1. ) Sivanyanam A/L Gahasan v Nursafarina Binti Ahmad (BA-12B-29-08/2021)

1.

LEEBOH TRADING & TRANSPORT SDN. BHD. …PERAYU-PERAYU DAN NURSAFARINA BINTI AHMAD }membawa tindakan ini sebagai }isteri yang sah serta orang }tanggungan SAMSUL BIN IDRIS }(simati) …RESPONDEN (Dalam Perkara Mahkamah Sesyen Di Sepang Dalam Negeri Selangor Darul Ehsan, Malaysia Saman No: BK-A53KJ-27-01/2019) ANTARA NURSAFARINA BINTI AHMAD }membawa tindakan ini sebagai }isteri yang sah serta orang }tanggungan SAMSUL BIN IDRIS }(simati) …PLAINTIF

1.

LEEBOH TRADING & TRANSPORT SDN. BHD. …DEFENDAN-DEFENDAN GROUNDS OF JUDGEMENT

For ease of reference the parties will be referred to as they were at the court below.

This is an appeal by the Defendants and cross-appeal by the Plaintiff against the decision of the learned Sessions Court Judge in a running down case filed by the Plaintiff, the wife of the deceased against the Defendants. Both the appeals were solely on liability, where liability was apportioned equally between the parties.

This appeal arises from a motor vehicle accident involving a motorcycle bearing registration number BMM1713 driven by one Samsul Bin Idris, now deceased (the Plaintiff’s husband – SP2) and a lorry bearing registration number BKM 2389 driven by one Sivanyanam a/l Gahasan (the first Defendant – SD1) and owned by Leeboh Trading & Transport Sdn. Bhd. (the second Defendant) on 30.09.2017 at 5.00 p.m. at Lebuhraya Elite 29.8. heading from Shah Alam to Nilai.

At the time of the tragic accident, the deceased collided with the lorry which was left in a stationary position, parked at the emergency lane (A-B). SD1 had to stop his lorry at the emergency lane because its left back tyre had burst. SD1 claimed that he had displayed the emergency warning triangle behind the lorry and the distance between the lorry and the emergency warning triangle was 100 meters. SD1 contends that the lorry was wholly parked within the emergency lane.

The only independent eye witness, in this case, one Mohd Azli Bin Wahid (SD2) in his evidence informed the court that at the time when the accident took place, the deceased was riding on the emergency lane (A-B) and overtook SD2’s car on his left, on the emergency lane (A-B). SD2 saw the deceased was seen speeding, he then hit the emergency warning triangle and collided with the parked lorry. The deceased then fell onto SD2’s lane (B-C). SD2 contended the emergency warning triangle was placed about 100 meters away from the back of the lorry. At the material time, SD2 was driving at about 70-80 km per hour.

The investigation officer, one Inspector Wellington AK Engkong (SP1), only went to the accident site on the next day on 01.10.2017 at 12.35 p.m. with the photographer. When SP1 arrived at the scene, both the vehicles had been removed. SP1 did not find any glass debris. He was unable to ascertain the traffic and weather conditions at the time of the accident. SP1 also could not ascertain whether SD1 had placed the emergency warning triangle at the back of the lorry. SP1 confirmed that SD1 had lodged a police report and in his report, SD1 had stated that he had placed the emergency warning triangle at the back of the lorry. He further confirmed that SD1’s police report was consistent with his statement. The front of the motorcycle was damaged and the back right side signal light of the lorry was broken. SP1 also could not ascertain the position of the motorcycle after the accident. SP1 stated that from his investigation he found there was negligence on the part of the deceased because he had driven in the emergency lane and had failed to be alert to the surrounding, causing the accident. SP1 confirmed that the Deputy Prosecutor had instructed the case to be “No further action”. The speed limit at the place of the accident is 110 km per hour.

I am reminded that an appellate court should be slow in interfering with the finding of facts by a trial court that had the opportunity of seeing and hearing the witnesses (see: Sornaratnam & Anor v Ramalingam [1981] 1 MLJ 24; Privy Council case of Tan Chow Soo v Ratna Ammal [1969] 2 MLJ 49; China Airlines v Maltran Air Corp S/B (formerly known as Maltran Air Services Corp S/B) and Another appeal [1996] 2 MLJ 517).

