1. ) Nasudi Bin Bujang v Fatin Nuraqidah Binti Azhar (BA-12B-6-01/2023)

NASUDI BIN BUJANG

MUHAMMAD FAZLI BIN NASUDI (NO. K/P: 900528-04-5113) …PERAYU-PERAYU DAN FATIN NURAQIDAH BINTI AZHAR (NO. K/P: 930404-14-5988) …RESPONDEN [DALAM MAHKAMAH SESYEN BADAR BARU BANGI DALAM NEGERI SELANGOR DARUL EHSAN GUAMAN SIVIL NO: BI-A53KJ-349-11/2019 ANTARA FATIN NURAQIDAH BINTI AZHAR (NO. K/P: 930404-14-5988) …PLAINTIF

NASUDI BIN BUJANG

MUHAMMAD FAZLI BIN NASUDI (NO. K/P: 900528-04-5113) …DEFENDAN-DEFENDAN]

This is an appeal by the 1st Defendant (D1) and 2nd Defendant (D2), the driver and owner of a car, who were found 100% liable for a road traffic accident on 28-2-2018 that injured the Plaintiff, a motorcyclist. Plaintiff cross appealed for a particular item of future expense not allowed by the trial Judge - customized insoles and prosthetic toe amounting to RM651,330.00 over a period of 50 years.

There is a question pending at the Court of Appeal, whether that cross appeal is competent, i.e. if it should have been filed as a separate Notice of Appeal. A previous High Court Judge had dismissed a Preliminary Objection raised by Defendants to that effect, and the hearing of the appeal had been postponed for some time to await the outcome.

Due to delays in the disposal of the appeal, the last straw being a postponement of the scheduled hearing of the appeal at the request of lawyers, this Court set the appeal and cross appeal down for hearing, the validity of the latter to be subject to the outcome of the appeal. Background facts

There was a collision between the motorcycle and the car, both travelling in the same direction on a narrow winding road as shown in the sketch plan adduced in evidence.

The motorcycle collided with the back left corner of the car, causing quite severe impact damage. The Plaintiff suffered injuries to her right leg and foot. Her right-most small toe had to be amputated. Plaintiff blamed D1 for suddenly braking and swerving into her path on the road shoulder, causing the collision at the point marked X. D1 blamed the Plaintiff for not keeping a safe distance and proper lookout and colliding into the car at point Y on the road.

The question before the trial Judge was how the accident happened and therefore, who was negligent. On the issue of liability, the only eyewitnesses were Plaintiff, D1 and D1’s passenger in the car (D1’s adult son who testified as “SD2”). All 3 testified at the trial. The Investigation Officer (IO) also testified.

The Sessions Court Judge found that the Plaintiff’s version was more probable: Analysis and findings

The Sessions Court Judge did not state any reasons to prefer the evidence of Plaintiff over D1, other than what is set out in the Judgment i.e. reliance on what is considered to be corroborating evidence from SD2.

However, this Court finds that there were no primary facts that could be inferred from SD2’s evidence that D1 suddenly braked and swerved left onto the road shoulder, to prove that Plaintiff’s version was true. It is Plaintiff’s burden, first and foremost, to prove that her version is true on a balance of probabilities, regardless of what D1’s version is.

SD2’s evidence was that he felt the car slow down to a stop and as the car was stopping, he felt a strong impact at the back.

SD2 did not say the car was off the road and on the road shoulder after impact. In fact, there was no evidence to that effect, or as to the relative positions of both vehicles right after the accident. No evidence was led through any witness on these facts. The evidence from SD2 was as follows:

It was also not put to SD2 that the car had suddenly braked or swerved left suddenly. Thus, if SD2’s evidence is taken as credible, then the unchallenged version of events by SD2 is that his father’s car was slowing to a stop when he felt the impact. The significance of whether D1 was already stopped or was still coming to a stop at the point of impact was not evident, because SD2’s evidence on this said nothing about the positioning of D1’s car at impact. Plaintiff herself was not sure of this:

There were accordingly 2 findings of fact by the Sessions Court Judge that, contrary to the ultimate determination, did not support the version of events that D1 suddenly braked and swerved onto the road shoulder, causing the collision at its left rear corner at point X on the road shoulder. The first is his finding that the car ended up was close to the road shoulder (contradicting Plaintiff’s version of events, as will be shown). The second is that the car was still moving at the point of impact, the relevance of which, as noted, is not explained.

The only other witness that might be able to shed light on the mechanism of the accident was the IO. He took statements and reviewed the physical evidence in his investigation. He testified that there was no evidence that D1 braked and swerved onto the road shoulder. Physical evidence would include the road condition at the site when he visited on the day of the accident and the damage to the vehicles.

The following are the physical evidence: The road shoulder was only about 1.2 m, the road itself about 3.7 m. Both X and Y were marked just after a sharp left bend on the road. There was roadworks about 100m in front of the accident site.

It must be inferred that there were no obvious skid marks on the road indicative of sudden braking or swerving. As for the damage profile to the car, there was only damage to the left rear corner, essentially in the area below the brake lights. The physical evidence inferred that:

The impact occurred at quite high speed;

The motorcycle was impacting the car from the back at an angle; and

The car did not suddenly brake and swerved such as to leave skid marks on the road. The theory of Plantiff’s case is also that the impact took place diagonally (not “langgar belakang”) based on the damage profile. Two inferences follow from this i.e. (a) as the road shoulder is only 1.2 m wide, the car would have entirely blocked the road shoulder for the rear left corner to be in the middle of the road shoulder at X if it suddenly swerved left; (b) If the car was still moving left while braking, the motorcycle would more likely to have hit the left side or midsection, not the rear left corner of the car.

