1. ) Mohamad Norazri Bin Othman v 1. ) Projek Lebuhraya Usahasama Berhad (Plus) (MC-A73KJ-413-11/2024)

NURUL SHUHADA BINTI ABDUL RAFAR ... PLAINTIFFS

UEM EDGENTA PROPEL BERHAD DAHULUNYA DIKENALI SEBAGAI PROJEK PENYELENGGARAAN LEBUHRAYA BERHAD (PROPEL) ... DEFENDANTS GROUNDS OF JUDGMENT S/N lIst9E4kkaYvhEC80U0g

The Plaintiffs, in their Statement of Claim, sued the Defendants for negligence arising from a road accident that occurred on 14 October 2022 at KM 221.2 (Northbound) of the North-South Expressway (PLUS). The accident involved a motorcycle, bearing registration number VHC 7510 ridden by the First Plaintiff from Alor Gajah towards Seremban and he collided with a traffic cone that was present on the highway. The Second Plaintiff, as the registered owner of motorcycle VHC 7510, sustained damage to the motorcycle, whilst the First Plaintiff suffered injuries as a result of the accident.

During the trial:

the Plaintiffs called two witnesses to support their case:

PW1 — Sarjan Amir Firdaus (Investigating Officer); and

(ii) PW2 — the First Plaintiff;

the Defendants, on the other hand, called three witnesses to testify as follows:

DW1 — Shahrul Nizam (PLUS Patrol);

(ii) DW2 — Azmi Nor (PLUS Patrol); and

(iii) DW3 — Mohd Zahiruddin (Section Manager for operations and maintenance management).

After a full trial and thorough consideration of the submissions from both parties, this court allowed the Plaintiff’s claim with S/N lIst9E4kkaYvhEC80U0g apportioned liability at 60/40, where the First Plaintiff was found to be liable for 60%, and the Defendants were found to be liable for 40%, with the First Defendant and the Second Defendant each being equally liable for 20%. These grounds set out the reasoning behind this court’s decision.

The Plaintiff lodged a police report (P3) on 27 October 2022 and stated that he was riding motorcycle number VHC 7510 from Alor Gajah towards Seremban. Upon reaching KM 221.2 (Northbound) of the highway, where it was dark, he was traveling in the motorcycle lane when he suddenly encountered a PLUS traffic cone in the middle of the lane. Unable to brake or swerve in time, he collided with the traffic cone and crashed onto the roadside. He was then taken to Hospital Seremban by ambulance and was granted 42 days of medical leave, from 14 October 2022 to 24 November 2022.

The Plaintiffs claimed that it was the Defendants’ responsibility to ensure that the highway was free from any obstructions that could endanger the road users. Additionally, the Plaintiffs submitted that the facts presented in the First Plaintiff’s (PW2) testimony before the court were consistent with those in his police report (P3), as well as evidenced in the first information report (P2) lodged by L/KPL Amirul Aizat from Alor Gajah Traffic Polis Station. In S/N lIst9E4kkaYvhEC80U0g essence, the Plaintiffs argued that the accident occurred in the early morning at approximately 1:30 am at KM 221.2 (Northbound) of the North-South Expressway. The accident site was dark, with no streetlights. Prior to the accident, the First Plaintiff was riding motorcycle VHC 7510 in the left lane at “A1-A2” (as indicated in the sketch plan, P1). The sketch plan (P1) was reproduced as follows for ease of reference: - S/N lIst9E4kkaYvhEC80U0g

According to the First Plaintiff’s testimony before this court, he swerved into the emergency lane to avoid a motor-lorry and subsequently collided with a traffic cone at point “K” which was marked in the sketch plan (P1) in the middle of the emergency lane S/N lIst9E4kkaYvhEC80U0g at “B1 - A1”. After the accident, several bystanders stopped to assist, and PLUS patrol arrived before the ambulance reached the scene. PW2 stated that he was informed by the PLUS patrol team, who arrived at the scene after the accident, that a car had broken down at the same location before the incident.

In this context, the Plaintiffs raised the following issues: - a) Whether a traffic cone was present on the highway at KM 221.2 (Northbound) on 14 October 2022, leading to the First Plaintiff’s accident; b) Whether the Defendants were negligent and/or failed to maintain, clear and ensure that the highway at KM 221.2 (Northbound) was free from obstructions on the day of the accident; and c) Whether the Defendants are fully liable to the Plaintiffs.

