Mohd Aiman bin Halim v Muhammad Khairul Asyraf bin Abdullah (BA-12B-115-10/2024)

MOHD AIMAN BIN HALIM (No. K/P: 860412-56-6001)

ABDUL KHALIB BIN ABDULLAH (No. K/P: 590728-06-5329) …PERAYU-PERAYU DAN MUHAMMAD KHAIRUL ASYRAF BIN ABDULLAH (No. K/P: 961229-05-5273) yang mendakwa untuk dirinya sendiri dan juga sebagai suami yang sah dan sebagai tanggungan kepada NOR AZILAH BINTI MOHD AYUB (simati) …RESPONDEN (DALAM MAHKAMAH SESYEN DI SEPANG DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA GUAMAN SIVIL NO.: BK-A53KJ-24-02/2022 ANTARA MUHAMMAD KHAIRUL ASYRAF BIN ABDULLAH (No. K/P: 961229-05-5273) yang mendakwa untuk dirinya sendiri dan juga sebagai suami yang sah dan sebagai tanggungan kepada NOR AZILAH BINTI MOHD AYUB (simati) …PLAINTIF

MOHD AIMAN BIN HALIM (No. K/P: 860412-56-6001)

ABDUL KHALIB BIN ABDULLAH (No. K/P: 590728-06-5329) …DEFENDAN-DEFENDAN) GROUNDS OF JUDGMENT Introduction [1] This is an appeal from a judgment of the Sessions Court in a fatal accident case in which the Sessions Court found the Appellants/Defendants 90% liable, with the Respondent/Plaintiff being 10% contributorily liable. The appeal was against the finding of liability and quantum of damages. No written Grounds of Judgment of the Sessions Court was available as at the date of hearing of this appeal. Background facts [2] The facts are fairly straightforward. Referring to the parties as they were in the Court below, the Plaintiff was riding a motorcycle with his wife, NOR AZILAH BINTI MOHD AYUB (deceased) as pillion rider. The 1st Defendant was driving a car owned by the 2nd Defendant. The car ploughed into the motorcycle at a cross road, killing NOR AZILAH BINTI MOHD AYUB (deceased) and injuring the Plaintiff. The accident happened at 1.20 a.m. on 7-5-2019 at the Jalan Kampung Semarang traffic lights at the cross road of Jalan Cyberjaya/Dengkil/Kota Warisan. [3] At the time of the accident, it was reportedly dark with no streetlights. There were road works at the divider of the four (4) lane road connecting Cyberjaya/Putrajaya to/from Kota Warisan. There were concrete pillars at the divider as an overhead flyover was being constructed. [4] The silent evidence of the aftermath showed that the motorcycle was pinned under the right front of the car and had been dragged for about 25 metres before coming to a stop. [5] Both sides pleaded that the other was negligent. A key consideration that was ventilated was whether the traffic lights at the intersection were working. Analysis and findings [6] It is trite that the burden was at all times on the Plaintiff to prove that the 1st Defendant was negligent that night. The most material factor is whether the 1st Defendant’s traffic light was green. There was a conflict of testimonies between that of the Investigating Officer (IO) and the Plaintiff on the one hand, and of an independent witness and the 1st Defendant on the other. [7] The 1st Defendant (SD1) said that his light was green. The independent witness who lodged a police report immediately after the accident, testified (as SD2) that the traffic lights were all working. He was waiting at the traffic light at the intersection from Dengkil heading to Kota Warisan, and said that he saw: a) a car heading from Kota Warisan to Cyberjaya waiting at the lights (where the Plaintiff ought to have been waiting as well); and b) the Plaintiff running the red light, turning right towards Jenderam and stopping somewhere in between the opening of the road divider before he was rammed by a car. In his words “Motor itu cross, dia berhenti di tengah-tengah tiba-tiba kereta itu pun datang terus inilah langgar motor yang cross itu”. [8] On the other hand, the Plaintiff (SP3) claimed that his light was flashing orange and not working at the time, and that he had stopped at the divider and looked to ensure that the path was clear before crossing. The IO (SP1) was at the scene shortly after receiving the report of the accident at 1.43 am, and within about an hour of the accident. The IO corroborated that the traffic lights affecting users on the Cyberjaya/Putrajaya-Kota Warisan roads in both directions were flashing orange and out of order. [9] In finding the 1st Defendant principally liable, the Sessions Court Judge must have found that the traffic lights were out of order at the time of the accident as stated by the Plaintiff and the IO. Deferring to this finding of the Sessions Court Judge, it follows that he did not believe that the traffic light was green for the 1st Defendant as contended by both the 1st Defendant and the independent witness. [10] In the absence of any other available evidence, this Court was given no cogent or compelling basis to interfere with this finding of fact by the Sessions Court Judge which was based entirely on the believability of competing witness testimonies. [11] In the circumstances, neither party had the right of way and the 1st Defendant who was admittedly on the right lane and therefore travelling at speed, he should have also slowed to ensure that no vehicles were attempting to cross his path. [12] However, based on this evidence alone, this Court would be inclined to agree with the 1st Defendant that the apportioning of 90% liability to the 1st Defendant was still plainly wrong. It is noted that the Sessions Court Judge had concurred with the IO’s opinion on this apportioning of liability, when the IO concluded that he recommended that the 1st Defendant be charged under section 41 of the Road Transport Act 1987 for causing death by reckless or dangerous driving. [13] The Court is not bound by the opinion of the IO and must form its own view based on the evidence. In this case, there was no plausible reason why the Plaintiff would not have seen the 1st Defendant approaching if he had, as suggested, approached the crossing with caution, stopped and looked before crossing the road, because the headlights of the oncoming car driven by the 1st Defendant would obviously have been visible. If so, the Plaintiff should have allowed the 1st Defendant to pass before crossing into the 1st Defendant’s path. [14] The IO testified that the Plaintiff’s view of oncoming traffic could have been obstructed by a concrete pillar on his left at the junction. This was not challenged, except that the Plaintiff himself testified that he stopped and looked to ensure that traffic was clear. It was not the Plaintiff’s case that his view was obstructed. If as he testified, he had stopped and looked left and right before crossing, the probability of the accident happening should have been zero. [15] Thus, even if it is true that the traffic lights affecting users on the Cyberjaya/Putrajaya-Kota Warisan roads in both directions had malfunctioned and the Plaintiff’s view might have been obstructed as the IO had contended, the Plaintiff should have been all the more careful before he attempted to cross the road. The accident could only have transpired if he did not stop to look as he contended, or as alluded to by the independent witness, he ventured too far beyond the divider and into the path of the oncoming car driven by the 1st Defendant. [16] Deferring to the finding of fact based on witness testimony about the functionality of the traffic lights, this Court finds that considering the improbability of the Plaintiff’s evidence that the 1st Defendant’s car appeared out of nowhere in an instant, no reasonable trier of fact would have attached 90% liability on the 1st Defendant. Considering the totality of the evidence, the probabilities of the case, liability should have been apportioned at 50:50. Accordingly, this Court allows the Defendants’ appeal in part and varies the apportionment of liability to 50:50. [17] On the issue of damages, the Sessions Court awarded as follows: a) General damages – RM40,000.00 (Pain and suffering for closed fracture left midshaft tibia,

