1. ) Krishnan A/L K.Parasuraman v 1. ) Mohd Afandi Bin Abdul Azis (JA-12B-51-07/2023)

KRISHNAN A/L PARASURAMAN [No. KP : 570216-01-5645] (The lawful father of TIVAGARAN A/L KRISHNAN, the deceased, and brings this action both on her own behalf and on behalf of the estate of the deceased under Sections 7 and 8 of the Civil Law Act 1956, as well as for damages accordingly)

PARAMAS BARY A/P MUTHYAH [No. KP : 590315-05-5544] (The lawful mother of TIVAGARAN A/L KRISHNAN, the deceased, and brings this action both on her own behalf and on behalf of the estate of the deceased under Sections 7 and 8 of the Civil Law Act 1956, as well as for damages accordingly) …APPELLANTS

MOHD. AFANDI BIN ABDUL AZIS [No. KP : 750510-04-5093]

M/S SOON LEE TRANSPORT SDN BHD [Company No. : 261661-P] …RESPONDENTS IN THE SESSIONS COURT AT JOHOR BAHRU IN THE STATE OF JOHOR BAHRU DARUL TAKZIM, MALAYSIA CIVIL ACTION NO. : JA-A53KJ-248-04/2022

KRISHNAN A/L PARASURAMAN [No. KP : 570216-01-5645] (The lawful father of TIVAGARAN A/L KRISHNAN, the deceased, and brings this action both on her own behalf and on behalf of the estate of the deceased under Sections 7 and 8 of the Civil Law Act 1956, as well as for damages accordingly)

PARAMAS BARY A/P MUTHYAH [No. KP : 590315-05-5544] (The lawful mother of TIVAGARAN A/L KRISHNAN, the deceased, and brings this action both on her own behalf and on behalf of the estate of the deceased under Sections 7 and 8 of the Civil Law Act 1956, as well as for damages accordingly) …PLAINTIFFS

MOHD. AFANDI BIN ABDUL AZIS [No. KP : 750510-04-5093]

M/S SOON LEE TRANSPORT SDN BHD [Company No. : 261661-P] …DEFENDANTS

The Appellants (“Plaintiffs”) appeal against the entirety of the decision of the learned Sessions Court Judge (“SCJ”) delivered on 12 June 2025, both on liability and quantum. Parties filed written submissions, and the oral submissions was heard on 22 September 2025, and the decision was reserved for 6 October 2025. This is the judgment of the Court.

For consistency, the parties in this appeal will be referred to as they were in the Sessions Court.

The Plaintiffs are the parents of the deceased. They commenced an action against the Respondents (“Defendants”) pursuant to Sections 7 and 8 of the Civil Law Act 1956 [Act 67]. The Plaintiffs pleaded that on 7 August 2019, their son, the deceased, while riding his motorcycle in a careful manner, collided with the rear of a lorry driven by the First Defendant and owned by the Second Defendant.

The Plaintiffs contended that the accident was caused by the First Defendant’s negligence, namely in failing to keep a proper lookout, driving without due care, stopping or slowing abruptly on the roadway and failing to activate hazard lights or give sufficient warning.

The Defendants denied liability, asserting instead that the deceased was wholly responsible for the collision, having ridden negligently and at excessive speed.

The SCJ heard evidence from a total of 5 witnesses; four for the Plaintiffs and one for the Defendant. She found that the deceased was entirely at fault. Consequently, the Plaintiff’s claim was dismissed in its entirety. Dissatisfied, the Plaintiffs now appeal against the whole of the SCJ’s decision.

The Plaintiffs' complaint was that the SCJ had erred in fact and law in dismissing their claim, by overstating contributory negligence and placing heavier blame on the deceased despite acknowledging the First Defendant's fault in suddenly stopping without warning. The Plaintiffs argue that liability should primarily rest on the First Defendant, the dependency claim was wrongly dismissed, that the rejection of bereavement damages ignored the purposive intent of the Act 67 amendment, and that special damages were too narrowly assessed.