However, the First Defendant denied that the First Plaintiff was involved in an accident or that the alleged accident was caused by a traffic cone as claimed by the Plaintiffs. The First Defendant asserted that all reasonable measures had been taken to ensure the safety of highway users, including regular maintenance to keep the highway clear of obstructions and the deployment of patrol teams to monitor the highway in shifts. The First Defendant also submitted that the Plaintiffs failed to provide any evidence, such S/N lIst9E4kkaYvhEC80U0g as photographs of the cone on the main roadway or testimony from an independent witness. Whilst, The First Defendant’s witnesses, DW1 and DW2, who are PLUS Ronda personnel, stated that during their patrol, they did not find any traffic cone at the accident location.

Similarly, the Second Defendant argued that the Plaintiffs have failed to prove the existence of the traffic cone that allegedly caused the accident and have not presented any evidence demonstrating that the Defendants had knowledge of the alleged cone or refused to remove it.

(I) LIABILITY

This court determined that the First Plaintiff was held 60% liable and the First and Second Defendant equally 20% for the accident based on the following reasons. It is settled law that when faced with conflicting accounts, the court must determine which is more probable based on the circumstances. The First Plaintiff need not prove the Defendants’ negligence with absolute certainty but only that it was more likely than not i.e. at least 51% probable to have caused the accident. Further, this court found that the accident would have not occurred but for the contributory negligence of the First Plaintiff for riding his motorcycle too fast in the emergency lane at point “K” (Inas Faiqah bt Mohd Helmi (an infant suing S/N lIst9E4kkaYvhEC80U0g through her father and next friend, Mohd Helmi bin Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885; [2016] 2 MLJ 1).

The First Information Report (P2)

In the current case, the First Information Report (FIR) (P2) lodged by Lans Koperal Amirul Aizat Bin Mohd Fauzi on 14 October 2022 at 2:32AM states that a distress call from a member of the public reported that the First Plaintiff had skidded on his own. This was further supported by DW2 in the Highway Accident Report dated 14 October 2022, prepared by him on pages 37-38, marked as Exhibit D18, which stated that the accident occurred due to the motorcycle losing control and skidding on its own.

This Court is mindful that a FIR is not an encyclopaedia, as held in Lim Tiong Seng & Anor v. Public Prosecutor & Anor Appeal [2011] 4 MLJ 411. Minute details need not be included in the FIR. In my considered view, the FIR alone does not conclusively prove that the accident occurred exactly as stated, i.e., due to the First Plaintiff skidding. Rather, the FIR serves as corroborative evidence indicating that an accident had indeed occurred, necessitating immediate police and ambulance response to the scene to assist those involved. S/N lIst9E4kkaYvhEC80U0g

The Photographs on pages 1-4, Bundle C (ID6(1-4)) printed by the First Plaintiff 13. According to the testimony of PW2 (the First Plaintiff), after the accident, several members of the public stopped to assist him. Subsequently, PLUS Ronda arrived at the scene before the ambulance. The learned counsel of the Plaintiffs submitted that the Plaintiffs’ version of the accident was supported by photographs found on pages 1–4 of Bundle C (Exhibit ID6 (1-4)), which the Plaintiff printed and submitted together with a certificate under section 90A of the Evidence Act 1950, found at page 5 of the same bundle (Exhibit ID6(5)). Based on these photographs, as submitted, which were taken shortly after the accident at the scene, it is evidently clear that the First Plaintiff was indeed involved in an accident on the highway, and there was a traffic cone on the emergency lane of the highway, as seen in Exhibit ID6(2).

Learned counsel for the Plaintiffs argued that the different dates shown in the “details” of the photographs were due to the fact that the images were sent to the Plaintiff via WhatsApp by a vehicle towing operator who was present at the location after the accident. Hence, it was not surprising that three out of the four photos are dated 15 October 2022, and only one was dated 14 October 2022, the date of the accident. S/N lIst9E4kkaYvhEC80U0g

Whilst, learned counsel for the First Defendant submitted that no police photographs were tendered in court. Meanwhile, the learned counsel for the Second Defendant argued that these photographs were staged by the Plaintiffs a day after the alleged incident (ID6), pointing out the “Taken on: October 15, 2022” timestamp when the incident was said to have occurred on 14 October 2022. Furthermore, the First Plaintiff (PW2) testified that he had allegedly taken the photographs and that it was him depicted in one of the images. As such, it would have been impossible for him to be both the photographer and the person lying down in the photo. The learned counsel of the Second Defendant submitted that this contradiction raises doubts about the credibility of PW2.

