1. ) Devi a/p Magamuthu ...Perayu Pertama/Plaintif v 1. ) Wong Wai Hoong ...Responden/Defendan (JA-12B-46-08/2016)

DEVI A/P NAGAMUTUHU

PIHAK KETIGA PRASANTH A/L RAMES PERAYU KEEMPAT/ PIHAK KETIGA Page 2 of 9 [Dalam Mahkamah Sesyen di Johor Bahru Dalam Negeri Johor, Malaysia Guaman No. A53KJ-997-08/2014] Antara Devi A/P Nagamuthu Plaintif Dan Wong Wai Hoong Defendan ``````````````````````````````````` [Dalam Mahkamah Sesyen Di Johor Bahru Dalam Negeri Johor, Malaysia Guaman No. A53KJ-712-07/2015] Antara Steven Sawridennis A/L Yanasekaran (seorang yang tidak berupaya dan diwakili oleh ibunya, Annie A/P Sawri sebagai wakil litigasinya)

Devi A/P Nagamithu

Prasanth A/L Rames Pihak Ketiga JUDGMENT CHOO KAH SING Judicial Commissioner High Court, Johor Bahru Date: 12.06.2017 Page 3 of 9 Introduction [1] Two civil suits, namely, suits A53KJ-997-08-2014 (hereinafter referred to as ‘the first suit’) and A53KJ-712-07-2015 (hereinafter referred to as ‘the second suit’), were amalgamated and jointly heard at the Sessions Court of Johor Bahru. [2] The two plaintiffs in the respective civil suits were involved in a motor accident which involved the same defendant in the two suits. [3] In the first suit, the plaintiff, Devi a/p Nagamuthu, was the rider (hereinafter referred to as ‘the rider’), whereas, in the second suit, the plaintiff, Steven Sawaridennis, was the pillion passenger (hereinafter referred to as ‘the pillion rider’), and both were riding on a motorcycle JLW 4744 at the time they met with the accident. [4] The accident occurred along Jalan Johor Bahru-Air Hitam, KM 6.5, heading toward Skudai, when the defendant, Wong Wai Hoong, who was driving his motor vehicle KBE 7576, collided onto the rear of the motorcycle JLW 4744. The rider and pillion rider had separately brought civil suits against the driver of the motor vehicle KBE 7576. [5] In the second suit, the driver being the defendant had filed a third party action against the rider and the owner of the motorcycle, Prasanth a/l Rames (hereinafter referred to as ‘the owner’). [6] At the Sessions Court, the learned Sessions Court Judge (SCJ) held as follows: Page 4 of 9 The First Suit - A53KJ-997-08-2014 Liability : Plaintiff (the rider) is 30% liable Defendant (the driver) is 70% liable Quantum : RM40,261.07 (General and Special damages based on 100%) The Second Suit – A53KJ-712-07-2015 Liability : Plaintiff (the pillion rider) is not liable Defendant (the driver) is 70% liable Third Party (the rider/owner) is 30% liable Quantum : RM204,508.77 (General and Special Damages based on 100%) [7] The defendant in the second suit had paid in full the total damages awarded to the pillion rider, i.e. RM204,508.77. The defendant in the second suit was entitled to claim 30% of the total damages from the third party (the rider), which amounted to RM61,352.63, since the third party (the rider) was found to be 30% liable for the pillion rider’s claim. [8] Based on the above, the SCJ allowed the amount of damages awarded to the rider in the first suit be used to set-off with the sum which the rider owes to the defendant in the second suit. [9] Unfortunately, the sum awarded to the rider in the first suit was only RM28,182.75 (based on 70% of the total damages, i.e. RM40,261.07). Page 5 of 9 The amount of RM28,182.75 is not enough to be used to set-off the sum of RM61,352.63 which the rider (as third party) owes to the defendant in the second suit. As such, after having set-off the amount awarded to the rider in the first suit, the rider still owes RM33,169.88 (RM61,352.63 – RM28,182.75) to defendant. The Appeals at the High Court [10] In the first suit, the rider (plaintiff) appealed against the SCJ’s decisions both on liability and quantum. [11] In the second suit, the pillion rider (plaintiff) appealed against the SCJ’s decision on quantum only. [12] Also in the second suit, the rider and owner (third party) appealed against the SCJ’s decision ordering the sum awarded to the rider in the first suit be used to set-off the amount the rider and owner owe to the defendant in the second suit. [13] On 20.4.2017, this Court dismissed the appellants’ appeals and maintained the decisions of the SCJ. The reasons for the decision of this High Court are set down as below. Brief Facts [14] As mentioned earlier, an accident occurred along Jalan Johor Bahru-Air Hitam, KM 6.5, heading toward Skudai. The defendant’s motor vehicle KBE 7576 collided onto the rear of the motorcycle JLW