The law on the duty of the appellate court in hearing the appeal is settled, that an appellate court would be slow to disturb the findings of the trial Court unless it is convinced that there has been a substantial misdirection of facts and law, which merited appellate intervention. (See Gan Yook Chin & Anor v Lee Ing Chin & Ors [2005] 2 MLJ 1; Murugan v Lew Chu Cheong [1980] 2 MLJ 139; Rasidin bin Partorjo v Frederick Kiai [1976] 2 MLJ 214; Topaiwah v. Salleh (1968) 1 LNS 161)).

Where there are two conflicting versions, the principle is also clear. In Tabarani Mohd Arsad & Anor v. Chan Tenn Yeu [1999] 3 CLJ 188, Abdul Malek Ishak J, referred to Watt or Thomas v Thomas [1947] AC 484, Development & Commercial Bank Bhd v Num Titan Sdn Bhd [1989] 1 MLJ 475, Sepang Omnibus Sdn Bhd v Christina Loh Soo Pang & Ors [1970] 2 MLJ 234 and explained on the following– “These three authorities lay down a simple principle of law for an appellate court to follow. It is this. When a question of law has been tried by a judge and it is not suggested that the judge has misdirected himself in law, an appellate court in reviewing the record of the evidence should attach the greatest weight to the opinion of that judge as that judge saw and heard the witnesses, and consequently, the appellate court should not disturb the judgment of that judge unless it is plainly unsound. The appellate court is free to reverse the conclusions of the judge if the grounds given by the judge are totally unsatisfactory by reason of material inconsistencies or inaccuracies or if it appears unmistakably from the evidence that in arriving at that decision the judge has not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and bearing together with the effect of the circumstances admitted or proved”.

In summary, an appellate court will be slow to interfere with findings of fact unless they are plainly wrong or unsupported by the evidence (see: Watt or Thomas v Thomas; Gan Yook Chin v Lee Ing Chin). However, where inferences are drawn from objective facts, the appellate court is in as good a position as the trial judge to make its own assessment (see: Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441).

In the present appeal, the Plaintiffs claimed various damages pursuant to Sections 7 and 8 of Act 67. The principle of damages was clearly explained in Datuk Mohd Ali Hj Abdul Majid & Anor v. Public Bank Bhd [2014] 6 CLJ 269 as follows– "[31] The object of an award of damages is to give the claimant compensation for the damage, loss or injury he has suffered. The general principle governing the measure of damages has its origin in the words of Lord Blackburn in Livingstone v. Rawyards Coal Co[1880] 5 App Cas 25 where he said– "...that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation." [32] It is trite law that a claimant claiming damages must prove that he has suffered the damage. The claimant has the burden of proving both liability and quantum of damages, before he can recover the sum claimed. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a particular allegation forms an essential part of a person's case, the proof of such allegation falls on him. (See: section 103 of the Evidence Act 1950. If he fails to prove both the liability and the quantum of damages, he loses the action. [33] Therefore, in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, he must prove the damage that he had in fact suffered to the satisfaction of the court. This principle is borne out in the case of Bonham-Carter v. Hyde Park Hotel Ltd. [1948] 64 TLR 177 where Lord Goddard CJ observed– "Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the court, saying: This is what I have lost, I ask you to give me these damages. “They have to prove it”. This statement was cited with approval by Edgar Joseph Jr FCJ in Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn Bhd [1995] 1 CLJ 15; [1994] 1 MLRA 420".

The parties in this appeal advanced two competing versions of how the collision occurred. While the trial judge’s assessment of credibility is entitled to deference, this Court is entitled, indeed duty bound, to intervene where the conclusion reached is inconsistent with established legal presumptions or with the objective facts proved in evidence.

Against the backdrop of these settled principles on the limits of appellate review, this Court must evaluate whether the findings of the learned trial judge withstand scrutiny.

