1. Jeffrey Bin Musa v 1. Tebanraj A/L Marimuthu (BA-12B-10-01/2016)

BERSERI CHICKEN TRADING … PERAYU-PERAYU

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

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PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA KERAJAAN MALAYSIA … DEFENDAN-DEFENDAN) 3 GROUND OF JUDGMENT Introduction [1] This is an appeal by the Appellants (1st - 2nd Defendants) against the decision of the learned Session Judge of 8.12.2015 in allowing one of the Respondents’ claim, the Plaintiff after a full trial. The Sessions Court decided that the Appellants are 20% liable, the 2nd – 6th Respondents are 80% liable and Plaintiff not liable. The appeal is on liability and for loss of earnings. [2] This appeal was heard together with the other appeal BA-12B-11-01- 2016, involving the same road accident alleged by Plaintiff. I shall introduce the parties as they were known at the Sessions Court. The 1st Respondent who is the Plaintiff brought the suit against seven Defendants including the 1st and 2nd Defendants. The 2nd, 3rd, and 4th Respondents are the 3rd, 4th and 5th Defendants, who are the officers of the Road Transport Department, Malaysia (JPJ). The 5th Respondent (6th Defendant) and the 6th Respondent (7th Defendant) are the Director General of the Road Transport Department, Malaysia and Government of Malaysia respectively. [3] For this appeal, the action is between the 1st and 2nd Defendants and the Respondents are the Plaintiff and the 3rd – 7th Defendants. In the appeal BA-12B-11-01/2016, the 3rd – 7th Defendants are the appellants appealing the Sessions Court’s decision of 80% liability and quantum where the case is between the 3rd – 7th Defendants and the Plaintiff, as the respondent. 4 [4] This Court allowed the appeal on 13.7.2017 and also set aside the Session Judge’s award for loss of earnings with costs. [5] In this judgement, the parties will be referred to, as they were in the Sessions Court. Facts [6] 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, 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 claimed that the 1st Defendant, the driver of vehicle lorry bearing registration number WUC 5600 and the 2nd Defendant, is the registered owner of the said vehicle lorry, had caused the accident due to the negligence of the 1st Defendant (paragraphs 3 and 7 of Amended Statement of Claim, page 5 and 6 of Appeal Record).

The Plaintiff also 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 5 (paragraph 7 of Amended Statement of Claim, page 5 of Appeal Record).

The Plaintiff pleaded (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 Bukit 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, penguasaan dan pembawaan motokar WRD 7645 dengan mewujudkan kacau ganggu di lebuharaya tersebut oleh yang demikian, Plaintif terpaksa melanggar motorlori tersebut dan akibat perlanggaran tersebut Plaintiff telah mengalami kecederaan, kerosakan dan kerugian.”

The Plaintiff claimed that the accident was caused by 1st and 2nd Defendants negligence due to the signal to stop by the 3rd – 6 7th Defendants. The negligence caused by the 1st and 2nd Defendants are as meted out in paragraphs (a) – (n) of the Amended Statement of Claim (pages 6-7 of the Appeal Record). Due to the accident, the Plaintiff claimed that he suffered injury, damages and loss.

The 1st and 2nd Defendants in its Defence claimed that the Plaintiff’s negligence was caused wholly by the Plaintiff while riding its motorcycle. It was pleaded that it was a straight road with three lanes and one emergency lane.

The 1st - 2nd Defendants pleaded that his assistant was asleep while he took the motor lorry permit and driving license as he dismounted from his lorry and that the 3rd – 7th Defendants’ vehicle of WRD 7645 stopped in front of the motor lorry about 10 -15 meters and had its hazard lights switched on.

The 1st Defendant claimed that while he was discussing with the 3rd Defendant, another JPJ officer was circling the vehicle lorry and after five minutes, a motorcycle registration number WBP 6894 of Kriss model knocked at the back right side of the motor lorry belonging to the 2nd Defendant.

The 1st Defendant claimed that the Plaintiff was found under the motor lorry and the accident was on the emergency lane.

The Session Judge made a finding that based on Plaintiff’s and 1st - 2nd Defendants’ witnesses, liable at 20% and the 3rd – 7th 7 Defendants are liable at 80% and awarded General Damages and Special Damages to the Plaintiff.

