Deceased Driver became aware of the hazard in time, the critical inquiry becomes whether he had any realistic opportunity to take evasive action. The surrounding evidence suggests that the Deceased Cyclist’s intrusion into the Deceased Driver’s lane occurred in circumstances that afforded little, if any, time for evasive manoeuvres. As is trite, the law does not expect perfection in such moments, but only reasonableness. In Govinda Raju v. Laws [1966] 1 MLJ 188; [1965] 1 LNS 45, Raja Azlan Shah J (as His Lordship then was) made the following pertinent observation: “To my mind, when a plaintiff is perplexed or agitated when exposed to danger by the wrongful act of a defendant, it is sufficient if he shows as much judgment and control in attempting to avoid the accident as may reasonably be expected of him in the circumstances. … What is done or omitted to be done in the agony of the moment cannot be fairly treated as negligence.”

This principle resonates with the circumstances before me. In my assessment, the Deceased Driver found himself confronted with a sudden and unlawful hazard which gave him no meaningful opportunity to react with precision. I do not consider it fair or legally sound to hold him to a standard of perfection in such a moment. On my reading of the evidence, it does not disclose any reasonable course of action he could have taken to avoid the collision, and I am unable to find any fault in his conduct.

Absence of Any Contradictory or Impugning Evidence

The Plaintiffs have not produced any evidence suggesting that the Deceased Driver acted in a manner that contributed to the collision. On the contrary, the Defendants' version stands materially unchallenged and is supported by contemporaneous investigation. In light of this evidentiary silence, I find that there is nothing to suggest that the Deceased Driver bore any share of fault to reasonably infer contributory negligence. The evidentiary landscape, in my respectful view, reveals no fissures through which legitimate concern may arise concerning the conduct of the Deceased Driver. In the absence of any credible competing narrative or substantive challenge to the Defendants’ version, it is evident that no proper foundation exists upon which to question the reasonableness of his actions or to infer any breach of duty.

(vi) Unified Narrative and Non-Attribution of Contributory Negligence

What emerges most clearly, to my mind, is the consistency and coherence of the Defendants’ version across the entire evidentiary record. From the earliest contemporaneous account to the scientific and investigative findings, their narrative remained stable and materially unshaken. To my eyes, this consistency does not arise from the pleadings alone, but is distilled from the cumulative weight of the evidentiary canvas. Summing up

Weighing the whole compass of the evidence, I respectfully find that there was no contributory negligence attributable to the Deceased Driver. In my judgment, the evidence presents a coherent and compelling narrative in which the Defendants’ version stands out as the more probable. The cumulative weight of the evidence points decisively to the Deceased Cyclist as the sole cause of the collision. In my judgment, there is no tenable basis upon which any share of blame can be attributed to the Deceased Driver.

Upon in-depth consideration of the opposing contentions and the whole spectrum of the pleadings and the web of evidence woven thoroughly scanned, I respectfully find that the Plaintiffs failed to “show affirmatively that there has been a breach of a specific or genuine duty… and this resulted in the damage” to which Hashim Yeop A. Sani J (later CJ(Malaya)) alluded to in Ng Chui Sai. This, as a corollary, is a fitting case where it is “unjustified for the Judge to put liability at all on the defendant when the plaintiff had not discharged the onus of proof on him on balance of probabilities that the accident was caused by the negligence of the defendant” to which RK Nathan J remarked in Jafri Elias.

For the reasons adumbrated, I find that the Plaintiffs failed to prove, on the balance of probabilities, their claim against the Defendants.

Learned counsel for the Plaintiffs argued that the Plaintiffs were entitled to recover a range of heads of damages, including dependency, burial expenses, bereavement, and loss of clothing, as components of both general and special damages. They submitted that the evidence adduced in court was sufficient to establish these claims on the balance of probabilities.

In response, learned counsel for the Defendants argued that the Plaintiffs had failed to prove their entitlement to the damages claimed on the balance of probabilities. He categorically argued that the dependency claim was unsupported by proper documentation and was therefore undermined by the complete absence of evidence. Legal framework

The Federal Court in Sambu Pernas Construction & Anor v. Pitchakkaran [1982] 1 LNS 33; [1982] 1 MLJ 269 explained the legal position with regard to Sections 7 and 8 of the CLA as follows: “At common law the death of a person gives rise to two principles. The first is that the death of any person is not a civil wrong. Therefore no action can be founded on it although death may result in pecuniary losses or damages to the deceased's spouse and children. Lord Ellenborough C.J. in Baker v. Bolton ruled that "in a civil court the death of a human being could not be complained of as an injury". The second principle was that when a person died any cause of action which was vested either in his favour or against him at the time of death was buried with him. In other words the cause of action did not survive the death: "actio personalis moritur cum persona ". The first principle which regarded death as not giving rise to any cause of action was rectified by section 1 of the Fatal Accidents Acts 1846 to 1959, popularly known as Lord Campbell's Act whilst the second principle which dealt with the non-survival of the cause of action was rectified by the Law Reform (Miscellaneous Provisions) Act, 1934. The provisions of these two UK statutes are now incorporated in sections 7 and 8 of our Civil Law Act, 1956. Had it not been for sections 7 and 8 of the Civil Law Act it is clear that the respondent could not have the right to bring the suit, and having acted under these sections and in particular section 7, his case must stand and fall on the basis of these sections.”

As tritely stands, damages under dependency claims pursuant to the Civil Law Act are strictly compensatory. It ruled out exemplary damages, pain and suffering, and all non-pecuniary losses, except bereavement, which is expressly provided for under the Act. (See: Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors (minors bringing the action through their legal mother and next friend Abra bt Sahul Hamid) and others appeals [2018] 1 CLJ 585; [2018] 3 MLJ 184 (FC))

And I bear steadily in mind the trite principle that there is no requirement that a claim for special damages and dependency can only be allowed if there are supporting documents, and a claimant can claim for special damages based solely on the credible testimony of a witness (See: Dr Chandran Gnanappah v. Gan See

As made clear in the Defendants’ Amended Defence, they categorically deny the Plaintiffs’ claims brought under Sections 7 and 8 of the Civil Law Act 1956 as baseless and lacking evidentiary support. The Defendants further put the Plaintiffs to strict proof. Paragraph 9 of the Amended Defence reads as follows:

"Defendan Pertama dan Kedua menafikan perenggan 8(7), 9.1, 9.1, 3, 10 dan 11 Penyataan Tuntutan Plaintif serta 'Butir-Butir

The Deceased Cyclist was 21 years of age at the time of his death, as confirmed by the birth certificate in the Common Bundle of Documents, Part A. Paragraph 9.2 of the Plaintiffs’ Amended Statement of Claim states: “9.2 Si mati berusia 21 tahun semasa kemalangan dan dalam keadaan sihat dan bekerja sebagai “Pekerja Am” dan pendapatan beliau adalah RM1,930.50 hingga RM2500.00 sebulan sebelum kematiannya.”

