Alwee Alywin Bin Azlim v Muhammad Shahid Bin Mohd. Toha (BA-12B-203-12/2017)

I will refer to the parties in this case as they are in the Sessions Court

On 23.7.2012, the plaintiff (Plaintiff) rode a motorcycle on the motorcycles lane along the Federal Highway (from Petaling Jaya to Shah Alam) when he met with an accident (Accident) which involved a motorcycle ridden by the defendant (Defendant).

The Plaintiff filed this suit in SC against the Defendant (This Action) and claimed damages for the alleged negligence of the Defendant in the Accident which had caused personal injuries to the Plaintiff and damage to the Plaintiff’s motorcycle [Damage (Plaintiff’s Motorcycle)]. 2

The Defendant denied he was negligent in respect of the Accident and instead alleged that the Plaintiff’s own negligence had caused the Accident.

At the trial of This Action -

the Plaintiff gave evidence and called Sergeant Zaitun Bt. Husin, the police officer who investigated the Accident (IO), to testify in this case; and

the Defendant was the only witness in his defence.

After the trial of This Action, the SC decided as follows, among others (SC’s Decision):

the Defendant is 80% liable in negligence for the Accident while the Plaintiff is 20% liable regarding the Accident;

assuming the Defendant is 100% liable in negligence for the Accident, the following sums of damages, among others, are awarded to the Plaintiff (Damages Award) -

general damages as follows -

loss of consciousness - RM5,000.00;

(ii) head injury with punctuate hemorrhage - RM40,000.00;

(iii) lung contusion with pneumothorax - RM6,000.00; 3

(iv) for C1-C2 cervical spine subluxation, the sealed judgment of the SC (Sealed Judgment) stated a sum of RM27,000.00 but the Grounds of Judgment (GOJ) of the learned Sessions Court Judge (SCJ) awarded a sum of RM30,000.00 for this injury;

regarding multiple facial bone fracture, the Sealed Judgment stated an amount of RM12,000.00. The GOJ however stated that the SC had awarded RM15,000.00 for multiple facial bone fracture;

(vi) soft tissue injuries - RM3,500.00;

(vii) close right galeazzi fracture - RM13,000.00;

(viii) multiple scars and multiple laceration - RM8,000.00; and

(ix) muscle wasting - RM1,5000.00; and

special damages (not disputed in this appeal); and

interest on general and special damages as well as costs of This Action were awarded to the Plaintiff. C. This appeal

The Defendant has appealed to this court against SC’s Decision regarding -

the Defendant’s 80% liability in negligence for the Accident; and 4

the quantum of general damages for which the Defendant is liable to the Plaintiff.

This appeal raises the following questions:

did the learned SCJ make a “plain error of fact” by deciding that the Defendant’s motorcycle had overtaken the Plaintiff’s motorcycle and had hit the Plaintiff’s motorcycle from behind?;

whether the SC had committed the following errors of law -

when the learned SCJ failed to draw an adverse inference against the Plaintiff under s 114(g) of the Evidence Act 1950 (EA) for not adducing any evidence regarding the Damage (Plaintiff’s Motorcycle); and

the SC had not considered whether the Plaintiff had discharged his legal and evidential burden under ss 101 and 102 EA respectively to prove on a balance of probabilities that the Defendant had committed the tort of negligence regarding the Accident and was 80% liable thereof; and

is there any ground for appellate intervention regarding the Damages Award? D. Whether SC had made a “plain error of fact”

In paragraph 1.2 (Part C) GOJ, the learned SCJ made the following finding of fact (SC’s Factual Finding): 5 “1.2 Dari keterangan yang ada adalah didapati Defendan membawa motorsikalnya di belakang motorsikal Plaintif dan sudah tentulah pandangannya seharusnya ke hadapan motorsikal. Defendan juga telah menunggang dengan kelajuan 60 km/sejam dalam laluan motorsikal. Ini diakui sendiri oleh Defendan juga dalam keterangannya di Mahkamah. Defendan telah memotong motorsikal Plaintif dalam tindakannya ini kerana mahu keluar dari laluan motorsikal hendak masuk ke Subang Jaya melalui susur keluar dari laluan motorsikal 100 meter di hadapan beliau. Selepas Defendan melepasi motorsikal Plaintif, cermin di sisi motorsikal Plaintif telah terkena motorsikal Defendan yang menyebabkan Defendan terjatuh ke bahu jalan sebelah kiri.” (emphasis added). According to SC’s Factual Finding, the Defendant’s motorcycle overtook the Plaintiff’s motorcycle and this had caused the side mirror of the Plaintiff’s motorcycle to hit the Defendant’s motorcycle (which then caused the Defendant to fall on the road shoulder on the left hand side of the Defendant).