According to the Plaintiffs’, on 7.8.2019, the deceased was riding his motorcycle along the road in a careful manner when he collided with the rear of a lorry driven by the First Defendant. It was contended that the accident was occasioned by the negligence of the First Defendant in, inter alia, failing to keep a proper lookout, driving without due care and attention, stopping or slowing down his vehicle abruptly on the roadway and failing to switch on the hazard lights or to provide any sufficient warning to vehicles approaching from behind. The Plaintiffs averred that by reason of the said negligence, the deceased sustained fatal injuries, and they accordingly claimed damages under Act 67.

According to the Defendants’, the First Defendant had been driving the lorry in a proper and lawful manner when the deceased, who failed to control his motorcycle, crashed into the rear of the lorry. The Defendants alleged that the deceased failed to keep a proper lookout, rode at an excessive speed, and neglected to maintain a safe distance, thereby rendering himself the author of his own misfortune.

It must also be borne in mind that the deceased is unable to give his own account of the events. His version can only be inferred from contemporaneous documents and the surrounding circumstances. This necessarily limits the weight of direct testimony on his behalf, and requires the Court to examine the objective evidence with particular care.

Conversely, the Appellants’ version is not without its difficulties. The evidence adduced was not supported by any direct eyewitness testimony apart from inferences drawn from the sketch plan and photographs. These materials do suggest that the deceased may not have exercised the necessary degree of caution when negotiating the junction.

Taken as a whole, neither version can be accepted in its entirety. Each contains elements that are inconsistent with the objective evidence and raises reasonable doubts as to credibility. What emerges is that both drivers contributed to the occurrence of the accident, the First Defendant by failing to maintain a proper lookout, and the deceased by failing to take sufficient care for his own safety.

Accordingly, this Court finds that the more just conclusion is that there was contributory negligence on the part of both the deceased and the lorry driver, thereby warranting an apportionment of liability rather than attributing the entirety of blame to one party.

SCJ at paragraph 27 of her Grounds of Judgment held as follows– “27. Berdasarkan keseluruhan keterangan yang dikemukakan Mahkamah berpuas hati bahawa di atas imbangan kebarangkalian, plaintif telah gagal membuktikan kesnya terhadap defendan-defendan. Mahkamah mendapati kemalangan ini terjadi akibat kecuaian si mati sepenuhnya yang melanggar motorlori D1 daripada belakang. Mahkamah juga memutuskan D1 bertanggungan cuai. Oleh yang demikan, Mahkamah menolak tuntutan plaintif dengan kos”.

With respect, these findings are internally inconsistent. On one hand, the SCJ concluded that the deceased was wholly negligent and that the Plaintiffs had failed to prove their case. On the other hand, she also expressly found that the First Defendant was negligent. These conclusions cannot logically stand together: a finding that the First Defendant was negligent necessarily means that liability could not rest entirely on the deceased. The dismissal of the Plaintiffs’ claim in toto, despite an express finding of negligence against the First Defendant, creates an irreconcilable contradiction. This fundamental inconsistency in the trial court’s reasoning is sufficient in itself to justify appellate intervention.

Bearing the above, this Court proceeds to examine each of the issues raised as follows–

liability and apportionment of negligence;

dependency claim;

bereavement damages; and

special damages.

The Plaintiffs argue that the trial judge erred in attributing greater blame to the deceased, when the evidence showed the First Defendant had stopped or slowed abruptly without warning.

The Defendants, however, maintain that the usual presumption applies in rear-end collisions. They cited Mahmad Azhar Yaacob v Norhafishah Abu Hasan [2018] CLJU 1874, where the Court held that a rear vehicle is legally bound to maintain a safe following distance, and Jina Julaihi v Sarmizi Mohamad Daud & Anor [2018] CLJU 1763, which reaffirmed the same duty.

