BATUMALAY A/L KUOOAN v Majlis Perbandaran Klang (BL-A51KJ-5-07/2024)

This case has its origin in a road accident where the Plaintiff, astride his motorcycle, encountered a pothole that disrupted his course and occasioned the injuries which now ground the present action.

Upon in-depth consideration of the opposing contentions, the full spectrum of the pleadings, and a thorough examination of the web of evidence, I find that the Plaintiff has failed to prove his claims against the Defendant on the balance of probabilities. Accordingly, I dismiss the Plaintiff’s claims with costs.

My reasons for so concluding are set out in the analysis that follows. S/N 8qzIqMHWg0u1uTsJxoy9A

At all material times, the parties relevant to this action are as follows:

The plaintiff was the rider of Motorcycle No. BFJ 9225 at the time of the accident.

(ii) The Defendant is a local government authority, a statutory corporation established under the Local Government Act, entrusted with the responsibility for maintaining cleanliness and safety within the District of Klang and Port Klang. Its registered address is Bangunan Sultan Alam Shah, Jalan Perbandaran, 41675 Klang Bandar Diraja, Selangor Darul Ehsan. CONTEXTUAL BACKDROP TO THE ACCIDENT

On 6.12.2021, the Plaintiff was riding a motorcycle, registration number BFJ 9225, along Jalan Pelabuhan Utara on a stretch of road within the industrial area behind the BHP petrol station (“the Accident Scene”). He asserted that the motorcycle struck a pothole or a damaged section of carriageway, causing it to lose balance and fall (“the Accident”).

As a result, he claims to have sustained serious personal injury, and he seeks general and special damages from the Defendant in respect of the loss thereby occasioned. S/N 8qzIqMHWg0u1uTsJxoy9A

The issues at the heart of this dispute are jurisdiction, liability, and the quantum of damages. The parties contest not only which authority exercises jurisdiction over the Accident Scene, but also the question of fault and the proper measure of compensation to be awarded.

In support of his claim, the Plaintiff adduced evidence from the following witnesses:

Sarjan Mohd Jihaty Zaiby Bin Abd Rashid, the Investigating

(ii) Batumalay A/L Kuppan - the Plaintiff

The Defendant called the following witnesses:

Muhammad Shaharin bin Jamali – the Assistant Engineer

(ii) Mohd Zaidi bin Zainal - the Deputy Director Majlis Perbandaran Klang (DW2)

(iii) Rizaidah binti Mohd Salleh – the Administrative Assistant (DW3) S/N 8qzIqMHWg0u1uTsJxoy9A LEGAL POSITION ON THE BURDEN OF PROOF Statutory provisions Act 1950 (the Act). Section 101 of the Act reads: “101 Burden of proof “102 On whom burden of proof lies 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.” S/N 8qzIqMHWg0u1uTsJxoy9A

And s. 103 of the Act reads: “103 Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” Precedents Ong CJ (Malaya) in the case of Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151; [1971] 2 MLJ 175 observed: “In a negligence action the onus of proof rests wholly on the plaintiff, whether or not the defendant gives evidence. The plaintiff cannot succeed without proof of the defendant's negligence. Evidence is the foundation of proof, with which it must not be confounded. Proof is that which leads to a conclusion as to the truth or falsity of alleged facts which are the subject of inquiry. Evidence, if accepted and believed, may result in proof, but it is not necessarily proof of itself.”; see 15 Halsbury (3rd Edn.) p. 260.” S/N 8qzIqMHWg0u1uTsJxoy9A (later JCA) in the case of Krishna Murthey & Anor. v. Law Lye Chua [1992] 2 CLJ Rep 668 where His Lordship observed: “The onus is not on the defendant to prove that he was not negligent. As was succinctly pointed out by Hashim Yeop A. Sani J (as he then was) in Ng Chui Sai v. Maimon Bt. Ali [1983] 1 MLJ 110: In an action for negligence the onus of proving the allegation of negligence rests on the person who makes it unless there are disclosed facts which raise a presumption in favour of the plaintiff. The plaintiff must show affirmatively that there has been a breach of a specific or genuine duty by the defendant and this resulted in the damage to the plaintiff. If he fails to prove this the action must fail.” (See also: Jafri Elias v. Khor Tang Seah [1992] 2 CLJ Rep 601; MGI Securities Sdn Bhd v. Teong Teck Leng & Ors [2000] 5 CLJ 163;[2000] 1 MLJ 354; and U Television Sdn Bhd & Anor v. Comintel Sdn Bhd [2017] 10 CLJ 580;[2017] 5 MLJ 292)