The Sessions Court Judge had the benefit of seeing and hearing the witnesses, including the demonstration with model vehicles and commentary on how the accident happened, and believed Plaintiff’s version. However, this Court finds that Plaintiff’s version was not wholly consistent with the available evidence and the probabilities of the case as set out. As considered above, SD2’s evidence offered no relevant facts that corroborated Plaintiff’s version.

In his Lordship's dissenting judgment, the late HT Ong CJ (Malaya) said in Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175 at p 177 that an appellate court is in as good a position as the trial judge to draw its own conclusions from the primary undisputed facts. His Lordship went on to say that it is not correct to assume, as a matter of course and because the trial judge had seen and heard the witnesses, he must necessarily be right.

As the findings of the learned Sessions Court Judge depended upon inferences drawn from other facts and there was nothing in his judgment which had indicated that his conclusion was reached upon the credibility of the witnesses or as a result of the impression he had formed of them, this Court in an appellate capacity can interfere with the trial judge’s findings of fact by reviewing and evaluating the printed evidence of the case as a trial judge. (See Benmax v Austin Motor Co Ltd [1955] 1 All ER 326, China Airlines Ltd v Maltran Air Corp Sdn Bhd [1996] 2 MLJ 517).

Based on the totality of the evidence, it is more probable that D1 turned the corner, was taken by surprise by the stopped traffic in front of him and came to a stop. He braked and instinctively swerved left towards the road shoulder as an evasive measure, but did not need to brake and swerve so suddenly as to leave skid marks, but so obviously that SD2 noticed and looked up. Plaintiff similarly turned the corner, was taken by surprise, and could not take evasive action in time.

Deferring to the finding of fact by the Sessions Court Judge and therefore accepting that Plaintiff was on the road shoulder at all times prior to the accident, it must also mean that D1 probably did encroach onto the road shoulder. If D1 was not to some extent encroaching on the 1.2 m wide road shoulder, Plaintiff would have been able to proceed unobstructed despite the traffic stopping on the road to her right, and if she was on the main road, it was also more probable than not that Plaintiff would also have been able to pass to the left of D1 on the road shoulder.

In the final analysis, the evidence justifies the finding of the Sessions Court Judge that D1 had encroached onto the road shoulder and into Plaintiff’s path as an evasive measure because he was not keeping a safe distance and proper lookout of the conditions in front of him. That said, this Court is constrained to conclude that the learned Sessions Court Judge was plainly wrong to have attributed 100% liability on the Defendants.

Assuming that the Plaintiff was on the road shoulder at all times since this was the evidence that the Sessions Court Judge had heard and accepted, and as she testified, was 19 ft behind D1 when she first noticed the car, whether or not D1 suddenly braked and swerved onto the road shoulder, the Plaintiff was clearly riding at speed on the road shoulder where, according to the IO, she was not supposed to be on, and was not keeping a safe distance or a proper lookout.

Notably, the IO found Plaintiff at fault and issued a summons to Plaintiff after completing his investigations. The learned Sessions Court Judge did not give any weight to the conclusions of the IO who was the only independent witness at the trial, or to section 22 of the Highway Code that says:

The logic is that if the Plaintiff had kept a safe distance and proper lookout, she would have been able to deal safely with any sudden obstructions in front of her. Accordingly, D1’s negligence did set off the accident but Plaintiff was contributorily negligent. The Defendants appeal is allowed and liability is apportioned equally between the Plaintiff and Defendants on a 50:50 basis. Cross appeal on quantum

The cross appeal on quantum is on a single issue – the claim for the cost of “Custom made insoles and silicone toes” which was not allowed by the Sessions Court Judge.

Both parties furnished quotations from suppliers of prosthetics. On cross examination of the witness from Endolite Asia Sdn Bhd who provided the quotation for the Plaintiff, it was admitted that there is no functional prosthetic small toe in the market, it is cosmetic and no one has ever purchased such a product. No medical specialist provided any expert evidence as to the medical benefit or necessity for the prosthetics.

However, the Defendants’ own expert, a UMSC specialist, opined that the Plaintiff may benefit in having customized insoles. No reasons were given by the Sessions Court Judge for not allowing part of this head of claim. Just because the Plaintiff has not purchased something medically beneficial for her to use to address her handicap since her accident, does not mean that she is not entitled to it.

As both prosthetics suppliers provided not too dissimilar quotations for the customized insoles, this Court awards the average amount of the 2 quotations. Prosthetics supplier Quotation for custom made insoles with service life of 2-year for a period of 50 years Endolite Asia Sdn Bhd RM1,500.00 × 25 years = RM37,500.00 K.K. Prosthetic & Orthopaedic Equipment Sdn Bhd RM850.00 × 25 years = RM21,250.00 Average costs:

The judgment of the learned Sessions Court Judge is varied to apportion liability, assessed damages and costs at 50:50. Subject to the decision of the Court of Appeal on the competency of the cross appeal, the cross appeal is allowed in part and an additional RM29,375.00 is awarded for customised insoles. I award costs of the appeal to the Defendants in the sum of RM3,000.00. Bertarikh : 15 Julai 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM SELANGOR DARUL EHSAN Peguam bagi pihak Perayu-Perayu: Ruebeen Netto (with Kishan A/L Govinda Raju) Messrs Naicker & Associates Peguam bagi pihak Responden: