Allianz General Insurance Company (M) Bhd. v 1. Muhammad Nazrin Shah Bin Nazri (BA-11B-82-12/2017)

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2.

CHRISTINA A/P ERDIUM … RESPONDENTS JUDGMENT (appeal to High Court against Magistrate Court’s decision after trial)

This appeal highlights the problems faced by insurers of vehicles who have no knowledge of how accidents (involving insured vehicles) occur and when insured persons do not fulfill their obligations under insurance policies to co-operate with the insurers regarding claims by third parties in respect of the accidents.

In this judgment, I will refer to parties as they are in the Magistrate’s Court.

This appeal raises the issue of which car was driven by the first defendant (1st Defendant) when the car driven by the 1st Defendant crashed into motorcycle no. BME 6441 (Motorcycle) ridden by the 2 plaintiff (Plaintiff) on 22.10.20014 (Accident) - did 1st Defendant drive “Proton Waja” car no. WNN2847 (Proton Car) or “Myvi” car no. W9842D (Myvi Car) at the time of the Accident?

The Plaintiff has filed a negligence claim in the Magistrate’s Court (Suit) against the following two defendants:

the 1st Defendant; and

the second defendant (2nd Defendant). The 2nd Defendant owns the Myvi Car and is a sister of the 1st Defendant.

The third defendant company (3rd Defendant) is the insurer of the Myvi Car. The 3rd Defendant applied for and obtained leave of the Magistrate’s Court to intervene in the Suit (Leave To Intervene).

The Proton Car is not insured and is owned by the 1st Defendant’s wife.

The Magistrate’s Court allowed the Suit against all the three defendants (Magistrate’s Decision). This is an appeal by the 3rd Defendant only against the Magistrate’s Decision (3rd Defendant’s Appeal).

The 3rd Defendant’s Appeal raises the following questions:

whether this appellate court should intervene regarding the following findings of fact by the learned Magistrate -

the Myvi Car (not Proton Car) was driven by 1st Defendant at the time of the Accident; and 3

the Plaintiff was a credible witness - when the Plaintiff suppressed material evidence from the Magistrate’s Court that he was carrying a pillion rider at the time of the Accident (Pillion Rider);

had the Magistrate’s Court erred in law by giving weight to two police reports lodged by the Plaintiff’s father (SP3) who had no personal knowledge of the Accident?; and

whether the Magistrate’s Decision could be supported by -

the fact that the 3rd Defendant did not file a defence in the Suit and did not plead fraud by the 1st and 2nd Defendants; and

the failure of the 1st and 2nd Defendants to testify in this case. C. Proceedings in Magistrate’s Court

The Plaintiff and the following two witnesses testified for the Plaintiff in this Suit:

the investigating officer of this case, Assistant Superintendent of Police, Encik Azaman bin Kassim; and

SP3.

According to the Plaintiff, among others, on 22.10.20014 the Plaintiff was riding the Motorcycle when the 1st Defendant drove the Myvi Car and crashed into the Motorcycle. 4

SP3 gave the following testimony, among others:

SP3 was informed of the Accident by a member of the public and lodged a police report on 22.10.2014 (SP3’s 1st Police Report). SP3’s 1st Police Report stated that, among others, SP3 had been informed that the Proton Car (not the Myvi Car) had crashed into the Motorcycle; and

on 15.12.2016, SP3 made another police report to correct SP3’s 1st Police Report (SP3’s 2nd Police Report). According to SP3’s 2nd Police Report, the Myvi Car had crashed into the Plaintiff.

The 1st Defendant made a police report on 23.10.2014 which stated that, among others, the 1st Defendant was driving the Proton Car when the Motorcycle crashed into the Proton Car (1st Defendant’s Police Report).

On 17.4.2016, the Plaintiff lodged a police report and alleged that, among others, the Proton Car had crashed into the Motorcycle (Plaintiff’s Police Report).

