Balakrishna Balaravi Pillai v Projek Lebuhraya Usahasama Berhad (AA-12B-38-10/2023)

High Court of Malaysia3 Apr 2025

The written judgment as the court issued it, with the coram, case number, and source links. Every paragraph has its own anchor.

Open official source PDF Report an issue

Content

1 IN THE HIGH COURT OF MALAYA AT IPOH 5 IN THE STATE OF PERAK DARUL RIDZUAN CIVIL APPEAL NO. AA-12B-38-10/2023 BETWEEN BALAKRISHNA BALARAVI PILLAI 10 (NRIC No.: 840403-08-6235) … APPELLANT / PLAINTIFF AND PROJEK LEBUHRAYA USAHASAMA BERHAD 15 (Company No: 954700-A) … RESPONDENT / DEFENDANT GROUNDS OF JUDGMENT 20 Introduction [1]. This is an appeal against the decision of the Sessions Court delivered on 11 October 2023, which dismissed the plaintiff’s claim for damages arising from an alleged highway accident on 20 July 2018. Upon careful evaluation of the record, 25 submissions, and reasons given, this court finds no basis to disturb the findings below. While the occurrence of an accident involving the plaintiff’s car is not in dispute, liability in tort is not automatic. The burden lies on the plaintiff to prove, on a balance of probabilities, that the defendant breached a duty of care. That 30 burden was not discharged. Critical factual gaps, such as the failure to prove what object was struck or how it came to be there, render the appeal without merit. Plaintiff’s Contentions [2]. The plaintiff alleged that while driving his car (Ferrari, registration 35 no. AHX 87) at about 10:45 p.m., he collided with a foreign object lying on the overtaking lane of the expressway. He claims this object caused damage to his vehicle and asserts that the defendant, the highway concessionaire, was negligent in failing to maintain the road and remove the hazard. To support his 40 claim, the plaintiff relied on his own testimony and other motorists (SP4 and SP5) who allegedly encountered the same object. The plaintiff further argued that he had called PLUS-line (the defendant’s emergency response) and that no aid was rendered. Defendant’s Contentions 45 [3]. The defendant denied liability, maintaining that no object was observed at the relevant location and time. Relying on evidence from its patrol officers (SD1 and SD2), the defendant showed that multiple patrols were conducted on the night in question, and no obstruction or accident was observed. The defendant also 50 submitted that the plaintiff failed to prove any negligence, identify the alleged object, and produce critical supporting evidence, particularly call logs, photographs, or forensic assessments of the object. 55 THE SESSIONS COURT’S FINDING [4]. This court notes the Sessions Court’s meticulous reasoning in rejecting the plaintiff’s claim. The Sessions Court rightly emphasised several key weaknesses in the plaintiff’s case. [5]. At the heart of the plaintiff’s case lies an alleged “foreign object” 60 on the highway that allegedly cause the accident. However, neither the plaintiff nor any of his witnesses identified what this object was. There were no photographs of it. The plaintiff could not say whether it was a part of another vehicle, road debris, or otherwise. Without establishing the nature of the hazard, no 65 causal link to the defendant’s duty of care can be drawn. [6]. During cross-examination, SP1, the Investigating Officer admitted that he had not visited the scene, had not seen the damaged vehicles, and had not interviewed any parties involved. His report was based solely on second-hand police reports, and 70 his witness statement was prepared for him. The Sessions Court was justified in finding this evidence wholly unreliable. [7]. SP4 and SP5, both supposedly independent witnesses, also gave inconsistent testimony. SP4’s police report suggested he witnessed other vehicles striking the same object, yet in court, 75 he admitted he did not witness such collisions. SP5 also could not confirm what he struck or whether others hit the same item. [8]. Although the plaintiff claimed to have called PLUSline, he failed to tender any call logs or attempt to subpoena them from his mobile provider. While asserting that the defendant should have 80 produced the logs from PLUSline’s Traffic Monitoring Centre, it was not the defendant’s burden to disprove the plaintiff’s claim. Section 102 of the Evidence Act 1950 clearly places the burden of proof on the plaintiff. The Sessions Court correctly concluded that this failure was fatal to the plaintiff’s credibility. 