It is trite law that an appellate court should not intervene regarding a trial court’s findings of fact, especially findings regarding credibility of witnesses, unless there is a “plain error of fact” by the trial court which has caused an injustice and which warrants 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.

I am of the view that SC’s Factual Finding is plainly wrong (SC’s Plain Factual Error) because - 6

although answer no. 2 in the Plaintiff’s witness statement alleged that the Defendant’s motorcycle had crashed into the Plaintiff’s motorcycle from the rear, the Plaintiff had admitted during cross-examination [Plaintiff’s Admission (Cross-Examination)] as follows -

before the Accident, the Plaintiff’s motorcycle changed lane and tried to overtake a motorcycle (not the Defendant’s motorcycle) (Another Motorcycle); and

the Plaintiff was not successful in overtaking Another Motorcycle. Instead, the Plaintiff’s motorcycle hit the Defendant’s motorcycle which was on the right hand side of the Plaintiff’s motorcycle. The following notes of proceedings (NOP) regarding the cross-examination of the Plaintiff, support the Plaintiff’s Admission (Cross-Examination) -

at page 17 NOP, Supplementary Record of Appeal - “[Defence counsel]: Kalau kamu betul lihat di belakang tiada motor di belakang dan kamu ubah haluan kemalangan ini tidak akan berlaku betul? [Plaintiff]: Sepatutnya begitu. [Defence counsel]: Apa yang sebenarnya berlaku adalah kamu tidak lihat ke belakang dan ke tepi dengan betul sebelum kamu membuat keputusan untuk memotong. Setuju atau tidak? 7 [Plaintiff]: Saya boleh bercakap yang saya salah buat pertimbangan untuk menukar haluan. [Defence counsel]: Kerana kamu tidak sedar ada satu motor di tepi kamu. Betul tak? Kerosakan pada motor kamu di hadapan. Betul? [Plaintiff]: Ya. [Defence counsel]: Kerosakan motor di defendan pun di hadapan. Kamu dengar polis cakap tadi. [Plaintiff]: Ya. [Defence counsel]: Bila kerosakan kedua-dua motosikal di hadapan ini dengan jelas menunjukkan kamu tidak melihat motosikal. Kerosakan tidak boleh tipu. Tidak boleh bohong. Jadi kerosakan adalah keterangan paling kukuh di mahkamah. Kamu setuju dengan saya ada motosikal di tepi kamu yang kamu tidak lihat dan kamu telah pergi langgar. Setuju? [Plaintiff]: Saya setuju macam keputusan saya tadi. Saya salah buat pertimbangan.” (emphasis added);

(ii) at page 18 NOP - “[Defence counsel]: Kamu memotong satu motor. Betul? [Plaintiff]: Ya. [Defence counsel]: Kemudian kamu bergesel dengan satu motor lagi di kanan. Betul? [Plaintiff]: Ya. [Defence counsel]: Ertinya kamu di tengah-tengah kan? 8 [Plaintiff]: Sebab saya salah buat pertimbangan untuk menukar haluan. [Defence counsel]: Itu betul. Soalan saya adalah kamu berada di tengah-tengah. Betul? [Plaintiff]: Betul.” (emphasis added);

(iii) at page 19 NOP - “[Defence counsel]: Kamu sudah keluar. Betul? [Plaintiff]: Saya cuba memotong tetapi tidak dapat memotong. [Defence counsel]: Tadi kamu kata kamu salah buat pertimbangan? [Plaintiff]: Saya cuba untuk memotong. [Defence counsel]: Kamu cuba untuk memotong motosikal di hadapan. Betul? [Plaintiff]: Ya. [Defence counsel]: Tetapi kamu tidak potong? [Plaintiff]: Ya. [Defence counsel]: Jadi kamu berada di belakang motosikal yang di hadapan kamu itu semasa kemalangan? Yang tiada nombor itu? [Plaintiff]: Ya. [Defence counsel]: Jadi bagaimana kemalangan ini berlaku? [Plaintiff]: Saya salah buat pertimbangan menukar haluan untuk memotong. 9 [Defence counsel]: Jadi kemalangan ini adalah kesilapan kamu? [Plaintiff]: Ya.” (emphasis added); and

(iv) at page 20 NOP - “[Defence counsel]: Kesilapan macam mana? [Plaintiff]: Untuk menukar haluan. [Defence counsel]: Jadi kamu sekarang setuju yang kamu cuai dan kamu punca kemalangan ini. Betul? [Plaintiff]: Ya.” (emphasis added);

I reproduce the relevant part of the Plaintiff’s re-examination by his learned counsel at page 21 NOP - “[Plaintiff’s counsel]: Tadi kamu ada kata kamu setuju yang kamu cuai dan menyebabkan kemalangan itu berlaku. Kenapa kamu cakap yang kamu cuai sedangkan kamu cakap kamu tidak cuba untuk tukar haluan atau memotong kenderaan tersebut? [Plaintiff]: Macam saya cakap tadi saya ingat pertimbangan saya betul sebab saya sudah periksa cermin pandang belakang untuk menukar haluan untuk memotong. Sebab itu saya kata sedemikian. [Plaintiff’s counsel]: Sebab itu kamu kata kamu cuailah? [Plaintiff]: Ya.” (emphasis added). 10 Firstly, the above two questions [2 Questions (Reexamination)] asked by the Plaintiff’s learned counsel during re-examination are “leading questions” as defined in s 141 EA. By reason of s 142(1) EA, the Defendant’s learned counsel could have lawfully objected to the 2 Questions (Reexamination). Sections 141 and 142 EA provide as follows - “Leading questions. 141 Any question suggesting the answer which the person putting it wishes or expects to receive or suggesting disputed facts as to which the witness is to testify, is called a leading question. When leading questions may not be asked. 142(1) Leading questions may not, if objected to by the adverse party, be asked in an examination-in-chief or in a re-examination, except with the permission of the court.

The court shall permit leading questions as to matters which are introductory or undisputed, or which have in its opinion been already sufficiently proved.” (emphasis added). I am of the view that the Plaintiff’s answers during his re-examination does not diminish the weight to be attached to the Plaintiff’s Admission (Cross-Examination);

the Plaintiff had given a police statement to the IO. The IO testified at page 7 NOP that the Plaintiff had informed the IO that the Plaintiff had tried to overtake Another Motorcycle; 11

the Plaintiff made his police report on 8.8.2012, 16 days after the Accident (23.7.2012). Contrary to the Plaintiff’s Admission (Cross-Examination), the Plaintiff’s police report did not state that the Plaintiff changed his lane because he attempted to overtake Another Motorcycle. This omission in the Plaintiff’s police report shows that the Plaintiff is not a credible witness; and

the Defendant gave evidence in examination-in-chief (page 23 NOP) that his motorcycle had already overtaken the Plaintiff’s motorcycle when the Plaintiff’s motorcycle changed lane and encroached onto the Defendant’s lane (which had caused the Accident). The Defendant’s veracity was not shaken by the cross-examination of the Plaintiff’s learned counsel (pages 24-26 NOP). Furthermore, the Defendant’s evidence is consistent with his police report which is made on 24.7.2012, only a day after the Accident (23.7.2012). E. Should SC draw adverse inference against Plaintiff for not disclosing Damage (Plaintiff’s Motorcycle)?