The 1st - 2nd Defendants dissatisfied with the Sessions Court’s decision, filed the Notice of Appeal on 18.12.2015. 1st and 2nd Defendants’ case [8] The learned counsel for the 1st – 2nd Defendants submitted 8 grounds for this appeal which can be found in the Memorandum of Appeal (paragraphs 1-8 of the Appeal Record) and I will focus on the main grounds. The counsel for the 1st – 2nd Defendants’ main contention is that the Session Judge was erred that the Plaintiff was found not negligent and instead found 1st – 2nd Defendants liable at 20%. [9] Referring to the sketch plan (page 38 Appeal Record of BA-12B-10- 01/2016 file), the 1st and 2nd Defendants’ counsel submitted that the 1s t and 2nd Defendants and the Plaintiff were travelling on the same direction at KM440.3 PLUS Highway where the 1st and 2nd Defendants were ordered to stop its motor lorry bearing registration number WUC 5600 by the 3rd – 7th Defendants at the emergency lane. [10] The counsel averred that the Session Judge was erred in facts and law in finding the Plaintiff not negligent when the Plaintiff had made contradictory statements as to the occurrence of the accident during the examination-in-chief and cross-examination. It was submitted that the Plaintiff kept changing its story when he found out that the 3rd Defendant 8 made a police report and during the cross-examination, Plaintiff strongly denied the accident was due to the negligence of the 3rd – 7th Defendants. It was submitted that the Plaintiff reported that he was riding on the left most which is between lanes A2-A3 as in the sketch plan, and the vehicle lorry was driving on lane A3-A4 next to Plaintiff, but during the cross-examination, Plaintiff admitted that he was riding on lane A1-A2 which is the emergency lane. [11] The counsel for the 1st and 2nd Defendants submitted that the dispute as to the position of the JPJ vehicle on the emergency lane, whether in the front of the vehicle lorry or behind, was not pleaded by the Plaintiff. It was brought to the Court’s attention that the 1st Defendant’s version is the JPJ vehicle stopped in the front of the motor lorry whereas the 3rd Defendant pleaded that it stopped behind the motor lorry. [12] It was submitted that based on the investigating police officer (IO), it was revealed (pages 117 – 118 of Supplementary Appeal Record 1) that the accident (“kesan kemalangan”) is on the emergency lane. The counsel pointed out that this could be inferred that the accident occurred when the vehicle lorry stopped on the emergency lane. The counsel argued that as the 1st and 2nd Defendants were stopped by the JPJ officers, the ‘physical control’ of the vehicle of the 1st – 2nd Defendants would be by the JPJ and Government of Malaysia and no longer of the control by the 1st - 2nd Defendants as pleaded in its Defence (paragraph 9, page 35 of Appeal Record). [13] The counsel submitted that based on 3rd – 7th Defendants’ Defence, the JPJ suspects that the motor lorry was above the required weight and 9 following section 59(1) Road Transport Act 1987 (RTA) and section 55 of RTA, any road transport officer, may require any motor vehicle to be stopped and detained for inspection (page 17-18 of written submission of 2nd – 6th Respondents). The counsel averred in its oral submission that the portion of 80% liability should be on the Plaintiff and 20% on the 1st – 2nd Defendants, briefly, for the following reasons:

JPJ’s ordered to stop vehicle lorry was legal;

If not stopped, 1st – 2nd Defendants would be against the law;

The 1st – 2nd Defendant had stopped at the emergency lane for 5 minutes and this fact was not pleaded by Plaintiff. [15] The counsel for the 1st – 2nd Defendants submitted that this Court should intervene as the trial judge had come to the wrong conclusion on the facts, relying on the case of Chung Hwa Ying v Phang Mun Mooi & Anor [1987] 2 MLJ 693, a Supreme Court case. The counsel prayed for liability of 20% be changed or that there be no liability and submitted for the Judge to hold liable between the Plaintiff and 3rd – 7th Defendants. [16] In relation to loss of earnings, it was contended by the counsel for the 1st – 2nd Defendants that the Plaintiff failed to adduce any evidence nor the Plaintiff’s employer and there should be no award for loss of earnings. For loss of earning capacity of RM50,000.00, it was submitted that the Plaintiff did not prove that he was healthy as required under section 28A 2(c) of Civil Law Act 1956. The counsel averred that the loss of earnings and loss of future earnings claimed by Plaintiff be dismissed as there was no proof, 10 relying on the Supreme Court case of Aidi Abdullah v Ngooi Ku Siong & Anor [1985] 1 MLJ 30. Plaintiff’s case [17] 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). [18] 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 11 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). [19] 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 JPJ’s instructions to stop the motor lorry, there was no warning signage by the 3rd – 7th Defendants where the area the motor lorry was stationed was not well lighted. In addition, there were contradictory statements about the location of the 3rd – 7th Defendants prior to the occurrence of the accident. [20] 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 [21] The Session Judge had narrated in detail the Plaintiff’s and 1 st – 2nd Defendant’s version as to the occurrence of the accident. The Session Judge’s decision can be found at the Supplementary Record Appeal where some the salient points on liability and loss of earnings are reproduced, as follows: “… 12