Nevertheless, the notes of proceedings clearly showed that where the First Plaintiff stated he had received the photos via WhatsApp from a vehicle towing operator named Syarif, not from a member of the public. During the trial, Plaintiffs’ counsel made an application to adjourn the case in order to call Syarif to testify as the person who took the photographs before the close of the Plaintiff’s case. In the interest of fairness, this court allowed the adjournment. Unfortunately, despite claiming to possess Syarif’s phone number, Plaintiffs’ counsel was still unable to contact or locate him. This Court takes note that the accident occurred in 2022 and the possibility of Syarif changing his phone number since then cannot be ruled out. S/N lIst9E4kkaYvhEC80U0g

During the trial, the Defendants’ counsel insisted that the photographs (ID6) be marked only as “ID” because the maker of the photographs was not called to testify. It is a well-established rule under the best evidence doctrine that the maker of a document must be called to prove its contents. As established in Allied Bank (Malaysia) Bhd v Yau Jiok Hua [1998] 6 MLJ 1, when a document is relied upon to prove the truth of its contents, failure to call the maker renders the contents hearsay. In light of this, this court maintains the marking of ID6 as “ID” due to the absence of the maker’s testimony regarding the photographs taken.

Be that as it may, this court takes into consideration the First Plaintiff’s testimony that members of the public helped him and called for an ambulance, and his assertion that he hit a cone on the emergency lane. This court also considers the likelihood of such an accident where a motorcyclist falls in the emergency lane of a dark highway, being witnessed by passers-by, prompting them to stop and assist. Therefore, the presence of a traffic cone could reasonably have drawn the attention of those passing by and prompted them to take notice or assist cannot be ruled out. This court continues to consider other corroborative evidences as a whole. S/N lIst9E4kkaYvhEC80U0g

End of Duty Report (D16)

The Plaintiffs submitted that, based on the End of Duty Report (Exhibit D16) and the testimonies of DW1 and DW2, there was a time gap of approximately one hour between the last time DW1 and DW2 patrolled the accident site at KM 221.2 (Northbound) of the North-South Expressway and the time of the accident. Furthermore, the Defendants were not present to witness the accident and thus had no alternative version of the incident to rebut the Plaintiffs’ version, as they only arrived after the accident had occurred.

The Plaintiffs’ learned counsel also contended that the version of events given by the First Plaintiff (PW2) particularly his testimony that PLUS personnel had informed him the cone involved in the accident had been placed earlier due to a vehicle breakdown at the scene was consistent with and supported by the First Defendant’s own document, i.e. Exhibit D16 where the PLUS Ronda End of Duty Report, at page 33 of Bundle B, which stated: “00:39:48 ATTENDCASE – Attending case – Breakdown case, KM 221.2 (S1) NB, Vehicle involved: 10-Personal car (WB4051M), Cause: Tyre burst/puncture, Ticket No.: S1- 2022-13707.”

Moreover, both DW1 and DW2 testified in court that they had placed 10 cones to the right side and behind the vehicle during the tyre replacement at 12:39AM. While DW1 and DW2 claimed that all S/N lIst9E4kkaYvhEC80U0g the cones were later retrieved, there was no concrete evidence, such as dash-cam footage from the PLUS vehicle, to prove that the cones were indeed collected and stored properly. Therefore, the learned counsel of the Plaintiffs argued that it was reasonably possible that the cone struck by PW2 (the First Plaintiff) was one of the 10 cones placed earlier by the Defendants during their assistance with the flat tyre vehicle, and was inadvertently left behind at the scene, approximately one hour before the accident.