85 [9]. The court accepts the Sessions Court’s finding that SD1 and SD2 gave credible and consistent evidence during the trial. Their patrol records (Exhibits D18 and D19) corroborated their claim that no object was seen and no incident was reported on the material date. They also noted that three other patrol teams and 90 the police covered the same route during overlapping timeframes, and similarly, they too observed nothing. THIS COURT’S FINDINGS [10]. The plaintiff contends that the Sessions Court failed to assess corroborative testimonies and documentary evidence properly. 95 However, many of the documents relied upon, such as additional police reports (ID3 and ID4), were not supported by oral evidence from the maker of those reports. The Sessions Court was therefore correct in not admitting them as exhibits and giving any evidential weight. 100 [11]. The appellant’s reliance on authorities such as Ahmad Rashidi Yahya & Anor v Projek Lebuhraya Usahasama Bhd [2021] CLJU 1409; [2021] MLJU 1632; [2021] 6 MLRH 179 and Parimala a/p Mutusamy & Ors v Projek Lebuhraya Utara-Selatan [1997] 3 MLRH 226; [1997] 4 CLJ 54; [1997] 5 MLJ 105 488 is misconceived. In Ahmad Rashidi (supra), the plaintiff presented photographic evidence of a visible iron object, along with proof that twelve other vehicles were similarly affected. In Parimala (supra), the case involved a stray cow, with the High Court initially finding PLUS liable due to issues with fencing. 110 [12]. The following was the finding of the court in Ahmad Rashidi Yahya (supra) about the presence of a foreign object on the road: “[36] The existence of the iron block is undeniable in view of the photographs taken by the first plaintiff after 115 the accident. The photographs taken serves as real evidence to support his case against the maintainer of the highway, the defendant. The photographs tendered by him which is consistent with his unrefuted oral evidence in court, is a strong piece of corroborative 120 evidence and it parcels itself as overwhelming proof of the case of plaintiff … [38] The undeniable fact is that the defendant could not controvert the fact that there was in fact an iron block 125 found on the highway which had caused the accident. They may have come up with lots of excuses, reasons and explanation that it would have been missed; not their responsibility to ensure its absence at all material times; but the fact remains, it was found on the highway 130 which is under the direct care, management and control of the defendant. Unfortunately, the defendant was not vigilant enough via its patrol men to ensure such obstruction is removed swiftly without any delay as it is deadly for lawful motorist, like the first plaintiff to travel 135 on the highway towards a destination safely and unhindered.” [13]. The following was the finding of the court in Parimala (supra), about the presence of an animal: 140 “[10] From the above evidence, I am satisfied that on the night in question, Sellapans a/l Ramasamy, who was driving vehicle No. BCC 2412 at km 138.5 had collided with a stray cow that was moving from the left side of the road to the right. Due to the proximity of that animal, the 145 deceased, who was left with no room to take evasive action, lost his life. The plaintiffs, who were passengers, suffered injuries.” [14]. However, as clarified by Court of Appeal in Projek Lebuhraya 150 Utara-Selatan Berhad v HMD Rais Hussin A Mohamed Ariff [2010] 10 MLRH 391; [2011] 10 CLJ 679 (refd), the Court of Appeal held that Parimala (supra) does not establish strict liability against the highway operator for every accident involving stray animals. In that appeal, the court distinguished Parimala 155 (supra) on its facts noting that in Parimala (supra), PLUS had actual knowledge of repeated animal intrusions, vandalised fences, and a lack of monitoring on the part of PLUS. In contrast, no such prior knowledge or sustained inaction was proven in HMD Rais (supra), and the same seems to be the case in the 160 present case. Thus, negligence must still be proven based on concrete evidence, rather than being presumed from the occurrence of an accident. The relevant excerpt from the decision of HMD Rais Hussin A Mohamed Ariff (supra) is appended below: 165 “The decision of the High Court in Parimala's case was reversed by the Court of Appeal with the consent of Counsel for the plaintiffs. Be that as it may, I agree with the Counsel for the Appellant's contention that Parimala's case is confined to its own facts. Parimala's 170 case did not set a principle of a strict liability situation wherein the Appellant is held negligent each time a collision with a stray animal happen on a highway. I find the facts in this case differs materially from Parimala's case. In Parimala's case, the following facts were 175 established:

