1. ) Rajiswary A/P Athimulam v 1. ) Soo Wai Khing (AB-A73KJ-147-09/2023)

RAJISWARY A/P ATHIMULAM [IC NO.: 871210385118]

VENI A/P RAJOO [IC NO.: 791107085870] … PLAINTIFFS

SOO WAI KHING [IC NO.: 740110085484]

TAN CHOR DENG [IC NO.: 760412025303] … DEFENDANTS GROUNDS OF JUDGMENT (Post-Trial) INTRODUCTION [1] This is a civil claim arising from a motor vehicle accident involving a motorcycle bearing registration number AHE 6271 (“the motorcycle”) and a car bearing registration number JMB 1461 (“the car”). [2] I shall refer to the parties by their respective designations, namely, the first plaintiff, the second plaintiff (or collectively, “the plaintiffs”) and the first defendant, the second defendant (or collectively, “the defendants”). S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 2 of 48 [3] The first plaintiff was the rider of the motorcycle while the second plaintiff was the pillion rider. The first defendant was the driver of the car and the second defendant was its registered owner. [4] At or about 8.15 am on 12 May 2022, while travelling along Jalan Permaisuri, Aulong, Perak, the plaintiffs were involved in a collision with the car driven by the first defendant (“the accident”). As a result, the first plaintiff sustained laceration wounds, abrasions and soft tissue injuries. The second plaintiff suffered a closed fracture of the distal one-third of the right tibia and fibula, a laceration wound over the right heel and soft tissue injuries. [5] The plaintiffs place the blame for the accident on the defendants. They allege that the first defendant who was travelling from the opposite direction veered into the plaintiffs’ lawful lane resulting in a collision with their motorcycle and causing them injuries. [6] The plaintiffs’ claim against the second defendant is grounded on vicarious liability. It is contended that the second defendant as the owner of the car had permitted the first defendant to drive it and that the first defendant drove the car negligently causing the accident and the injuries to the plaintiffs. [7] The trial of this case took place before me on 14 June 2024, 9 October 2024, 23 December 2024, 28 January 2025 and 12 February

A total of seven witnesses testified. [8] I have read all the cause papers, the notes of evidence and the written submissions. This is my judgment following a full trial. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 3 of 48 [9] In gist, this Court finds that:

the first defendant is liable for 80 per cent for the accident;

(ii) the second defendant jointly liable with first defendant for 80 per cent for the accident based on the principle of vicarious liability;

(iii) the first plaintiff was contributorily negligent and attributes 20 per cent of the liability to her;

(iv) the second plaintiff as an innocent pillion rider bears no fault. Accordingly, both defendants are 100 per cent liable for all damages and injuries suffered by the second plaintiff; and

as for the quantum of damages, the total amount awarded to plaintiffs is RM83,936.32 with costs and interest as prayed. [10] This judgment sets out the full reasons for the Court’s decision. PLEADINGS AND EVIDENCE Documents [11] The material documents in this case are marked as follows: S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 4 of 48 Enclosure No. Document Bundle 15 Bundle of Pleadings A 7 Agreed Bundle of Documents B 8 Non-Agreed Bundle of Documents C 12 Additional Non-Agreed Bundle of Documents D 17 Defendants’ Bundle of Documents E [12] The following are the witnesses who were called during trial: Plaintiffs’ witnesses Witness No. Description Name Witness Statement SP1 Investigation officer Sarjan Nur Shahida binti Mohmad Radzi PSP1 SP2 First plaintiff (rider of the motorcycle) Rajiswary Athimullam PSP2 SP3 Second plaintiff (pillion rider of the motorcycle) Veni Rajoo PSP3 SP4 Subpoenaed witness Vasudevan Retnasamy @ Retnam – SP5 Husband of the second plaintiff Vijayakumar P. Mutaya PSP4 SP6 Husband of the first plaintiff Krishnan Arumugam – S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 5 of 48 Defendants’ witness Witness No. Description Name Witness Statement SD1 First defendant (driver of the car) Soo Wai Khing PSD1 The plaintiffs’ case [13] Based on the pleadings and evidence given during trial, the plaintiffs’ case may be summarised as follows:

At about 8.15 am on 12 May 2022, the first plaintiff was riding a motorcycle with the second plaintiff as her pillion rider. They had just bought food from a shop at Jalan Sultan, Aulong and were heading to their workplace (Flora Bee Hive Enterprises Sdn Bhd) when they were involved in an accident with a car driven by the first defendant. At the material time, both plaintiffs were travelling from Aulong and heading towards Simpang, Taiping.

(ii) According to the plaintiffs, the accident happened while the first plaintiff was riding along Jalan Permaisuri, Aulong. Suddenly, a car driven by the first defendant coming from the opposite direction (from Simpang, Taiping) veered into their lane and collided with the front S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 6 of 48 right side of the motorcycle causing both plaintiffs to fall by the roadside.

(iii) The first plaintiff testified that she could not avoid the car as it was already too close. She stated that when she first saw the car encroaching into her lane, it was about 10 to 15 feet away. She had initially caught sight of the car at a distance of about 60 feet when it was still in its own lane. She estimated her speed at the time to be around 40 to 50 km/h.

(iv) The second plaintiff who was seated behind testify that she suddenly felt the motorcycle becoming unstable as if it had lost control. At the same time, she saw the car very close in front of them. It then struck the front right side of the motorcycle.

Following the impact, both plaintiffs fell onto the grass verge on the left side of their lane. The first plaintiff lost consciousness for about one or two minutes. When she regained consciousness, she found herself lying on the grass beside the road, the second plaintiff was behind her and unable to move, and the motorcycle had fallen behind the second plaintiff. She also noticed the car had stopped at opposite lane towards Aulong. SP4 arrived shortly after to assist them.

(vi) Both plaintiffs contacted their respective husbands who arrived at the scene shortly after. An ambulance later took S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 7 of 48 both plaintiffs to Taiping Hospital. The first plaintiff sustained laceration wounds, abrasions and soft tissue injuries. The second plaintiff suffered a closed fracture of the distal one-third of the right tibia and fibula, a laceration wound over the right heel and soft tissue injuries.

(vii) SP6 who is the husband of the first plaintiff took four photographs of the scene after he arrived. These were marked as exhibit P5(A-D) (see: Bundle D, at pp. 2-5). The photographs show scattered food items on the roadside where the plaintiffs and the motorcycle had fallen. It was testified that the food seen with the yellow packaging in the photographs was what both plaintiffs had bought shortly before the accident occurred. According to the plaintiffs, the green object in the photo was a water bottle belonging to the second plaintiff and the nearby red stains were blood. Fragments and broken parts of the motorcycle are also visible in the photographs although not very clearly. However, SP6 and both plaintiffs confirmed to this Court that these were broken parts of the motorcycle that had dislodged during the accident.

