1. ) XXXX v 1. ) Abdullah Bin Mat Tahir (AB-12BNCvC-6-03/2021)

Content

1 IN THE HIGH COURT OF MALAYA AT TAIPING IN THE STATE OF PERAK DARUL RIDZUAN CIVIL APPEAL NO. AB – 12BNCVC – 6 – 03/2021

Preamble

Pursuant to section 29 of the Courts of Judicature Act 1964 (Act 91), this appeal is by way of re-hearing, which means, evidence proffered at the sessions court becomes subject of curial scrutiny by this court. Issues for determination [6] Ensuing from the above, the following are issues to be decided by this court: • Has the SCJ judicially appreciated and evaluated evidence proffered in the case? • Did the SCJ commit any appealable error? • If yes, what are the errors committed? • By virtue of the said errors, what is the outcome of this appeal? Evidence [7] P1, when riding motorcycle was emerging out of a minor road on to a major road where the accident took place. D1, the ambulance driver who was on the major road, could not avoid colliding into the plaintiffs, thereafter collided into the divider at side of the road, causing damage to the ambulance. [8] The SCJ found as a fact, it was P1’s fault as he had disregarded approach of the ambulance on the said road. [9] But the stark fact is, the ambulance was driven at a fast speed, such that D1 was unable to take any form of evasive action to avoid the collision. Thus, he did not have a proper lookout and adequate regard to the motorcycle ridden by P1 on the said road, which was emerging out of a minor road. If he would have done so, the collision could have been avoided. Proof on a balance of probabilities and appellate intervention [10] On quantum of proof, P1 bears the burden to prove on a balance of probabilities, that D1 owes him and his brother who was riding pillion, a duty of care. Following to that, there has been a breach of the said duty, resulting in injuries as well as damages to her and death to her brother. It is so apparent the plaintiffs have done so. [11] There is also preponderance of evidence showing P1 has been negligent, when she emerged out of a minor road on to the major road, when there was an oncoming ambulance ahead. [12] Conversely, the law of tort bestows upon D1 a duty of care to have adequate regard and proper lookout for other vehicles on the said road in front of him, including the motorcycle ridden by P1, which was emerging out of a minor road onto his lawful path. But in the present case, D1 did not do so. As he was speeding, he was unable to control his vehicle, thus colliding into P1’s motorcycle. The collision was the product of fault on both sides. When determining the apportionment of liability, the SCJ ought to have considered the ambulance being a bigger vehicle and the motorcycle being a smaller one, and at the said road, it is foreseeable for such occurrence, to wit, motorcycles to ply and D1 ought to have taken heed to that occurrence as well as when driving an ambulance not in a state of emergency, he ought to have been more cautious observing other vehicles on the said road at the material time. [13] Strangely, this aspect of the case was missed by the SCJ when she evaluated the evidence proffered. She found against the plaintiffs without considering the stark fact that D1 is also liable for the accident, albeit contributorily. On that premise, D2 and D3 is vicariously liable. In the absence of proper evaluation of the evidence proffered in the case, as to the manner by which the collision had taken place, finding of fact by SCJ is flawed. The plaintiffs’ version of the accident was not considered at all on a balance of probabilities. In that respect, there has not been judicial appreciation of evidence in this case. The one-sided approach adopted by the SCJ is so apparent. As the case at hand is fact specific, an attempt ought to have been made by the SCJ to equalise the standard of appreciation and evaluation of the evidence adduced by both sides, only then an accurate finding of liability on a balance of probabilities could have been arrived at, which in this case would have favoured the plaintiffs. (See: Karumalay Vanniyan & Anor v Ananthan Rethinam (2005) 1 MLRA 201, a decision by Richard Malanjum JCA (as he then was, later Chief Justice). [14] Thus, in a nutshell, although P1 was contributorily negligent when riding her motorcycle, as she had emerged out of a minor road on to a major road, but the law attaches responsibility on D1 who was already on the major road to be cautious, have a lookout and regard for the motorcycle ridden by P1. D1 was unable to do so, as he was at a fast speed, disabling him from taking prompt evasive action to avoid colliding into P1. Hence, D1 is equally negligent in causing injuries to P1 as well as death to her brother who was riding pillion with her. [15] Ensuing from that, appellate intervention is both appropriate and well justified, as the SCJ has committed an error of fact, when she found P1 to be 100% liable for the accident. It is an erroneous finding against the backdrop of the facts and circumstance of the case, which militates against D1. As D1, is also contributorily liable for the accident, an apportionment of 70/30 is both fair and reasonable. Thus, P1 who was riding the motorcycle 70% liable and D1 who was driving the ambulance at the material time, 30% liable. As for P2, who is deceased and riding pillion