The determination of this case turns on the following issues:

Whether the Plaintiff has established on the balance of probabilities that the Accident Scene falls under the Defendant’s jurisdiction and responsibility

(ii) Whether the Defendant owed a duty of care to the Plaintiff S/N 8qzIqMHWg0u1uTsJxoy9A FIRST ISSUE: WHETHER THE PLAINTIFF HAS ESTABLISHED ON THE BALANCE OF PROBABILITIES THAT THE ACCIDENT SCENE FALLS UNDER THE DEFENDANT’S JURISDICTION AND RESPONSIBILITY Opposing Contentions in brief

Learned counsel for the Plaintiff submitted that the Accident Scene, being located within the territorial confines of Klang, must necessarily fall under the jurisdiction and responsibility of the Defendant as the local authority. She further contended that the presence of the Defendant’s Development Board near the site signified its jurisdiction and responsibility over the adjoining roadway.

In reply, learned counsel for the Defendant argued that the Plaintiff had failed to adduce any cogent or admissible proof to establish that the Accident Scene was under the Defendant’s jurisdiction and responsibility. On the contrary, reliance was placed on the testimony of the Defendant’s witnesses together with contemporaneous records, in particular the Memo (Exhibit D10), supported by the MARRIS data. These, he submitted, affirmatively identified the Public Works Department (JKR) as the proper authority with jurisdiction and responsibility for the Accident Scene, and not the Defendant. S/N 8qzIqMHWg0u1uTsJxoy9A

As is strikingly apparent, the issue of jurisdiction and responsibility over the Accident Scene stands at the crossroads of two conflicting versions, namely:

The Plaintiff’s version - that the Accident Scene fell within the jurisdiction and responsibility of the Defendant, thereby rendering the Defendant responsible for maintenance and liability.

(ii) The Defendant’s version - that the Accident Scene fell within the jurisdiction and responsibility of JKR, over which the Defendant had neither control nor authority.

Upon being confronted with the preceding conflicting versions, it is my duty to assess which version is more inherently probable or improbable (See: Tabarani Mohd Arshad & Anor v. Chan Tenn Yeu [1999] MLJU 126; [1999] 3 CLJ 188; Chua Chong Cher v. Teo Lang Keow & Ors[1970] 2 MLJ 27; [1970] 1 LNS 18; and Chong Keow @ Chong Seaw Oon (suing The Administrator of The Estate of Wong Kooi Tai @ Wong Foo Keak-Deceased v. Shaari Yaacob) [1988] 1 CLJ 325).

And considering the competing versions in light of the factual fabric and the circumstantial particularities of this case, I respectfully find that the cumulative force of the evidence establishes on the balance of probabilities that the Defendant’s version is more inherently probable than that of the Plaintiff. S/N 8qzIqMHWg0u1uTsJxoy9A

My reasons are set out hereafter in the following sequence.

Absence of Evidence Establishing the Defendant’s Jurisdiction

I note that the Defendant’s denial of jurisdiction and responsibility over the Accident Scene is firmly anchored in its pleaded defence. It expressly traverses paragraph 4 of the Plaintiff’s Statement of Claim, and asserts instead that the Accident Scene in question fell, at all material times, within the jurisdiction and responsibility of JKR. In support of this position, the Defendant avers as follows: "Defendan menafikan keseluruhan ini kandungan peranggan 4 Penyataan Tuntutan Plaintif dan menegaskan bahawa pada kesemua masa yang matan Jalan Pelabuhan Utara ... berada di bawah bidangkuasa dan tanggungjawab Jabatan Kerja Raya (JKR) Daerah Klang dan oleh itu, kemalangan melibatkan Plaintif ... bukanlah disebabkan kecuaian Defendan dalam apa jua keadaan."