The principles governing the appellate court’s interference with the trial court’s findings as enunciated in the case of Sivalingam a/l Periasamy v Periasamy & Anor [1995] 3 MLJ 395 are useful guidance. The Court of Appeal held, “It is trite law that this court will not readily interfere with the findings of fact arrived at by the court of first instance to which the law entrusts the primary task of evaluation of the evidence. But we are under a duty to intervene in a case where, as here, the trial court has so fundamentally misdirected itself, that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion. In a case such as this where the task of the court is to determine where the probable truth of the case lies, one can do no better than to recall to mind the words of Viscount Simon (who was in the majority) in The ‘Eurymedon’ (1942) 73 Lloyd LR 217: The appellants, therefore, start in this House under the considerable handicap that there are concurrent findings of fact against them. [Which, we hasten to add, is not the case here.] I am far from saying that in these circumstances the House has no jurisdiction to allow the appeal, but would need very clear and convincing reasoning to justify us in overthrowing what has already been decided. If it could be shown that the course of events affirmed by the learned judge could not occurred, that would be an excellent reason for reversing his view – in these mundane happenings there is no more conclusive argument than non est credendum quia impossibile. If the impeached decision were shown to be an unwarranted deduction based on faulty judicial reasoning from admitted or established facts, that might lead to its reversal. If there were so overwhelming a body of valid testimony for the view that has been rejected that a reasonable man would feel bound to accept it, the appeal would succeed.“ (Emphasis added.)

In Chung Hwa Ying v Phang Mun Mooi & Anor [1987] 2 MLJ 693, Syed Agil Barakbah SCJ held: “(1) in normal cases, the appellate court is reluctant to interfere with the Judge’s conclusion on the facts because as a trial judge he had the opportunity to see and hear the witnesses and is in a better position to weigh their evidence;

The Court of Appeal in the case of Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97 held: “(2) Generally, an appellate court will not intervene unless the trial court was shown to be plainly wrong in arriving at its decision or where there had been no or insufficient judicial appreciation of the evidence. Judicial appreciation of evidence meant that a judge who was required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accepting or rejecting the whole or any part of the evidence placed before him. He must, when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. Thus, he must take into account the presence or absence of any motive that a witness may have in giving his evidence. Where contemporary documents existed, he must test the oral evidence of a witness against these. He must also test the evidence of a particular witness against the probabilities of the case. The principle central to appellate interference is that a decision arrived at by a trial court without judicial appreciation of the evidence may be set aside on appeal.”

Upon evaluation of the evidence as disclosed in the appeal records and the grounds of the judgment of the learned trial judge, and upon hearing the submissions from the parties, I find that the learned trial judge had erred in facts and law by ruling that the Plaintiff and the Defendant be liable at an equal apportionment (50%:50%). My reasons are as stated below.

It was undisputed that the lorry was in a stationary position, parked in the emergency lane to change its tyre that had burst. The dispute was only whether the lorry was parked wholly in the emergency lane (A-B) or whether a portion of it had encroached onto the next lane (B-C) and whether SD1 had placed the emergency warning triangle at 100 meters behind the lorry. It was also undisputed that the accident took place at 5.00 pm and that the weather on the said day was good (SD1’s evidence).

I find the trial judge had failed to consider the evidence from SD2 who was the independent eyewitness, which was compelling and unchallenged, that the motorcyclist (the deceased) was riding on the emergency lane, had overtaken SD2 from the left, seen speeding and subsequently, had hit the emergency warning triangle, and had collided into the parked lorry. Though it may be common for motorcyclists to use the emergency lane as decided in the cases cited by the learned counsel for the Plaintiff, i.e Yusri Mohamad v Aznan Mohamad & Anor [2002] 4 CLJ 43 and Anantha Kiruisan PSR @ Anantha Krishnan & Anor v Teoh Chu Thong [2008] 4 MLJ 672. However, SD2’s evidence being visual evidence had clearly stated that the deceased in this case was not merely riding in the emergency lane, but he was overtaking SD2 on his left side in the emergency lane. This evidence to my mind is crucial to show that the deceased had been negligent, in causing the accident which was consistent with the investigation findings by the investigating officer, SP1.