In accordance with Section 3(f)(iv)(d) of the Civil Law Act 1956, the applicable statutory multiplier is 16 years. And the prevailing legal position has departed from the archaic common law approach which imposes a mandatory one-third (1/3) deduction or other such percentages as deemed fit by the Court to the deceased’s multiplier to account for “contingencies, other vicissitudes of life and accelerated payment” (See: Ibrahim Ismail & Anor v Hasnah Puteh Imat & Anor and another appeal [2004] 1 MLJ 525; [2004] 1 CLJ 797 (CA) and Noraini Omar & Anor v Rohani Said & Another Appeal [2006] 1 CLJ 897; [2006] 1 MLRA 117 (CA))

However, the assessment of quantum does not rest on the multiplier alone. It is incumbent upon the Plaintiffs to prove the Deceased Cyclist’s earnings through credible evidence. The multiplicand must rest on a firm evidentiary foundation.

While I do not lose sight of the profound grief occasioned by the Deceased Cyclist's untimely passing and the emotional and financial repercussions it entails, I am bound to assess claim of this nature in accordance with established legal principles and credible evidence.

Having considered the matter with the care it deserves, I am not persuaded that the Plaintiffs have discharged the burden required to sustain their claim for loss of dependency. On that premise, I dismiss the Plaintiffs’ dependency claim for the reasons that follow:

The Plaintiffs’ Absence and the Evidentiary Shortfall on

The Defendants have been both certain and consistent in their position in the Amended Defence, asserting that they lack any knowledge regarding the Plaintiffs’ capacities to commence the action as the lawful dependants of the Deceased Cyclist, and putting the Plaintiffs to strict proof. This is clearly reflected in the pleadings as follows:

The Plaintiffs' Amended Statement of Claim filed on 30.9.2024 reads: “1. Plaintif Pertama adalah Bapa dan tangungan yang sah kepada Monir Ahmad Bin Abu Talak @ Abu Talib (simati) dan membawa tuntutan ini mengikut Seksyen 7 Akta Undang-Undang Sivil 1956.

Plaintif Kedua adalah Ibu dan tangungan yang sah kepada Monir Ahmad Bin Abu Talak @ Abu Talib (simati) dan membawa tuntutan ini mengikut Seksyen 7 Akta Undang-Undang Sivil 1956.”

The Defendants' Amended Statement of Defence filed on 4.11.2024 reads: “3. Defendan Pertama dan Kedua tiada pengetahuan tentang perenggan 1, 2 dan 3 Pernyataan Tuntutan Plaintif dan Plaintif-Plaintif dikehendaki membuktikannya dengan kukuh semasa perbicaraan kelak.”

In the Plaintiffs’ version of events, Shobulalam bin Abutalek (PW3), (who is the Plaintiffs’ son and the Deceased Cyclist’s brother), described the Plaintiffs as the surviving parents of the Deceased Cyclist residing in Myanmar. However, the Plaintiffs did not appear before this Court to offer their testimony, nor was any affidavit or sworn statement filed on their behalf. No direct evidence from the Plaintiffs themselves was presented. Furthermore, the Plaintiffs failed to produce any confirmation of their identity or legal status as lawful dependants.

To my mind, that concession left a lingering concern, not only about the reliability of his account but also about the very foundations of the Plaintiffs’ claim, namely their identities, their continued existence, and their legal standing as dependants. The Temporary National Verification Documents for both Plaintiffs, though tendered as part of the Common Bundle in Part A, fall short of resolving these concerns. Weighing the particular contours of this case against the nature of the objections raised, I am not persuaded by the documents in question. They leave unanswered the most critical question, id est, whether the Plaintiffs, on whose behalf this suit is pursued, are alive, present, and legally entitled to the relief claimed.

And while it is true that PW3 gave evidence that the Plaintiffs were unable to attend due to the prevailing war conditions in Myanmar, that context alone does not, in my judgment, relieve them of the burden of proof. Notably, the Plaintiffs are foreign nationals, and I recognise that the need for credible proof of identity and legal standing becomes all the more critical in light of the jurisdictional and evidential constraints, particularly when no credible evidence of any travel ban, communication blackout, or comparable restrictions was led in court.

Upon subsequent reflection, I find that the Plaintiffs’ failure to provide direct testimony or documentation becomes all the more consequential in light of their decision not to pursue any of the permissible procedural alternatives. Despite the gravity of the evidentiary challenge, particularly the moment during cross examination when PW3 conceded that he held no proof that either of the Plaintiffs were alive at the time of trial, no attempt was made to introduce substitute forms of verification. These could have included affidavits, sworn declarations from credible witnesses, recorded video statements, remote testimony by way of teleconference, or confirmation issued through diplomatic or consular channels. Each of these mechanisms is recognised under the Evidence Act 1950 and the Rules of Court 2012 as valid channels for admitting probative material, especially in cases involving logistical or jurisdictional barriers. From my assessment, the Plaintiffs’ failure to invoke even one of these lawful avenues, or to make any attempt to do so, rendered the evidentiary void not merely unresolved, but unmitigated.

I am mindful that while PW3’s testimony may provide some context, it does not however constitute credible proof of status or standing. In any event, PW3’s evidence on this point is neither corroborated by documentation nor independently verified. It cannot override the legal requirement that a party placed on strict proof must adduce cogent and admissible evidence from the most direct source available id est the Plaintiffs themselves.

Learned counsel for the Plaintiffs referred me to the High Court case of Selvi Narayan & Anor v. Koperal Zainal Mohd Ali & Ors [2017] 5 CLJ 84; [2017] 9 MLJ 300 in support of the dependency claim. I have considered that case. There, the claimant gave direct testimony confirming that she received financial support from the deceased, and her account stood unshaken in cross-examination. The only real issue concerned the extent and regularity of the deceased’s earnings.