(viii) The first plaintiff subsequently lodged a police report on the night of 12 May 2025 followed by an additional police report on the afternoon of 13 May 2025 (see: Bundle B, at pp. 39-40) which were marked as exhibits P4(A&B). Upon investigation, the Investigation Officer, SP1 did not issue any summons and classified the case as a “Refer to Magistrate” or commonly known as “RTM”. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 8 of 48

(ix) SP1’s evidence reveals that she only arrived at the accident scene at about 12 noon on the day of the accident. She then prepared a rough sketch plan (see: Bundle B, at pp. 42-43) which was marked as exhibit P1. Notably, in her witness statement (see: PSP1, at p. 8), SP1 stated her finding that the collision between the motorcycle and car was a head-on collision (in her own words, “pelanggaran bertentangan”).

SP1 also referred to a police report made by an eyewitness, Goh Peik Fun, marked as ID6 (see: Bundle B, at p. 41) which was lodged on 23 May 2022 (11 days after the accident). According to the eyewitness in her police report, she saw the accident from her home and claimed that the first plaintiff had suddenly entered the defendant’s lane from a junction on the left, resulting in the car colliding with the motorcycle. SP1 considered all the versions given and was unable to conclusively determine how the accident occurred particularly with regard to the direction of travel of the plaintiffs. As a result, she concluded her investigation as RTM.

(xi) The subpoenaed witness SP4, Mr. Vasudevan Retnasamy @ Retnam did not witness the accident but arrived shortly after at the accident scene. He assisted the plaintiffs and saw them lying by the roadside with their motorcycle on the grass verge in their direction of travel (towards Simpang) alongside food packages, water bottles and broken motorcycle parts scattered nearby. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 9 of 48 The defendants’ case [14] The defendants’ case is as follows:

The defendants did not dispute the time and location of the accident. The first defendant admitted that she was the driver of the car which belonged to the second defendant. At the material time, she was on her way from home to her workplace at Ambank Taiping. She admitted the accident did happen but placed the blame entirely on the first plaintiff.

(ii) According to her, when she reached Jalan Permaisuri, Aulong and was on her way to Taiping, a motorcycle ridden by the first plaintiff suddenly emerged from a junction on her left without stopping and collided with the front part of her car. She denied veering into the opposite lane.

(iii) During cross-examination, the first defendant agreed that both plaintiffs had fallen by the roadside on her opposite lane (which corresponds with the plaintiffs’ version) and not in front of her car. However, she maintained that the accident occurred in the manner she had described (where the motorcycle ridden by the first plaintiff emerged suddenly from a junction on her left side).

(iv) According to her, the collision caused both plaintiffs and the motorcycle to be thrown onto the grass verge on the S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 10 of 48 opposite side of the road (across the road) to her right. She also testified that she was driving at approximately 40 km/h at the time. The first defendant lodged a police report at 9.21 am on the same day of the accident, about an hour after it occurred which was marked as exhibit P3 (see: Bundle B, at p. 38).

The first defendant also filed a counterclaim against the first plaintiff, seeking contribution in the event she is found liable. She pleaded that if she were held responsible for the second plaintiff’s claim, she would be entitled to seek indemnity or contribution from the first plaintiff.

(vi) The Second Defendant did not testify in court. Goh Peik Fun, the defendants’ supposed eyewitness who lodged a police report marked as ID6 (see: Bundle B, at p. 41) also did not testify. Neither of them appeared in court to give their evidence.