Further, the trial judge had erred when he failed to consider SP1’s evidence, that his investigation concluded that the deceased was negligent for failure to be alert to his surroundings and the accident was caused by the deceased who had ridden his motorcycle on the emergency lane. SP1 had further confirmed in re-examination that the deceased was negligent, but he could not ascertain if SD1, the lorry driver was negligent. Again, I find these are crucial pieces of evidence that were not considered by the trial judge in making his findings. The relevant portion of the evidence is as follows (page 42 of the Rekod Rayuan Tambahan) : Apakah hasil siasatan keputusan kamu? : Terdapat kecuaian daripada penunggang motosikal yang mana tidak peka dengan persekitaran yang menyebabkan kemalangan : Apakah keputusan siasatan? : DaripadaTPR adalah NFA : Rujuk Ikatan C page 6 Ex D3 – Keputusan siasatan page 6 BC : Kemalangan ini diakibatkan penunggang motosikal sebab dia memandu di Lorong kecemasan? : Ya YA.”

It is also my considered view that the trial judge had erred in facts and law when he made the findings that there were two versions as to the deceased person’s lane (laluan) when the accident took place. Having evaluated the evidence from all the witnesses, I find that there was only one unchallenged version of the accident, i.e., that the deceased had overtaken SD2 on his left in the emergency lane before hitting the emergency warning triangle cone and collided with the parked lorry. This is the unchallenged evidence of an eyewitness (SD2) to this unfortunate incident. I refer to the following paragraphs of the trial judge’s judgement: “[3] Dalam kes ini, pada dasarnya, pihak-pihak bersetuju bahawasanya kemalangan telah berlaku melibatkan si mati dan Defendan. Namun, terdapat percanggahan berkenaan kedudukan kenderaan motolori semasa dirempuh oleh simati dan juga laluan yang digunakan oleh simati. Namun, isu ini akan dikupas secara tuntas pada bahgaian seterusnya penghakiman ini … [18] Seperti yang dinyatakan di atas, terdapat versi yang berbeza berkenaan beberapa aspek dalam kemalangan ini. Hal tersebut melibatkan kedudukan motolori tersebut, keadaan kon segitiga keselamatan yang diletakkan di bahagian belakang lori tersebut sebagai tanda amaran kepada kenderaan yang datang dari arah belakang dan juga laluan motosikal si mati semasa melanggar motolori tersebut.”

On whether the lorry was parked within the emergency lane, to my mind the evidence of SD1 and SD2 was unchallenged. Both SD1 and SD2’s evidence is consistent which said that the lorry was parked within the emergency lane. I find no evidence was adduced to the contrary by any of the Plaintiff’s witnesses. It is also SP1’s evidence that SD2’s statement on how the accident took place was consistent with SD2’s police report. SP1 narrated: : Berdasarkan keterangan saksi bebas, apakah versi kemalangan? : Saksi bebas menyatakan dia nampak pemandu lori meletakkan kon dan saksi bebas berada di lorong paling kiri (B-C), penunggang motosikal memotong daripada sebelah kiri dan melanggar kon pemandu lori dan melanggar bahagian belakang pemandu lori tersebut. Keterangan saksi bebas adalah konsisten dengan laporan polis beliau.” The above evidence by SP1 was unchallenged. Further, SP1 could not determine the position of the lorry at the time of the accident, as he had only visited the scene of the accident on the next day when by then the lorry and the motorcycle had already been removed. SD1 and SD2’s evidence is also consistent with the photograph adduced (D5 a-c). It is to be noted that D5a-c are the only photographs available to show the scene of the accident. D5a seems to suggest that the lorry was within the emergency lane. SD1’s evidence that he had parked the lorry in the emergency lane is as follows: : Saya cadangkan sekiranya kamu masuk ke dalam lagi, ia akan lebih selamat untuk berhenti. : Saya tidak masuk ke tepi lagi sebab di tepi itu ada tanah. Nanti tayar akan tenggelam. Lori saya ngam-ngam masuk dalam emergency lane.”