The 1st and 2nd Defendants did not testify in this case. Only the 3rd Defendant’s Loss Adjuster, Mr. Gunalan A/L Muniandy (SD1) gave evidence for the Defendants. SD1 gave the following evidence, among others -

the Proton Car is owned by the 1st Defendant’s wife and is not insured; and 5

the 1st and 2nd Defendants did not co-operate with SD1 regarding what had happened at the time of the Accident.

After a trial, the Magistrate’s Decision is as follows, among others:

all the three Defendants are 100% liable in negligence to the Plaintiff regarding the Accident; and

a total sum of RM81,000 is awarded as general and special damages to the Plaintiff. D. Whether appellate court should set aside trial court’s findings of fact

It is trite law that an appellate court should not intervene regarding a trial court’s findings of fact, especially regarding findings on credibility of witnesses, unless there is a “plain error of fact” by the trial court which has caused an injustice and which warrants an appellate intervention - please see the judgment of Steve Shim CJ (Sabah & Sarawak) in the Federal Court case of Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309, at 317-321. This is because an appellate court has no audio-visual advantage -

to listen to the oral evidence of witnesses given at the trial; and

to assess the demeanour of witnesses.

In this case, the learned Magistrate had made findings of fact that Plaintiff was a credible witness and 1st Defendant had driven the Myvi Car at the time of the Accident. I would not have set aside these findings 6 of fact save for the following undisputed evidence which was elicited from the Plaintiff:

during the Plaintiff’s cross-examination, the Plaintiff admitted the following facts -

there was a lady Pillion Rider together with the Plaintiff at the time of the Accident;

the Pillion Rider witnessed the Accident and informed the Plaintiff of what had happened at the Accident, including the fact that the Myvi Car was involved in the Accident;

the Plaintiff gave the name (Nor Azrina) and mobile phone number (016-9504565) of the Pillion Rider. The Pillion Rider is a friend of the Plaintiff since 2013; and

the Pillion Rider could testify in support of the Plaintiff’s evidence in this case; and

during the Plaintiff’s re-examination, the Plaintiff has testified that he knows that the Pillion Rider stays in Sungai Buloh.

In view of the Plaintiff’s above admission that the Pillion Rider was an eyewitness of the Accident, the learned Magistrate has committed the following “plain error of fact” as follows:

the existence of the Pillion Rider was not disclosed in this case until the Plaintiff was cross-examined by the 3rd Defendant’s learned counsel. If the 3rd Defendant had been informed by the Plaintiff that the Pillion Rider was an eyewitness of the Accident and had SD1 7 been given an opportunity to interview the Pillion Rider, the 3rd Defendant could have decided not to intervene in this Suit and could have even admitted the Plaintiff’s claim in this case;

the Plaintiff did not give any reason why the Pillion Rider could not be called as a witness to testify in this Suit regarding which car was involved in the Accident;

if the Pillion Rider was not willing to testify in the Magistrate’s Court, the Plaintiff could have easily applied for a subpoena to compel the Pillion Rider to give evidence in this case. This is especially so when the Plaintiff knows the name, mobile phone number and the place where the Pillion Rider stays;

the Plaintiff’s failure to -

reveal the existence of the Pillion Rider; and

call or subpoena the Pillion Rider to testify in this case - amounts to a suppression of material evidence which attracts an adverse inference against the Plaintiff under s 114(g) of the Evidence Act 1950 (EA) - please see the judgment of the Supreme Court delivered by Mohd. Azmi SCJ in Munusamy v Public Prosecutor [1987] 1 MLJ 492, at 494; and

in view of the above evidence and reasons, the learned Magistrate has committed a plain error of fact by not drawing an adverse inference against the Plaintiff under s 114(g) in respect of the Pillion Rider. In the circumstances, the Magistrate’s Court should have 8 decided that if the Pillion Rider had been called to give evidence, the Pillion Rider would have testified that it was the Proton Car (not the Myvi Car) which was involved in the Accident (adverse to the Plaintiff’s case).