The accident area was a wild animal prone area and PLUS had knowledge of the previous accident but did nothing to alleviate the problem of animals 180 straying onto the expressway.

The fences were constantly damaged by the villagers to use the expressways as a shortcut and this was within the knowledge of

Plus.

Vandalism was rampant.

There was no monitoring system by PLUS at all at that time.

The vandalized fences were not repaired. The material differences seemed to be PLUS had 190 knowledge not only of the damaged fences but also of repeat incidents and yet did not do anything about it. None of these features were present in the case before me. As such Parimala's is not applicable here.” 195 [15]. In the present case, no object was ever identified, much less photographed or examined by a forensic expert. The plaintiff failed to prove what was hit, how it came to be on the road, or that the defendant knew or ought to have known of it. Moreover, the defendant demonstrated that its patrol teams inspected the 200 area both before and after the alleged incident and found no hazards. These patrol personnel had logged in contemporaneously in Exhibits D18 and D19. [16]. It is neither practical nor legally required for a highway concessionaire to patrol every kilometer every minute. What is 205 essential is that the defendant had in place reasonable monitoring and inspection protocols. Without proof of the foreign object's existence or evidence of PLUS’s actual or constructive knowledge, the plaintiff’s claim is speculative [17]. In Burnside and Anor v Emerson & Anor [1968] 1 WLR 1490, 210 Lord Denning held that a highway authority must keep roads in a safe condition, including repairing them when needed. If a road is dangerous and causes damage, the authority can be held responsible unless it can prove that it took all reasonable care. The plaintiff must show the road was dangerous, that the danger 215 came from failure to repair, and that it was not just a temporary hazard like bad weather. If these are proven, the authority is liable unless it shows it acted reasonably. The test of liability involves three key elements: 220 “The Plaintiff must show that the road was in such a condition as to be dangerous for traffic. In seeing whether it is dangerous, foreseeability is essential. The Plaintiff must prove that the danger was due to the 225 failure to maintain which includes failure to repair the highway. In this regard distinction is to be drawn between a permanent danger due to want of repair, and a transient danger due to elements. When there are potholes or ruts in a classified road which have continued for a long 230 time unrepaired it may be inferred that there has been a failure to maintain. When there is transient danger due to elements, be it snow, ice or heavy rain the existence of the danger for a short time is no evidence of failure to maintain. 235 If there is failure to maintain, the highway authority is liable prima facie for any damage resulting therefrom. It can only escape liability if it proves that it took such care as in all the circumstances was reasonable.” 240 [18]. Quite apart from what is said above, the plaintiff's entire case hinges on the assumption that a foreign object was present on the highway and that it caused the damage to his vehicle. However, the court finds that no reliable evidence was produced 245 to confirm the nature, existence, or even the presence of such an object at the alleged time and place. There were no witnesses of the plaintiff who identified any object on the said road. The plaintiff himself admitted he could not describe what he collided with. The Investigating Officer did not visit the site or examine the 250 vehicles and conducted his investigation based solely on the contents of police reports. There were no photographs of the foreign object or a forensic assessment of the vehicle that were adduced to support the claim that an external object caused the collision. Therefore, the plaintiff's account of the accident 255 remains inconclusive. [19]. In contrast, the defendant tendered consistent and contemporaneous documentary evidence supporting their actions guarding the highway, i.e. evidence from patrol officers SD1 and SD2, supported by detailed patrol logs (Exhibits D18 260 and D19). These records confirmed that both PLUS Ronda and other highway patrol teams passed through the precise area at the relevant time and observed no hazards, obstructions, or accidents. The court finds the defendant’s evidence both credible and persuasive. When the plaintiff’s version is weighed against 265 the defendant’s, the evidential scale tilts firmly in favour of the defendant. It is clear to this court that the plaintiff failed to meet the threshold of proof required to establish the presence of a hazardous object on the road and any corresponding failure on the defendant’s part to detect or act upon it. 270 [20]. Further, this court reiterates that the defendant, as a highway concessionaire, is not subject to strict liability. The law does not impose liability on the defendant merely because an accident occurred or a foreign object found its way onto the expressway. It remains the plaintiff’s burden to prove that the defendant was 275 negligent either by omission or by failing to take reasonable steps to prevent foreseeable harm. No proof was established in this case. There is no evidence that the defendant had actual knowledge of the hazard or failed in its duty to carry out inspections, which were shown to have been conducted that 280 night. [21]. The plaintiff’s reliance on various case authorities to support his claim does not advance his cause. The case of Ahmad Rashidi Yahaya & Anor v Projek Lebuhraya Usahasama Berhad (supra) is distinguishable as it involved a clearly identified metal 285 object, corroborated by photographs and evidence of damage to multiple vehicles. None of those evidentiary elements exists in the present matter. The case of Parimala (supra), cited by the plaintiff, is also not helpful, as the case was later reversed on appeal. The Court of Appeal in Projek Lebuhraya Utara- 290 Selatan Bhd v HMD Rais Hussin A Mohamed Ariff [2011] 10 CLJ 679 firmly rejected the imposition of strict liability in highway negligence cases, affirming instead that actual negligence must be proven. Likewise, Projek Lebuhraya Usahasama Berhad v Abdul Azim John Abdullah [2022] 1 LNS 11; [2022] MLRHU 295 998; [2022] 1 PIR 48 (refd) is distinguishable on its facts, as it involved photographic evidence of a hazard object and an admitted delay in response by the defendant, none of which is present in this case. Conclusion 300 [22]. In conclusion, the plaintiff has failed to discharge the burden of proving that the defendant was negligent or breached its duty as a highway operator. The evidence adduced was speculative, uncorroborated, and wholly inadequate to establish liability. In contrast, the defendant produced reliable, consistent, and well- 305 documented evidence rebutting the plaintiff’s allegations. This court is therefore satisfied that the Learned Session court did not err in law or in fact to warrant this court to interfere on appeal. Therefore, the plaintiff’s appeal is dismissed with costs of RM2000.00. 310 Dated : 27 October 2025 [MOSES SUSAYAN] 315 JUDGE HIGH COURT IN MALAYA AT IPOH, PERAK 320 For the Appellant/ : Balakrishna Balaravi Pillai Plaintiff Advocates and Solicitors [Messrs Krish Mano & Associates] Ipoh, Perak 325 For the Respondent/ : Athithan a/l Singaravelu Defendant Advocates and Solicitors [Messrs Athi & Seelan] Ipoh, Perak 330 Headnotes CIVIL PROCEDURE: Appeal – Whether Sessions Court’s findings ought to be disturbed – Whether findings were against the weight of evidence – Plaintiff failed to identify object struck or prove existence 335 of hazard – Patrol records unshaken – Whether defendant proved reasonable system of inspection TORT: Negligence – Highway concessionaire – Alleged collision with foreign object on expressway – Whether defendant failed to remove or detect hazard – No evidence of object – No photographs or forensic 340 support – Plaintiff’s evidence inconsistent and speculative – Whether breach of duty established – Whether strict liability applies EVIDENCE: Burden of proof – Plaintiff failed to prove existence of object or defendant’s knowledge – No call logs or corroboration of PLUSline report –Burden lies on plaintiff to prove negligence 345