Further, the trial judge in paragraphs 38 to 47 of his judgement stated as follows: “[38] Setelah meneliti keterangan saksi-saksi di atas, mahkamah berpendapat bahawa Defendan tidak berhenti sepenuhnya di dalam lorong kecemasan tersebut. [39] Ini berikutan keterangan saksi bebas yang menyatakan bahawa Plaintif terpelanting ke laluannya (selepas melanggar lori tersebut) yang mana laluan SD2 ketika itu adalah di laluan kiri. [40] Sekiranya motolori tersebut berada sepenuhnya di laluan kecemasan dan motosikal simati telah memotong kenderaan SD2 dari sebelah kiri, maka sudah pasti tubuh simati akan berada di laluan kecemasan dan bukannya di laluan kiri jalan raya. [41] Fakta ini menguatkan lagi penyataan bahawa sememangnya kenderaan motolori tersebut tidak diletakkan sepenuhnya di laluan kecemasan dan sebahagian kecil (iaitu di bahagian kanan lori tersebut) telah masuk ke laluan kiri jalan (Lorong B-C) [42] Di samping itu, semasa disoal-balas oleh peguamcara Defendan berkenaan kedudukan motorlori tersebut sama ada, adakah terdapat kemungkinan ia jua berada di Lorong B-C sperti di rajah kasar (Lorong ketiga), ini adalah jawapan SP1 (Pengawai Penyiasat Kes). : Sekiranya kerosakan di bahagian belakang kanan (lori) dan ia berada di lorong A-B, ia agak mustahil untuk motosikal berada di laluan B-C? : (Tidak Bersetuju) Ada kemungkinan. [43] Kenyataan-kenyataan ini di samping lakaran pada rajah kasar jelas menunjukkan kepada mahkamah bahawasanya terdapat keraguan pada jalan cerita Defendan yang mengatakan bahawa kenderaan motorlori tersebut sememangnya di parkir di laluan kecemasan secara keseluruhannya. [44] Sebagai tambahan, fakta ini disokong dengan impak kemalangan yang terdapat pada kedua-dua kenderaan motorlori dan motorsikal simati. [45]

The trial judge went on to say, referring to the sketch plan and the evidence from SP1 and facts before the court, he made a finding that SD1’s version that he had parked the lorry wholly in the emergency lane was doubtful and that the facts were supported by the impact of the accident on both the vehicles and went on to make a finding that the accident took place at B-C and not at A-B. I find that the above inferences are unfounded. It was not supported by evidence from any of the witnesses. There was no further evidence on the sketch plan and no further explanation given about the sketch plan by SP1. SP1 was not questioned as to the position of the lorry at the time of the accident. He was not asked about the width of the lorry and the width of the A-B lane, whether there was a possibility that some part of the lorry had encroached into the B-C. In fact, the issue of whether some part of the lorry had encroached into B-C was never asked to any of the witnesses.

I took note of SP1’s answer to the question: : Sekiranya kerosakan di bahagian belakang kanan (lori) dan ia berada di lorong A-B, ia agak mustahil untuk motosikal berada di laluan B-C? : Ada kemungkinan.” It was quite obvious that SP1’s answer was not a confirmation but merely his assumption. SP1 only went to the scene the next day. He did not see the position of the lorry and the motorcycle after the accident. In this respect, I find that the trial judge had again fallen into error when he failed to consider SD2’s clear evidence, that the deceased overtook SD2 and hit the emergency warning triangle and the triangle was thrown away (terpelanting) and subsequently, the deceased collided with the parked lorry in the emergency lane, and he fell onto the next lane (B-C). This was the only evidence available before the court. Also considering exhibit D5a, it does not seem to suggest that the lorry had encroached into B-C. The trial judge’s finding that the lorry had encroached onto the B-C lane is unsubstantiated by evidence. In fact, in his grounds in paragraph 42, the trial judge made a note to say ‘(Tidak Bersetuju) Ada kemungkinan’ to the answer by SP1.

Further, I find that the trial judge’s finding that the accident took place at B-C and not A-B was also unsubstantiated by any evidence.

The trial judge fell into error again when he made the finding that the evidence that the deceased was riding and overtaking the SD2’s vehicle in the emergency lane was irrelevant. I find that this evidence is material. It shows the deceased’s negligent act before the accident, causing the fatal accident which is consistent with SP1’s investigation findings.