This Court finds that the Plaintiffs’ argument accords with the reasoning in Chu Kim Sing & Anor v Abdul Rahman bin Amin [1999] 6 MLJ 433, where the Court held that a motorist who enters or obstructs the path of another vehicle travelling lawfully on a main road cannot escape liability for the ensuing collision– “To say that the motorcycle which was travelling on the major road must stop dead in its track upon seeing the motorcar entering the major road from the minor road notwithstanding the fact that the motorcar failed to stop at the halt line would simply mean that traffic on the major road would come to a standstill. That would not be the law in this country.”

In this Court’s view, the principles in Mahmad Azhar Yaacob and Chu Kim Sing must be read in harmony. While Mahmad Azhar Yaacob imposes a continuing duty on the following driver to maintain a safe distance, Chu Kim Sing recognises that the presumption of negligence is not conclusive where the lead driver creates a hazard. On the facts, the First Defendant slowed or stopped abruptly without adequate warning, thereby materially contributing to the collision, while the deceased failed to keep a proper lookout and safe distance. Accordingly, this Court upholds contributory negligence but finds that both parties should bear equal responsibility for the accident.

The Plaintiffs’ dependency claim was brought pursuant to Section 7 of Act 67, which provides a statutory right for parents of a deceased child to recover for loss of financial support. In Muhamad Hashim (Bapa Noor Azlan Muhamad (Si Mati) Bertindak Bagi Pihak Tanggungan) v. Teow Teik Chai & Anor. [1996] 1 CLJ 615, the Court held as follows– "To succeed on his claim for the loss of support, it was however incumbent upon the appellant to prove the financial loss he sustains as a dependent and not in any other way (see: Chan Chin Min & Anor v. Lim Yok Eng [1994] 3 CLJ 687; [1994] 1 MLRA;[1994] 3 MLJ 2"

SCJ dismissed the dependency claim based on two reasons–

that the deceased's contribution to the Plaintiffs is based on his previous income working at Campaign Complete Solution and not at his new workplace, known as Aetos Guard Services, which he has yet to receive any salary; and

that the Plaintiffs omitted to plead the deceased previous occupation at Campaign Complete Solution.

In Lee Yoke Yam v Chin Keat Seng [2013] 1 MLJ 145, the Court of Appeal made clear– “The court should not defeat a claim for dependency merely on account of imperfect pleadings when there is credible evidence to support dependency. What is important is the substance of the evidence adduced at trial, not the technical precision of the pleadings”.

This Court views that the principle outlined in Lee Yoke Yam is an exception to the strict approach on the importance of pleadings. In Muhamad Hashim (Bapa Noor Azlan Muhamad (Si Mati) Bertindak Bagi Pihak Tanggungan) v. Teow Teik Chai & Anor [1996] 1 CLJ 615, the Court held as follows– "To succeed on his claim for the loss of support, it was however incumbent upon the appellant to prove the financial loss he sustains as a dependent and not in any other way (see: Chan Chin Min & Anor v. Lim Yok Eng [1994] 3 CLJ 687; [1994] 1 MLRA;[1994] 3 MLJ 2"

Applying the principle to this case, this Court finds that, although the evidence was not perfectly pleaded, it was demonstrated through the trial that the deceased was supporting his parents. And the most important part is no prejudice was caused to the Respondents. Therefore, the dependency claim ought therefore to have been allowed.

SCJ dismissed the bereavement claim based on the following reasons– “43. Kemalangan ini berlaku pada 7.8.2019 dan si mati pada masa kemalangan berusia lebih kurang 27 tahun. Pindaan kepada s7(3A) dan (3B) yang membenarkan tuntutan RM 30,000.00 oleh ibubapa si mati atau pasangan si mati hanya berkuat kuasa pada 1.9.2019.

Ini bermakna tuntutan plaintif-plaintif di dalam kes ini tidak dibenarkan oleh undang-undang kerana pada si mati bukan lagi kanak-kanak semasa meninggal dunia.

Oleh yang demikian tuntutan ini ditolak oleh Mahkamah”.