The First Plaintiff further stated that the accident occurred around 1:30AM, whereas DW1 confirmed their last patrol past KM 221.2 was at 12:39AM. When assessing DW1’s testimony, this court noted that while DW1 claimed he received information that the Plaintiff had hit a cone, but no cone was found at the location. Nevertheless, the Plaintiff’s assertion that he hit a cone was raised from the very beginning, on the day of the accident itself and was not an afterthought. This court agreed with the Plaintiffs that the Plaintiffs have successfully proven that within the one-hour time gap, there was a vehicle breakdown involving cones and it is likely one of those cones was left behind at the accident scene. S/N lIst9E4kkaYvhEC80U0g

Existence of the cone 23. The First Defendant’s document at page 29, Bundle B namely the PLUS Ronda Patrolling Analysis Via GPS clearly recorded the following, that PR S1B syif C received information at 0134 hours of an accident involving collision with a cone at KM 221.2 NB involving motorcycle VHC 7510. PR arrived at 0141 hours and rendered assistance. Assistance was completed at 0231 hours. This record showed that from the very beginning, the report stated the accident involved a cone. However, during his testimony, DW1 stated that he did not recognize the cone depicted in photographs ID6, as it did not bear the PLUS label. Still, DW1 agreed that it was possible for such a cone to have been left behind if there had been a breakdown involving another vehicle or lorry during such period. This contradicted the testimony of PW2 (the First Plaintiff), who stated that the cone was removed by PLUS Ronda personnel who arrived after the accident, and that he was informed by them that the cone had been left behind from an earlier breakdown at the same location (page 9, Plaintiffs’ counsel’s submission). This contradiction is a matter to be assessed by this court.

Reference was made to the case of YA Muniandy Kannyappan in the case of Ahmad Rashidi bin Yahya & Anor v Projek Lebuhraya Usahasama Bhd [2021] MLJU 1632 where the Judge allowed the Plaintiff’s appeal and set aside the Magistrate’s decision which had dismissed the Plaintiff’s claim. In Ahmad Rashidi’s case, the court S/N lIst9E4kkaYvhEC80U0g held the Defendant 40% liable, despite the existence of an “iron block” on the road being disputed. The court took into account the fact that there was a time gap of over one hour between the last patrol and the accident, and acknowledged that anything could have occurred during that time gap.

In the present case, while it is accepted that a cone may have been left by another vehicle, such as one that had broken down, this could be construed as a failure on the part of the Defendants to control such incident that occur on the highway. It is crucial to note that the initial report itself clearly recorded that the accident involved a cone as documented in the First Defendant’s PLUS Ronda Patrolling Analysis Via GPS at page 29 of Bundle B (marked bundle only). Therefore, it would have been central to the Plaintiff’s version of events that the cone was indeed the cause of the accident.

This Court observed that what distinguishes the present case from Ahmad Rashidi’s case (supra) is that, the plot thickened over the presence of an iron block in Ahmad Rashidi’s case (supra) which was never found by the highway patrolmen who arrived at the scene 30 minutes after the incident. However, an intervening factor arose in that case, namely that a team of PROPEL personnel had reached the location before the patrolmen, and they could have removed S/N lIst9E4kkaYvhEC80U0g the iron block. This formed part of the court’s consideration in Ahmad Rashidi’s case (supra).

In contrast, in the current case, DW3 testified that PLUS patrol personnel arrived at the scene before the PROPEL team. Both DW1 and DW2, the PLUS patrol officers had testified that they did not see any cone at the scene. This conflicting testimony between the Plaintiff and the PLUS patrol team has made it more difficult to determine which version of events is more plausible.

Reference is made to the case of Mohd Rasul bin Mohd Zabidin & Anor v Projek Lebuhraya Usahasama Bhd [2021] MLJU 1000, also decided by YA Muniandy Kannyappan. In that case of Mohd Rasul (supra), PLUS highway patrol testified that they drove past the accident site at 6:21 a.m. and saw no signs of oil spill, accident markings or any indication that an accident had occurred. The accident itself happened around 7:30 a.m. The area was again patrolled at 8:38 a.m. by another team comprising DW4 and DW5 from PLUS and DW6 from PROPEL, who likewise reported nothing unusual. Nevertheless, there was a two-hour gap between the first and second patrols, within which anything could have happened including an oil spill by a heavy vehicle, especially given the bend in the road near the toll plaza. The court in Mohd Rasul’s case then held that the existence of a time gap allowed for the possibility of S/N lIst9E4kkaYvhEC80U0g an intervening event, and thus liability was apportioned 50:50 between the plaintiff and the defendant.