As to the distance of the emergency warning triangle, I find that there are some discrepancies in the evidence between SD1 and SD2. SD1 had said that he had placed the emergency warning triangle 100 meters away from the lorry, which is consistent with SD2’s evidence, that contented the emergency warning triangle was placed 100 meters from the lorry. SD1 said the accident took place after about 30 minutes he had stopped the lorry. SD2 contended that when the accident took place he was the first to be at the scene. When he got out of his car he went to look for SD1 to inform him about the accident. SD2 saw SD1 was at the front of the lorry making a call. SD2 also in his evidence said just before the accident, he saw SD1 walking back to the lorry and assumed SD1 had just placed the emergency warning triangle. I find there was a discrepancy in both their evidence. If SD1 had placed the emergency warning triangle 100 meters away from the lorry and was walking back to his lorry, how was he seen at the front of the lorry at the same time when the accident took place? There was no other evidence to support SD1’s contention that he had placed the emergency warning triangle at a distance of 100 meters away from the lorry and SD1’s police report did not state the distance of the emergency warning triangle. However, SP1 in his evidence said SD1’s evidence was consistent with his police report, which stated that he had displayed the emergency warning triangle. I find there was no concrete evidence to prove that the emergency warning triangle was placed 100 meters from the lorry. However, there is clear evidence that there was an emergency warning triangle placed, but the distance was uncertain.

In totality, I find that the trial judge had erred when he did not draw the correct inferences from the proven facts and evidence adduced. There was a failure to consider all the evidence adduced. If the trial judge had not made that error, he would have held that the evidence of the Defendants’ version was more inherently probable (see, China Airlines Ltd v Maltran Air Corp Sdn Bhd (formerly known as Maltran Air Services Corp Sdn Bhd) and Another Appeal (supra)).

In the instant appeal, there was undisputed evidence that the lorry had developed some trouble i.e. one of its tyres had burst. Hence, the act of SD1 parking the lorry in the emergency lane was justified and not needless nor selfish. However, in parking the lorry in the emergency lane, SD1 must ensure that the lorry does not cause obstruction and sufficient warning was given to other motorists. In this case, there was no clear evidence that SD1 had placed the emergency warning triangle at a distance of 100 meters away from the lorry as claimed by SD1. Therefore, I find that there was no cogent evidence to show SD1 had provided sufficient warning signs to alert the deceased of his stationary lorry. Hence, I am of the view that SD1’s failure to provide sufficient warning had contributed to the accident. However, I find the bulk of the blame ought to be on the deceased, who had negligently overtaken in the emergency lane and had failed to keep a lookout and/or be alert to the lorry that was parked ahead of him.

In this case, I agree with the learned counsel for the Defendants that the deceased was the sole author of the unfortunate tragic accident. An emergency lane for its very name was designated for emergency purposes for road users when there is a genuine need to stop. The deceased’s act of overtaking on an emergency lane is a clear disregard for the safety of himself and other road users. As stated in the case of Kalaiarasan Shankar v Tan Yeap Seng [2019] 1 LNS 731, the High Court said: “[19] I am of the considered view that if the emergency lane is used as a main passageway it can be reasonably inferred that such a usage, as in the present case by the Plaintiff, is clearly one without regard to safety and by the same analogy invites a strong influence of negligence based on breach of a duty of care. It is in fact, a clear misuse of the emergency lane. Being designated as an emergency lane, there is every likelihood that there will be stationary or emergency services vehicles using the emergency lane and that the Plaintiff is under a duty of care towards users of the emergency lane.”

Based on the factual matrix of this case and the evidence adduced at the trial and for the reasons stated above, I find that an appellate intervention is warranted in this case. Therefore, the court hereby allowed the Defendants’ appeal and dismissed the Plaintiff’s cross-appeal on the issue of liability. The order of the learned trial judge on the apportionment of equal liability between the Plaintiff and the Defendants is hereby set aside. Liability is apportioned between the Plaintiff and the Defendant as follows; the Defendants are to be liable for 25% and the Plaintiff is to be liable for 75%. As for the costs, the parties have informed the court that they have agreed to be RM1000. Dated: 6th July 2022 -sgd-JAMHIRAH ALI JUDICIAL COMMISSIONER High Court of Malaya at Shah Alam (NCVC 1) To the parties’ solicitors: For the 1st & 2nd Appellants : Rathnadevi (Messrs S G Lingam & Co.) For the Respondent : Daljeet Singh Sachdev (Messrs Daljeet S Sachdev & Co.)