Hazwani Binti Misman v Ching Tai Seng (JA-11B-6-09/2025)

1.

CHING HOCK MENG … PLAINTIF-PLANTIF

1.

HAMIZAH BINTI MISMAN … DEFENDAN-DEFENDAN]

This is an appeal against the decision of the learned Magistrate delivered on 29.08.2025 in Johor Bahru Magistrates’ Court Civil Suit No. JA-A73KJ-643-05/2021.

The learned Magistrate found the Appellants liable at 100% for a road traffic accident which occurred on 21.10.2018 and awarded the Respondents special damages together with interest and costs. The award included, inter alia, repair costs and related expenses amounting to RM18,640.02.

Having considered the Record of Appeal, the Grounds of Judgment of the learned Magistrate, the Notes of Evidence, and the written submissions filed by both parties, this Court is satisfied that appellate intervention is warranted. For the reasons set out below, the appeal is allowed.

The accident occurred at approximately 2.30 a.m. on 21.10.2018 at KM17 of the Pasir Gudang–Perling Highway. Three vehicles were involved in the sequence of events, namely: a. motorcar JJA 7177 driven by the First Respondent; b. motorcar JRB 1329 driven by the First Appellant; and S/N OLH8fcqob0KrwjPc6gKkOw c. motorcar JGS 39, whose driver was not a party to the proceedings.

It was common ground that the Respondents’ vehicle and vehicle JGS 39 were travelling in the right lane, whilst the Appellants’ vehicle had initially been travelling in the left lane.

The central dispute concerned the true cause of the collision and whether the First Appellant’s lane-changing manoeuvre was the legal and effective cause of the damage suffered by the Respondents.

It is settled law that a first appellate court is entitled, and in an appropriate case obliged, to reconsider and evaluate the evidence as a whole. Nevertheless, where findings of fact are based upon credibility assessments made by the trial court, appellate intervention must be exercised with caution.

In Sivalingam s/o Periasamy v Periasamy & Anor [1995] 3 MLJ 395; [1996] 4 CLJ 545, the Court of Appeal reiterated that an appellate court will not readily interfere with findings of fact arrived at by the trial court, to which the law entrusts the primary task of evaluation of evidence.

The Federal Court in Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441; [2015] 2 CLJ 453 affirmed that the governing principle is the “plainly wrong test”. The Court referred with approval to UEM Group Bhd v Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785, where it was stated that a plainly wrong decision includes one involving “no or insufficient judicial appreciation of evidence”.

The principle was also expressed in Setapak Heights Development Sdn Bhd v Tekno Kota Sdn Bhd [2006] 2 CLJ 337, where the Court of Appeal stated that intervention is justified where the findings “do not accord with the probabilities of the case”.

The Respondents, on the other hand, relied on UEM Group (supra) and the general principle that an appellate court should not interfere merely because it might have reached a different conclusion. That proposition is not disputed. The question for this Court is whether the decision below was supported by a proper judicial appreciation of the evidence.

Accordingly, appellate intervention is warranted where:

material evidence has been overlooked;

findings are against the weight of evidence;

inferences drawn are unsupported by the evidence;

the decision involves misdirection in law or principle; or

the decision is plainly wrong.

In the present appeal, this Court is satisfied that the learned Magistrate misappreciated material evidence relating to causation and quantum.

The learned Magistrate accepted the Respondents’ evidence and concluded that the First Appellant had suddenly changed lanes from the left lane into the right lane.

The learned Magistrate further held that the driver of vehicle JGS 39 was unable to avoid the First Appellant’s vehicle, resulting in a collision with the rear right portion of the Appellants’ vehicle before subsequently colliding with the Respondents’ vehicle.

The learned Magistrate nevertheless found the Appellants wholly liable, notwithstanding the evidence that vehicle JGS 39 physically struck both the Appellants’ vehicle and the Respondents’ vehicle.

Upon careful examination of the record, this Court is unable to agree with the conclusion reached by the learned Magistrate.

The first and most significant difficulty with the judgment below is that the learned Magistrate failed to adequately address the undisputed fact that there was no direct collision whatsoever between the Appellants’ vehicle and the Respondents’ vehicle.

The investigating officer, the police sketch plan and the evidence of the parties all consistently indicated that the physical impact to the Respondents’ vehicle was caused by vehicle JGS 39. Indeed, the Respondents’ own case was that vehicle JGS 39 collided with the rear portion of the Appellants’ vehicle before proceeding into the Respondents’ vehicle.

The absence of direct contact between the Appellants’ vehicle and the Respondents’ vehicle is not a peripheral fact. It goes directly to causation. While a defendant may, in an appropriate case, be liable notwithstanding an absence of direct impact, the court must nevertheless identify the true and effective cause of the damage complained of.

In the present case, the learned Magistrate appears to have treated the lane-changing manoeuvre as conclusively establishing liability without sufficiently considering the independent intervening conduct of vehicle JGS 39.