As alluded to earlier, the burden rests squarely upon the Plaintiff to prove that the Defendant has jurisdiction and responsibility over the Accident Scene. In examining the Plaintiff’s case, I find the evidential void glaring. No witness was called to establish who managed, owned, or controlled the Accident Scene, nor to demonstrate any administrative or operational link connecting it to the Defendant, whether in terms of jurisdiction or responsibility. Moreover, the Plaintiff offered no testimony capable of challenging the Defendant’s assertion that the Accident Scene fell under JKR. S/N 8qzIqMHWg0u1uTsJxoy9A

Turning from testimony to documentary evidence, the void is equally stark and telling. No inventory, gazette, plan, or maintenance register was tendered. Likewise, no map, allocation list, or asset-register entry was adduced that might have anchored or substantiated the assertion of jurisdiction and responsibility in verifiable fact. In the absence of such evidence, there is nothing upon which I may reliably rest a finding of jurisdiction.

Upon weighing the barren state of both testimony and documentary record, I find that the evidence adduced in court rests solely on the Plaintiff’s account of the Accident and the losses claimed. It does not resolve the fundamental question of which authority exercised jurisdiction and responsibility over the Accident Scene. With no witness called and no documentary material to illuminate these points, I am left with untested assertions that fall short of establishing this essential predicate, leading to the conclusion that the Plaintiff has failed to discharge the burden of proving the threshold requirement of jurisdiction, on the balance of probabilities.

(ii) Effect of Non-Calling of Witnesses under Section 114(g) of the Evidence Act 1950

Tritely as it is, the law recognises that silence in the face of opportunity may speak louder than words. Section 114(g) of the Evidence Act 1950 embodies this principle, allowing the Court to draw an adverse inference when a party, having the means to call material witnesses or produce relevant documents, chooses not to do so. It reads: S/N 8qzIqMHWg0u1uTsJxoy9A “114 Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume:- …

It, however, should not be drawn unless the circumstances justify it. I derive support for the preceding proposition from the observation by Mohamed Azmi FJ in the case of Munusamy Vengadasalam v. PP [1987] 1 MLJ 492; [1987] 1 CLJ 250, wherein His Lordship observed: “It is essential to appreciate the scope of s. 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case.” (See also: Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751; [2010] 2 AMR 609) S/N 8qzIqMHWg0u1uTsJxoy9A

Applying the preceding principles to the present case, it appears clear that the Plaintiff was best placed to establish that the Accident Scene fell within the Defendant’s jurisdiction and responsibility. Ample opportunity was afforded, but the Plaintiff adduced no evidence, leaving a glaring evidential void that, in my assessment, materially weakens the probability of his account. I note that the Plaintiff could have called the relevant authority or produced jurisdictional documents to substantiate the claim but elected not to do so. That choice, in my view, is not trivial. It strikes at the very foundation of the case. The evidence was central, not peripheral, and its absence invites me to apply section 114(g) of the Evidence Act 1950, permitting me to infer that, had it been produced, it would not have supported the Plaintiff’s assertions. By contrast, I observe that the Defendant has, from the outset and without wavering, consistently maintained that the Accident Scene was neither under its jurisdiction nor its responsibility. The omission speaks for itself, and I am left with the inescapable conclusion that the Plaintiff has failed to discharge the burden of proving this essential threshold.

(iii) The Development Board Cannot Impart Authority

Within the evidentiary record, I note a photographic exhibit depicting a white development board bearing the Defendant’s logo, marked as Exhibit D9 (the Development Board). The Plaintiff relies on the Development Board to ground the assertion that the Defendant exercised jurisdiction and bore responsibility over the Accident Scene. S/N 8qzIqMHWg0u1uTsJxoy9A

However, I cannot but observe that the Development Board, according to the evidence, signifies municipal approval of a private development and serves to communicate information to the public about that development. To my mind, it does not purport to be a marker of the scope of the Defendant’s jurisdiction or the assumption of responsibility for the adjacent road upon which the Accident Scene was situated.

On re-examination, the evidence presented only served to reinforce my initial observation, leading me to a settled conclusion. The Development Board bears no connection to the control or administration of the Accident Scene and carries no probative weight on the issue directly in concern. To elevate it as proof of jurisdiction and responsibility would, in my judgment, be not merely to conflate symbol with substance, but to ascribe weight to what is in reality no more than a public notice, a course I will not sanction.

Another strand of argument advanced by learned counsel for the Plaintiff proceeds on the basis that the Development Board signifies that the Accident Scene constituted an industrial road. Being an industrial road, it falls under the Defendant’s jurisdiction and responsibility. In her words: "AA : Untuk evidence sekarang, pihak Plaintiff nampak itu adalah jalan industri, jalan industri adalah dibawah bidangkuasa MBDK, MBDK bukan hanya melaksanakan penyelenggaraan jalan apa, jalan perumahan, jalan industri." S/N 8qzIqMHWg0u1uTsJxoy9A

The thrust of the preceding assertion is that the Accident Scene, by virtue of its classification as an industrial road, automatically fell within the Defendant’s jurisdiction and responsibility. Be that as it may, a careful scrutiny of the evidentiary record reveals that this premise rests on no supporting evidence.