I have not overlooked the Plaintiff’s Police Report and the 1st Defendant’s Police Report. The learned Magistrate should not have attached any weight to the Plaintiff’s Police Report because -

the Plaintiff had suppressed material evidence from the Magistrate’s Court regarding the fact that the Pillion Rider was an eyewitness to the Accident - please see the above paragraph 18;

during cross-examination, the Plaintiff admitted that he did not see the number of the Myvi Car during the Accident and he further admitted that the number of the Myvi Car in the Plaintiff’s Police Report was not true; and

the Plaintiff’s Police Report was only lodged on 17.4.2016, nearly 1 year and 6 months after the Accident (22.10.2014).

I am of the view that no weight should be attached to the contents of the 1st Defendant’s Police Report because the 1st Defendant did not testify in the Suit. Hence, the 3rd Defendant cannot cross-examine the 1st Defendant on the truth of the contents of the 1st Defendant’s Police Report - please see Tenaga Nasional Bhd v Api-api Aquaculture Sdn Bhd [2015] 3 AMR 811, at [25]-[27]. The decision in Tenaga Nasional has been affirmed by the Court of Appeal. Furthermore, the 1st Defendant’s Police Report had alleged that the Motorcycle ridden by the Plaintiff suddenly crashed into the front part of the Proton Car. In other 9 words, the 1st Defendant’s Police Report alleged that the Plaintiff himself was negligent.

The failure of the Plaintiff to call the Pillion Rider to testify in this case, in my view, means that the Plaintiff has failed to discharge the following two burdens -

the legal burden under s 101(1) and (2) EA; and

the evidential burden pursuant to s 102 EA - to prove on a balance of probabilities that the 1st Defendant was driving the Myvi Car (not the Proton Car) at the time of the Accident. E. Whether weight should be attached to SP3’s 1st and 2nd Police Reports

SP3 was not present at the Accident and could not have any personal knowledge regarding which car had crashed into the Plaintiff. It is therefore clear that no weight should be attached to the contents of SP3’s 1st and 2nd Police Reports regarding which car was involved in the Accident. In fact, SP3’s 1st Police Report stated that SP3 had been informed by a member of the public regarding the car which allegedly crashed into the Plaintiff. In other words, the contents of SP3’s 1st Police Report constituted documentary hearsay evidence - please see the Federal Court’s judgment delivered by Abdul Hamid Mohamad FCJ (as he then was) in Capital Insurance Bhd v Cheong Heng Loong Goldsmiths (KL) Sdn Bhd [2005] 4 CLJ 1, at 20, 21-25 and 28. 10

If SP3’s 1st Police Report contained documentary hearsay evidence regarding which car was involved in the Accident, SP3’s 2nd Police Report could not “correct” SP3’s 1st Police Report. Yet, the learned Magistrate decided as follows (at p. 105-106 of the first record of appeal): “… Mahkamah telah merujuk kepada laporan polis yang dibuat oleh pihak [Plaintif] dan SP3 termasuklah laporan pembetulan yang telah dibuat kemudian oleh SP3 berkenaan dengan nombor pendaftaran kereta Defendan Pertama. Mahkamah ini mendapati bahawa adalah jelas di dalam laporan polis SP3 yang menyatakan bahawa kenderaan yang terlibat di dalam kemalangan tersebut merupakan jenis Proton Waja bernombor pendaftaran WN2847 dan bukannya W9842D jenis Perodua Myvi. Walau bagaimanapun, laporan polis [Plaintif] yang terlibat dengan kemalangan tersebut adalah jelas menunjukkan kenderaan terlibat adalah W9842D dan pihak SP3 telah bertindak membetulkan maklumat kenderaan Defendan Pertama apabila membuat laporan pembetulan kemudiannya.” (emphasis added).

The above judgment by the learned Magistrate has clearly demonstrated an error of law in placing weight on SP3’s 2nd Police Report which corrected SP3’s 1st Police Report (which constituted documentary hearsay evidence) (1st Legal Error). 11 F. Whether there was any adverse effect due to 3rd Defendant’s failure to file defence

In this case, the 3rd Defendant did not file any defence after the learned Magistrate had granted Leave To Intervene and had allowed the 3rd Defendant to file a defence within 14 days from the Leave To Intervene.