In a road collision case, the nature and extent of damage to the vehicles involved in the collision, is relevant. In San Cheong Choy & Ors v Yuson Bien [1963] 1 MLJ 235, at 236 and 237, Hill JA in the Court of Appeal of the Federation of Malaya had affirmed the judgment of Ismail Khan J (as he then was) as follows: “As Ismail Khan J. indicated the drivers and witnesses told conflicting stories, but there was in evidence before him numerous 12 photographs, plans, some of which were to scale, and measurements which certainly appear to be accurate. … … The trial judge reasoned that where, as in this case, the drivers and witnesses on each side tell conflicting stories, the photographs, plans and measurements of the scene, and the nature of the damage to each vehicle must provide the most reliable guide by which such evidence can be tested. … … For myself after a careful study of the plans and photographs I have come to the conclusion that they in every way confirm the evidence of the respondent and I therefore respectfully agree with the findings of negligence by the learned trial judge.” (emphasis added).

In this case, the Defendant’s motorcycle had been examined by the IO. The IO had however testified at page 3 NOP that the Plaintiff’s motorcycle was not made available by the Plaintiff for the IO’s examination.

An adverse inference may be drawn under s 114(g) EA against a party for suppressing material evidence - please see the judgment of the Supreme Court delivered by Mohd. Azmi SCJ in Munusamy v Public Prosecutor [1987] 1 MLJ 492, at 494. In this case, I am of the view that the learned SCJ has erred in law when the SC has failed to make an adverse inference against the Plaintiff for not making available his motorcycle to be examined by the IO (1st Legal Error). The 1st Legal Error is premised on the following reasons:

the Damage (Plaintiff’s Motorcyle) is clearly relevant to this suit; 13

in this digital age, the Plaintiff could have easily taken photographs of the Damage (Plaintiff’s Motorcyle) by using his mobile phone or a mobile phone of his relative or friend - please refer to Poon Weng San & Anor v Chandran A/L Narunan [2019] MLJU 1358, at [15(2)(a)]; and

no explanation has been given by the Plaintiff on why he has failed to adduce any evidence regarding the Damage (Plaintiff’s Motorcyle). F. Had SC failed to consider burden of proof?

Sections 101(1), (2) and 102 EA state as follows: “Burden of proof 101(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. On whom burden of proof lies 102 The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” (emphasis added).

Regarding ss 101(1), (2) and 102 EA, it is decided in Lilies Suraya Bt. Abdul Latib & Ors v Khairul Bin Sabri & Ors [2019] MLRHU 1226, at [17], as follows: 14 “[17] I am of the following view:

the Plaintiffs have the legal burden under s 101(1) and (2) EA to prove on a balance of probabilities that the Defendants are negligent regarding the Incident (Legal Burden). This Legal Burden rests on the Plaintiffs throughout the trial and does not shift to the Defendants at any time - please refer to Letchumanan Chettiar Alagappan;

the evidential burden pursuant to s 102 EA (Evidential Burden) lies on the Plaintiffs to adduce evidence to prove a prima facie case of the Defendants’ negligence with regard to the Incident (Prima Facie Case). Regarding this Evidential Burden -

in the Singapore Court of Appeal case of Britestone Pte Ltd v Smith & Associates Far East Ltd [2007] 4 SLR 855, at [60], VK Rajah JCA held that a Prima Facie Case may be established by a plaintiff adducing evidence which is not “inherently incredible”; and

once the Plaintiffs have proven a Prima Facie Case, the Evidential Burden shifts to the Defendants to adduce rebuttal evidence that the Defendants have not been negligent in respect of the Incident; and

after a trial -

the court has to decide whether there is evidence on a balance of probabilities to prove the Defendants’ negligence in the Incident. I refer to the definitions of “proved” and “disproved” in s 3 EA as follows - …

if the Plaintiffs have adduced sufficient evidence on a balance of probabilities to prove that the Defendants have been negligent regarding the Incident, the Plaintiffs have 15 successfully discharged the Legal Burden and Evidential Burden under s 101 and 102 EA respectively to prove their claim against the Defendants; and

if there is no adequate evidence to prove on a balance of probabilities that the Defendants have been negligent in the Incident, the Plaintiffs have failed to discharge the Legal Burden and Evidential Burden. Consequently, the Original Action has to be dismissed on this ground alone.” (emphasis added).