And more significantly, learned counsel herself acknowledged that it was merely her opinion, stating “…pada pendapat saya…”, which, in my assessment, reduces the Plaintiff’s case to little more than a subjective assertion, wholly lacking the cogent proof required to establish the claimed jurisdiction and responsibility.

(iv) Investigative Lacunae Leave Jurisdiction Unascertained

It emerges from cross-examination that the Investigating Officer (PW2) did not ascertain which authority was responsible for the Accident Scene. I note with particular concern that this concession leaves a critical evidential void precisely where the Plaintiff most required clarity. Deprived of any such determination of jurisdiction, I am left without a basis to resolve this threshold issue. In my judgment, an investigative lacuna of this kind cannot be bridged by inference or assumption and materially undermines the Plaintiff’s claim. S/N 8qzIqMHWg0u1uTsJxoy9A

In my view, in negligence claims against a public authority, the identification of the body upon whom jurisdiction and responsibility rest is not peripheral but central. Where investigative findings fail to establish the responsible authority and no primary evidence is adduced, the Plaintiff’s case lacks the necessary jurisdictional footing. The evidential burden rests squarely upon the Plaintiff, and I find it remains unmet. I cannot, therefore, proceed in the absence of its discharge.

I observed that learned counsel for the Plaintiff sought instead to construct her case through cross-examination of the Defendant’s witnesses. She invited me to infer support from the witnesses’ inability to produce records, as though such omission could itself discharge the Plaintiff’s burden of proving that the Accident Scene fell within the Defendant’s jurisdiction and responsibility.

I find this approach misconceived. The onus lay squarely upon the Plaintiff to establish, by positive and credible evidence, that the Defendant bore responsibility for maintaining the Accident Scene. A deficiency in the Defendant’s records cannot, in isolation, be transfigured into proof of jurisdiction. As is trite, cross-examination serves as a tool to test the strength and reliability of evidence already before the Court. It is not a device by which a party may conjure a case out of silence, nor a means by which the burden of proof may be shifted. That burden remains immovably with the S/N 8qzIqMHWg0u1uTsJxoy9A Plaintiff, and where it is not discharged, the claim is left without its necessary foundation.

Added to that, I note that the Defendant did not rely on silence. Its witnesses, supported where appropriate by documentary records, consistently affirmed that jurisdiction and responsibility over the Accident Scene lay with JKR. Their testimony emerged unshaken and unimpeached under cross-examination, offering affirmative evidence that carries far more weight than any absence of records. In my assessment, the Defendant’s case possesses coherence and credibility, whereas the Plaintiff’s stands as mere assertion, unmoored from proof and unable to satisfy the threshold of probability.

(vi) Bar Table Assertions Are No Surrogate for Evidence

I now turn to a discrete aspect of learned counsel for the Defendant’s argument id est the Plaintiff’s reliance on assertions introduced solely through the Bar table, a reliance whose weight I am called upon to assess with care.

In this regard, I am fortified by the salutary reminder of Abdul Hamid Mohamad FCJ in Lie Kok Keong v Tang Container & Services Sdn Bhd [2003] 4 CLJ 288; [2004] 1 MLJ 373, wherein His Lordship observed: “… that is merely a statement from the bar. It is not evidence and should not have been accepted as evidence.” S/N 8qzIqMHWg0u1uTsJxoy9A