Mahkamah juga meneliti keterangan Plaintif yang tidak ingat samada kenderaan JPJ ada ketika kemalangan berlaku dan bagaimana kemalangan berlaku dan telah bersetuju dengan peguamcara Defendan bahawa laporan polis Plaintif dibuat atas bantuan ayahnya. …..

Mahkamah mendapati gambar-gambar yang dikemukakan di Mahkamah menunjukkan kerosakan motorlori Defendan Kedua adalah di Bahagian besi belakang di tengah dan sebelah kanan dan kerosakan motorsikal adalah tertumpu di Bahagian hadapan.

Mahkamah juga menimbangkan siasatan Pegawai penyiasat tidak lengkap kerana tidak mengambil keterangan daripada Pegawai-pegawai JPJ yang terlibat tetapi saman di bawah Rule 10 LNM telah dikeluarkan terhadap Plaintif dan Plaintif tidak membayar saman tersebut.

Mahkamah juga meneliti dan menimbangkan keterangan Plaintif yang tidak ingat mengenai kenderaan JPJ, keterangan Defendan Pertama yang memandu motorlori Defendan Kedua memberitahu kedudukan kenderaan JPJ adalah di hadapan motorlori dan keterangan Defendan Ketiga hingga Defendan Kelima iaitu Pegawai JPJ memberitahu bahawa kedudukan kenderaan JPJ adalah di belakang motorlori tersebut. 13

8.1 Mahkamah turut mendapati pegawai penyiasat tidak dapat mengesahkan kedudukan kenderaan JPJ semasa kemalangan berlaku.

8.2 Mahkamah menerima keterangan Defendan Pertama bahawa kenderaan JPJ berada di hadapan motorlori kerana keterangannya disokong oleh Plaintif yang tidak boleh ingat mengenai kenderaan JPJ kerana tidak nampak kenderaan tersebut.

8.3 Mahkamah mendapati kesan kerosakan pada belakang tengah dan kanan motorlori adalah jelas menunjukkan motorsikal Plaintif telah melanggar di Bahagian tengah dan sekiranya kenderaan JPJ berada di belakang motorlori tersebut, adalah mustahil untuk motorsikal melintasi kenderaan JPJ dan masuk semula ke Bahagian tengah lorong kecemasan tersebut. …..

10.3 Persoalannya juga adalah samada sekiranya Seksyen 3, Akta Pengangkutan Jalan 1987 membenarkan Pegawai JPJ membuat penahanan kenderaan di mana-mana sahaja termasuk lorong kecemasan, maka atas tanggungjawab siapakah untuk memastikan keselamatan kenderaan lain yang sedang dipandu dari belakang motorlori tersebut? 14

10.4 Mahkamah berpendapat di dalam soal keselamatan dan pengawalan trafik adalah terletak pada kedua-dua pihak daripada motorlori dan kenderaan JPJ pada hari tersebut.

10.5 Mahkamah juga berpendapat bahawa sekiranya motorlori yang dipandu oleh Defendan Pertama tidak mengubah lorong akibat diarahkan oleh Pegawai JPJ (Defendan Ketiga hingga Defendan Kelima) pada hari tersebut seperti yang dalam keterangan Plaintif, maka kemalangan tidak akan berlaku.

10.6 Begitu juga jika kemalangan berlaku setelah 5 minit motorlori diberhentikan oleh defendan Pertama atas arahan Pegawai JPJ (Defendan Ketiga hingga Defendan Kelima), maka kemalangan tidak akan berlaku. …..

Untuk menentukan kemalangan ini berpunca daripada siapa dan liabilitinya, Mahkamah telah merujuk kepada kes Azam bin Kasman dan Satu Lagi v Ramachandran a/l Muthusamy [1996] 1 LNS 14. …..