The present case, however, presents a different evidentiary picture. The Plaintiffs did not testify, and there is no credible evidence before me that they received financial contributions from the Deceased Cyclist. PW3 alluded to remittances made through a remittance Agent (the Agent), but the person said to have facilitated those transactions was not called to testify. The difficulty is compounded by the fact that the claim was seriously contested by the Defendants. Without credible evidence, the Plaintiffs' position is left unsubstantiated. On that basis, I find Selvi Narayan distinguishable and of limited assistance in the context of the present claim. [Note: Aggrieved with the High Court’s decision in respect of the award of exemplary damages, the appellants filed an appeal to the Court of Appeal, which was dismissed. Subsequently, the appellants sought and were granted leave by the Federal Court to appeal against the Court of Appeal’s decision on the following sole question of law: “Whether section 8(2) of the Civil Law Act 1956 (Act 67) is an absolute bar to the award of exemplary damages in an estate claim?” It was held, by majority, that the answer to the question posed was in the affirmative (see: Koperal Zainal Mohd Ali & Ors v. Selvi Narayan (Pentadbir Bersama Estet Dan Tanggungan Chandran Perumal, Si Mati) & Anor [2021] 6 CLJ 157; [2021] MLJU 380)]

Also, learned counsel for the Plaintiffs cited Rugber Kaur Ajaib Singh v. Ho Shee Fun & Anor [2011] MLJU 1551; [2011] 5 CLJ 159, wherein the Court accepted the deceased’s earnings based solely on oral evidence from multiple credible sources which included the employer, a friend, and the deceased’s wife who provided clear, detailed, and mutually reinforcing accounts of his earnings and contributions. The sums claimed were modest, the testimony internally consistent, and no material contradictions or gaps arose.

Here, the factual matrix differs. The Plaintiffs themselves did not testify. No affidavit or sworn statement was filed on their behalf. The sole witness, PW3, lacked direct knowledge of the alleged remittances, and the key intermediary that is the Agent was never called. In contrast to Rugber, the present claim is grounded solely in an uncorroborated narrative, a deficiency that significantly undermines the probability of the Plaintiffs’ version.

So too, learned counsel for the Plaintiffs relied on the decision of the Court of Appeal in Qi Qiaoxian (Claiming As The Mother And Dependent Of Qi Xiangqing, Deceased) & Anor v. Sunway Putra Hotel Sdn Bhd [2024] 5 CLJ 734; [2024] MLJU 732, where the testimony of the deceased's brother was accepted as sufficient to prove relevant facts, despite the absence of testimony from the plaintiffs themselves. Crucially, however, the defendants in that case had not pleaded any challenge to the plaintiffs’ standing or capacity to sue, nor did they allege that the deceased's parents were deceased or otherwise unable to maintain the action.

The position here is starkly different. The Defendants, through their Amended Defence, clearly and expressly placed the Plaintiffs to strict proof of their status as lawful dependants. That pleading placed a legal burden on the Plaintiffs to adduce credible evidence of their standing which, in my view, a burden they failed to discharge. The Defendants' express denial and demand for strict proof, both in the pleading and through examination during trial, fundamentally distinguishes this case from Qi Qiaoxian and precludes the application of any favourable inference in the Plaintiffs’ favour.

In closing, I am guided with due deference by the pronouncement in Sanco Electrical Sdn Bhd & Anor v. Norismadi Abdul Manap [2025] CLJU 1135, wherein it was observed that "Plaintiff was entitled to elect whether or not to testify at trial, and to accept the attendant risks and consequences arising from that decision.", and Raja Lob Sharuddin Raja Ahmad Terzali & Ors v. Sri Seltra Sdn Bhd [2008] 2 MLJ 87; [2008] 2 CLJ 284, wherein it was held that "The presence of a plaintiff is not essential in a civil action... His presence would become necessary if he is required to give evidence. In a civil action it is not uncommon where other persons give evidence on behalf of the plaintiff without the plaintiff himself giving evidence." Nonetheless, the evidentiary landscape of the present case renders both authorities clearly distinguishable on their facts.

(ii) The Missing Linchpin - The Agent’s Role and His Critical Void in the Evidence Supporting the Dependency Claim

It emerges clearly that the Plaintiffs’ claim for dependency loss rests heavily on the testimony of PW3, who asserted that the Deceased Cyclist regularly remitted RM1,500.00 each month to them in Myanmar. Be that as it may, his preceding evidence stands in stark contradiction to the Plaintiffs’ own pleadings, wherein they expressly stated that they received RM500.00 respectively per month, amounting to a total of RM1,000.00, from the Deceased Cyclist. Paragraph 9.3 of the Plaintiffs’ Amended Statement of Claim reads: “9.3 Si mati sebelum kematiannya memberikan tanggungan seperti berikut kepada Plaintif-Plaintif:

Plaintif-Plaintif (sic) (bapa) sebanyak RM500.00 sebulan.

(ii) Plaintif Kedua (ibu) sebanyak RM500.00 sebulan.”

And in the same vein, I am not unheeding of the principle established in the recent Court of Appeal case of Rahaya Salleh v. Nik Mohd Ghazali Nik Zul Azhar & Ors And Another Appeal [2022] 8 CLJ 591, which perforce establishes that reliance may be placed on a rough and estimative figure of a deceased’s monthly earnings.

Flowing from the above, I now turn to another piece of PW3’s evidence concerning his account of the Agent who purportedly facilitated the banking transactions and was said to be integral to the execution of the remittances. However, for reasons known only to the Plaintiffs, I note that the Agent who was indispensable not only as the facilitator of the banking transactions but also as the linchpin of the evidentiary trail confirming both the amounts transferred and the very occurrence of these remittances, is conspicuously absent from the list of witnesses. I consider that the Agent’s testimony would have provided crucial and direct insight into the financial transactions central to the Plaintiffs’ dependency claim.

On the whole, I arrive at the view that this evidentiary void is not a mere technical lapse. It strikes at the heart of the Plaintiffs’ case and prompts a series of fundamental questions whose answers are central to the credibility of the dependency claim: (a) How could PW3 speak with assurance about transactions he neither initiated nor verified?; (b) How could PW3 vouch for the frequency and amount of remittances without access to any records or the testimony of the person who actually facilitated them?; (c) How could PW3 maintain that the alleged remittances were intended for the Plaintiffs, without furnishing any documentary trail such as receipts, transfer slips, or acknowledgments from either the sender or the recipients that might lend credibility to that claim?; and (d) How could Plaintiffs expect this Court to accept SP3’s assertions at face value when the very individual who was said to have channelled the funds, namely the Agent, was neither called as a witness nor omitted for any reason that was cogent or persuasive?