The evidence demonstrates that vehicle JGS 39 was travelling from behind at considerable speed. Significantly, the police investigation concluded that the driver of vehicle JGS 39 had committed a traffic offence and a summons was subsequently issued against that driver.

This Court accepts that a police finding or summons is not conclusive proof of civil negligence. Civil liability must be determined by the court on a balance of probabilities based on the evidence adduced at trial. However, a police finding is still relevant evidence. It ought not to be ignored, particularly where it is consistent with objective evidence such as the sketch plan, vehicle positions and damage patterns.

The learned Magistrate correctly recognised that the court was not bound by the police findings. However, having stated the principle, the learned Magistrate did not sufficiently explain why the police conclusion was rejected despite the absence of compelling contrary evidence. More importantly, the police findings were not standing alone. The sketch plan, vehicle positions and nature of the damage all demonstrated that vehicle JGS 39 was the vehicle which physically struck both the Appellants’ and Respondents’ vehicles.

These objective indicators are often among the most reliable forms of evidence in road traffic cases. In Lee Ewe Teik v Ariffin Hussain [1990] 2 CLJ 191, the court recognised the importance of objective evidence such as photographs, plans, measurements and the nature of vehicle damage in testing competing versions of an accident.

Viewed holistically, the evidence points more convincingly towards negligence on the part of vehicle JGS 39 than negligence on the part of the Appellants.

The Respondents submitted that the First Appellant’s act of changing lanes from left to right caused an emergency to vehicle JGS 39, and that the First Appellant could not rely on the mere fact that she had given a signal.

The Respondents further relied on the principle from a Sessions Court decision in Thineshwaran Ramesh v. Yushaini Abd Rahni [2023] PILRU 27, namely that a signal is not a licence to turn or change lanes abruptly. That proposition, as a general statement, is unobjectionable.

A driver intending to change lanes must ensure that the manoeuvre can be performed safely and without endangering other road users already in that lane. The giving of a signal does not automatically confer a right of way.

However, the present appeal does not turn merely on whether the First Appellant gave a signal. The issue is whether, on the totality of the evidence, the Respondents proved that the First Appellant’s conduct was the effective cause of the damage suffered.

In this regard, the learned Magistrate was required to consider not only the lane-changing manoeuvre, but also:

the speed and conduct of vehicle JGS 39;

the fact that vehicle JGS 39 was not called as a witness;

the absence of direct collision between the Appellants’ and Respondents’ vehicles;

the police conclusion attributing fault to vehicle JGS 39; and

the objective damage pattern showing that vehicle JGS 39 was the vehicle that struck both vehicles.

The Respondents’ submission effectively requires this Court to accept an inference about the reaction and inability of the driver of JGS 39 to avoid the collision. However, the driver of JGS 39 was S/N OLH8fcqob0KrwjPc6gKkOw not called to testify. In the absence of such evidence, the Court must be careful not to speculate as to what that driver saw, how fast he was travelling, what evasive action he took, or why he failed to avoid the collision.

The Appellants’ evidence was that the First Appellant had initially been travelling in the left lane. There was evidence that another accident had occurred ahead in that lane, necessitating evasive action. The investigating officer accepted that there had indeed been another accident ahead.

The First Appellant testified that she moved into the right lane to avoid the obstruction before noticing vehicle JGS 39 approaching rapidly from behind. Faced with that situation, she attempted to return to the left lane. Whether that decision was perfect is not the legal test. The law recognises that a person confronted by a sudden emergency cannot be judged with the detached precision available after the event.

Courts have long recognised the “agony of the moment” principle. Where a driver is placed in sudden peril not of his or her own making, the standard of care must be assessed in light of the emergency confronting that driver.

A driver acting under pressure cannot be expected to weigh every available alternative with mathematical precision. The Court must judge the driver’s conduct in the actual circumstances prevailing at the time. The evidence demonstrates that the First Appellant was required to make an immediate decision in circumstances involving both an obstruction ahead and a rapidly approaching vehicle from behind.

In this Court’s judgment, the learned Magistrate failed to sufficiently consider the significance of this evidence. Once the emergency situation is properly appreciated, it becomes difficult to conclude that the Appellants were solely responsible for the accident.

The burden remained upon the Respondents to establish negligence on a balance of probabilities.

The issue is not whether the Appellants could have acted differently. The issue is whether the Respondents established that the Appellants’ conduct constituted negligence and that such negligence was the effective cause of the damage suffered.

Having reviewed the entirety of the evidence, this Court is unable to conclude that such burden was discharged. The evidence is S/N OLH8fcqob0KrwjPc6gKkOw equally, if not more, consistent with the conclusion that the accident was caused by the failure of vehicle JGS 39 to react appropriately to prevailing traffic conditions.

The learned Magistrate’s finding that liability rested entirely upon the Appellants is therefore against the weight of evidence. Applying the principles in the authorities cited earlier, this Court is satisfied that the decision below involved insufficient judicial appreciation of the evidence and a misconstruction of material evidence. This Court consequently finds that the learned Magistrate’s finding on liability is plainly wrong and cannot safely be maintained.

