1. Izudin Bin Mohamed v 1.TEBANRAJ A/L Marimuthu (BA-12B-11-01/2016)

KERAJAAN MALAYSIA … PERAYU-PERAYU

TEBANRAJ A/L MARIMUTHU … RESPONDEN 2 (DALAM MAHKAMAH SESYEN DI SELAYANG DALAM NEGERI SELANGOR DARUL EHSAN MALAYSIA GUAMAN NO. A53KJ-98-03/2014 ANTARA TEBANRAJ A/L MARIMUTHU … PLAINTIF

1.

JEFFREY BIN MUSA

KERAJAAN MALAYSIA … DEFENDAN-DEFENDAN) 3 GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellants who are the 3rd – 7th Defendants against the Sessions Court’s decision of 8.12.2015 in allowing the Respondent’s claim who is the Plaintiff after a full trial. [2] This appeal was heard together with the other appeal BA-12B-10-01- 2016, involving the same road accident alleged by Plaintiff. I shall introduce the parties as they were known at the Sessions Court. The Respondent brought the suit against seven Defendants. In this appeal, the Appellants who are the 3rd, 4th and 5th Defendants are the officers of the Road Transport Department, Malaysia (JPJ). The 6th Defendant and the 7th Defendant are the Director General of the Road Transport Department, Malaysia and Government of Malaysia respectively. The 1st Defendant was driving the motor lorry bearing registration number WUC 5600 belonging to 2nd Defendant that was stopped by the 3rd – 7th Defendants. [3] The Sessions Court had made a finding that the 3rd – 7th Defendants are liable at 80% and the 1st and 2nd Defendants in the other appeal case are liable at 20%. The Plaintiff was found not negligent. [4] There would be cross-reference to the facts and findings in the appeal case BA-12B-10-01-2016 and for ease of reference, I shall refer the parties as they were in the Sessions Court. 4 Facts [5] The relevant factual background giving rise to this appeal may be briefly stated as follows:

The Plaintiff is a person of unsound mind not so found by inquisition and is represented by Marimuthu a/l Mariapan. The Plaintiff was the rider of motorcycle bearing registration number WPB 6894 that was involved in the accident.

The Plaintiff pleaded (at paragraph 6 of the Amended Statement of Claim, page 5 of Appeal Record) of the accident: “Pada 3hb Disember 2013, Plaintif adalah secara sah menunggang motorsikal bernombor WPB 6894 dan apabila sampai di KM 440.3 Buit Beruntung-Rawang, Selangor Darul Ehsan, motorlori WUC 5600 yang dipandu oleh Defendan Pertama sebagai ejen atau orang gaji atau orang yang memandu dengan keizinan Defendan Kedua yang datang dari arah yang sama sebelah kanan Plaintif secara tiba-tiba telah menukar haluan ke kiri lalu memberhentikan motorlorinya secara mengejut dan tanpa memberi sebarang isyarat setelah ditahan oleh defendan Ketiga, Defendan Keempat, defendan Kelima yang bertindak sebagai ejen atau orang gaji dengan keizinan Defendan Keenam dan/atau Defendan Ketujuh di lebuhraya tersebut yang mempunyai pengawalan, 5 penguasaan dan pembawaan motokar WRD 7645 dengan mewujudkan kacau ganggu di lebuharay tersebut oleh yang demikian, Plaintif terpaksa melanggar motorlori tersebut dan akibat perlanggaran tersebut Plaintiff telah mengalami kecederaan, kerosakan dan kerugian.”

The Plaintiff pleaded that the 3rd – 5th Defendants are agents or servants authorized by the 6th Defendant and/or 7th Defendant in controlling, on the authority and driving the vehicle bearing registration number WRD 7645 and had caused the accident due to their negligence and caused nuisance (paragraph 7 of Amended Statement of Claim, page 5 of Appeal Record). The Plaintiff claimed that the accident was caused by 1st and 2nd Defendants negligence due to the signal to stop by the 3rd – 7th Defendants.