The Plaintiffs contended that the learned Sessions Court Judge erred in dismissing the claim for bereavement damages. They emphasised that the law ought to serve justice rather than be confined by rigid technicality, particularly in social-benefit legislation such as the Civil Law Act 1956, and urged the Court to interpret the 2019 amendment extending bereavement damages to parents of deceased adult children in that liberal and purposive spirit.

This Court while inclined to agree with the Plaintiffs’ argument on fairness, is nonetheless bound by the Federal Court authority in Yew Bon Tew & Anor v Kenderaan Bas Mara [1983] 1 MLJ 1, which explained the following– “The general rule is that statutes which affect substantive rights are presumed to be prospective unless there is express provision to the contrary.”

The claim for bereavement damages was made under subsection 7(3A) and (3B) of Act 67 as below–

subsection 7(3A)– “(3A) An action under this section may consist of or include a claim for damages for bereavement and, subject to subsection

(3D), the sum to be awarded as damages under this subsection shall be thirty thousand ringgit”.

subsection 7(3B)– “(3B) A claim for damages for bereavement shall only be for the benefit of–

the spouse of the person deceased;

the child of the person deceased; and

the parents of the person deceased”.

These provisions were inserted by amendment via Act A1602 with effect from 1 September 2019.

While this Court is sympathetic to the Plaintiffs’ position, this Court is bound by established authority that statutes creating new substantive rights operate prospectively unless expressly stated. The decision in Yew Bon Tew binds this Court, as it was a decision of the Federal Court. Based on Yew Bon Tew, bereavement damages are a substantive right. Since the amendment creating it came into force after the accident and in the absence of an express provision on the retrospective application, the Plaintiffs' claim on bereavement damages cannot succeed. Therefore, this Court hold that the SCJ was correct to disallow this kind of damages.

The Plaintiffs complain that the SCJ took an unduly narrow view of special damages: awarding only minimal amounts despite evidence of funeral and related expenses.

The Federal Court in Ong Ah Long v. Dr S Underwood [1983] CLJ Rep 300; [1983] 2 CLJ 198; [1983] 2 MLJ 324 established as follows– "It is a well-established principle that special damages in contrast to general damages, have to be specifically pleaded and strictly proved. They are recoverable only where they can be included in the proper measure of damages and are not too remote (see: Halsbury's Laws of England 4th edition, volume 11 page 218 para 386). That in our view is the cardinal principle adopted by all courts both in England and this country".

While the above principle binds this Court, an exception arises in respect of funeral expenses. Such expenses are the natural and direct consequence of death, and a reasonable amount may be allowed even when supported by limited documentation, provided credible testimony establishes that they were in fact incurred.

This approach is supported by the Federal Court in Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ 153, where it was held that courts may take judicial notice that funeral expenses are normally incurred and may award a reasonable sum even without strict proof. This reasoning was later reaffirmed in Nurul Husna Muhammad Hafiz & Anor v. Kerajaan Malaysia & Ors [2015] 1 CLJ 825, where the Federal Court recognised that, while special damages must generally be proved, modest and inevitable expenses such as funeral costs may be accepted on credible evidence.

This Court is of the view that both principles in Ong Ah Long and Pang Ah Chee are to be read in harmony. While Ong Ah Long demands strict proof of special damages, Pang Ah Chee acknowledges that certain expenses, such as funeral costs, are inevitable and may be inferred from credible testimony. On the evidence, this Court finds that the Sessions Court erred in restricting the award too severely. A reasonable sum for funeral and related expenses ought to have been allowed.

This approach is consistent with the reasoning in Hasniyati Hassan & Anor v. Kerajaan Malaysia [2022] 7 CLJ 565, where the Court accepted that special damages may be proved by credible oral testimony and need not achieve arithmetical accuracy, provided the amount claimed is reasonable and justifiable.

Having revised the findings on liability and allowed the dependency claim, this Court must reassess the quantum of damages.