In the present case, this court cannot dismiss outright the possibility that a cone was present at the scene. PLUS’ own report, as testified by its personnel, stated that complaint received about the same accident involved a collision with a cone. It was also recorded that 10 cones had previously been placed at the very same location in connection with a car breakdown roughly 50 minutes earlier. According to the patrol team, when they arrived at the scene, they only saw the Plaintiff’s motorcycle and the ambulance had already taken the Plaintiff away. However, the First Plaintiff testified that both the ambulance and PLUS patrol had already arrived and that by the time he was taken to the hospital, his motorcycle, the cone and other items had already been removed by others.

Importantly, this court found that the First Plaintiff had consistently asserted since the beginning of the case that members of the public had rendered assistance at the scene, and the photographs (ID6) and police First Information Report (FIR) supported this, showing that a member of the public had made the report. This supported the argument that there were indeed several individuals at the scene, may be include a tow truck personnel and it is entirely S/N lIst9E4kkaYvhEC80U0g possible they removed the cone to prevent further accidents from happening.

In the case of Mohd Rasul (supra), the court found that the defendant and third party owed a duty of care to ensure the safety of the highway, and their failure to take proper precautionary measures led to liability. The principle established was that roads should be safe at all times for users. Returning to the present case, the court notes the investigating officer’s (PW1) concessions during cross-examination where he agreed that there was no evidence showing the cone was on the highway; he acknowledged that he could not confirm the actual cause of the accident; and he agreed that the claim regarding the First Plaintiff hitting a cone came only from the First Plaintiff, and not from PW1 himself.

The investigating officer (PW1) also stated that the result of his investigation was referred to the Magistrate for further action because the cause of the accident could not be conclusively determined. Nonetheless, based on the damage to the motorcycle including scratches to the front fairing, broken front light, and shattered side mirrors, PW1, from his experience, had agreed that such damage could have resulted from a collision with an object on the road. S/N lIst9E4kkaYvhEC80U0g

From the above, this court found that the key intervening factor in the present case was the presence of 3 to 4 members of the public who were already at the scene before the arrival of the PLUS patrol team and PROPEL personnel. As such, it is entirely plausible that the cone had been removed by those individuals, and that their actions affected the visibility or availability of evidence when the authorities later arrived.

Breach of duty of the Defendants

Based on the testimonies of DW1, DW2 and DW3, it is evident that one of the core duties of both PLUS and PROPEL was to remove any hazards on the highway that could endanger users. However, DW3 failed to record any details of the accident on 14 October 2022 in his duty log (pages 1–4, Bundle D). Notably, DW3 was not present at the scene and relied solely on second-hand information received via a WhatsApp group. The chat messages were not produced in court, rendering his testimony hearsay, as rightly submitted by the Plaintiffs' counsel.

All three defence witnesses (DW1, DW2 and DW3) acknowledged that the accident location lacked street lighting and was dark. During cross-examination, DW1 conceded that street lighting was indeed necessary at the site, while DW3 admitted that proposals for lighting had been made but were subject to budget approval. S/N lIst9E4kkaYvhEC80U0g This highlights the lack of proactive infrastructure maintenance. DW2 has been working with PLUS since 2004 and is assigned to Section S1 (Pedas Linggi) to conduct highway patrols, assist road users facing issues, ensure that the highway remains free from obstacles and inspect fences. If any obstacles are found during patrols or received through notifications, his team is responsible for clearing them. Meanwhile, DW1 has been working with PLUS since 2019 and, together with DW2, conducts patrols in Section S1 (Pedas Linggi). In addition, DW1 is responsible for preparing the End of Duty Report (D16) as mentioned earlier, which records their movements and patrol activities on the highway.

Both DW1 and DW2 started their patrol from the base at 11:00 PM on 13 October 2022 and their shift ended at 7:00 AM on 14 October

Their patrol covered the route from Pedas Linggi to Simpang Ampat. They passed through

KM 2 (northbound) at approximately 12:29 AM and did not observe any cones on the road. As stated earlier, they admitted to receiving information about an accident at KM 221.2 (northbound) involving the motorcycle VHC 7510, ridden by the Plaintiff.