The 3rd – 7th Defendants pleaded as in their Defence of 16.4.2015 that, “(a) Pada 3 Disember 2013, Defendan Ketiga sehingga Ketujuh dalam tugasan rasmi membuat rondaan disekitar kawasan Bukit Beruntung – Rawang. Pada jam lebih kurang 7.50 sehingga 8.00 malam, Defendan Ketiga sehingga Ketujuh menahan sebuah motorlori bernombor pendaftaran WUC 5600 di km 440.3 Bukit Beruntung – Rawang 6 Lebuhraya Utara Selatan kerana disyaki terlebih muatan;

Defendan Ketiga telah memberhentikan kenderaan WRD 7645 di belakang motorlori bernombor pendaftaran WUC 5600 tersebut untuk membuat pemeriksaan ke atas motorlori WUC 5600 tersebut;

Defendan Pertama yang memandu motorlori bernombor pendaftaran WUC 5600 tersebut berhenti di lorong kecemasan setelah Defendan Keempat mengarahkan motorlori tersebut berhenti dengan memberikan lampu mata arah kenderaan WRD 7645.

Lebih kurang 10 minit kemudian, tiba-tiba terdengar bunyi dentuman dari belakang kenderaan motorlori WUC 5600 tersebut dan Defendan Ketiga sehingga Ketujuh mendapati bahawa Plaintif dan motorsikal bernombor pendaftaran WPB 6894 berada di Bahagian kanan belakang motorlori WUC 5600 tersebut; dan

Kemalangan ini berlaku atas kecuaian Plaintif sepenuhnya dengan mengambilkira kemalangan berlaku dilorong kecemasan, keadaan cuaca dan jalan raya pada masa material.” 7

The Sessions Court found the 3rd – 7th Defendants are liable at 80%, the 1st – 2nd Defendant in the appeal case 12B-10-01/2016 are liable at 20% and Plaintiff is not liable and was awarded General Damages and Special Damages.

The 3rd – 7th Defendants dissatisfied with the Sessions Court’s decision, filed the Notice of Appeal on 8.12.2015.

The 3rd – 7th Defendants filed its Amended Memorandum of Appeal of 15.3.2016 (Supplementary Appeal Record). 3rd – 7th Defendants’ case [6] The learned Federal Counsel for the 3rd – 7th Defendants submitted twelve grounds of appeal on liability and three grounds of appeal on quantum (Amended Memorandum of Appeal of 15.3.2016, pages 54-60 of Supplementary Appeal Record). It was submitted that this Court should interfere with the findings of the trial judge were there was a misdirection of facts and law, relying on a number of authorities, Chung Hwa Ying v Phang Mun Mooi & Anor [1987] 2 MLJ 693; Herchun Singh & Ors v Public Prosecutor [1969] 2 MLJ 209; Borhan bin Hj Daud & Ors v Abd Malek bin Hussin [2010] and Ng Chui Sia v Maimon Bt. Ali [1983] 1 MLJ 110. [7] Focusing on the fact that the accident occurred on the emergency lane, the Federal Counsel submitted that the accident was caused by the 8 Plaintiff’s negligence and/or contributory negligence as evidenced by IO’s investigation (pages 117-118 of Supplementary Appeal Record 1 of case 12B-10-01/2016) and as admitted by the Plaintiff (pages 22 and 29 of Supplementary Appeal Record 2 and page 66 of Supplementary Appeal Record 1 of 12B-10-01/2016). It was submitted that the Session Judge had been erred in facts and law for failure to assess the probable version based on the evidence adduced following the Federal Court case of Yahaya Mohamad v Chin Tuan Nam [1975] 2 MLJ 117. [8] It was submitted by the Federal Counsel that the debris found on the emergency lane is the point of impact of the accident based on the authority Yahaya Mohamad (supra) which was consistently testified by all defendants to the suit by Plaintiff, which proved the Plaintiff’s contributory negligence following the Federal Court case of Kek Kee Leng v Teresa Bong Nguk Chin & Anor [1978] 1 MLJ 61. [9] It was submitted that the Session Judge failed to consider the IO’s testimony and decided that the IO’s investigation was incomplete when IO had then taken statements from 3rd – 7th Defendants and summoned the Plaintiff under Rule 10 of Road Traffic Rules LN 166/1959 (pages 31 – 32 of Supplementary Appeal of Record 2) and relied on the Federal Court case of Yahaya Bin Mat & Anor v Abdul Rahman bin Abu [1982] 1 MLJ