In this case, the GOJ did not address the question of whether the Plaintiff had discharged his legal and evidential burden under ss 101(1),

and 102 EA respectively to prove on a balance of probabilities that the Defendant had committed the tort of negligence regarding the Accident and was 80% liable thereof (2nd Legal Error). G. Who was negligent regarding Accident?

I am of the view that the Plaintiff’s Admission (Cross-Examination) in itself is sufficient to prove that the Plaintiff is 100% liable in negligence for the Accident. This is because before any motorist changes his or her lane, it is incumbent on the motorist to ensure that it is safe for him or her to do so. H. Whether there should be appellate intervention in this case

In view of SC’s Plain Factual Error, 1st and 2nd Legal Errors, it is in the interest of justice for this court, sitting in its appellate capacity, to set aside SC’s Decision regarding who is liable for the Accident. 16

I will now discuss the Defendant’s appeal against certain heads of the Damages Award.

Firstly, an appellate court generally does not intervene regarding a trial court’s award of damages unless the following three exceptions apply:

the award of damages is “so extremely high” which justifies appellate intervention - please see the judgment of Azmi CJ (Malaya) (as he then was) in the Federal Court in Topaiwah v Salleh [1968] 1 MLJ 284, at 285;

in the Federal Court case of United Plywood & Sawmill Ltd v Lock Ngan Loi [1970] 2 MLJ 237, at 238, Gill FJ (as he then was) has decided that an appellate court may intervene regarding a trial court’s award of damages if the award is “so … inordinately high as to make the court exclaim, "Good gracious, is that the sum which has been awarded - that sum must be altered", or if it is so much out of line with the discernible trend or pattern of awards in reasonably comparable cases that it must be regarded as a wholly erroneous estimate”; and

the award of damages is not “fair and reasonable” as explained by the Supreme Court’s judgment delivered by Syed Agil Barakbah SCJ in Ngooi Ku Siong & Anor v Aidi Abdullah [1985] 1 MLJ 30, at 32. I(1). Plaintiff’s head injury with punctuate hemorrhage

I find that the SC’s award of general damages of RM40,000.00 for the Plaintiff’s head injury with punctuate hemorrhage is “so extremely high” 17 or “so inordinately high”. This is because in Md Faessal bin Mat Isa v Jamilah bt Rejab & Anor [2013] 2 PIR [17], the Sessions Court at Kangar only awarded RM20,000.00 for head injury (loss of consciousness, cerebral concussion, cerebral odema, petechia haematoma). In Md Faessal, the plaintiff had developed supraventricular tachycardia.

The Plaintiff’s learned counsel had cited the following cases before the learned SCJ -

Mohd Shuhada bin Abdul Rashid @ Mamat v Md Razali bin Ismail & Anor [2013] 1 PIR [31]; and

Mohamad Hanafi Muajir v Gan Bee Choo & Anor [2012] 2 PIR [18].

In Mohd Shuhada, the SC in Selayang granted RM55,000,00 as general damages for mild head injury to the plaintiff which had caused the him to suffer behavioral symptoms (increased irritability, temper tantrums, easy fatigability, loss of drive and initiative and impaired sleep pattern), cognitive deficit (impairment of immediate recall, mild impairment of delayed visual recall, some degree of impaired information processing speed, impaired executive function and shortened attention span) and subjective symptoms (headaches and vertigo). Clearly the head injury sustained by the plaintiff in Mohd Shuhada is much more serious than that suffered by the Plaintiff this case.

The SC in Shah Alam in Mohamad Hanafi Muajir awarded general damages in a sum of RM40,000.00 for head injury (subarachnoid hemorrhage with loss of consciousness and scalp laceration with 18 permanent residual disabilities). The head injury suffered by the Plaintiff in this case is not as severe as that sustained by the plaintiff in Mohamad Hanafi Muajir.

Premised on Md Faessal and taking into account the ever increasing cost of living, a “fair and reasonable” amount of general damages for the Plaintiff’s head injury with punctuate hemorrhage is RM25,000.00. I(2). Plaintiff’s C1-C2 cervical spine subluxation

As stated in the above sub-paragraph 6(2)(a)(iv), the Sealed Judgment awarded a sum of RM27,000.00 for the Plaintiff’s C1-C2 cervical spine subluxation but in the GOJ, the learned SCJ granted a sum of RM30,000.00 for this injury.