Both the defendant and the rider were heading toward the same Page 6 of 9 direction. The accident occurred in the middle of the night at around 2.20 a.m. [15] The rider and pillion rider were with a group of friends riding their motorcycles on the highway when the accident occurred. The rider’s account of the accident was that the pillion rider had consumed some alcohol over dinner, therefore, he was not fit to ride alone on a motorcycle. The rider was sending the pillion rider back home when the accident occurred. [16] The defendant’s account of the accident was that the rider was overtaking another motorcycle (presumable the rider’s friends on another motorcycle). The defendant collided onto the rear of the rider’s motorcycle when the rider was overtaking another motorcycle. The traffic police had summoned the defendant, and he had paid the fine. [17] With regard to the pillion rider, after the accident, he was diagnosed as suffering from retrograde amnesia and post traumatic amnesia. His medical condition has been certified by two medical experts. The pillion rider could not remember what had happened that fateful night. Hence, he was unable to give evidence during the trial. The Findings of this Court [18] After having perused the judgment of the learned SCJ, this Court found the learned SCJ did not err in her finding of facts which led to the apportionment of liabilities on the respective parties. The learned SCJ found the rider was indeed riding in the middle of the road when the accident occurred. The rider was not supposed to be riding in the middle Page 7 of 9 of the road (between A1 and A2, see p. 256 Rekod Rayuan, Rajah Kasar, exhibit P2 [hereinafter referred to as the sketch plan]). [19] The rider’s account of the accident was that she was riding on the left side of the road, i.e. closer to point ‘A’ (see sketch plan) when the accident occurred. If that was true, the damage on the defendant’s vehicle ought to be on the left side. But the damage was found almost at the centre of the front of the defendant’s vehicle (see pictures ‘F’ and ‘D’ of Rekod Rayuan, pp. 250-1). Hence, an inference could be made out that the accident occurred at the centre of the road which is consistent with the defendant’s version where the collision took place. No evidence was led that the defendant had driven his vehicle on the far left of the road. Thus, the finding of fact by the learned SCJ that the rider was on the middle of the road when the collision took place was highly probable. It was in evidence that the rider did not possess a motorcycle licence at the material time of the accident. After taking into account of these facts, the apportionment of 30% liability on the rider as contributory negligent to the accident was justifiable. This Court finds no reason to disturb the finding of the learned SCJ on the issue of apportionment of liabilities on the parties. [20] With regard to the damages awarded to the rider as well as to the pillion rider, this Court could not hold the learned SCJ had committed any error in the application of the principles of law in relation to award of damages in an accident case. [21] The damages awarded for each claim were within the range of the compendium. They were not excessive or manifestly low. The award of the damages is purely at the discretion of the trial court. An appellant Page 8 of 9 court will only disturb the finding of quantum if there is a serious error of law committed by the trial judge, otherwise, the decision ought not to be disturbed. [22] In the present case, the learned SCJ had exercised her discretion judiciously. This Court sees no reason to disturb the SCJ’s judgments on quantum. This Court agreed with the defendant’s counsel’s written submissions on the issue of quantum. [23] The appellants’ counsel’s submission on the issue of quantum referred to the recommended amounts for the injuries suffered. The counsel submitted those recommended amounts ought to be awarded because they were the fair values. An appellate court cannot disturb the trial judge’s award of damages based on a consideration of whether the amount awarded by the trial judge is fair or not. Further, it is not necessary for every head of claims pleaded by the claimant to be allowed and awarded. The trial judge has the discretion to grant or not to grant any claim made based on the facts before the court. [24] With regard to the part of the judgment where the learned SCJ ordered the amount awarded to the rider in the first suit to be set-off against the 30% liability of the rider, as third party, in the second suit, this Court is of the considered view that the learned SCJ was entitled to make such order. This is not a case where the SCJ had ordered the third party pay 30% of the damages to the pillion rider and the defendant to pay 70% of the damages. [25] In the present case, the defendant had in fact paid in full the total damages awarded to the pillion rider. As such, the defendant is entitled Page 9 of 9 in law to claim from the third party (the rider) a sum amounting to 30% of the total damages which the defendant had paid to the pillion rider. The first and second suits were amalgamated and heard together, therefore, any sum awarded against a party could be used to set-off against any sum awarded to the same party. Conclusions [26] Based on the above reasoning, this Court dismissed all the appeals and ordered costs of RM1,000.00 for each of the appeal to be paid by the plaintiffs and third party respectively to the defendant. -Signed- ………………………………….. (CHOO KAH SING) Judicial Commissioner High Court, Johor Bahru Appellants’/Plaintiffs’/ : Kala Lakshmi Third Party’s counsel Tetuan Teo & Associates Respondent’s/Defendant’s Counsel :