[10] In relation to the position of the 3rd – 7th Defendants’ vehicle, the Federal Counsel submitted that the Session Judge had erred in facts and law for inferring the said issue (page 21 of Session Judge’s written 9 judgment) which was not pleaded by the Plaintiff. It was brought to this Court’s attention that the statement on the position of the 3rd – 7th Defendants was raised during the oral evidence. Relying on the authorities that parties are bound by their pleadings, the Federal Counsel averred that the Court cannot rely on a plea borne out of pleadings: Order 18 rule 10(1) Rules of Court 2012; State Government of Perak v Muniandy [1986] 1 MLJ 490, SC and Tan Sri Norian Mai & Anor Suzana Md Aris [2011] 1 LNS 1912. [11] The Federal Counsel submitted that safety measures were adhered in exercising their authority to stop the motor lorry WUC 5600 based on their Standard Operating Procedure and following the provisions of the Road Transport Act 1987 (RTA). The Federal Counsel submitted on section 59(1) of RTA and section 55 of RTA on the duty to stop vehicles on demand and that it is a duty following the Federal Court of Selvaraju A/L Ponniah v Suruhanjaya Perkhidmatan Awam & Kerajaan Malaysia [2007] 7 MLJ 1 which held that the term ‘shall’ stipulated in section 2(a) of the Public Authorities Protection Act 1948 connotes a mandatory meaning. It was submitted that the Session Judge’s finding that the 3rd – 7th Defendants stopping the motor lorry was unjustified and caused the accident. Quantum [12] The Federal Counsel relied on the Specialist Medical Report of 20.5.2014 which reported that the Plaintiff suffered a mild brain injury and averred that the award for mild brain injury Rm100,000.00 by the Session Judge is excessive, following the case of Muhammad Iqmal Daniel B 10 Abdullah & Anor v Tan Choon Chwa & Anor [2012] 1 PIR 8 where the court awarded RM65,000.00 as compensation, arguing that the award for the current case should be reduced to the figure of RM30,000.00. It was submitted that this is also consistent with the evidence of the Plaintiff’s witnesses whom testified that the Plaintiff can walk without the walking stick and can be independent. [13] In relation to the injury ‘multiple maxillofacial fracture with left zygomatic complex and roof and lateral wall of the orbit’ where the Session Judge awarded RM46,000.00, the Federal Counsel relied on the authority Mohd Sukri bin Mohd Kanawai v Md Yahya b Mat [2013] 1 PIR [22], and submitted that the court in that cases awarded RM20,000 and the Federal Counsel submitted for RM18,000.00. [14] For the injury ‘open comminuted fracture distal end right radius’, it was submitted that based on the medical report (Appeal Record Jilid 1, page 128, paragraph 5), which reported that the fracture distal end left radius had united but still having pain and may need operation. It was submitted that the award by the Session Judge of RM22,000.00 should be reduced to RM20,000.00. The Special Damages for treatment and follow up amounting to RM1,000 and Rm500 for medical expenses in Government hospital should be dismissed as they were not proven. [15] For loss of future earnings, it was submitted by the Federal Counsel that there was no proof that Plaintiff was working before the accident and Plaintiff failed to produce any salary slips and no proof of the existence of the company, relying on the authority under section 28A of Civil Law Act 11 1956 where for loss of future earnings, the Plaintiff must prove that he is in good health based on the case of Ngooi Ku Siong & Anor v Aidi Abdullah [1989] 1 MLJ 31. It was submitted that the award loss of future earnings by the Session Judge should be dismissed or be set aside. Plaintiff’s case [16] Briefly, the learned counsel for the Plaintiff started off with quantum, submitted that the award by the Sessions Court should be retained. On loss of earnings, Plaintiff’s counsel submitted that the Plaintiff was in good health and was looked after by his parents after the accident (page 42 Supplementary Appeal Record 1). With regards to Plaintiff’s employment, the employer testified that the Plaintiff receives a salary of RM50-RM60 per day work and had not been paid salary after the accident (page 46 of Supplementary Appeal Record 1). [17] In relation to the quantum for head