Meanwhile, DW3 serves as a Section Manager for operations and maintenance management at PROPEL, the Second Defendant. The Plaintiff, in his testimony, admitted that the accident occurred at approximately 1:30 AM, but this was recorded in his police report S/N lIst9E4kkaYvhEC80U0g (P3) and Statement of Claim, which stated the accident happened at 1:50 AM. Towards the timing at 1:50 AM on the record, DW3 stated that there were no reports from any highway users regarding the presence of cones obstructing the roadway before the accident. Additionally, patrol personnel from the Second Defendant had conducted a patrol at the accident site before the incident occurred. According to DW3, the Second Defendant had taken precautions by placing adequate warning signs at the site, if necessary. In summary, both Defendants claimed that, through their patrol teams, they had taken reasonable measures to ensure the safety of highway users, including towards the First Plaintiff.

The Plaintiffs’ learned counsel argued that both Defendants were negligent and had breached their duty of care by failing to ensure a safe highway environment, which includes maintaining adequate lighting, clearing any dangerous objects on the road (such as the cone) and deploying sufficient highway patrol personnel to monitor and safeguard the route at all times.

This Court found that the presence of a cone on the road was a foreseeable and common hazard and the failure to remove it led directly to the First Plaintiff's accident. Despite claims of a patrol system in place, the fact remains that DW1 and DW2 testified that each patrol cycle took approximately two hours, which leaves long gaps where dangerous conditions may go unnoticed. The accident S/N lIst9E4kkaYvhEC80U0g occurred during such a gap, at the very location where cones had earlier been placed to manage a vehicle breakdown as confirmed by the DW1 and DW2, corroborated by the report (D16). This timing undermines the First Defendants’ defence.

Needless to say, section 11 of the Highway Authority Malaysia (Incorporation) Act 1980 imposes a duty on the First Defendant to maintain and manage highway infrastructure, including the prompt removal of hazards such as debris, fallen objects or cone. The Second Defendant, as the highway concessionaire, similarly bears the duty to ensure that the highway surface is safe and free from obstructions.

This court also takes judicial notice of ongoing highway accident statistics and the case laws, underscoring the urgent need for improved safety measures. Despite collecting tolls from the public, the Defendants should exercise due diligence in accordance with modern times need, considering the increased frequency of vehicles on the highway. In today's era, it is normal for a large number of cars to pass through PLUS every minute, compared to the past. It is time for the Defendants to reconsider the range of “due diligence” by implementing modern surveillance tools, such as Automatic Road Incident Detection Systems (ARIDS), which could provide real-time monitoring and reduce response time, as mentioned by the road safety expert Assoc. Prof. Dr. Law Teik Hua S/N lIst9E4kkaYvhEC80U0g (The Straits Times, 18 November 2024, AI may be used to detect accidents in real time in Malaysia).

Moreover, no inspection records or specific SOPs were presented to demonstrate that either Defendants had taken reasonable measures to detect and remove the cone. This court stresses that the mere receipt of complaints or information about highway obstructions does not absolve the Defendants of liability. In fact, both Defendants failed to discharge their burden of proof to show that they had taken reasonable steps to prevent this accident due to the problematic long gap between patrol rounds where proper monitoring and timely action could not be ensured.

As referenced in the case of Mott MacDonald Ltd v Department of Transport [2006] EWCA Civ 1089, claims were made about accidents caused by water pooling on highways due to drains blocked by silt, debris or vegetation, where the court held that the duty extended not only to the road surface but to the entire structure of the highway, including its drainage system. If such a duty applies to hazards below the surface, then all the more it must apply to a visible and avoidable obstruction like the cone that was present on the road surface in the current case, clearly falling within the duty of care owed by both Defendants. As such, the failure to remove a cone, which constituted a temporary but foreseeable hazard, forms part of that duty and the Defendants S/N lIst9E4kkaYvhEC80U0g cannot escape liability by merely claiming routine patrols which are clearly problematic as addressed in the above.

In light of these considerations, this court found that both Defendants were negligent and failed in their duty of care towards the First Plaintiff. In other words, the Defendants’ inaction contributed significantly to the First Plaintiff’s accident and the lack of documentation or preventive systems further supported the said finding of liability.