I am of the view that both sums of RM27,000.00 and RM30,000.00 for the Plaintiff’s C1-C2 cervical spine subluxation are “so extremely high” or “so inordinately high”. This decision is premised on the following reasons:

I accept the submission of the Defendant’s learned counsel that the Plaintiff’s medical reports do not show that the Plaintiff has suffered any disability arising from C1-C2 cervical spine subluxation; and

in Abdul Shukor bin Abdul v Mohamad Shawal bin Ahmad Sabri & Anor [2013] 2 PIR [2], the Butterworth SC awarded a sum of RM15,000.00 for a fracture of the L4 lumbar spine which had caused the plaintiff to suffer from osteophytes visualised osteopenic bones due to disuse, limitation of the spinal flexion, reduced disc space at L2/3, L3/4 and L4/5 and tenderness over the lumbar spine. 19 Clearly, the injury suffered by the plaintiff in Abdul Shukor is worse than that sustained by the Plaintiff in this case.

Taking into consideration Abdul Shukor and higher cost of living today, a sum of RM15,000.00 is “fair and reasonable” for the Plaintiff’s C1-C2 cervical spine subluxation. I(3). Plaintiff’s multiple facial bone fracture

The Sealed Judgment stated that a sum of RM12,000.00 was awarded by the SC for the Plaintiff’s multiple facial bone fracture but in the GOJ, the learned SCJ however awarded an amount of RM15,000.00 for this injury.

Both sums of RM12,000.00 and RM15,000.00 for the Plaintiff’s multiple facial bone fracture are “so extremely high” or “so inordinately high”. This is because -

there is no evidence that the Plaintiff has suffered any disability arising from his multiple facial bone fracture; or

there is no asymmetry or permanent disfigurement of the Plaintiff’s face. In view of the above reasons, I award a sum of RM10,000.00 as a “fair and reasonable” sum of general damages for the Plaintiff’s multiple facial bone fracture. 20 I(4). Whether SC had erred in not giving a deduction regarding overlapping awards

I accept the contention by the Defendant’s learned counsel that the learned SCJ has erred in law by not giving any deduction in the total sum of general damages for overlapping awards regarding injuries related to the same part or the same function of the Plaintiff’s body. I refer to the following judgment of Mohamed Azmi J (as he then was) in the High Court case of Yasin bin Wahab v Loo Kok Wai [1980] 2 MLJ 43, at 44: “Adding the assessment of all these five injuries together, a total sum of $25,000 is obtained. Since all the three fractures and the loss of teeth are interconnected, there is considerable overlapping in this case. A sum of $6,000 should therefore be deducted, leaving a figure of $19,000 which, I think, is fair and reasonable and not out of line with most of the awards given for similar injuries.” (emphasis added).

In view of the overlapping awards of general damages (regarding injuries related to the same part or the same function of the Plaintiff’s body) made by the learned SCJ in this case, a 10% deduction from the total award of general damages is “fair and reasonable”.

Premised on the above evidence and reasons, I am constrained to allow this appeal with the following order:

SC’s Decision is set aside in its entirety;

the Plaintiff is liable 100% in negligence for the Accident; 21

assuming that the Defendant is 100% liable in negligence for the Accident, the Defendant’s appeal against the Damages Award is allowed to the following extent only -

general damages for head injury with punctuate hemorrhage is reduced from RM40,000.00 to RM25,000.00;

general damages for C1-C2 cervical spine subluxation is reduced to RM15,000.00;

general damages for multiple facial bone fracture is reduced to RM10,000.00; and

there shall be a 10% deduction in the total sum of general damages for overlapping awards; and

costs of this appeal and the trial in SC shall be paid by the Plaintiff to the Defendant. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 7 APRIL 2020 22 Counsel for Appellant: Dato’ Kamalanathan Ratnam (Messrs Vinod Kamalanathan & Associates) Counsel for Respondent: Mr. Mani Maran A/L Chellappan (Messrs G. Dorai & Co.)