Seen through the lens of the preceding setting, it invites my critical scrutiny of these matters. In the absence of the Agent’s testimony, and in the presence of neither credible oral nor documentary proof, I find that the assertion remains without an evidentiary anchor.

Bolstering their argument, learned counsel for the Plaintiffs referred to Janting Tukau & Anor v. Diana Jawey & Anor [2024] MLRHU 1883; [2024] CLJU 2298. In that case, the Court held that to succeed in a claim for loss of dependency under section 7 of the Civil Law Act 1956, the claimants need only prove the financial loss sustained as direct beneficiaries of the deceased’s support, and not dependency for everyday subsistence. The testimony of the deceased’s child regarding the support provided was accepted as credible and sufficient to establish pecuniary benefit lost, particularly as it was not undermined by contradictions, documentary inconsistencies, or the absence of material witnesses.

Contrastingly, the present case stands on different factual footing. Here, the Plaintiffs’ dependency claim hinges almost entirely on the testimony of PW3, who alleged that the Deceased Cyclist regularly remitted RM1,500.00 per month. However, PW3 lacked personal involvement in or knowledge of the transactions, admitted he had no access to relevant records, and was unable to identify or verify any specific details of the alleged remittances. More critically, the so-called Agent (who was said to have facilitated the transfers) was not called as a witness, and no credible explanation was provided for this omission. Unlike Janting Tukau, the evidence here falls short of being credible. The Plaintiffs have therefore failed to meet the threshold required to establish a dependency claim under section 7.

(iii) Hearsay Nature and Evidential Infirmity of PW3’s Testimony

I take mooring in the wisdom expressed in the Privy Council case of Subramaniam v. Public Prosecutor [1956] CLJU 115 which states: “Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”

Guided by the preceding setting, I navigate the evidentiary currents stirred by PW3’s account of remittances and the Agent. As regards PW3’s testimony concerning the Plaintiffs’ alleged receipt of monthly remittances from the Deceased, as well as his account of the Agent, I make the following observations. PW3 did not personally carry out any of the alleged transactions. He had no access to transaction records, no means to independently verify the transfers, and no first-hand knowledge of the amounts, dates, or frequency of such remittances. All relevant dealings involved the Plaintiffs and the Agent, neither of whom was called to testify.

Given PW3’s lack of direct involvement or oversight, and in the absence of any attempt by learned counsel for the Plaintiffs to invoke the statutory exceptions to the hearsay rule under sections 32(1)(a) to (h), 33 to 37, 73A (1), (2), or 90A (1) of the Evidence Act 1950, I find that his testimony is, at best, hearsay. It was derived not from personal knowledge but from what was relayed to him by others. The law is clear: hearsay evidence, unless it falls within a recognised statutory exception, is inadmissible as proof of the facts asserted. In my view, PW3’s testimony illustrates the very mischief identified in Subramaniam, where the object of the evidence is to establish the truth of a statement made by another who is not produced for cross-examination, it falls squarely within the realm of hearsay and must be treated as inadmissible.

I therefore attach no evidential weight to PW3’s hearsay testimony. As the persons said to have direct knowledge namely the Plaintiffs and the Agent were never called to testify and made available for cross-examination, I am unable to assess the truth or reliability of the underlying statements.

(iv) The Evidentiary Shortfall and Inference Drawn

Section 101(1) of the Evidence Act 1950 reads: "Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist."

The Plaintiffs bear the duty of establishing the factual basis of their dependency claim. This includes the obligation to adduce relevant evidence and to call material witnesses to substantiate their assertions. Notably, both the Plaintiffs, who stand as claimants, and the Agent whom they alleged had facilitated the remittances did not testify. There was also no attempt to adduce their evidence through alternative means, nor even any application for an adjournment or to tender their statements by other lawful methods. As a result, the Court was deprived of first-hand evidence which only they could have provided.

To my mind, this omission is not without consequence. Where witnesses are central to the issues in dispute, their unexplained silence creates a significant evidentiary vacuum and undermines the integrity of the claim.

In these circumstances, I find force in the argument advanced by learned counsel for the Defendants that the Court is entitled to draw an adverse inference under Section 114(g) of the Evidence Act 1950, which states: “114 Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume:- …

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it; …”

It, however, should not be drawn unless the circumstances justify it. I derive support for the preceding proposition from the observation by Mohamed Azmi FJ in the case of Munusamy Vengadasalam v. PP [1987] 1 MLJ 492; [1987] 1 CLJ 250, wherein His Lordship observed: “It is essential to appreciate the scope of s. 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case.”

As I observe it, there was no satisfactory explanation proffered for the respective absence. That, when seen in light of the peculiar factual backdrop of the present case, gives rise to an inference that there was a deliberate withholding of the evidence. That, in my respectful view, compromises the probability of Plaintiffs’ versions.

Considering the arguments en masse, applying as I do the force of law in Munusamy Vengadasalam and given the established facts, I, therefore, reach a conclusion in the way that learned counsel for the Defendants invited me to, that this appears to be a fit and proper case to draw an inference under Section 114(g) of the Evidence Act 1950.

Conflicting Testimony on the Deceased Cyclist’s Earnings

In assessing the Plaintiffs’ dependency claim, it is essential that the evidence relating to the Deceased Cyclist’s earnings be credible. Two principal witnesses, PW3 and one Ch’ng Zhin Pao, the representative of the Deceased Cyclist’s purported employer (PW2), were called to provide insight into his employment and earnings. However, I respectfully find that the testimony presented on this key issue was fragmented and lacked the necessary clarity, as the accounts stood in direct conflict.

The most striking contradiction concerns the actual amount of the Deceased Cyclist's earnings. In his evidence, PW2 relied on a solitary salary voucher (the solitary salary voucher), albeit shrouded in uncertainty, indicative of the Deceased Cyclist’s earnings. Breaking cadence with that, PW3’s testimony expressly disputed the accuracy of the respective voucher, both during cross examination and held firm in re-examination, claiming it did not reflect the Deceased Cyclist’s true earnings. And fanning the embers of uncertainty further, the preceding inconsistent figure runs contrary to the pleaded figure, as reflected in paragraph 9.2 of the Plaintiffs’ Amended Statement of Claim. As I see it, these conflicting narratives present irreconcilable versions of fact on the Deceased Cyclist’s earning, thereby widening the evidentiary gap and further clouding the true measure of the Deceased Cyclist’s earnings.

Drawing from the trajectory already laid, I am mindful of the decision of the Court of Appeal in Qi Qiaoxian, a precedent cited in support by learned counsel for the Plaintiffs, wherein it was held that “…the learned Sessions Court and High Court Judges had committed an error of law when they rejected the plaintiffs' claim for special damages solely on the ground that the plaintiffs had adduced no document in support of such a claim”. The Court of Appeal further observed that section 134 of the Evidence Act 1950 does not require a particular number of witnesses, and that the determinative factor is the cogency and coherence of the oral testimony.

However, I respectfully find that Qi Qiaoxian does not assist the Plaintiffs in the present case. Here, the oral testimony of PW2 and PW3 is not merely unsupported by credible documents but is riddled with contradictions and evidentiary uncertainty. It, therefore, strips the Plaintiffs’ version of the probability and coherence that formed the backbone of the Court of Appeal’s reasoning in Qi Qiaoxian.

Further, I am equally mindful of the High Court decision in Latif Che Ngah & Anor v. Maimunah Zakaria [2002] 4 CLJ 442; [2002] 4 MLJ 266, which was also cited by learned counsel for the Plaintiffs, wherein the Court accepted the widow’s oral evidence that her deceased husband had consistently contributed RM1,500.00 per month towards the support of their six children. The Court found the amount claimed to be reasonable in light of the deceased’s familial responsibilities, and the respondent’s testimony was described as clear and unshaken. Importantly, her credibility was reinforced by the appellant’s own admission during cross-examination that the deceased had been working in Singapore. These factors combined to form a coherent and persuasive evidentiary framework that justified the award.

In stark contrast to the present case, the Plaintiffs’ assertion that the Deceased Cyclist earned and remitted RM1,500.00 monthly is beset with significant evidentiary shortcomings. First, there is no testimony from the Plaintiffs themselves. Second, there is no admission from the Defendants as to the Deceased Cyclist’s employment or earnings. Third, the testimony of PW2 and PW3 was fraught with internal contradictions. Unlike Latif Che Ngah, the present claim lacks clarity, corroboration, and internal consistency. In the absence of such foundational proof, I find that the Plaintiffs’ dependency claim falls significantly short of the threshold required by law.

While I carry in view the challenges faced by the Plaintiffs in the present case, the burden remains on them to establish dependency on a balance of probabilities. The inherent contradictions in their evidence do more than merely weaken the probability of their version, they deprive the claim of a stable financial foundation upon which lawful entitlement can rest.

(vi) PW3’s Demeanour and Credibility of Testimony

I direct particular attention to the general demeanour of PW3 on the witness stand which, in my respectful view, should be judicially appreciated in evidence assessment. As Gopal Sri Ram JCA (later FCJ) tersely emphasised in Boonsom Boonyanit v. Adorna Properties Sdn Bhd [1997] 2 MLJ 62; [1997] 3 CLJ 17, “Judicial appreciation is concerned with the process of evaluating the evidence for the purpose of discovering where the truth lies in a particular case. It includes, … the demeanour of witnesses”.

Having conducted the trial from the outset to its conclusion, I make the following observation. From the bench, PW3’s demeanour struck me as noticeably shaky and wavering. Under cross-examination, his responses appeared hesitant and lacked the clarity and conviction that typically characterise credible testimony. The overall impression left was far from persuasive and did not carry the weight of dependable evidence.

While I fully recognise the settled position that demeanour alone does not determine credibility, it nonetheless serves as a pivotal thread in the tapestry of the Court’s holistic assessment. In this case, PW3’s hesitant delivery compelled me to approach his evidence with measured caution and to weigh it accordingly. And lest I then be considered belabouring the point of demeanour, I have well in mind the sterling remarks by Ong Hock Thye FJ in the Federal Court case of Ah Mee v. Public Prosecutor [1967] 1 MLJ 220; [1967] 1 LNS 3, wherein His Lordship observed: “To avoid undue emphasis on demeanour, it may be well to remember what was said by Lord Wright, and often quoted, from his judgment in Powell and Wife v. Streatham Manor Nursing Home [1935] AC 267 of the possibility of the Judges being deceived by adroit or plausible knaves or by apparent innocence.”

(vii) Absence of Foundational Employment Records

In evaluating the Plaintiffs’ assertion that the Deceased Cyclist was gainfully employed by the company, I find the evidentiary support to be substantially lacking. PW2, who testified as the company’s representative, produced no appointment letter. No payroll documentation, punch card records or attendance logs were tendered. Indeed, not a single official employment record was submitted to demonstrate that the Deceased Cyclist was ever formally engaged by the alleged employer, apart from the solitary salary voucher. To my mind, in the absence of such fundamental records which is typically expected even in modest employment settings, it becomes exceedingly difficult to treat the claim of employment as anything more than a bare assertion.

Further compounding the evidentiary disarray, PW2 confirmed in the witness box that he was unable to adduce any evidence to substantiate the Deceased Cyclist’s earnings. Taken as a whole, I find that the evidentiary vacuum surrounding the Deceased Cyclist's employment status precludes any definitive finding that he was, in fact, employed there, let alone receiving a consistent earnings sufficient to sustain the Plaintiffs’ dependency claim. This absence of proof further diminishes the probability of the Plaintiffs' version.

(viii) Evidentiary Deficiencies in the Plaintiffs’ Proof of Earnings

As alluded to earlier, the Plaintiffs’ dependency claim rests on the solitary salary voucher, the evidential standing of which warrants careful examination under both procedural and substantive lenses.

Inadmissibility of the Solitary Salary Voucher as Documentary

It is settled law that where a document is sought to be proved in order to establish the truth of the facts contained in it the maker has to be called (See: Allied Bank (Malaysia) Bhd v. Yau Jiok Hua [1998] 2 CLJ 33; [1998] 6 MLJ 1).

In advancing their dependency claim, the Plaintiffs placed reliance on the solitary salary voucher, classified as a Part C document, and introduced in court through PW2 during the trial. As is evident, the respective voucher, neither classified as a “Part A” nor a “Part B” document, was merely identified by PW2 and accordingly marked as ID8.