Contributory Negligence of the First Plaintiff

Based on the testimony of PW2, prior to the accident, the First Plaintiff was riding his motorcycle bearing registration number VHC 7510 in the left lane at the section marked “A1–A2” on the sketch plan (Exhibit P1). The First Plaintiff claimed that he swerved into the emergency lane to avoid a lorry and subsequently collided with a cone located at point “K”, as marked in the said sketch plan (P1), in the middle of the emergency lane at section “B1–A1”. He stated that the collision occurred because a cone was on the road in the emergency lane of the highway.

This court agrees with the submissions made by the Plaintiffs’ learned counsel, particularly the case of Noor Ana Bakri & Ors v Projek Lebuhraya Usahasama Berhad & Anor [2019] PILRU 14, S/N lIst9E4kkaYvhEC80U0g where it was held that it is the First and Second Defendants’ responsibility each at 35% liable to supervise and ensure the safety of highway users, including the deceased who died after colliding with a piece of wood in the emergency lane.

Additionally, this court acknowledged that it is common to see motorcyclists, especially those with smaller engine capacities, using the emergency lane. This practice has been recognized in earlier decision such as Yusri Mohamad v Aznan Mohamad & Anor [2002] 4 CLJ 43. However, in the present case, the accident occurred on a highway and not on a typical intercity road. Therefore, the First Plaintiff, as a highway user, ought to have been more alert to the potential presence of cones or other stationary objects in the emergency lane, especially since the location was dark and lacked street lighting. The First Plaintiff should have avoided using the emergency lane in the absence of an actual emergency.

While the First Plaintiff claimed that he entered the emergency lane to avoid a lorry, the lorry driver involved was not stopped nor identified. Hence, this version cannot be fully substantiated. In fact, it is plausible that the Plaintiff was not merely swerving to avoid the lorry, but was overtaking it on the left using the emergency lane, contrary to his claim. S/N lIst9E4kkaYvhEC80U0g

All these possibilities are relevant and significant to this court’s mind, indicating that the First Plaintiff may have been contributorily negligent. The accident could likely have been avoided had the First Plaintiff remained in the proper slow lane and maintained a consistent speed. If the lorry had indeed cut into his lane, a lawful rider in the left lane would still have had sufficient time to slow down or avoid the hazard.

Therefore, this court found that the First Plaintiff had proved, on the balance of the probabilities,his claim against both Defendants at the extent of 40%, resulting each Defendant was liable for 20% respectively. Whilst, this court also found that the extent of the First Plaintif’s contributory negligence was 60%.

One further matter that this court must highlight here respectfully is the issue regarding the Second Defendant’s counsel arriving very much late on one of the scheduled trial dates, namely Friday i.e. 10 January 2025. This date had been fixed as it was the mutually available slot among all counsels, specifically on a Friday afternoon. The court had accommodated this request and adjusted its schedule accordingly. However, the lateness of the Second Defendant’s counsel drew the attention of the court. This was duly recorded under the Court Recording System & Voice to Text (RVT), wherein a warning was issued to all parties. The court was unable to proceed with the case by 3.00 PM as the Magistrate was held S/N lIst9E4kkaYvhEC80U0g back from taking the bench, pending the arrival of the said counsel. The court was repeatedly informed that the Second Defendant’s counsel was “on the way”, but by 3.30 PM, she had yet to arrive. Consequently, this court proceeded to commence the trial in her absence. At approximately 3.35 PM, the Second Defendant’s counsel just arrived and offered an apology to the court. This court acknowledged her apology and informed her that if she was dissatisfied with the trial having commenced in her absence earlier, she was at liberty to file a revision. Nonetheless, this court permitted her continued participation in the proceedings but firmly recorded that arriving after 3.30 p.m. on a Friday especially a date proposed by the counsels themselves, is highly unprofessional and disrupts the administration of justice. With the greatest respect to all members of the legal profession, this court wishes to reiterate the importance of punctuality and preparedness. The standard of advocacy must be upheld by ensuring that proceedings are not delayed, if without reasonable justification. This court took note that the Second Defendant’s counsel was polite in recording her attendance and expressing her apology, but she failed to provide any substantive explanation for the delay. Hence, this court hopes that greater attention will be paid to legal practice norms, particularly as courts often accommodate the dates proposed by the counsels. When dates are fixed based on counsels’ availability, any subsequent adjournment requests or late arrivals with absence of valid justification, would have severely disrupted court S/N lIst9E4kkaYvhEC80U0g proceedings and negatively impact the process of administration of justice. Such instances hinder the court’s ability to manage its planner efficiently, as the time could have otherwise been allocated to another case.