1.5 cm muscle wasting over left thigh, multiple abrasion wound over the right knee) b) Special damages – RM15,700.00 (instead of RM17,274.00) (Plaintiff had sought for RM2,234.00 relating to Plaintiff’s injury and the following on the deceased’s death – funeral (RM5,000.00), bereavement (RM10,000.00), post mortem report (RM40.00) c) Loss of Support – RM163,000.00 [18] This Court has no reason to interfere with the findings on (a) and (b) as there is no obvious error of principle or excessiveness in the award. They relate to injuries found on the Plaintiff based on the medical reports, even if there is subsequent recovery, and are within the range set out in the Compendium of Personal Injury Awards 2018. [19] In respect of (c), the deceased’s employer (SP2) testified that she was a daily worker paid RM50.00 per day at a roadside village warung – serving customers and washing dishes and general cleaning. Plaintiff testified that she contributed RM850.00 per month to household expenses and claimed RM163,000.00 as loss of support. [20] As this part of the claim was again premised entirely on witness testimony without documentary evidence in support, the witnesses were cross examined and apart from the fact that no documentary evidence in support could be produced in the circumstances (namely, that the deceased was a daily wage earner paid in cash and contributed to daily household expenses), no particular reasons were highlighted why the credibility of these witnesses should be impeached and that they should be disbelieved. As such, this Court will also not interfere with assessment of damages by the Sessions Court Judge based entirely on his evaluation of witness testimony. Conclusion [21] For the reasons set out above, the appeal is allowed in part in that liability is to be apportioned at 50-50. The Judgment of the Sessions Court is otherwise affirmed. Costs of the appeal in the sum of RM8,000.00 is awarded to the Respondent. Bertarikh : 29 Januari 2026 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak Perayu-perayu / Defendan-defendan: Renessh a/l Thanabala (Messrs Anad & Noraini) Peguam bagi pihak Responden/Plaintif: Chan Ding Chong (Gurmit Sodhi Chambers) o