(vii) The learned counsel for the defendants subsequently closed the defence case by relying solely on the evidence of the first defendant. ANALYSIS/FINDING - LIABILITY [15] At this point of the judgment, I will consider the issue of liability in respect of the plaintiffs’ claim against the defendants. The question of quantum will be dealt with separately following my findings on liability. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 11 of 48 Principles [16] In motor vehicle accident claims also commonly referred to as “running down cases”, the plaintiff must prove the defendant’s negligence by establishing the elements of duty of care, breach, causation and resulting damage. Our courts apply common law principles of negligence. If liability is established, the defendant is required to pay damages. If not, the claim will be dismissed. [17] In this case, liability is heavily disputed due to the conflicting versions of the accident pleaded by both parties. The plaintiffs contend that the accident was caused solely by the negligence of the first defendant who veered into their rightful lane. On the other hand, the first defendant alleges that the first plaintiff suddenly emerged from a junction on her left without stopping, causing the motorcycle to crash into the front of her vehicle. Both sides blame each other entirely for the accident. [18] As a result, this Court should take the approach of evaluating the evidence which is “more probable” based upon the testimony of all witnesses including the silent evidence such as the sketch plan, police report and the photographs produced. This is consistent with the principle decided in Noorianti Bte Zainol Abidin & Ors v Tang Lei Nge [1990] 2 MLJ 242 where the High Court held as follows at pp. 243-244: “It has also been said that a trial judge should not approach the case upon the basis of deciding which of the two conflicting stories he should believe but rather on the basis of considering which version is inherently probable or improbable.”. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 12 of 48 [19] In Woo Yew Chee v Yong Yong Hoo [1979] 1 MLJ 131, the Federal Court elucidated the meaning of “more probable” at page 134 as follows: “By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.”. [20] Furthermore, in evaluating which party’s version is more probable, this Court also takes as a guide the principle laid down in Ng Aik Kian & Anor v Sia Loh Sia [1997] 2 CLJ Supp 218 as follows: “It is trite law that where the driver and witnesses on each side tell conflicting and different stories, the photographs, plans, measurement of the scene of the accident and the nature of the damage to each vehicle must surely be guiding force – the reliable guide to rely upon.”. Which version is inherently more probable? [21] Having carefully examined the pleadings, testimonies, exhibits, submissions and legal principles, the Court finds that the plaintiffs’ version of the accident is inherently more probable. [22] The reasons are as follows. Position of motorcycle and plaintiffs after the accident [23] It is undisputed that after the accident, the plaintiffs and their motorcycle were found by the side of the road on their rightful lane. If the first defendant’s version is true that the motorcycle suddenly emerged S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 13 of 48 from a junction on her left, the point of impact and the fall should have occurred on the first defendant’s lane. However, the first defendant herself admitted that the motorcycle and plaintiffs ended up on her opposite lane which consistent with the plaintiffs’ version that the collision happened in their lane, not her. [24] It is a trite principle that the position of vehicles after an accident may be used to determine the probability of conflicting versions. I refer to the case of Lew Voon Kong & Anor v Mustaffa bin Kamis [1978] 1 MLJ 217 which opined as follows: “In the case under appeal, the relative position of the vehicles after the collision indicated clearly and beyond argument the liability of the motor-cyclist for the accident.”. [25] Therefore, taking into consideration that the plaintiffs and their motorcycle were found on their side of the road (within their rightful lane), I am of the view that the plaintiffs were indeed in their lawful lane while the first defendant had veered into the plaintiffs’ lawful lane. Silent evidence on the road [26] Had the plaintiffs truly emerged from a side junction on the first defendant’s left as alleged by her, one would reasonably expect the debris from the accident including fragments of the plaintiffs’ motorcycle to be found within the first defendant’s lane. However, the evidence especially the photographs in exhibit P5(A-D) (see: Bundle D, at pp. 2-5) shows otherwise. The unchallenged evidence in relation to these photographs clearly shows that items such as the food purchased by the plaintiffs S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 14 of 48 before the accident, a water bottle belonging to the second plaintiff, traces of blood, as well as broken parts of the motorcycle were all found on the plaintiffs’ side of the road. [27] In my view, this silent evidence corroborates the plaintiffs’ version that the first defendant had veered into their lane resulting in an accident. It is trite that Courts can rely on silent evidence when witness testimonies are conflicting (see: the decision of Privy Council in Yahaya bin Mohamad v Chin Tuan Nam [1975] 2 MLJ 117). Evidence of head-on collision [28] The investigation officer (SP1) stated in her witness statement (see: PSP1 at p. 8) that the accident was a head-on collision (“pelanggaran bertentangan”), meaning the car and motorcycle collided front-to-front. Although she eventually classified the case as RTM due to the police report (ID6) lodged by one Goh Peik Fun, this Court is of the view that her evidence regarding the head-on collision should nevertheless be given due consideration in light of the totality of evidence in this case. This Court refers to the case of Chan Sau Chuan v Choi Kong Chaw & Yap Yun Chan [1990] MLJU 9, where it was held that: “Taking the evidence of the investigation officer, PW3, first I must mention that this witness has no personal interest in this action between the two parties. The second observation I would like to make is that although PW3 is not an expert witness in the strict sense of the words nevertheless he is more than competent to give his views because of his experience as an investigation officer in traffic accidents and the quality of the evidence he gave in this trial. To my mind he is skillful enough for this Court to take into S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 15 of 48 serious consideration of some of the things said by him in his evidence.”. (Emphasis added). [29] Based on SP1’s evidence, I note that she classified this case as RTM primarily relying on ID6 (which I will address later in this judgment). However, what I find particularly significant is her testimony that the accident was a head-on collision. I accept this aspect of her evidence as it is based on her own findings from the investigation she conducted. [30] This finding directly contradicts the first defendant’s version that the motorcycle approached from her left and struck the front of her car. In my opinion, had the motorcycle indeed emerged from the left side of the junction and collided with the defendant’s car, the impact would have been angular or side-on and not head-on. Therefore, I find that the direction of travel clearly indicates the first defendant had veered into the plaintiffs’ lawful lane. Damage to the second defendant’s car [31] Furthermore, if the first defendant’s version were accurate, the impact point and resulting damage would likely be on the left side of her car, not directly at the front. A side collision (from left) usually causes damage along the side panels or at an angle often with scraping marks especially at the left side of the car. But the damage seen in the second defendant’s car is a central dent on the front bumper (see: Exhibits P2 (A–C), Bundle B, at pp. 44–45). This clearly indicates a head-on collision rather than a side impact and corroborates the plaintiffs’ version of accident that the first defendant veered into their lane and collided directly with them from the front. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 16 of 48 Inconsistencies in the defendants’ version [32] During the plaintiffs’ case, particularly when the first and second plaintiffs gave evidence, the learned counsel for the defendants challenged their version by putting to them in cross-examination that both plaintiffs had fallen onto the first defendant’s lane. However, when the first defendant later took the stand, she admitted that the plaintiffs had in fact fallen on the opposite lane but attributed this to the force of the impact. She said that both plaintiffs came from the left junction without stopping, collided into the front of her car and as a result of the impact, the plaintiffs were thrown across the road to the opposite lane. She also alleged that the motorcycle had moved across the road “on its own” after the collision. [33] The defendants’ counsel’s proposed version to both plaintiffs during the cross examination contradicts the first defendant’s own admission that the plaintiffs and their motorcycle fell on the opposite lane (plaintiffs’ side of the road). This inconsistency is material. I refer to the case of Skarf Development Sdn Bhd v KM Engineering Development Sdn Bhd [1998] MLJU 275, where the High Court held as follows: “When counsel puts a proposition to a party in cross-examination it is a matter of fact that he must be putting the said proposition on instructions. A counsel cannot put anything to a witness that he will not be able to support with his own client’s evidence. In this case there is such a clear contradiction between the defendant’s evidence and the questioning on instructions, by counsel.”