During the course of trial, Mr. Gavrie Ang Qui Zen for the Defendant maintained that jurisdiction and responsibility did not rest with the Defendant. When I inquired of Ms. Adiatul Akmar Baharuddin for the Plaintiff as to the evidential foundation for her case on jurisdiction, she answered that there existed correspondence from JKR which, in her submission, placed the Accident Scene within the remit of the Defendant. In her words: “AA : Isu ini adalah berkenaan dengan jalan berhubung, Tuan. Yang mana sebelum ini kami ada membuat pertanyaan kepada pihak JKR, Jabatan Kerja Raya, berkenaan dengan bidang kuasa. Sama ada jalan tersebut adalah di bawah bidang kuasa JKR ataupun Majlis Bandaraya Diraja Klang. Dan kami mendapat maklum balas daripada pihak JKR bahawa ini adalah di bawah bidang kuasa Majlis Bandaraya Diraja Klang. Jadi dalam kes ini kami telah membawa pihak MBDK sebagai party to the suit, Tuan. ... AA : Pihak JKR mengatakan Jalan Pelabuhan Utara adalah di bawah pentadbiran Majlis Perbandaran Klang. Dan bersamasama dengan itu, pihak JKR ada memberikan helaian surat yang lain, Tuan, yang mengatakan bahawa, berserta dengan gambar, mengatakan bahawa dan juga map, itu bukan jalan di bawah bidang kuasa pihak JKR.” S/N 8qzIqMHWg0u1uTsJxoy9A

The essence of the preceding response boils down to these:

that the Plaintiff had made inquiries with JKR concerning the jurisdiction over the Accident Scene;

(ii) that JKR had indicated the Accident Scene fell under the jurisdiction of the Defendant rather than JKR; and

(iii) that correspondence, including letters, a map, and photographs, was said to have been furnished by JKR to support that indication.

It strikes me, as a matter of fundamental principle, that an assertion unanchored in credible evidence is like a vessel adrift, liable to founder before it reaches harbour. Before me, no correspondence from JKR, photographs, or map was ever produced, and these assertions remained unsubstantiated at trial. They were advanced solely from the bar table, without any evidentiary foundation. Advocacy, however forceful, cannot substitute for proof, and as distilled from Lie Kok Keong, such assertions “should not have been accepted as evidence.” Even assuming, arguendo, that the documents existed, they were never tendered for the Court’s scrutiny. Their absence precluded any meaningful examination, testing, or verification. This reinforces the principle that bar table assertions are no surrogate for evidence and cannot bear the weight of proof in establishing jurisdiction or responsibility. S/N 8qzIqMHWg0u1uTsJxoy9A

(vii) Possibility, Speculation, and Theory Cannot Establish Jurisdiction

I note at the outset that the Plaintiff’s assertion for jurisdiction cannot be anchored on mere possibility, speculation and theory. It requires positive admissible evidence capable of demonstrating that the Defendant exercised jurisdiction or bore responsibility over the Accident Scene. Absent such evidence, conjecture cannot substitute for proof. As will be seen, the authorities discussed below elucidate this principle and guide the approach I must adopt.

I begin with the illuminating observation by Suffian FJ (later LP) in the Federal Court case of Guan Soon Tin Mining Company v. Wong Fook Kum [1969] 1 MLJ 99; [1968] CLJU 43 wherein His Lordship observed: “I have scrutinsed his evidence and I agree with my brother Ong Hock Thye that there is nothing in it to just if the Court finding that the defendant's mining operations were responsible for the dead fish. There was no positive proof, as there was in the Granby cause, supra, that the discharge from the defendant's mine had anything to do with the death of the fish; there was only a possibility.” S/N 8qzIqMHWg0u1uTsJxoy9A

Compellingly, the salutary observation by Lee Swee Seng J (now FCJ) in Azrat & Hashim Sdn Bhd v. Urbanway Development Sdn Bhd [2011] CLJU 98 wherein His Lordship observed, “… a court of law decides based on the evidence before it which material facts have been pleaded and which evidence is before the court. The court cannot act on speculations or theories when written evidence militates against it.”

And equally compelling is the admirable observation by Hayatul Akmal Abdul Aziz J in the High Court case of Ahmad Rubil Ahmad & Ors v. Minda Muhibah Sdn Bhd & Anor; Terminal Bersepadu Gombak Sdn Bhd & Ors (Third Parties) [2024] 2 CLJ 73; [2024] 8 MLJ 869, wherein Her Ladyship stated with sufficient clarity: "Definitive proof of fault and liability on cogent evidence for determination is unavailable. No matter how forceful, passionate and overreaching the arguments and assertions by the Ps may be, sans compelling proof, it is reduced to speculation at best, and the court will not act on speculation, no matter how sympathetic the court may be to the Ps' cause and plight." (Note: the Court of Appeal recently confirmed the High Court’s decision, affirming with clarity that claims unanchored in cogent evidence cannot take hold – see Ahmad Rubil Ahmad & Ors v. Minda Muhibah Sdn Bhd & Anor [2025] CLJU 1798; [2025] MLJU 2244) S/N 8qzIqMHWg0u1uTsJxoy9A