at the material time, is for all intents and purposes in law, an innocent passenger and no liability could be attached on to him for the accident. On that score, any amount of damages awarded, has to be paid in full to P2, who is sued by his father in his representative capacity. Award of damages [16] On quantum of damages, it was contended by counsel for plaintiffs, the awards made for some of the injuries, was manifestly low. On that issue, the following are the submission made, as well as reply by the Federal Counsel (FC) who appeared for and on behalf of the respondents and this court’s ultimate decision on an appropriate award after having considered the injuries suffered by P1. • Multiple facial bone fracture pertaining six different type of bones, an award of RM10000 was made. It was submitted by counsel for appellants, to be manifestly low and not according to trend of award made in past cases, thus an award of RM30,000 to RM40,000 would be appropriate. • Right periorbital haematoma where there has been limited eye opening, also with abrasion. An award of RM5000 was made. Counsel for appellants pray for an award of RM9000. For these two injuries FC for respondent submitted an amount of RM40,000 for both multiple bone fracture and right periorbital haematoma with abrasion could be awarded. This court awards an amount of RM40,000 as submitted by counsel for appellants and agreed to by FC for respondents. • Chronic osteo myelitis, bone at the part of tibia, an award of RM22,000 was made. Counsel for appellants pray for an award of RM40,000, as there has been a crush injury. For the crush injury, FC for respondent submits an amount of RM22,000 could be awarded. Taking into consideration the crush injury, this court awards to P1 an amount of RM30,000. • For bone grafting, no award was made by the SCJ. Thus, submission was made for an award of RM20,000 by counsel for appellants. It was also submitted; the bone grafting was done at a Government hospital. FC for respondents contended, an amount of RM5000 would be fair and reasonable. This court awards an amount of RM10,000, in view of the fact that bone grafting was actually done and no award was made. If not for the accident, there is no reason for the bone grafting on P1. • For closed fracture to midshaft left clavicle, an award of RM15,000 was made. Counsel for appellants contended it to be low and prayed for an award of RM25,000. Conversely, FC for respondents submitted for the award made to be maintained. This court, premised on past awards as a guide, awarded an amount of RM20,000. [17] The above variation of award is only limited to the respective injuries, as for the others suffered by P1, the award made by the SCJ is not disturbed. In awarding so, the issue of overlapping of the injuries and award made is given consideration. As for damages on the counterclaim made by defendants against the plaintiffs for the damage caused to the ambulance, the decision by SCJ stays, but extent of the liability to pay by the plaintiffs, is reduced accordingly premised on apportionment of liability on a 70/30 basis. Ultimately, appeal by the plaintiffs is allowed with costs of RM2000. [18] To reiterate, on the amount of RM13,000 to be paid as damages to P2, submission by FC for respondents, that it ought to be reduced accordingly in view of the counterclaim by the defendants which was allowed by the SCJ, is not agreed with, as primarily the claim and counterclaim are separate and distinct and it is allowed or dismissed by the court subject to proof on a balance of probabilities by the party who asserts. Moreover, the counterclaim, for all intents and purposes is made against P1, as she was riding the motorcycle which had collided into the ambulance and not P2 who was an innocent passenger, riding pillion with P1 on the said motorcycle. Thus, in law P2 is entitled to the maximum award made on a 100% basis and not anything less, since no liability can be attached to her. (See: Mohd Jafri Jantan v Zainal Mat Rais (2005) 1 CLJ 694). Notice of Appeal [19] On another note, the notice of appeal filed by the defendants against decision of this court to the Court of Appeal, pursuant to leave granted and dated 26.10.2022, is not precisely worded. It reads as, they are dissatisfied with part of the decision of this court at Ipoh on 15.4.2022, and the appeal lodged is only against that part of the decision. It is uncertain as to which part of the decision is referred to. The notice filed, does not state shortly the substance of the judgment appealed against. Is it this court’s decision on liability; quantum of damages varied and awarded; liability of the defendants to pay damages to P2 in full? Moreover, the decision of this court is delivered at Taiping, and not Ipoh. Matters of this nature ought to be viewed seriously, as much judicial time could be saved, if there is a precise wording of the notice of appeal, so that only that part of the decision appealed against, could form subject matter of the written judgment and not the entire decision of this court. Appeal allowed with costs. Apportionment of liability at 70/30. Dated 4 June 2023 SGD Muniandy Kannyappan Judge, High Court. Humavathi Manikavelu of Messrs. S. Raman & Co, counsel for appellant. Quratul Aini Khalifah, Federal Counsel for and behalf of the respondents.