Something wrong on this page?

Wrong text, a broken link, out-of-date content, or a removal request — tell us and we'll check it against the official source.

Report an issue Request removal

Malaysian judgment

Case metadata

Court: High Court of Malaysia
Decision date: 3 Apr 2025
Case number: AA-12B-38-10/2023
Coram: YA Tuan Moses Susayan
Practice area: CIVIL PROCEDURE: Appeal – Whether Sessions Court’s findings ought to be disturbed – Whether findings were against the weight of evidence – Plaintiff failed to identify object struck or prove existence of hazard – Patrol records unshaken – Whether defendant proved reasonable system of inspection TORT: Negligence – Highway concessionaire – Alleged collision with foreign object on expressway – Whether defendant failed to remove or detect hazard – No evidence of object – No photographs or forensic support – Plaintiff’s evidence inconsistent and speculative – Whether breach of duty established – Whether strict liability applies EVIDENCE: Burden of proof – Plaintiff failed to prove existence of object or defendant’s knowledge – No call logs or corroboration of PLUSline report –Burden lies on plaintiff to prove negligence
Version: Alasan Penghakiman 1
Published: 27 Oct 2025
Source ID: 43fe61c3-73a4-40cd-aacc-cfc9928a8376

Catchwords

CIVIL PROCEDURE: Appeal – Whether Sessions Court’s findings ought to be disturbed – Whether findings were against the weight of evidence – Plaintiff failed to identify object struck or prove existence of hazard – Patrol records unshaken – Whether defendant proved reasonable system of inspection TORT: Negligence – Highway concessionaire – Alleged collision with foreign object on expressway – Whether defendant failed to remove or detect hazard – No evidence of object – No photographs or forensic support – Plaintiff’s evidence inconsistent and speculative – Whether breach of duty established – Whether strict liability applies EVIDENCE: Burden of proof – Plaintiff failed to prove existence of object or defendant’s knowledge – No call logs or corroboration of PLUSline report –Burden lies on plaintiff to prove negligence

Parties

BALAKRISHNA BALARAVI PILLAI - appellant - ejudgment_parties
PROJEK LEBUHRAYA USAHASAMA BERHAD - respondent - ejudgment_parties

Primary source

Compare this reader text against the official judgment source.

Open source PDF

Content

Catchwords

Balakrishna Balaravi Pillai v Projek Lebuhraya Usahasama Berhad (AA-12B-38-10/2023)

How this case connects

Cited by

Authorities cited

Plus.

Something wrong on this page?

Balakrishna Balaravi Pillai v Projek Lebuhraya Usahasama Berhad (AA-12B-38-10/2023)

How this case connects

Cited by

Authorities cited

Plus.

Something wrong on this page?