. [34] Hence, when the defendants’ counsel initially advanced their case to the plaintiffs during cross-examination, it must have been based on the defendants’ instructions. However, when the first defendant later S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 17 of 48 testified, her version shifted significantly. In my considered view, this inconsistency renders her version inherently unreliable. [35] I must also evaluate her version (when she took the stand) in light of two other considerations too. First, the first defendant claimed she was travelling at only 40 km/h and second, all the silent evidence (including debris, food items belong to plaintiff and traces of blood) was found on the plaintiffs’ side of the road. However, if the collision was forceful enough to throw the plaintiffs across the road to the opposite lane and cause the motorcycle to move “on its own” after impact, this infers a much higher speed than 40 km/h which does not align with first defendant’s version. At such a low speed, a collision with a motorcycle would more likely result in the motorcycle and its riders being pushed forward in the direction of the car’s movement, not flung across the road. Even if the impact was as severe as claimed by the first defendant, not a single piece of debris was found on her lane. For these reasons too, I find the first defendant’s version is not inherently probable. Police report by alleged eyewitness (ID6) [36] A police report was lodged by one Goh Peik Fun, 11 days after the accident. This police report (marked as ID6) was never admitted into evidence as the maker did not testify. Therefore, it remains hearsay with no evidentiary value. I shall accordingly disregard references to ID6 and also all oral testimony adduced in relation to ID6. As stated in PP v Datuk Harun Idris & Ors [1977] 1 MLJ 180 at page 183, documents tendered for identification but not proved must be disregarded. Even if I were to consider ID6, its reliability is doubtful as it was lodged belatedly and may well have been an afterthought. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 18 of 48 Injury patterns [37] If the first defendant’s version is to be most likely, then in my view, both plaintiffs’ right legs would have been equally and directly exposed to the impact. Based on her demonstration in Court using the vehicle models, the first defendant’s collision was directly to the entire right side of the motorcycle. [38] This means that, logically, the first plaintiff (the rider) who was seated in front would be expected to suffer significant injuries to her right leg. However, the evidence shows otherwise. The first plaintiff sustained only minor injuries while the second plaintiff (the pillion rider) suffered a serious injury to her right leg. In my respectful view, this pattern of injury of the plaintiffs is also inconsistent with the first defendant’s version. Summary [39] The evidence in totality points to the conclusion that the plaintiffs’ version of the accident is inherently more credible. The plaintiffs were travelling in their lane from Aulong towards Simpang while the first defendant was coming from the opposite direction and veered into the plaintiffs’ lawful lane with the point of impact occurring within that lane. First defendant’s liability [40] I now turn to consider whether the first defendant is liable. It is well-settled that road users owe a duty of care to others on the road. In Khairun Nizad bin Daud & Anor v Juprin Paul [2018] 9 MLJ 32, the High Court held at page 38: S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 19 of 48 “[32] I am in agreement that there is always a duty on road users to remain vigilant at all times as public roads are always a venue for danger, whichever time of the day or location, where one can never be entitled to take it easy and be off-guard because it is a quiet stretch of roads or a time of the day where traffic volume is low.”. [41] Sharma J in Goh Beng Seng v Dol bin Dolah [1970] 2 MLJ 95 held as follows: “There can be no territorial or geometrical division of the road. The centre line remains a guide and a reminder only. One’s duty is to ensure safety for oneself and for others. The attitude of mind that because the driver coming from the opposite direction is encroaching a few inches of my side of the road, I can treat him as a trespasser and proceed on my half of the road as if it was my exclusive domain and that I am totally immune from liability if I drive within the exact limits of that ‘realm’ even though I know that an accident may thereby happen on my side of the road, is the attitude of an irresponsible and an irrational being. I owe a duty to others on the road just as others owe a duty to me.”. [42] In Sivakumaran & Others v Yu Pan & Anor [1995] 1 MLJ 12, the High Court made a finding with regard to damage arising from a breach of the duty of care as follows: “As regards damage in consequence of a breach of a duty to take care, the fundamental rule is that the injury suffered by the plaintiff must not be too remote a consequence of the defendants' conduct, or, as it is often said, the damage must not be too remote. In this connection, on the authority of the decision of the Court of Appeal in England in the case of Re Polemis & Furness, Withy & Co Ltd [1921] 3 KB 560, the rule was that if a reasonable man would have foreseen any damage to the plaintiff as likely to result from the defendant's act, then he was liable for all direct consequences of it S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 20 of 48 suffered by the plaintiff whether a reasonable man would have foreseen them or not, that is, if they were directly traceable to the act and not due to the operation of independent intervening causes. … That rule was abrogated by the Judicial Committee of the Privy Council in the case of Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound), in which it was decided that 'the essential factor in determining liability is whether the damage is of such kind as the reasonable man should have foreseen', and that it is wrong to use one test (reasonable foreseeability) to determine culpability, ie duty and breach of duty, and a different test (directness) to determine remoteness of damage. In other words, the test of remoteness is to be treated as being identical with the test of negligence. The test of duty is foreseeability of some damage to the plaintiff. The test of damage is that the kind and the extent of plaintiff's damage should have been foreseeable in general outline.”. (Emphasis added). [43] In this case, the first defendant as a road user owed a clear duty of care to ensure that she remained within her lane and did not endanger other road users. By veering into the plaintiffs’ lane and colliding with their motorcycle, she breached that duty. The evidence (medical reports) establishes that this breach directly resulted in the injuries and damages sustained by the plaintiffs. Accordingly, the Court finds the first defendant liable for the injuries and damages suffered by the plaintiffs as a result of the accident. Second defendant’s liability [44] Second defendant is the owner of the car driven by the first defendant. It is important to note that the second defendant was not present during the accident. The key issue is whether the second S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 21 of 48 defendant can be held vicariously liable for the plaintiffs’ damages despite not being present during the accident. [45] The law imposes a presumption of liability on vehicle owners for accidents caused by permitted drivers unless rebutted. In this regard, reference is made to the book Personal Injury: Law, Practice and Precedents, 2nd edition by Chan Shick Chin, at page 48 of Chapter 2: “(c) Presumption against motor vehicle owner. It is not uncommon to encounter in motor accident cases a situation where there is no clear evidence of the relationship between the driver of the vehicle at the material time and its owner. The person driving or using the vehicle at the time of the accident may not even be identified. He might have absconded or in other ways failed to disclose his identity. In these circumstances a presumption arises against the vehicle owner, should he deny being the driver, that the driver was his servant or agent thereby making the owner vicariously liable. The presumption is, however, rebuttable by evidence to the contrary, i.e. that no such relationship existed.”. (Emphasis added). [46] In Kesavaram Velasamy v Chong Kian Heng [2013] 1 LNS 102, the Court of Appeal held as follows: “The next issue was, was the defendant vicariously liable? The law is settled that ownership of a vehicle is prima facie evidence that the driver is the agent or servant of the owner and the owner is liable for the negligence of the driver. (See Barnard v Sully [1931] 47 TLR 557.) The owner of the vehicle can rebut the presumption of agency by either: giving evidence of the driver’s object in making the journey in question and establishing that is served no purposes of the owner; or by asserting that the car was not being driven for the owner’s purpose and providing the assertion with any supporting evidence available to him.”. (Emphasis added). S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 22 of 48 [47] The Federal Court in Kek Kee Leng v Teresa Bong Nguk Chin & Anor [1978] 1 MLJ 61, per Seah J held as follows: “The law, as I understand it, is this. The owner of a motor-car is liable for the consequences of the negligent driving of that motor-car by one who is his servant … But the vicarious liability of the owner of a motorcar for the consequences of someone else’s negligent driving of the car is not limited to cases where the driver is his servant.”. [48] The High Court in Nur Islam bin Rahmatullah & Anor v Personal Representative of Lim Eng Hock, deceased [2017] 2 PIR [3] 25 held as follows: “[15] … The precise or exact identity of that rider/driver is irrelevant and the finding of liability against John Doe is sufficient to attach liability against the insurer or otherwise owner of the vehicle (if the insurance coverage is avoided). … In the circumstances, I am consequently of the view that consent or authorisation of usage of the vehicle by the owner is sufficient to saddle the insured (consequently the insurer) with liability. On that premise, it is incumbent upon the respondent to adduce evidence in rebuttal such as perhaps the motorcycle was stolen and thus used by an unauthorised rider to defeat the appellants’ claim.”. (Emphasis added). [49] There is also a statutory presumption of liability imposed on the registered owner of a motor vehicle where the driver has committed a negligent act. Reference may be made to section 109(2) of the Road Transport Act 1987 which reads as follows: “Liability of registered owner and others