injury, the Plaintiff’s counsel submitted that the Plaintiff’s specialist medical report of 20.5.2014 verified Plaintiff’s disabilities due to the accident and relying on a number of authorities where the awards given ranged between RM180,000.00 to RM120,000.00 and averred that the award by the Session Judge for RM100,000.00 is reasonable. [18] In relation to the injury ‘multiple maxillofacial fracture with left zygomatic complex and roof and lateral wall of the orbit’, the Session Judge awarded RM46,000.00 to which Plaintiff submitted that the sum is reasonable considering Plaintiff’s injury is serious. The counsel for the 12 Plaintiff prayed to this Court that the award by the Session Judge be retained. [19] On liability, Plaintiff’s counsel’s contention is that the 3rd – 7th Defendants do not have the right to stop the motor lorry for inspection at the emergency lane. It was averred that the Plaintiff could not recall as to the actual cause of the accident and relied on the IO and the oral evidence of all the defendants in reference to the authorities Husiana Rani Naina Mohamed v Ahmad Nadzri Kamaruddin & Anor [1997] 3 CLJ 500, Kuppusamy L. Sundarajoo v Nithananthan Muniandy [1990] 2 CLJ (Rep) 302 and Dawason v Murex Ltd [1942] 1 All ER 483. It was brought to this Court’s attention that the width of the emergency lane is not sufficient to accommodate the motor lorry for an inspection to be carried out (page 135 Supplementary Appeal Record 1). To this, the counsel pointed out that the IO was unsure of the 3rd - 7th Defendants’ usage of the emergency lane. The Plaintiff’s counsel submitted that it would be reasonable for the 1st Defendant to be liable at 20% for his failure to call the co-driver to testify that the 1st Defendant was taking precaution to ensure that no one would be behind the motor lorry (page 153 Supplementary Appeal Record 1). [20] The Plaintiff’s counsel averred that the IO’s investigation was incomplete for not taking statements from the 3rd-7th Defendants. It was asserted that the accident was caused by the 3rd – 7th Defendants’ instructions to stop the motor lorry without any warning signage by the 3rd – 7th Defendants and the place was not well lighted. In addition, there were 13 contradictory statements about the position of the 3rd – 7th Defendants’ vehicle prior to the occurrence of the accident. [21] The Plaintiff’s counsel also pointed out that the police report made by the 3rd – 7th Defendants was made two hours after the accident, at 22.00hrs at night whereas the 1st Defendant reported earlier, at 21.15hrs at night. The Sessions Court’s Decision [22] The Session Judge had narrated in detail the Plaintiff’s and 3rd – 7th Defendants’ versions as to the occurrence of the accident. The Session Judge’s decision can be found at the Supplementary Record Appeal to which some of the salient points on liability and award were reproduced in the judgment for appeal 12B-10-01/2016. THE COURT’S FINDING [23] Both counsels advanced several arguments on the grounds of the appeal. For the purpose of this judgment, I will be brief, focusing on the main grounds. In appeal case 12B-10-01/2016 which was heard together with this appeal, I allowed the appeal. In this appeal, I hold the same view that the Plaintiff, on the balance of probability, failed to discharge the burden to prove as well as the onus to produce evidence and this Court finds that the Plaintiff is wholly liable. My grounds of judgment follow to which I will start by stating the laws that is the burden of proof following section 101 of the Evidence Act 1950. 14 [24] This suit was brought by the Plaintiff and the burden rests on the Plaintiff to prove its claim, based on the balance of probabilities. The burden of proof as well as the initial onus to prove the claim rest with the Plaintiff and the Plaintiff is to discharge its onus to prove its cause of action against the Defendant as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd No. 02-78- 10/2014. Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue. [25] Both counsels submitted the trite law that an appellate court will be slow to interfere with the findings of facts and judicial appreciation of the facts by the trial judge. The legal position is clear and can be found in a number of great authorities that an appellate court should but rarely interfere with conclusion arrived at by the trial judge who had the advantage of hearing the witnesses unless it is satisfied that the judge has acted on a wrong principle of law or has made a wholly erroneous estimate of damage suffered, either due to an omission to consider relevant materials or admitting irrelevant considerations: Multar Masngud v Lim Kim Chet & Anor [1982] CLJ 237, Federal Court and in the recent decision of the Federal Court in Ming Holdings (M) Sdn Bhd v Syed Azahari Noh Shahabudin & Anor [2010] 6 CLJ 857. [26] This Court viewed that there was a clear misdirection of law and findings by the trial judge and it is incumbent upon this Court to intervene 15 and correct the findings: Tan Kuan Yau v Suhindrimani Angasamy [1985] CLJ (Rep) 323. This was based on the unfolding events leading to the decision of the Session Judge where facts and evidence were not considered following section 101 of the evidence Act 1950 and the Federal Court case of Letchumanan Chettiar (supra). [27] I do not wish to repeat myself and deliberate at length on the misdirection of the trial judge on the burden of proof and the liability following the accident which occurred on the emergency lane. Suffice to say that this court holds the view that in the case where negligence is claimed as the cause of action, prove of negligence will be placed on the Plaintiff and in this case, the Plaintiff failed to discharge its burden and onus to adduce evidence, relying on the authority attributed by the Federal Counsel, the Federal Court case of Kek Kee Leng (supra) and other authorities, Neo Chan Eng v Koh Yong Hoe [1960] 26 MLJ 291, Ng Chui Sia v Maimon b. Ali [1983] 1 MLJ 110 and Mohd Tarmizi Mat Hassan & Anor v Arief Fitri Ahmad Zainuddin [2014] 1 LNS 1005. [28] I wish to reiterate that as the Plaintiff was unable to recall, the evidence submitted before this Court must be scrutinised which comprises sketch plan, the photographs of the scene of the accident and the damage to the vehicles, known as the silent evidence, and the investigation carried out by the investigating officer (IO). The IO testified that the accident occurred on the emergency lane (pages 117-118 Supplementary Appeal Record 1) as there were blood and debris of accident, marked as ‘B’ on the sketch plan, that is the emergency lane (page 33 of Supplementary Appeal 16 Record (cross-examination of Plaintiff)), are pure evidence consistent with the version that the point of collision occurred on the emergency lane. [29] In addition, the Plaintiff testified agreeing that he was driving on lane A1-A2 which is the emergency lane (page 54 of Supplementary Appeal Record). The Plaintiff’s admission that he was riding on the emergency lane (page 66 of Supplementary Appeal Record 1) is an admission under section 17 of the Evidence Act 1950 which proves to show that the accident was caused by Plaintiff’s own negligence. This Court viewed that what remains to be a fact is that the collision by the Plaintiff was at the back of the motor lorry which was stationed on the emergency lane. [30] In relation to the issue of the position of the 3rd – 7th Defendants’ vehicle, relying on the authorities of the Federal Court case of Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 and Dato’ Tan Chin Who v Dato’ Yalumallai @ M Ramalingam s/o V Muthusamy [2016] MLJU 641 which clearly stated that parties are bound by their pleadings, this Court finds that such issue cannot be raised here as this was never pleaded by the Plaintiff. Furthermore, the fact remains that the collision is between the Plaintiff and the 1st – 2nd Defendants of the other appeal case 12B-10-01/2016. [31] It was not disputed that the motor lorry was stopped for inspection by the 3rd – 7th Defendants and the motor lorry was ordered to stop at the emergency lane. This is following the provision of the RTA, section 59(1) Road Transport Act 1987 which is allowed by law and as agreed by the IO during the oral evidence that it was legal to stop on the emergency lane 17 (page 123 Supplementary Appeal Record (1)). Based on section 55 of RTA, “55. Duty to stop vehicles on demand Any person driving a motor vehicle on a road shall stop the motor vehicle on being so required by a police officer in uniform, a traffic warden in uniform or a road