Dependency Claim

The Court has carefully considered the Plaintiffs’ evidence on the deceased’s earnings and financial support. The key document referred to as ID-9 was never admitted into evidence, as the maker was not called. ID-9 is said to be the deceased’s employment letter from Aetos Guard Services, indicating a salary of SGD1,150. Being marked for identification only, it carries no probative value and cannot be relied upon to establish the deceased’s earnings. In the absence of admissible documentary proof, the SCJ rejected the claim.

In assessing loss of dependency under section 7(3)(iv)(c) of the Civil Law Act 1956, this Court is guided by the Federal Court in Dr Chandran Gnanappah v Gan See Joe & Anor & Another Appeal [2025] CLJU 1144, which held that the award must represent a fair and reasonable estimate of the financial support lost to the dependants, taking into account the deceased’s income, age, and contingencies of life. The Court also affirmed that reasonable expenses arising naturally from death, such as funeral costs, are compensable under the same provision.

This principle was applied by the Court of Appeal in Bukit Tinggi Hospital Sdn Bhd & Anor v. Navin Sharma Karam Chand & Anor & Another Appeals [2025] CLJU 2571 and Vincent Manickam David (suing by Himself & As Administrator of the Estate of Catherine Jeya Sellamah, Deceased) & Ors v. Dr S Hari Rajah & Anor [2017] 8 CLJ 27, both of which emphasised that the assessment of dependency must be rational, fact-based, and proportionate to the actual contribution of the deceased.

Applying the principle in this case, while there was no documentary proof of the exact salary or quantum of contribution, the Court is mindful that in cases of this nature, dependency may still be established on credible oral evidence, though the assessment must be made conservatively. Therefore, the Court accepts and considers the oral testimony of SP2, the deceased’s mother, that the deceased contributed financially to the household.

At the Sessions Court, SP2 testified that her son had been employed in Singapore and contributed to the household. This Court accepts her testimony as credible. Nonetheless, in light of the absence of proven documentary evidence, it would be unsafe to adopt the higher pleaded figure of SGD 2,500. Hence, a conservative approach is warranted.

This Court therefore adopts the alternative computation advanced by the Defendants in their submission at subparagraph 17(xvii), which yields a dependency figure of RM165,696 at 100% liability. After applying the 50% deduction for contributory negligence, the recoverable sum is RM82,848.

Bereavement

This Court holds that the claim for bereavement damages cannot be sustained due to the fact that the relevant amendment to the Act 67 came into effect only after the date of the accident. Following Yew Bon Tew v Kenderaan Bas Mara, the Court finds that statutes creating new substantive rights cannot operate retrospectively. Hence, the SCJ was correct in rejecting this head of claim, and I affirm that decision.

Special Damages

The Sessions Court awarded RM4,500 for funeral expenses, RM100 for loss of personal effects, and RM50 for transport expenses, while rejecting other claims for want of proof. This Court accepts the Sessions Court’s approach in principle but considers the award overly restrictive. This Court agrees that the claimants must strictly prove special damages. However, this Court views that cases fall under these circumstances, a broader, more reasonable view of funeral-related expenses is consistent with the guidance set out in Pang Ah Chee v Chong Kwee Sang and Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors. A modest variation is warranted to reflect reasonable funeral-related expenses. This Court therefore varies the award to allow RM4,875 in total under this head. After applying the 50% contributory negligence deduction, the recoverable amount is RM2,437.50.

For the reasons above, the appeal is accordingly allowed in part. The Court makes the following orders–

liability is apportioned equally between the deceased and the

the Plaintiffs are awarded RM85,285.50, comprising RM82,848.00 for dependency and RM2,437.50 for special damages;

the claim for bereavement damages is dismissed;

the award shall carry interest at 5% per annum from the date of filing of the writ until full satisfaction; and

costs of RM8000, subject to the allocator. Dated : 6 October 2025 Dr. Noradura binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Peguamcara : Perayu Tetuan Ram Yogan Sivam Peguamcara : Responden