(1) … S/N lRiWSewCukG/i1/FsZvbhw

Except where otherwise required by this Act, any act or omission by whoever was the driver of a motor vehicle at the material time, shall for the purpose of any prosecution or proceedings under this Act, be deemed to be the act or omission of the registered owner unless he satisfies the court that he took all reasonable steps and precautions to prevent such act or omission: Provided that this subsection shall not apply to an act or omission of a person in driving a motor vehicle in contravention of sections 41 to 49.”. [50] The application of section 109(2) of the Road Transport Act 1987 was explained by the Federal Court in AmGeneral Insurance Bhd v Sa’ Amran Atan & Ors and Other Appeals [2022] 8 CLJ 175 in the following words: [29] Being the registered owner of the car at the time of the accident, the second respondent was deemed by s 109(2) of the RTA to be liable for the act or omission of the third respondent (driver of the car) in causing the accident. She could only absolve herself of liability if she could satisfy the court that she had taken all reasonable steps and precautions to prevent such act or omission by the driver. There is no such evidence before the court. Therefore, the third party risks insurance policy, which was issued to indemnify her in the event of an accident involving the car, was in full force at the time of the accident. [30] It cannot be the intention behind the proviso to s 109(2) that the exemption from liability of the registered owner extends to tortious acts of the driver, such as negligent driving causing loss and damage to other road users. The fact that the proviso only refers to ss 41 to 49, which are penal in nature, dispels any notion that the exemption from liability extends to the civil liability of the registered owner. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 24 of 48 [31] Clearly the proviso is only intended to shield the registered owner from prosecution for the driver’s contravention of ss 41 to 49, and not for the driver’s tortious acts such as negligent driving. The registered owner is still liable for the negligent act or omission of the driver.”. (Emphasis added). [51] Based on the legal principles above, the evidence in this case clearly establish that the second defendant is the registered owner of the car. It is also undisputed that the first defendant drove the car with the second defendant’s permission. This, in turn, gives rise to a legal presumption that the first defendant was acting as the second defendant’s servant or agent at the material time and it is incumbent upon the second defendant to rebut this presumption. [52] However, the second defendant chose not to testify in Court and failed to adduce any evidence to rebut the presumption of agency or service. In the absence of such rebuttal, the presumption stands that the first defendant was acting as the second defendant’s servant or agent at the material time. Consequently, as the law mandate, the second defendant is vicariously liable for the first defendant’s negligence. [53] Moreover, section 109(2) of the Road Transport Act 1987 is also applicable in this context. Since the second defendant did not produce any evidence showing that he had taken reasonable steps or precautions to prevent the negligent conduct, he remains vicariously liable for the first defendant’s negligence. [54] Accordingly, vicarious liability is established against the second defendant under both the common law and section 109(2) of the Road Transport Act 1987 for the first defendant’s negligence. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 25 of 48 Contributory negligence [55] After determining that the defendants are liable, the Court now proceeds to consider whether there was any contributory negligence on the part of the plaintiffs. [56] With regard to the principle of contributory negligence, this Court refers to the case of Lai Yew Seong v Chan Kim Sang [1987] 1 CLJ 351, where the Supreme Court held as follows: “... negligent as used in the expression ‘contributory negligence’, does not mean breach of duty. It means the failure by the person to use reasonable care for the safety of himself or his property so that he becomes the author of his own wrong.”. [57] Therefore, while negligence ordinarily means a breach of a legal duty to take care, in the context of contributory negligence, it does not refer to such a breach. Instead, it refers to a person’s failure to take reasonable care for their own safety which contributes to the harm they suffer. [58] Contributory negligence is a partial defence that reduces the quantum of damages payable to plaintiffs if they fail to safeguard their own interests. Section 12(1) Civil Law Act 1956 provides: “Apportionment of liability in case of contributory negligence

(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other persons, a claim in respect of that damage shall not be defeated by the reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 26 of 48 be reduced to such extent as the Courts think just and equitable having regard to the claimant’s share in the responsibility for the damage.”. [59] Therefore, what matters in a negligence claim is not merely the occurrence of the accident or collision but the injury/damage that results from it. Hence, the key question is the extent of the plaintiffs’ own responsibility for the injury/damage they sustained. [60] In this case, based on the totality of the evidence, I am of the considered view that the first plaintiff was contributorily negligent due to her failure to take reasonable care for the plaintiffs’ own safety. [61] The accident occurred around 8:20 a.m., in clear daylight, on a straight stretch of road with good visibility. Moreover, the first plaintiff testified that she first saw the first defendant’s car in its own lane about 60 feet away and noticed it encroaching into her lane when it was only 10 to 15 feet away. The first plaintif also testified that she was travelling at an estimated speed of 40 to 50 km/h at the material time. [62] Given the favourable conditions and the distance from which the first defendant’s car was initially visible, the first plaintiff ought to have been able to detect the danger earlier and take reasonable evasive action. Although a motorcyclist has the right of way, they also have a duty to keep a proper lookout and respond to foreseeable risks. The first plaintiff did not react in time which shows a failure to pay proper attention on the road or respond appropriately to the danger when a car veered into her lane. This justifies a finding of contributory negligence on first plaintiff. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 27 of 48 Apportionment of liability [63]

the first and second defendants are jointly liable for 80% of the accident; and

(ii) the first plaintiff is contributorily negligent and is held responsible for 20% of the accident. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 28 of 48 Position of the second plaintiff as a pillion rider [66] Subsequently, the question that arises is whether the second plaintiff as the pillion rider is entitled to recover 100% of the damages despite the Court finding that the rider of the motorcycle (the first plaintiff) was 20% contributorily negligent. [67] It is evident that the second plaintiff was a pillion rider who had no control over the motorcycle and did not contribute to the cause of the accident. The Court therefore finds that second plaintiff was an innocent passenger and thus entitled to recover full compensation from the defendants. [68] The law is settled that an innocent passenger in a motor vehicle including a pillion rider is entitled to recover 100% of the damages from the tortfeasor. Case law consistently affirm that pillion rider is entitled to recover the full amount from any of the liable parties. It is within the pillion rider’s prerogative to seek the total compensation from one or all of the tortfeasors. [69] Reference can be made to the case of Muhamad Jafri bin Jantan & 2 Ors v Zainal bin Md Rais [2005] 2 AMR 199 (CA), where Arifin Zakaria JCA (as he then was) held as follows: “In that case it was held, inter alia, that once a person has proved that he is an innocent passenger, he is entitled to a claim based on 100% liability. It is the personal prerogative of the innocent passenger to sue the negligent party responsible for causing damage or injury to him in the accident. In coming to that finding, the learned judge relied on a long line of authorities namely – Oli Mohamed v Keith Murphy & Anor [1969] 2 MLJ 244, Wong S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 29 of 48 Fook & Anor v Abdul Shukur bin Abdul Hakim (Wong Piang Loy – Third Party) [1990] 2 CLJ 382; [1990] 1 CLJ (Rep) 536, Samsuri bin Saad & Anor v Chew Kit Toh (and Another Appeal) [1996] 2 CLJ 109 and Jayakumar s/o Kuppusamy & Anor v Chen Kit Hong & Anor [1984] 1 MLJ 376. All the authorities cited by the learned judge point to one conclusion, that an innocent passenger in a motor vehicle or a pillion rider is entitled to recover the total amount of damages against a tortfeasor and it is within his prerogative to recover the damages against any one of the tortfeasors. In Samsuri bin Saad & Anor v Chew Kit Toh (and Another Appeal) (supra), the same issue as in the present case was raised, that is, whether a pillion rider was entitled to recover 100% damages against the respondent where the learned SCJ found that both the deceased rider of the motorcycle and the driver of the motor lorry were equally to blame. The learned High Court judge in that case, following Oli Mohamed v Keith Murphy & Anor (supra) and Reliance Omnibus Co Sdn Bhd & Anor v Ishak bin Mohd Jaafar & Anor [1993] 4 CLJ 291, held that the pillion rider is entitled to the total amount of damages notwithstanding the finding that the deceased rider of the motorcycle and the driver of the motor lorry were equally blameworthy. We wholly agree with the decision of the learned judge in that case.”. (Emphasis added). [70] In Jos ak Alam v Zulimi b Lifat & Anor [2013] 2 PIR [13] 125, the High Court held as follows: “[15] The trial judge had also erred to adjudge that the first plaintiff was 30% liable to the second plaintiff based on the counterclaim against the first plaintiff by the defendant. A pillion rider is entitled to recover the total amount of damages against a tortfeasor and it is within his prerogative to recover the damages against any one of the tortfeasors. The pillion is entitled to the total amount of damages notwithstanding the finding that the rider of the motorcycle and the driver of the car were equally blameworthy. In this case, the second plaintiff was an “innocent passenger” and was entitled to damages on a 100% basis. He could not, as a pillion rider, be S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 30 of 48 held to be vicariously liable for the contributory negligence of the first plaintiff.”. (Emphasis added). [71] Therefore, based on the above legal principles, since the second plaintiff as a pillion rider has elected to sue the defendants in this case, the defendants are fully (100%) liable for the second plaintiff’s claim since the Court has found that the defendants were negligent and primarily responsible for the accident. [72] Therefore, to avoid any doubt, the Court apportions liability as follows:

First plaintiff: The first and second defendants are jointly liable for 80% of the damages. First plaintiff is held 20% liable due to contributory negligence.