transport officer in uniform, and if he fails so to do he shall be guilty of an offence.” [32] This Court viewed that the Plaintiff’s argument to prove the chain of causation of the 3rd – 7th Defendants to the accident must fail for the reasons that it was admitted by Plaintiff that he was riding on the emergency lane which is an offence under Rule 53(1) Road Traffic Rules LN 166/59. Based on the authority of Kek Kee Leng (supra) which was attributed by the Federal Counsel, this Court viewed that had not the Session Judge referred to the Road Traffic Rules and the Federal Court’s decision in Kek Kee Leng (supra) case, she may have arrived at a different finding. [33] In addition, this Court viewed that there was no evidence produced by the Plaintiff that the directive of the 3rd – 7th Defendants to stop the motor lorry of the 1st – 2nd Defendants was not in accordance with section 59(1) RTA (page 93 of the Supplementary Appeal Record 1) and section 55 of RTA. This Court finds that there was no proof by the Plaintiff to link the 3 rd – 7th Defendants to the accident. 18 [34] In relation to quantum, I stand to be guided by the Federal Court’s case of Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors [2016] 2 CLJ 885, where damages is served as a compensation and not a reward, therefore claim for damages must be proven. Based on the latest specialist medical report of 1.10.2014 (Appeal Record Jilid 1), the Plaintiff is diagnosed to suffer mild head injury and is found to be independent in his daily living activities and does not require any form of institutionalized care or nursing care, to which this Court finds that the award of RM100,000.00 is excessive and should be reduced to RM80,000. For the injury ‘multiple maxillofacial fracture’ based on the Compendium referred and taking into account a global award be used as a basis, the award of RM46,000 is reduced to RM30,000.00. The injury ‘open comminuted fracture’ is retained at RM22,000.00. I find that the claim for special damages for transport cost and medical expenses are without proof and therefore must fail. [35] Pertaining to the claim for loss of future earnings, I have allowed the appeal for the case 12B-10-01/2016 and I too allow the appeal here. I wish to reiterate that there was no evidence that the Plaintiff was employed at the time of accident (pages 62-63 of Supplementary Appeal Record (2) of BA-12B-11-01-2016). In the Supreme Court case of Tan Kim Chuan v Chandu Nair [1991] 1 MLJ 42, it was decided that an injured claimant ought not to get damages in a claim for loss of future earnings or loss of earning capacity unless at the date of the accident he was in fact receiving earnings. Therefore for the prerequisite under section 28(A)(2) of the Civil Law Act 1956 to be applicable, the two limbs must be fulfilled that is there must be evidence that the injured claimant was in good health and was in 19 fact receiving earnings. As there was no evidence adduced on the salary slips to proof Plaintiff’s employment and that Plaintiff’s witness testified without proof of Plaintiff’s employment, claim for loss of earnings must fail: Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ (Rep) 294. [36] In relation to loss of earning capacity, as decided in the other appeal 12B-10-01/2016, I find that based on the latest specialist medical report of 1.10.2014, the Plaintiff is reported to be independent and that his employment prospects may be significantly reduced “at the moment” (by Dr. Ravi Krishnapillai of Sunway Healthcare, Appeal Record Jilid 1) to which I find no real and substantial risk of diminished earning capacity of the Plaintiff. [37] In light of the above reasons, I allow the appeal and set aside the award for the General Damages and Special Damages except for the award for ‘open comminuted fracture’. Dated: 6 November 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 20 COUNSEL FOR THE APPELLANTS/3rd– 7th DEFENDANTS SAFIYYAH BINTI OMAR Peguam Persekutuan Jabatan Peguam Negara Bahagian Guaman, Aras 6 No. 45, Persiaran Perdana, Presint 4 Pusat Pentadbiran Kerajaan Persekutuan 62100 Putrajaya [Ruj: PN/TR/HQ/SGI/18/53/2015] COUNSEL FOR THE RESPONDENT MOHD SAUFI BIN SAMSUDDIN G. Dorai & Co. Peguamcara dan Peguambela No. 7, Jalan Mawar 1, Taman Mawar 48000 Rawang [Ruj: PGD/KR/01213/14/INS/ak]