Even if liability had been established, this appeal would still succeed on the issue of quantum.

The learned Magistrate awarded special damages including repair costs and related expenses. The law relating to special damages is settled. Special damages must not only be specifically pleaded but must also be strictly proved.

In Ngooi Ku Siong & Anor v Aidil Abdullah [1984] 1 MLRA 200, the Federal Court stated that special damages must be “specifically pleaded and strictly proved”. The Court also recognised that such S/N OLH8fcqob0KrwjPc6gKkOw damages refer to past expenses and that the precise loss must be pleaded where the amount is known before trial.

In Sum Kum v Devaki Nair & Anor [1964] MLJ 74, the court emphasised that it is for a plaintiff to prove the damage claimed. A plaintiff cannot merely present particulars and expect the court to award the amount claimed without proof.

The Appellants also referred to Tenaga Nasional Bhd v Big Man Management Sdn Bhd [2024] 2 MLJ 652, where the Court of Appeal emphasised the need for “a credible paper trail” to prove special damages and stated that invoices or vouchers alone, without receipts, will not suffice.

The Appellants further relied on Chin Hooi Nan v Comprehensive Auto Restoration Service Sdn Bhd & Anor (1995) 1 BLJ 25. In that case, the claim for repair costs was allowed because the appellant had produced not merely a receipt but also a credit card receipt supporting payment.

That case is distinguishable from the present appeal. Here, there was no satisfactory proof that the claimed repair costs of RM18,640.02 had actually been incurred and paid.

The Appellants also relied on Amirul Affendey Azman & Anor v Mohd Bakren Dolah Sajit [2026] MLRHU 453, where the High Court held that a bare invoice, without evidence or documentary proof of payment, did not satisfy the requirement of strict proof for special damages.

These authorities demonstrate a consistent principle. For special damages, the court must be satisfied not merely that repairs may have been assessed or estimated, but that the claimed expenditure was actually incurred or that there is sufficient admissible evidence to prove the loss claimed.

The Record of Appeal reveals substantial deficiencies in the proof adduced.

The adjuster acknowledged during cross-examination that:

he inspected the vehicle approximately fifteen days after the accident;

he had not seen the police photographs taken immediately after the accident;

he could not confirm the exact condition of the vehicle on the date of the accident; and

he did not possess original photographs during trial.

More importantly, there was no satisfactory proof that the claimed repair costs had actually been incurred and paid. There was no adequate evidence in the form of verified invoices, receipts, payment vouchers, bank records or testimony from the repair workshop itself.

The claim rested largely upon the adjuster’s assessment rather than proof of actual expenditure. An estimate is not proof of payment. A projection of repair costs cannot automatically be equated with actual loss. The Respondents contended that the assessment report and the evidence of the adjuster were sufficient to support the award. This Court is unable to agree.

An adjuster may assist the court in assessing the extent of damage and the reasonableness of repair estimates. However, where the claim is for special damages representing past expenditure, there must be proper proof that the amount claimed was in fact incurred or paid.

The failure to call a witness from the repair workshop, or to produce satisfactory documentary proof of payment, is material. In the S/N OLH8fcqob0KrwjPc6gKkOw circumstances of this case, the learned Magistrate erred in awarding the sum claimed without the strict proof required by law.

In the absence of proper proof, the award of special damages cannot stand.

Having carefully reviewed the entire Record of Appeal, this Court is satisfied that the learned Magistrate misappreciated material evidence relating to both liability and quantum.

The evidence established that:

there was no direct collision between the Appellants’ vehicle and the Respondents’ vehicle;

vehicle JGS 39 was the vehicle which physically struck both vehicles;

the police investigation attributed fault to the driver of vehicle JGS 39;

the Respondents did not call the driver of vehicle JGS 39 as a witness;

the First Appellant was acting in circumstances amounting to a sudden emergency; and

the Respondents failed to strictly prove the special damages awarded.

The learned Magistrate’s findings are therefore unsafe and cannot be sustained.

Accordingly, this Court makes the following orders:

the appeal is allowed;

the judgment of the learned Magistrate dated 29.08.2025 is set aside in its entirety;

the Respondents’ claim is dismissed; and

Costs of RM2,000 awarded to the Respondents, subject to allocatur. Dated: 10th June 2026 -sgd- …………………………………………. (BUDIMAN LUTFI BIN MOHAMED) JUDICIAL COMMISSIONER HIGH COURT, JOHOR BAHRU S/N OLH8fcqob0KrwjPc6gKkOw Solicitors for the Appellant : Messrs Sabaruddin Othman & Ho C-8-2, Block C, 8th Floor Megan Avenue Ii, No. 12 Jalan Yap Kwan Seng 50450 Kuala Lumpur Solicitors for the Respondent : Messrs The Law Chambers Of Hidahyu & Associates No.37-01, Jalan Kota 3 Taman Cahaya Kota Puteri 81750 Masai, Johor