(ii) Second plaintiff: As an innocent pillion rider, the defendants are jointly and fully liable for 100% of the damages suffered by second plaintiff. QUANTUM OF DAMAGES [73] With the issue of the defendants’ liability having been determined, the only remaining matter is the quantum of damages. Principles [74] The remedy for a claimant who suffers due to a defendants’ negligence is an award of damages. This compensation aims to cover the S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 31 of 48 harm done, not to punish or reward (see: Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324). To decide the right amount, courts look at similar past cases for guidance. The amounts given in these cases can help determine what is fair (see: United Plywood and Sawmill Ltd v Lock Ngan Loi [1970] 2 MLJ 237). [75] The Revised Compendium of Personal Injury Awards by the Malaysian Bar Council (“Compendium”) is also a helpful reference for the range of damages in personal injury claims. However, in Law Kok Leong & Anor v Nor Hapiza bt Abu Hassan (wife of the deceased, Abdul Manap bin Hamid) [2017] 9 MLJ 354, the Court emphasised that the Compendium is merely a guideline and not binding on the Court in assessing fair and reasonable damages. [76] General damages and special damages are two main components when assessing compensation in running-down cases. General damages are meant to compensate for the plaintiff’s physical and emotional suffering, the loss of enjoyment of life and any financial impact due to the injury. These amounts are decided by the Court based on its discretion and are determine by legal principles and past decisions. However, there is no fixed amount for general damages. The Court also considers inflation and changing social conditions to make sure the award is fair and reasonable while retaining a degree of consistency (see: Drennan v R F Greer [1957] MLJ 77; Seah Yit Chen v Singapore Bus Service [1990] 3 CLJ 965; Phuah Jee Suan v Nila Vasu Pillai [1973] 1 MLJ 186; and Saw Tong Seng v Ong Kim Hoon [1980] 2 MLJ 203). [77] Special damages on the other hand cover the actual financial losses directly related to the accident and normally must be specifically S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 32 of 48 pleaded and proved with evidence such as receipts or invoices. However, the Court may also consider oral testimony in support of such expenses without receipts or invoices (see: Nurul Husna Muhammad Hafiz & Anor v Kerajaan Malaysia & Ors [2015] 1 PIR [2]; and Nur Syarafina bt Sa’ari v Kerajaan Malaysia & Ors [2018] 2 PIR [35]). First Plaintiff General Damages (based on 100% liability) Soft tissue injuries and laceration wounds [78] The first plaintiff submitted that based on her medical report (see: Bundle B, at pp. 1-2), she sustained swelling over the right frontal region (3x3 cm) and the right parietal region (5x5 cm) but without any open wound, bruises, or depression of the skull. There was a laceration wound over the right foot (0.5 cm) without active bleeding and an abrasion wound over the right hand. The first plaintiff is claiming RM 2,000 for the swelling, RM 3,000 for the laceration and RM 2,500 for the abrasion. [79] Meanwhile, learned counsel for the defendants highlighted that, in the first plaintiff’s medical report, the final diagnosis was a laceration wound over the right foot and a soft tissue injury only and submitted that a total sum of RM 4,000 would be reasonable for all these injuries. [80] I have carefully considered both submissions and the first plaintiff’s medical report. I agree with the submission by learned counsel for the defendants that the award should be based on the final diagnosis. I also note from the first plaintiff’s medical report that the first plaintiff was S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 33 of 48 able to move all upper and lower limbs fully at all joints. According to the Compendium, lacerations (single or multiple) range from RM 2,500 to RM 9,500, depending on severity. The sum I award should reflect the gravity of the injuries. I therefore award the first plaintiff a global sum of RM 6,000 for the soft tissue injuries and laceration wounds. Special Damages [81] The special damages for the first plaintiff in this case are not much in dispute as most have been agreed upon by both parties. In addition, the first plaintiff provided both receipts and oral testimony to support all the special damages that she is claiming. [82] The special damages allowed to the first plaintiff are as follows:

Transport costs for hospital visits and follow-up outpatient treatment: RM40.00 (agreed).

(ii) Loss of income until the first plaintiff’s return to work: RM369.25 (agreed).

(iii) Medical report fee (Hospital Taiping): RM40.00 (agreed).

(iv) Police reports, sketch plan, photographs and JPJ search: RM39.00 (comprises RM16 for four police reports, RM4 for the sketch plan, RM9 for the photographs and RM10 for the JPJ search). S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 34 of 48 [83] In her special damages claim, the first plaintiff also seeks compensation for the damaged clothes. However, I reject this claim due to a lack of evidence. [84] In total, the special damages for the first plaintiff amount to RM488.25. Second plaintiff General Damages (based on 100% liability) [85] The breakdown of the second plaintiff’s general damages claim is as follows:

Laceration wound on the right heel: RM 3,000.00.

(ii) Closed fracture of the right tibia and fibula: RM 50,000.00.