As the solitary salary voucher has not been classified as a Part A or Part B document within the meaning of Order 34 rule 2(2)(d) and

(e)(i) of the Rules of Court 2012, its admissibility as evidence is contingent upon the satisfaction of two cumulative requirements:

The first requirement is either:

the calling of the maker of the ID document for the purpose of admitting it into evidence; or

reliance on any one of the statutory exceptions to the hearsay rule; and

The second requirement is the production of either:

primary evidence of the ID document in accordance with

secondary evidence [as defined in Section 63(a) to (e) EA], subject to the fulfilment of any of the conditions stipulated in Section 65(1)(a) to (g) EA. (See: Sri Paandi Restaurant Sdn. Bhd. & Anor. v. Saraswathy a/p Kesavan & Ors. [2019] 1 LNS 754; [2019] MLJU 474 and KTL Sdn Bhd & Anor v. Leong Oow Lai and 2 other cases [2014] CLJU 427; [2014] 1 LNS 427; [2014] MLJU 1405)

As the Plaintiffs tendering the ID document have not satisfied the first requirement, I am unable to accord any evidentiary weight to its contents or to the oral testimony adduced in relation to it. The document remains, in effect, no more than an item marked for identification, and is not evidence properly admitted before this court. In this regard, I am guided by the following passage from the judgment of Abdoolcader J in Public Prosecutor v. Datuk Haji Harun bin Haji Idris & Ors [1977] 1 MLJ 180; [1977] CLJU 92: “It is necessary to refer to certain exhibits which have been put in in the course of these proceedings for identification but have not in fact been proved as they should have been and are accordingly not exhibits in the strict sense and cannot therefore form part of the record in this case, namely, D41 and D43 which were both put in for identification only and which are the audited accounts and annual report of the Bank for the years 1973 - 74 and 1972 respectively. As these two exhibits have not been proved and properly admitted as such, they must in the ultimate analysis be discounted and I shall accordingly disregard references to them and also all oral testimony as well adduced in relation thereto.” (Emphasis Added)

Questionable Authenticity and Probative Value of the Solitary

Even on a generous reading, I find that the solitary salary voucher’s authenticity and capacity to support the Plaintiffs’ case are far from satisfactory. Several features of the document raise serious concerns about its authenticity and reliability: (i) it was unsigned, undated, and unaccompanied by any supporting documentation; (ii) it lacked an official stamp or seal; (iii) the letterhead it bore was markedly different from that appearing in PW2’s letter of authorisation to testify on behalf of the company (Exhibit P7); (iv) and most notably, the name stated on the solitary salary voucher i.e. “Munir Ahmed”, did not correspond to the Deceased Cyclist’s actual name, “Monir Ahmad bin Abu Talak,” as recorded on his United Nations High Commissioner for Refugees identification card, as well as the pleading, the Death Certificate and the Post-Mortem Report the (See: Common Bundle of Documents, Part A). Apparently to me, concerns of such magnitude are too pronounced to elude judicial scrutiny.

Simply put, the document bears none of the hallmarks typically associated with a genuine payroll record. PW2, the very witness who produced it, was himself unable to identify its issuer or vouch for its legitimacy. This fundamental gap in authentication was never addressed, not even when re-examination provided a clear opportunity to do so. Far from clarifying the Deceased Cyclist’s earnings, the document gives rise to uncertainty that is no more than a slender reed upon which no reliable finding of earnings can rest.

In spite of the above, I have not lost sight of the pragmatic position that neither the law nor practical good sense insists that a claimant must invariably produce a comprehensive array of salary slips to establish earnings. Courts may, in appropriate circumstances, draw reasonable inferences from incomplete records. However, such inference must rest on a foundation of credibility and substantive reliability. Here, the solitary salary voucher, tendered merely as an ID document, unaccompanied, unverified, and lacking formal attributes, amounts to little more than paper dressed as proof. In my view, it weakens the overall probability of the Plaintiffs' version.

(ix) Insufficiency of Familiarity and Evidentiary Void in Establishing Earnings

In response to a query from the bench, PW2 acknowledged his acquaintance with the Deceased Cyclist. While I accept that PW2 knew him, this alone falls markedly short of establishing the essential facts concerning his employment and earnings. What truly matters is credible and substantive evidence of his earnings which is, in my assessment, conspicuously absent from the record. By analogy, it is like recognising a seafarer aboard a vessel, without access to the crew manifest, duty roster, or wage records to confirm his engagement, presence, or remuneration. Mere familiarity, however bona fide, does not rise to the level of proof required to establish the factual foundation of a dependency claim.

That, in my view, only serves to widen the evidentiary gulf separating the Plaintiffs’ claim from the standard of proof required by law, thereby lessening the probability of their version. After all, a claim for financial dependency is not adjudicated on the basis of goodwill, memory, or informal ties, but rather it must be anchored in clear, consistent, and compelling proof of the Deceased Cyclist’s economic contribution. Without such a foundation, the claim remains no more than an unverified assertion.

Ambiguity in the Deceased Cyclist's Employment Status and

As I asses it, there remain some ambiguity regarding the Deceased Cyclist's legal capacity to work in this country, a concern I found aptly raised by learned counsel for the Defendants during cross-examination. While I acknowledge that he was a member of the Rohingya community and held refugee status, no evidence was placed before me to establish that he had been granted a valid work permit by the Immigration authorities of Malaysia.

It bears emphasis, however, that the absence of formal authorisation to work does not, in and of itself, preclude a dependency claim (See: Tan Phaik See v. Multi Purpose Insurance Bhd [2004] 7 CLJ 289; [2004] 6 MLJ 474). That said, it remains a relevant consideration in evaluating the credibility and evidential weight of the Deceased Cyclist’s alleged earnings which, in my opinion, a key component of the Plaintiffs’ case. In this regard, the Defendants' unwavering challenge to the foundation of the claimed earnings adds further significance to the evidentiary gap. I must emphasise that employment status and proof of actual earnings operate in tandem, with each aspect reinforcing or undermining the other in determining whether the alleged dependency is credibly established.

PW2, for his part, could offer no confirmation as to whether the Deceased Cyclist was lawfully employed. The silence on this point was telling. In matters where the right to work intersects with immigration control, I cannot rely on assumption. What is required is a clear proof. This requirement becomes especially pertinent in light of the Plaintiffs’ dependency claim, which hinges significantly on the Deceased Cyclist’s earnings. In the absence of such evidence, the optics are unsettling, leaving only shadows and speculation in its stead, offering no firm foundation upon which I can rest my findings.

Against the preceding setting, I shall now segue briefly to the position of the law on this issue. I have well in mind that a claim for dependency is not necessarily defeated by questions of statutory employment status. I recognise that financial dependency is not precluded by an immigration breach. The absence of a work permit may render the engagement irregular in law, but it does not, without more, efface the reality that the Deceased Cyclist laboured, earned, and provided. If it can be shown that someone contributed materially and consistently to another’s maintenance, the foundation of a claim for dependency is established. The legal status of the contributor’s employment, though not irrelevant, should not be used to penalise those who neither caused nor condoned any irregularity.

The considered wisdom of RK Nathan J in a more than two-decade case of Tan Phaik See finds resonance here, and I am guided: “This is a short appeal arising out of a running down case. The deceased in this case was making biscuits from his house and selling them. He did not have a license to manufacture and sell the biscuits. The mother claimed as a dependent. The defendant pleaded that since the deceased's earnings arose out of an unlicensed income it was illegal earnings. The Sessions Court, whilst assessing the loss of earnings however disallowed the claim. Unfortunately for the plaintiff, her appeal to the High Court was dismissed in spite of many authorities allowing the claim since each case had to be looked at individually. Examples of illegal earnings can be attributed to a habitual snatch thief, or a prostitute attempting to make a claim for loss of income because of the negligence of the defendant. When the Government is encouraging cottage industries and bearing in mind that Malaysia believes in encouraging every man and woman to be self-reliant and self-supporting, the courts must not readily strike down earnings gained out of businesses carried on without license. Not having a license is an offence as against the licensing laws. Such earnings cannot therefore be considered illegal earnings. Fortunately, the plaintiff's appeal to the Court of Appeal was successful.”

Even applying this broader and more compassionate lens, I remind myself that the burden to prove the dependency claim rests firmly on the Plaintiffs. However, as I examine the evidence, I find that they have fallen short of this burden.

And assessed cumulatively with the existing flaws surrounding the evidence adduced in support of the dependency claim, it appears clear to my mind that the deficiencies are too salient to pass unnoticed. At best, these shortcomings have eroded the probability of the Plaintiffs’ version to a point where, in the absence of sufficient proof, I am left with nothing but conjecture which is an insufficient basis upon which to ground a claim of this nature. Summing up

As I draw the final threads together, my reflections are not without regard to the thoughtful observations of Abu Samah Nordin J (later FCJ) in Azizah Zainuddin v. Krishnasamy Munisamy & Anor [2005] 4 CLJ 914; [2006] 2 MLJ 91, wherein His Lordship observed in a passage that warrants citation at length: “…tidak ada pra-syarat di dalam s. 7 Akta tersebut yang menyatakan bahawa seseorang orang tanggungan yang layak menuntut gantirugi bagi kehilangan tanggungan hendaklah membuktikan bahawa ia telah menerima bantuan kewangan daripada simati, sebelum kematiannya. Amaun yang diterima oleh perayu, jika ada, selepas menjadi orang tanggungan sebelum kematian suaminya, hanyalah relevan bagi tujuan taksiran gantirugi sahaja. Bagaimanapun seseorang orang tanggungan itu tidak berhak secara automatik untuk mendapat gantirugi bagi kehilangan tanggungan berikutan dengan kematian si mati, semata-mata kerana wujudnya hubungan kekeluargaan di antara suami dengan isteri, atau ibubapa dengan anak: Yap Ami & Anor v. Tan Hui Pang. Ia bergantung kepada fakta sesuatu kes dan samada terdapat keterangan bahawa orang tanggungan telah mengalami kehilangan tanggungan akibat daripada kematian si mati. Di dalam rayuan ini, perayu telah memberi keterangan bahawa ia adalah orang tanggungan simati, simati memang menanggungnya dan selepas kematiannya ia sukar menanggung dirinya. Adalah jelas kepada saya bahawa perayu telah mengalami kehilangan tanggungan.”

Tinged with regret, I find that the Plaintiffs’ dependency claim is beset by material gaps namely, uncorroborated assertions, absent witnesses, conflicting testimony, and documents of unverified provenance. Most notably, I find that the Deceased Cyclist's earnings remain uncertain, unsupported by any credible or consistent proof. I cannot base my findings on a foundation of sand, nor give weight to a house of cards built on inconsistent and unverified earnings. These deficiencies, taken together, render the claim, in my judgment, insufficient to meet the requisite standard of proof. Where proof is wanting, I am not at liberty to bridge the gap with conjecture. Given the circumstances, the Plaintiff’s dependency claim cannot stand.

I find it relevant to note eventually the authoritative guidance emerging from the statement of principles succinctly expressed by Ong CJ (Malaya) in the Federal Court case of Wong Thin Yit v. Mohamed Ali [1971] 2 MLJ 175; [1971] 1 LNS 151, wherein at the heart of His Lordship’s reasoning was the conclusion that “It is not within the discretion of this Court to let sympathy lend weight to the evidence on either side.”

So too, I reproduce below the statement of principles by Pajan Singh Gill JCA (later FCJ) in the Court of Appeal case of Ramli Shahdan & Anor v. Motor Insurer's Bureau of West Malaysia & Anor [2006] 1 CLJ 224; [2006] 2 MLJ 116, wherein His Lordship observed, “It is indeed an unfortunate situation here and our sympathies are with the appellants who have suffered grave injuries. However, the saying "Hard cases make bad law" comes to our mind in this instance. It is with a heavy heart that we dismiss the appeal with costs.”

Steered by the precepts which stem from the preceding authoritative precedents, I respectfully express this. In approaching this case, I am ever mindful of the human cost it represents, the irreplaceable loss of life and the sorrow borne by those left behind. The profound grief arising from this tragic incident is beyond measure. Even so, I remain duty-bound to apply the law as it stands, guided not by sentiment, but by the enduring principles of justice, impartiality, and reason which remains as the Court’s guiding compass. And when the curtain falls, it is the law and not emotion, that must speak the final word.

Had a different conclusion been reached on appeal, I would have assessed the damages in the following way.

Loss of dependency

As regards the general damages for the loss of dependency, learned counsel for the Plaintiffs asserted that the Plaintiffs in the present case are entitled to damages for loss of dependency, the amount of which, stands at RM288,000.00 (RM1,500.00 x 12 x 16)

From the conspectus of the Plaintiffs’ version, the following facts emerged. The Deceased Cyclist, aged 21 years, was employed as a general worker at Hoong Tta Engineering Sdn Bhd, drawing a monthly salary of RM1,925.94.

It is trite that there must be a deduction made for his living expenses. This is well illustrated in the observation made by KC Vohrah J (later JCA) in the case of Rebecca Mathew & Ors v. Syarikat Serbaguna Gema Wong Siong Bhd & Anor [1989] 1 LNS 136; [1990] 1 MLJ 443, wherein His Lordship observed: “With respect, in the circumstances of this case, I think the more sensible approach is the one advanced by counsel for the defendants; find the net income of the deceased and deduct from that a percentage representing the deceased's personal living expenses; the remainder is the value of the dependency for the plaintiffs.”

And in the same vein, I have kept in mind the salutary words of Mohd Hishamudin Yunus J (later JCA) in the case of Rohani Tengkah v. Zainal Lani & Anor [2004] 2 CLJ 108; [2004] 5 MLJ 289, wherein His Lordship observed “It is a fact of life that each one of us, who earns, will incur living expenses.”. And having adopted the approached taken by LC Vohrah J in Low Suit (MW) & Tan Mee Kiau v. Lim Sun Hiang & Anor [1992] 2 CLJ Rep 813 as regards deduction in accordance with the modern trend, His Lordship proceeded to state “the "modern trend", that is, the practice of merely deducting a percentage from the monthly earnings, instead of going through laboriously and painstakingly in detail on the various expenditures incurred by the deceased when alive, in order to determine his living expenses.” (See also, to much the same effect: Nur Hidayah Ahmad & Anor V. Zulhafiz Zariq Kolman & Ors [2020] 1 LNS 508; [2020] MLJU 615; Rahmahyani (As Wife and Defendant of Muhroji Muhd Sidik (Deceased)) v. Yamuna Sundari Nagarajoo & Anor And Another Case [2017] 1 LNS 1157; [2017] MLJU 1147; and Renhome Bricks Factory Sdn Bhd & Anor v. Watah Umpin [2009] 9 CLJ 494; [2010] 1 PIR 55)

In the circumstances, the multiplicand is computed at RM1,283.96, rounded up to RM1,284.00. This figure is derived by deducting one-third of the Deceased Cyclist’s monthly earnings for his personal expenses, in line with established practice. The calculation is as follows: [RM1,925.94 - RM642.00], where RM642.00 represents one-third of the deceased’s earnings (1/3 × RM1,925.94 = RM641.98, rounded up to RM642.00).

Accordingly, the total sum stands at RM246,528.00, based on the formula: RM1,284.00 × 12 months × 16 years.

(ii) Bereavement

The Plaintiffs sought bereavement damages pursuant to Section 7(3A) of the Civil Law Act 1956, and has pleaded this under the heading of special damages (See: Paragraph 10(e) of the Plaintiffs' Amended Statement of Claim). I note, however, that this characterisation is not strictly accurate. Although the bereavement award is fixed by statute, it is compensatory in nature and properly falls within the category of general damages, as it addresses non-pecuniary loss rather than specific financial expenditure.

Be that as it may, Section 7(3B) provides that the persons entitled to such damages include the spouse, parents, and children of the deceased. In this case, the deceased was 21 years old and unmarried. As his parents fall within the category of eligible claimants under the Act, I allow this head of claim in the sum of

(iii) Funeral Expenses

The Plaintiffs pleaded a claim for RM5,000.00 in funeral expenses as part of special damages (see: Paragraph 10(d) of the Plaintiffs' Amended Statement of Claim). While I fully acknowledge that such expenses are invariably associated with the aftermath of a death, the law requires more than assumption. Pursuant to Section 7(3)(ii) of the Civil Law Act 1956, damages under this head may only be awarded if the expense was in fact incurred by the party for whose benefit the action is brought.

In the present case, no evidence whatsoever was led at trial. Neither as to whether the sum was actually spent, nor by way of any supporting receipt or documentation.

That said, I am guided by the salutary observation of Abdul Rahman Sebli J (now CJSS) in Azizah Abdul Manan & Ors v. Dr Norlelawati Ab Latip & Ors [2014] 2 CLJ 44; [2013] MLJU 1614, wherein His Lordship cited with approval the Federal Court’s decision in Pang Ah Chee (M.W) v. Chong Kwee Sang [1985] 2 CLJ 221; [1985] 1 MLJ 153, and observed: "[41] The court can take judicial notice of funeral expenses being normally incurred and to award a reasonable and fair sum for such expenses according to the status of the deceased…”

In light of that principle, I award a sum of RM5,000.00 under this head.

(iv) Loss of Clothing

The Plaintiffs pleaded a claim for the loss of clothing allegedly destroyed in the incident, as part of special damages (See: Paragraph 10 (b) of the Plaintiffs' Amended Statement of Claim). While I do not dismiss the possibility that personal items may have been affected, this head of claim was advanced as special damages and thus attracts the requirement of strict proof.

However, no evidence whatsoever was led at trial, neither as to whether any expense was in fact incurred, nor by way of receipts, estimates, or credible oral testimony. As special damages must be specifically pleaded and strictly proved, I am unable to allow this head of claim in the absence of such proof. That said, I do not lose sight of the likelihood that some loss of clothing did occur as a result of the accident. I, therefore, award a sum of RM100.00 under this head.

Documents and Reports

As regards the documents and reports, I order the award follows the costs of the matter.

Accordingly, I award the above damages together with interests and costs as per scale.

For the interest, I order as follows:

interest at the rate of 5% per annum for the general damages from the date of the service of the writ of summons until the date of the decision;

(ii) interest at 2.5% per annum for the special damages from the date of the accident to the date of decision (no interest for the future treatments);

(iii) interest at the rate of 5% per annum for all damages from the date of the decision until the date of the full and final settlement.

And for the costs, I order the costs according to the scale as set out in the Rules of Court 2012. Noorhisham Mohd Jaafar Judge Sessions Court Klang, Selangor Dated: 12 Ogos 2025 Counsel for the Plaintiffs : Muhammad Fadzly Bin Abu Bakar Aisya Shahiroh binti Abu Johan Adzlyeen Nazirah binti Abd Rahman Solicitors for the Plaintiffs : Tetuan B. Mariammah & Co Advocates & Solicitors No. 23, Tingkat 1, Jalan Station, 86000 Kluang, Johor. Counsel for the Defendants : Harjit Singh a/l Karam Singh Solicitors for the Defendants : Lawrence Pereira & Partners Advocates & Solicitors 150, Jalan 5/42, Bukit Gasing, 46000 Petaling Jaya, Selangor.