QUANTUM OF DAMAGES (BASED ON 100% LIABILITY)

After perusing both submissions, the medical reports i.e. P7 and P8 from Hospital Tunku Ja’afar Seremban, this court has assessed the quantum of damages as follows:-

General Damages No. General Damages Plaintiff’s submission Defendants’ submission (The Second Defendant relies on the First Defendant’s submission on quantum) Court’s Aw ard 1. Closed right clavicle fracture RM30,000 (medical certificate pf 71 days being issued by the Hospital Tuanku Ja’afar and Hospital Alor Gajah (P15)) RM15,000 RM23,000 (refer to Compendium and MM Chek Mun Hoe v Lo Yee Cheih [2023] PILRU 21)

Closed fracture of proximal fibula RM25,000 RM12,000 RM20,000 (refer to Lim Eng Seng @ Lim Tiau Chen v Prasanth a/l Annamalai [2024] MLJU 695) S/N lIst9E4kkaYvhEC80U0g

Multiple abrasion wounds over right lower limbs, right upper limbs, right knee and right hand RM10,000 RM3,000 RM8,000 (refer to Sharvin a/l Kanusamy (seorang budak yang mendakwa melalui bapa dan sahabat wakilnya, Kanusamy a/l Thanapal) v Mohd Zahir b Majid & Anor [2021] 1 PIR [6]) TOTAL GENERAL DAMAGES

(ii) Special Damages The Plaintiffs claim special damages as follows and this court decides so: No. Special Damages Plaintiff’s submission Defendants’ submission Court’s Aw ard 1. Travel expenses for family members visiting the Plaintiff at Hospital Tuanku Ja’afar Seremban for one day i.e. on 14 October 2022 from Jalan Kampung Tengah, Melaka RM200 Objection Dismissed 2. Travel expenses for the First Plaintiff to the Hospital Tuanku Ja’afar and Hospital Alor Gajah for follow-up RM150 Objection RM150 (refer to Michael a/l Vincent v Mohanraj a/l Sandran [2015] 2 PIR [49])

Damage to clothing and personal belongings of the First Plaintiff i.e. sweater, helmet and jeans RM170 Objection Dismissed (the damages of the personal belongings should be taken photograph by the First Plaintiff but he failed to do so)

Treatment fees at Hospital Tuanku Ja’afar Receipt of RM2 (pages Objection Granted – RM2 S/N lIst9E4kkaYvhEC80U0g 20-21, Bundle

Documentation fees for the medical reports Receipt of RM80 (pages 18-19, Bundle B) Objection Granted – RM80 TOTAL SPECIAL DAMAGES

Persuant to the above reasoning, the following is the court’s award regarding the quantum of damages of the Plaintiffs’ claim:-

General damages of RM51,000;

Special damages of RM232;

Interest at the rate of 5% per annum upon general damages from the date of the service of the writ until date of judgment;

Interest at the rate of 2.5% per annum upon special damages from date of accident until the date of delivery of judgment;

Interest at the rate of 5% per annum upon the total judgment sum from the date of this judgment until full and final settlement; and

Cost is according to scale costs as provided under O59 r23(1) of the Rules of Court 2012. Dated this 18 April 2025 SGD ------------------------------ TEOH SHU YEE MAGISTRATE MAGISTRATES’ COURT AT ALOR GAJAH S/N lIst9E4kkaYvhEC80U0g FOR THE PLAINTIFF : Pn. Khairun Nisya TETUAN PARAM SUNDRAM FOR THE FIRST DEFENDANT : En. Thirunaaukarasu TETUAN THIRU JEGATISH & ASSOCIATES FOR THE SECOND DEFENDANT : Pn. Dalveena Jit Kaur Korotana TETUAN ARNOLD ANDREW & CO. S/N lIst9E4kkaYvhEC80U0g