(iii) Soft tissue injuries and scarring: RM 15,000.00. [86] In respect of the general damages of the second plaintiff, there are two medical reports from Hospital Taiping, dated 28 February 2023 and 17 March 2023 (see first medical report from Hospital Taiping at pp. 3–4, Bundle B and the second medical report from Hospital Taiping at pp. 5–6, Bundle B). Both medical reports were prepared by Dr. Muhammad Taufiq bin Zaidi, a medical officer from the Orthopedic Department of Hospital Taiping who had examined the second plaintiffs and assessed her injuries following the accident. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 35 of 48 [87] The second plaintiff was also examined by two medical experts where one selected by the plaintiffs and the other selected by the defendants. The medical expert selected by the plaintiffs is Dr. Mahadev Shunmugam from Appolo Medical Centre Sdn. Bhd, Taiping. His expert report which is marked as Exhibit P10 during trial (see: Bundle C, at pp. 1-4) is dated 31 March 2023. The medical expert selected by the defendants is Dr. Jeffry bin Amit from Columbia Asia Hospital, Taiping. His expert report which is marked as D12 (see: Bundle E, at pp. 1-10) is dated 4 July 2024. Laceration wound on the right heel [88] The learned counsel for the plaintiffs submitted RM3,000.00 as compensation for this injury to the second plaintiff relying on the decisions in Taufek b. Mohammad v Abu Bakar bin Mustar & Anor [2024] 1 PIR 20 and Zul Hanafi anak Reimy v Muhd Syafiq bin Roslan [2024] 1 PIR 10. On the other hand, the learned counsel for the defendants also agreed to sum of RM3,000.00 relying on the decision in Lee Boon Kim v Suhaimi b Mesdi & Anor [2023] 1 PIR 22. [89] As both parties have agreed to RM3,000.00 for this injury, I am inclined to follow what the parties have agreed upon and the precedent. Accordingly, I award the second plaintiff RM3,000.00. Closed fracture of the right tibia and fibula [90] For the closed fracture of the right tibia and fibula, the learned counsel for the plaintiffs submitted RM50,000.00 as compensation for this S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 36 of 48 injury to the second plaintiff relying on several cases. The learned counsel for the plaintiff also relied on P10 (the plaintiffs’ expert opinion) which states that the complications and disabilities resulting from the closed fracture of the second plaintiff’s right tibia and fibula are permanent. [91] On the other hand, the learned counsel for the defendants submitted that a reasonable compensation for this injury is RM30,000.00. Based on the Compendium, the range for this kind of injury falls between RM21,500.00 and RM42,000.00. What is clear from the learned counsel’s submission is that the defendants do not dispute the nature of the injury per se but challenge the quantum of the claim. [92] I have examined and perused both expert reports (P10 and D12). In P10, the expert opined that the second plaintiff suffers from the following complications and disabilities as a result of this injury: persistent right ankle and heel pain; inability to squat; inability to stand for long periods; difficulty in climbing stairs; inability to walk fast or over long distances; stiffness in the right ankle; and a limping gait. The expert further opined that due to these complications and disabilities, the second plaintiff is unable to perform her occupation as a factory worker. [93] Meanwhile, according to D12, the second plaintiff was examined by the defendants’ expert on 17 April 2024 (almost two years after the accident). This expert report was prepared with knowledge of both the two medical reports from Hospital Taiping and P10 (the plaintiffs’ expert report). Some significant findings in D12 include a reduced range of movement in the second plaintiff’s right ankle joint. The defendants’ expert also agrees that the second plaintiff sustained a united fracture of the distal third of the right tibia and fibula. Furthermore, the expert agrees that S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 37 of 48 the second plaintiff feels pain over her right lower leg after prolonged standing or walking and stiffness in the right ankle joint. The defendants’ expert also opines that the second plaintiff is able to squat, albeit with slight difficulty. [94] I also have also gone through the overview of Personal Injury Quantum Awards for Tibia and Fibula Injuries in Malaysia provided by Westlaw Asia. From my observations, higher awards (above RM80,000) are usually granted for severe cases such as amputations, non-union fractures and significant mobility impairments. Mid-range awards (between RM40,000 and RM70,000) are commonly granted for injuries involving chronic pain, malunion, significant shortening or stiffness. Meanwhile, lower awards (below RM40,000) are typically given for healed fractures with minor functional limitations such as slight limping or occasional discomfort. [95] In view of the above, after carefully considering the past precedent cases, the expert opinions from both parties and the fact that the second plaintiff is a factory worker who relies upon her ability to stand and walk for her livelihood, I am of the opinion that a reasonable and fair compensation for her injury is RM40,000.00. The second plaintiff’s injuries have resulted in permanent disabilities affecting her ability to perform her daily tasks and to work normally in her occupation. This amount reflects not only the severity of her injuries but also the ongoing impact on her ability to earn a living due to the defendants’ negligence. [96] Therefore, I award the second plaintiff RM40,000.00 in general damages for this injury. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 38 of 48 Soft tissue injuries and scars [97] For soft tissue injuries and scars, the second plaintiff claimed RM15,000 as reasonable compensation while the defendants submitted RM4,000 as a fair amount. The Compendium sets the range for such injuries at between RM9,500 and RM18,000. [98] The medical reports (P10 and D12) shows that the second plaintiff’s scars are as follows: a 2 cm healed surgical scar over the lower third of the right shin; a 10 cm healed scar over the medial aspect of the lower third of the shin; a 6 cm healed surgical scar over the medial aspect of the right heel; and a 13 cm healed surgical scar over the lateral aspect of the lower third of the right leg. The defendants’ expert, in D12, opined that these scars constitute permanent disability for the second plaintiff. [99] I have also considered previous cases when assessing the appropriate award for this head of claim as follows:

In Mohd Yunan bin Che Ya v Azami bin Ahmad & Anor [2009] 2 PIR [50], RM20,000 was awarded for a 9 cm scar over the medial malleolus, an 11 cm curvilinear scar over the anterior aspect of the left knee and a 14 cm scar over the lateral aspect of the lower third of the left leg.

(ii) In Chandragupta a/l Meilagan v Tan Lay Yin [2008] 1 PIR [41], RM15,000 was awarded for a 0.75 cm x 0.5 cm scar over the anteromedial aspect of the upper left leg, a 1 cm x 0.75 cm scar over the anteromedial aspect of the upper S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 39 of 48 left leg and a 17.5 cm x 0.5 cm operative scar over the posterolateral aspect of the left hip region.

(iii) In Abdul Malek bin Long v Wan Muhammad bin Wan Abdullah & Anor [2007] 1 PIR [15], the court also awarded RM15,000 for permanent scarring.

(iv) In Mawan anak Hasar @ Asar & Anor v Lee Beng Ho & Anor [2009] 1 PIR [15], RM12,000 was awarded for surgical scars.

In Mohd Husaini bin Mohd Yunos v Syed Shamsuddin bin Syed Abd Hadi & Anor [2007] 1 PIR [6], RM10,000 was considered reasonable compensation for scarring.

(vi) In Ganison a/l Krishnasamy v Kong Sii Cheng & Anor [2015] 7 MLJ 535, the High Court allowed compensation in the sum of RM20,000 for permanent scarring sustained by the plaintiff as a result of the incident. [100] Based on the above cases as precedent and in view of the second plaintiff’s permanent scarring, their number, size, physical appearance and the ongoing discomfort they cause, I find it reasonable and appropriate to award RM13,000 to the second plaintiff as compensation for these injuries. This amount also falls within the range for similar injuries. [101] The final total awarded to the second plaintiff under general damages is therefore RM56,000. S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 40 of 48 Special damages [102] Similarly to the first plaintiff, the second plaintiff also provided both documentary evidence (in the form of receipts) and oral testimony to support the special damages that she is claiming. The special damages allowed for the second plaintiff are as follows:

Family’s transport costs to visit second plaintiff in hospital: RM 120.00 (at RM 20 per day for 6 days).

(ii) Transport for 29 outpatient visits: RM 870.00 (at RM 30 per visit).

(iii) Outpatient treatment receipts: RM 198.00.

(iv) Loss of income: the second plaintiff’s loss of income is calculated based on her basic monthly salary of RM 1,500. She did not receive any salary for the months of June to September 2022, totalling RM 6,000 (RM 1,500 × 4 months). For October 2022, she was only paid RM

276.80, resulting in a shortfall of RM 1,223.20. Accordingly, the total loss of income sustained by the second plaintiff is RM 7,223.20 and the Court awards the same.

Two medical reports (Hospital Taiping): RM 80.00 (at RM 40 each).

(vi) Medical specialist’s report: RM 733.00 (agreed). S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 41 of 48

(vii) Nursing care: RM 2,223.87 (May 2022: RM 1,256.97; June 2022: RM 966.90; supported by pay slips).