Oleh yang demikian, setelah mendengar dan meneliti semua keterangan daripada saksi-saksi kedua-dua pihak, hujahan kedua- 15 dua pihak berserta kes-kes dan otoriti yang telah dikemukakan, Mahkamah membuat keputusan di atas Imbangan Kebarangkalian bahawa Defendan Pertama dan Defendan Kedua adalah berliabiliti sebanyak 20% kerana tidak mengambil tindakan keselamatan semasa mengubah motorlori dan memberhentikan motorlori dan Defendan Ketiga hingga Defendan Ketujuh adalah berliabiliti sebanyak 80% kerana telah mengarahkan motorlori yang dipandu oleh Defendan Pertama supaya berhenti di lorong kecemasan tanpa mengambil langkah-langkah keselamatan kenderaan lain yang datang dari belakang motorlori.

16.1 Mahkamah berpendapat baahwa tindakan Defendan Ketiga hingga Defendan Kelima mengarahkan motorlori Defendan Kedua berhenti di lorong kecemasan adalah tidak selamat dan membahayakan dan motorlori tersebut boleh diarahkan memandu ke stesyen timbang JPJ di Kalumpang untuk pemeriksaan lanjut yang mana terletak tidak jauh daripada kawasan kemalangan kes ini. J. ALASAN MAHKAMAH i) ISU AWARD …..

7.7 Defendan-Defendan tidak menawarkan apa-apa tawaran dan setelah meneliti dan mempertimbangkan kesemua laporan pakar daripada kedua-dua pihak, keadaan umur 16 Plaintif yang masih muda, keupayaan pemikiran Plaintif dan keupayaan untuk Plaintif bergerak melakukan kerja-kerja dan kelulusan akademik Plaintif yang tidak tinggi, maka Mahkamah telah membenarkan RM500.00 x 192 bulan berjumlah RM96,000.00 tanpa faedah.

7.8 Mahkamah membenarkan jumlah RM500.00 setelah ditolak dengan “living expenses” dan mengambil kira jenis kerja yang Plaintif mampu lakukan sebelum kemalangan adalah tidak tetap dan bergantung kepada bilangan rumah yang dapat dibuat tar jalan dan juga keadaan faktor cuaca pada bulan tersebut.

7.9 Mahkamah menerima keterangan majikan Plaintif dan berpendapat bahawa jumlah RM500.00 sebulan adalah sesuai dan munasabah serta tidak melampaui. ….” THE COURT’S FINDING [22] Both parties 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 17 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. The authorities are as submitted by the 1st – 2nd Defendants’ counsel 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 where it was remarked that a trial judge had the advantage over an appellant court in hearing the witnesses and should be slow in interfering with the trial judge’s decision. [23] However, where there is a clear misdirection of law and findings by the trial judge, it is incumbent upon this Court to intervene and correct the findings of the lower court. In the Federal Court case of Tan Kuan Yau v Suhindrimani Angasamy [1985] CLJ (Rep) 323, it was held that, “Although an appellate Court is always slow to interfere with the trial Judge’s findings, it is the duty of the appellate Court to interfere if it is satisfied that there has been a wholly errorneous estimate of damage.” [24] 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. I would start of by staying that 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 18 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] There are contradictory facts between the parties. The Plaintiff pleaded that the 1st – 2nd Defendants travelling on the same direction, being on Plaintiff’s right side and suddenly changed lane to the left without any warning before stopping and as a result, Plaintiff had to collide with the 1st - 2nd Defendants’ motor lorry. The exact words pleaded by Plaintiff as in paragraph 6 of the Amended Statement of Claim, is extracted, “…. 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, penguasaan dan pembawaan motokar WRD 7645 dengan mengwujudkan kacau ganggu di lebuhraya tersebut oleh yang demikian, Plaintif terpaksa melanggar motorlori tersebut …. .” 19 [26] In a case where negligence is claimed as the cause of action, prove of negligence will be placed on the plaintiff. The plaintiff must first prove before it can discharge its burden, and the onus to adduce the evidence rests on the Plaintiff in this instant appeal. Based on cases of 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, the evidential burden will shift to the defendant to disprove negligence on his part when the plaintiff has established a prima facie case of negligence as pleaded. [27] The Plaintiff had pleaded the occurrence of the accident as such but when testified, could not recall how the accident took place. Pertinent to the evidence by the Plaintiff in this appeal, this Court rely on the case of Ng Aik Sian & Anor v Sia Loh Sia [1997] 2 CLJ 218 where Justice Abdul Malik Ishak had occasion to say, “It is trite law drivers and the witnesses on each side tell conflicting and divergent stories, the photographs, plans, measurements of the scene of the accident and the nature of the damage to each vehicle will be the guiding force – the reliable guide to rely upon.” [28] As the Plaintiff may not be able 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 20 were blood and debris of accident which was marked ‘B’ on the sketch plan, that is the emergency lane (page 33 of Supplementary Appeal Record (cross-examination of Plaintiff)), are pure evidence consistent with the version that the point of collision occurred on the emergency lane. [29] Relying on 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 the evidence adduced by the Plaintiff contradicts its own pleadings. The Plaintiff’s police report of 7.10.2014 stated among others that, “…SAYA IKUT DI LORONG KIRI TIBA-TIBA SEBUAH M/LORI NO. WUC 5600 JENIS TIDAK PASTI TELAH MASUK KELORONG KECEMASAN DENGAN TIBA-TIBA LALU SAYA BREK DAN ELAK TETAPI TERLANGGAR BELAKANG M/LORI TERSEBUT. M/SIKAL ROSAK TERUK. …” In contradiction to Plaintiff’s police report and as pleaded, 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 did not agree that the vehicle lorry was already on the emergency lane but testified that he collided at the back of the motor lorry which was on the emergency lane (pages 57 – 58 of Supplementary Appeal Record). The Plaintiff’s evidence was challenged based on the damage found to his motorcycle and yet refused to agree that the damage would be on the right side of his motorcycle if the 1st – 2nd Defendants were coming from his right 21 onto the Plaintiff’s lane. Yet, the Plaintiff admitted that he knocked the back of the motor lorry while the motor lorry was on the emergency lane. [30] The Plaintiff’s oral evidence during the cross-examination proves to show that the Plaintiff knocked on the back of the motor lorry while the motor lorry was stationed on the emergency lane. The Plaintiff’s admission that he knocked on the back of the motor lorry and not on the left side of the motor lorry is an admission under section 17 of the Evidence Act 1950 that the accident was caused by Plaintiff’s own negligence. [31] This Court holds the view that if the 1st – 2nd Defendants were coming from Plaintiff’s right and out of a sudden, went onto Plaintiff’s lane as pleaded, the Plaintiff would have knocked on the left side of the motor lorry and the damage to Plaintiff’s motorcycle would be on the right side and not the front cover of Plaintiff’s motorcycle as found by IO in his investigation. I viewed that the Plaintiff was riding on the emergency lane and did not see the vehicle lorry which caused him to collide the back of the motor lorry. This evidence corroborates with the silent evidence of the sketch plan, the photographs of the debris and the damage to the motorcycle and the motor lorry. [32] This Court finds that the damage to the motor lorry is consistent with the police report made by the 1st – 2nd Defendants where the lights and the registration number at the back of the vehicle lorry were found to be broken. The Plaintiff only reported that his motorcycle was badly damaged (“M/SIKAL ROSAK TERUK”) but no details of the damage were listed by the Plaintiff. 22 [33] 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 (page 123 Supplementary Appeal Record (1)). This Court viewed that it would be unreasonable to link the cause of the accident to the directive of the 3rd – 7th Defendants. Riding on the emergency lane is an offence under Rule 53(1) Road Traffic Rules LN 166/59. In addition, there was no evidence produced by the Plaintiff that the directive of the 3rd – 7th Defendants was not in accordance with section 59(1) Road Transport Act 1987, for instance that it was unauthorized, to rebut 1st – 2nd Defendants’ defence. [34] In view of the evidence given by the Plaintiff and Plaintiff’s witnesses, this Court viewed that following the authority of Lee Ing Chin & Ors v Gan Yook Chin & Anor [2003] 2 CLJ 19, Justice Gopal Sri Ram (as he then was) at page 33, should be adhered to, whom remarked that the trial judge must test the oral evidence of the witness against the evidence placed before him: “A judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. …If there are contemporary documents, then he must test the oral evidence of a witness against these. …. A trier of fact who makes findings based purely upon the demeanour of a 23 witness without undertaking a critical analysis of that witness’ evidence runs the risk of having his findings corrected on appeal. …” [35] The fact that the Plaintiff admitted he collided the back of 1st – 2nd Defendants’ motor lorry, while the motor lorry was stationed on the emergency lane which was consistent with the silent evidence and investigation of the IO, was acknowledged by the Session Judge at paragraph 6 of her written judgment. However this fact and evidence may have been inadvertently overlooked by the Session Judge in determining Plaintiff’s case of negligence. Based on the evidence adduced by the Plaintiff, this Court holds the view that the burden has not shifted to the 1st- 2nd Defendants, there was no proof that the 1st – 2nd Defendants caused the accident that resulted Plaintiff’s injury. [36] The cases referred by the Session Judge, Azam bin Kasman dan Satu Lagi v Ramachandran a/l Muthusamy [1996] 1 LNS 14 and Mohd Zamri Khalid & Anor v Johari Khalid & Anor [1983] 1 MLRH must be distinguished from the current case where the 1st – 2nd Defendants motor lorry was stationed on the emergency lane of the highway which is a straight road, and with their motor lorry lights switched on. [37] With regards to loss of earnings, this Court was informed that it was difficult to get the Plaintiff’s employer to attend court and only after a warrant of arrest was issued, the employer came to testify, however without the salary slips to prove Plaintiff’s employment. The fact that a warrant of arrest was issued to Plaintiff’s employer to testify in court and yet no document could be produced to proof that Plaintiff was employed. In 24 addition, there was no company search done on the existence of the Plaintiff’s employer’s company to show to court that the Plaintiff is employed in a company as testified. Based on the oral evidence of the Plaintiff’s witness, the Plaintiff seemed to have only worked for a month before the accident (pages 62-63 of Supplementary Appeal Record (2) of BA-12B-11-01-2016). [38] 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, there must be evidence that the injured claimant was in fact receiving earnings and based on case laws, there must be a real and substantial risk that his injury will constrained or diminished his earning capacity, for loss of earning capacity claim: Ngooi Ku Siong & Anor v Aidi Abdullah [1984] 1 CLJ (Rep) 294. [39] In determining for loss of earning capacity, the Plaintiff must show that if he goes back to work, there is a real and substantial risk that he may lose his job or is restrained from working due to his diminished capacity, based on the authorities of Ngooi Ku Siong (supra) case and Sumarni v Yow Bing Kwong & Anor [2008] 3 CLJ 489 case. I hold the view that it is too early to determine that there is real and substantial risk of diminished earning capacity of the Plaintiff. 25 [40] The Plaintiff was 17 years of age at the time of accident. The specialist medical report mentioned that the Plaintiff will be able to work (page 5 of Specialist Medical Report of 20.5.2014 of Appeal Record). There was no report to state that the Plaintiff will not be able to work totally. The specialist medical report of Plaintiff dated 9.7.2014 stated that the current problems of Plaintiff’s face with the estimated cost of RM67,000. The latest specialist medical report of 1.10.2014 finds the patient can be independent and employment prospect significantly reduced at the moment. Therefore, I find that based on the facts and evidence adduced, there is no real and substantial risk of diminished earning capacity of the Plaintiff. [41] Reversing the Session Judge’s decision, I allow the appeal on liability where the Plaintiff is wholly liable, at 100% and set aside the Session Judge’s decision for the award for loss of future earnings. I disallow for loss of earning capacity even as an alternative to loss of future earnings, a passing remark orally submitted by the counsel for the 1st – 2nd Defendants, in view of 1st – 2nd Defendants’ appeal is limited to the grounds set out in their memorandum of appeal: Perembun (M) Sdn Bhd v Conlay Construction Sdn Bhd [2012] 4 MLJ 149, at 154. In light of the above reasons, I allow the appeal with cost. Dated: 6 November 2017 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 26 COUNSEL FOR THE APPELLANT / 1st & 2nd DEFENDANTS MOHD APANDI BIN MOHD YATIM Tetuan Gan Ho & Razlan Hadri Peguambela dan Peguamcara Suite K-3-10, Level 3, Blok K Solaris Mont Kiara No. 2. Jalan Solaris 50480 Kuala Lumpur [Ref: L237/1403/AmG-29/RHZ] Tel: 03-6203 6816 Fax: 03-6203 6817 COUNSEL FOR THE 1st RESPONDENT / PLAINTIFF MOHD SAUFI BIN SAMSUDDIN G. Dorai & Co. Peguamcara dan Peguambela No. 7, Jalan Mawar 1, Taman Mawar 48000 Rawang [Ref: PGD/KR/0213/13] Tel: 03-6093 6890 Fax: 03-6093 3677 27 COUNSEL FOR THE 2nd – 6th RESPONDENTS / 3rd – 7th DEFENDANTS SAFIYYAH BINTI OMAR Peguam Persekutuan Jabatan Peguam Negara, Malaysia Bahagian Guaman Sivil No. 45, Persiaran Perdana, Presint 4 62199 Putrajaya [Ruj: PN/TR/HQ/SGI/18/53/2015]