Firstly, despite the 3rd Defendant’s failure to file a defence (3rd Defendant’s Failure), the Plaintiff did not object to the evidence given by SD1. In fact, the Plaintiff’s learned counsel cross-examined SD1. Accordingly, by the Plaintiff’s conduct in this case, he has waived his right to rely on the 3rd Defendant’s Failure. I cite the Supreme Court’s judgment given by Peh Swee Chin SCJ in Superintendent of Lands and Surveys, (4th Div) & Anor v Hamit bin Matusin & Ors [1994] 3 MLJ 185, at 190, as follows: “Generally, in civil cases only, both parties can validate any mode of adducing evidence by consent, express or inferred, even when such mode is irregular, for any irregularity is deemed to be waived by such consent. Technical rules of evidence can be to a limited extent, even dispensed with by a court without such consent, please see Baerlein v Chartered Mercantile Bank [1895] 2 Ch 488; similarly with technical rules of procedure. …” (emphasis added).

As SD1 had given evidence on behalf of the 3rd Defendant, there should not be any adverse effect on the 3rd Defendant’s case due to the 3rd Defendant’s Failure. The learned Magistrate had therefore wrongly relied 12 in law on the following cases where the defendants in those cases did not adduce any evidence to support their defence (2nd Legal Error) -

the Supreme Court case of Jaafar Shaari & Anor v Tan Lip Eng & Anor [1997] 4 CLJ 509; and

the High Court’s decision in Rubiah Anuar v Lim Sang [1998] 3 CLJ Supp 314.

The sole factual issue in this Suit concerned which car was driven by the 1st Defendant at the time of the Accident (Sole Factual Issue). Whether the 1st and 2nd Defendants had committed fraud on the 3rd Defendant (Alleged Fraud) was not required to be decided at the Suit. Hence, there was no requirement for the 3rd Defendant to plead the Alleged Fraud in this case. The learned Magistrate had therefore committed an error of law in deciding that the 3rd Defendant had failed to plead fraud in this Suit (3rd Legal Error). G. Is 3rd Defendant adversely affected by failure of 1st and 2nd Defendants to testify?

The failure of the 1st and 2nd Defendants to testify in this case had been cited in support of the Magistrate Court’s Decision.

The fact that the 1st and 2nd Defendants did not give evidence in this case meant that the Plaintiff’s claim against the 1st and 2nd Defendants should be allowed with costs and this was so ordered by the learned Magistrate. I am of the view that there should not be any adverse effect on the 3rd Defendant due to failure of the 1st and 2nd Defendants to testify in this case. This is because the failure of the 1st and 2nd Defendants to 13 give evidence in this Suit does not relieve the learned Magistrate from his judicial duty to -

make an adverse inference pursuant to s 114(g) EA against the Plaintiff for his suppression of the identity of the Pillion Rider - please see the above paragraph 18; and

decide whether the Plaintiff had discharged the legal and evidential burden to prove on a balance of probabilities that the 1st Defendant was driving the Myvi Car (not the Proton Car) at the time of the Accident - please see the above paragraph 21 (4th Legal Error). H. Effect of legal errors by Magistrate’s Court

The 1st until 4th Legal Errors (please see the above paragraphs 22-30) support this court’s intervention in the 3rd Defendant’s Appeal to set aside the Magistrate Court’s Decision.

Based on the above evidence and reasons, the 3rd Defendant’s Appeal is allowed with costs. It is to be noted that the Magistrate Court’s Decision still stands against the 1st and 2nd Defendants and the Plaintiff is at liberty to enforce the same. 14

This case serves as a reminder that a plaintiff in a negligence claim for personal injuries arising from a motor vehicle collision, has a duty to disclose to the court and the defendant that there is an eyewitness to the incident. The plaintiff’s failure to do so, may attract an adverse inference under s 114(g) EA against the plaintiff. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 21 MAY 2019 Counsel for Appellant/Third Defendant: Mr. Anpalagar A/L Suppiah (Messrs Anad & Noraini) Counsel for Respondent/Plaintiff: Mr. Ganesh A/L Subramaniam (Messrs Abdul Rahim & Co.)