(viii) Future surgery and related pain and suffering: RM 10,000.00. [103] The total special damages for second plaintiff amount to RM21,448.07. [104] The following items were rejected due to lack of evidence:

Loss of overtime income.

(ii) Damaged clothes.

(iii) Cost of pampers, crutches, toilet chair, wheelchair, and nutritious food.

(iv) Additional claim for future surgery (this is already included in the award for future surgery and related pain and suffering). CONCLUSION THE ON THE PLAINTIFFS’ CASE AGAINST THE DEFENDANTS [105] For the reasons stated in this judgment, I find the defendants liable for the accident with the first plaintiff contributing to the accident to the extent of 20%. The plaintiffs’ claim against the defendants is allowed. As such, I shall recap the final sums that form the order of this Court as follows: S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 42 of 48 Final Award (Based on 100% Liability)

The Court awards the first plaintiff a total sum of RM6,488.25 comprising general damages in the sum of RM6,000.00 and special damages in the sum of RM488.25.

(ii) The second plaintiff is awarded a total sum of RM77,448.07 comprising general damages in the sum of RM56,000.00 and special damages in the sum of 21,448.07. [106] Accordingly, the total amount awarded to both plaintiffs is RM 83,936.32. [107] Here is the comparison table of the awards that I have compiled for ease of reference: First Plaintiff Second Plaintiff General Damages Laceration wounds RM6,000 RM3,000 Closed fracture of the right tibia and fibula — RM 40,000 Soft tissue injuries and scarring — RM 13,000 Total (General Damages) RM 6,000 RM 56,000 Special Damages Family’s transport costs to visit in hospital — RM 120 S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 43 of 48 First Plaintiff Second Plaintiff Transport for follow-up in hospital RM 40 RM 870 Outpatient treatment receipts — RM 198 Loss of income RM 369.25 RM 7,223.20 Police documents RM 39.00 — Medical reports RM 40 RM 80 Specialist’s report — RM 733 Nursing care — RM 2,223.87 Future surgery and related pain and suffering — RM 10,000 Total (Special Damages) RM 488.25 RM 21,448.07 Rejected (Lack of Evidence) Damaged clothes Rejected Rejected Loss of overtime income — Rejected Pampers, crutches, toilet chair, wheelchair, nutritious food — Rejected Additional claim for future surgery — Rejected FINAL AWARD RM6,488.25 RM77,448.07 [108] The plaintiffs are further entitled to:

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

(ii) interest at the rate of 2.5% per annum on the special damages from the date of the accident until the date of judgment; S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 44 of 48

(iii) post-judgment interest at the rate of 5% per annum on the total awarded sum from the date of judgment until full settlement; and

(iv) costs as per the scale to be paid by the defendants as provided under Order 59 Rule 23(1) of the Rules of Court 2012. COUNTERCLAIM FOR CONTRIBUTION BY THE FIRST DEFENDANT AGAINST THE FIRST PLAINTIFF [109] This is a counterclaim brought by the first defendant against the first plaintiff in which she seeks contribution in the event that she is held liable for the second plaintiff’s claim. In essence, the first defendant pleaded that if she were liable to pay damages to the second plaintiff, she would be entitled to seek indemnity or contribution from the first plaintiff. [110] I must highlight, however, that aside from stating this in her defence and counterclaim, the first defendant made no further submissions on this matter. Nevertheless, this Court proceeded to determine this matter. [111] Contribution is a form of apportionment that tortfeasors may claim from one another. In cases involving joint tortfeasors, the principles of contribution are governed by section 10(1) and section 12(1) of the Civil Law Act 1956. [112] Section 10(1) of the Civil Law Act 1956 reads as follows: S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 45 of 48 “Proceedings against, and contribution between, joint and several tortfeasors

(1) Where damage is suffered by any person as a result of a tort (whether a crime or not) -

judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage;

if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the wife, husband, parent or child, of that person, against tortfeasors liable in respect of the damage (whether as joint tortfeasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the Court is of opinion that there was reasonable ground for bringing the action;

any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.”. (Empahasis added). [113] Section 12(1) of the Civil Law Act 1956 provides as follows: “Apportionment of liability in case of contributory negligence S/N lRiWSewCukG/i1/FsZvbhw

(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage: Provided that -

this subsection shall not operate to defeat any defence arising under a contract; and

where any contract or written law providing for the limitation of liability is applicable to the claim the amount of damages recoverable by the claimant by virtue of this subsection shall not exceed the maximum limit so applicable.”. [114] The key provision applicable between the first defendant and the first plaintiff is section 10(1)(c) of the Civil Law Act 1956. This section provides that a tortfeasor who is liable for the damage may seek contribution from another person who is also liable (whether as a joint tortfeasor or otherwise) for the same damage. [115] After much consideration, I dismissed the counter claim by the first defendant against the first plaintif. In my respectful view, while the first plaintiff was found to be 20% contributorily negligent with regard to her own injuries, this does not render the first plaintiff liable for the second plaintiff’s damage. The second plaintiff as an innocent pillion rider is entirely free from blame and is therefore entitled to full damages from the defendants. The apportionment of liability (80% defendants, 20% first plaintiff) applies exclusively to the first plaintiff’s own claim and not to that S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 47 of 48 of the second plaintiff. Consequently, there is no basis for the defendants to claim contribution from the first plaintiff in relation to the second plaintiff’s claim. [116] In my view, the defendants’ liability to the second plaintiff stands independent and unqualified. This view is supported by Lai Yew Seong v Chan Kim Sang [1987] 1 CLJ 351, where the Supreme Court held: “… negligent as used in the expression ‘contributory negligence’ does not mean breach of duty. It means the failure by the person to use reasonable care for the safety of himself or his property, thereby becoming the author of his own harm.” [117] Furthermore, in Jos ak Alam v Zulimi b Lifat & Anor [2013] 2 PIR [13] 125, the High Court held: “The trial judge erred in adjudging that the first plaintiff was 30% liable to the second plaintiff based on the counterclaim against the first plaintiff by the defendant. A pillion rider is entitled to recover the total amount of damages against a tortfeasor, and it is within his prerogative to pursue recovery from any one of the tortfeasors.”. (Emphasis added). [118] For these reasons, the counterclaim for contribution by the first defendant against the first plaintiff is dismissed with no order as to costs. Dated: 16 June 2025. Signed (PRABAKARAN RAJOO) Magistrate Magistrate Court Taiping Perak Darul Ridzuan S/N lRiWSewCukG/i1/FsZvbhw AB-A73KJ-147-09/2023 48 of 48 List of Counsel: For the plaintifs: Mr. Selvadoray Thandanyan [Messrs. T. Selva & Co] No. 23, Jalan Pasar (Ground Floor), 34000 Taiping, Perak. For the defendants: Mr. Hammad Faesol B Zuhad [Messrs. C K Leong & Co] No. B-G-8, Pusat Perdagangan Casuarina, Times Square Ipoh, Jalan Sultan Nazrin Shah, 30250 Ipoh, Perak. S/N lRiWSewCukG/i1/FsZvbhw