The principles I derive from the preceding authorities underscore that mere possibility, speculation, or theoretical assertion cannot supply the evidential foundation the law demands. I am satisfied that no positive proof was adduced to dislodge the conclusion that the Defendant bore neither jurisdiction nor responsibility for the proper maintenance of the Accident Scene. On that footing, it becomes manifest to me that the Plaintiff’s assertions linger, at best, as a mere “possibility” as recognized in Guan Soon, or “theories” as established in Azrat, or “speculation” as endorsed in Ahmad Rubil. Distilled thus, the authority over the Accident Scene resides elsewhere, not with the Defendant, leaving the Plaintiff’s claim unsupported and incapable of sustaining judicial scrutiny. Accordingly, I hold that the Defendant’s version emerges as the more probable narrative, firmly anchored in the evidence.

(viii) Affirmative Evidence Points Away from the Defendant 51 The Defendant, through its officers and official records, placed before the Court affirmative proof that jurisdiction and responsibility over the Accident Scene do not rest with the Defendant. They run as follows:

Evidence of the Defendant’s Assistant Engineer DW1, Muhammad Shaharin bin Jalami, the Defendant’s Assistant Engineer, who had served the Defendant for twelve S/N 8qzIqMHWg0u1uTsJxoy9A years, led evidence establishing that his duties included supervising works and conducting site inspections. In inspecting the Accident Scene, he determined that the Accident Scene fell within the jurisdiction and responsibility of JKR. His conclusion was supported by a JKR sticker affixed to a street light pole and a memo, marked as Exhibits D10A and D10B (the Memo) issued by the Defendant’s Engineering Department. Read fairly and in context, SD2 clarified in cross-examination that references to district boundaries were merely descriptive of areas within the Defendant’s maintenance scope and were not intended to suggest that every road in Klang fell under the Defendant’s authority.

(ii) Evidence of the Defendant’s Deputy Director of the Engineering Department DW2, Mohd Zaidi bin Zainal, Deputy Director of the Defendant’s Engineering Department, has served with the Defendant for twenty-four years. According to him, he instructed DW1 to conduct an on-site investigation and issued the Memo detailing their findings. The investigation confirmed that the Accident Scene falls under the jurisdiction and responsibility of JKR, which is statutorily accountable for its supervision and maintenance. S/N 8qzIqMHWg0u1uTsJxoy9A

(iii) Memo and MARRIS Online Confirmation of Jurisdiction The Memo issued by the Defendant through DW2, leaves no room for uncertainty that the Accident Scene lay within the jurisdiction and responsibility of JKR, thereby removing the Defendant from any jurisdictional responsibility in respect of it. The details of the preceding Memo gains support from the Malaysia Road Record Information System (the MARRIS Online). These contemporaneous records provide documentary support to the oral testimony of DW1 and DW2, reinforcing the Defendant’s professional assessment that the Accident Scene falls under the jurisdiction and responsibility of JKR and not the Defendant.

As I see it, this case is marked not only by the absence of the Plaintiff’s evidence but also by the Defendant’s affirmative proof. Given the professional familiarity of DW1 and DW2 with jurisdictional frameworks and technical standards, and seen in light of the corroborative documentary and on-site findings, I attach considerable institutional weight to their testimony. The material furnishes a coherent and persuasive account pointing firmly to JKR jurisdiction and responsibility, the contemporaneous records leaving little room for doubt. On a holistic assessment, I am satisfied that the Defendant’s version on non-jurisdiction is the more probable. S/N 8qzIqMHWg0u1uTsJxoy9A

In her attempt to advance the Plaintiff’s claim, learned counsel relied upon Khasbullah Md Mukhlas lwn. Shaiful Nor Aidil Mohd Jaya & Yang Lain [2024] MLJU 839; [2024] SMCU 127, seeking to counter the Defendant’s reliance on the MARRIS Online evidence. Be that as it may, I find Khasbullah distinguishable in several critical respects, namely:

Subject Matter of Dispute In Khasbullah, the dispute arose over fallen trees along the road, giving rise to ambiguity as to whether the local authority or the concessionaire bore responsibility for their upkeep. By contrast, in my view, the present case concerns solely the question of jurisdiction over the Accident Scene itself. There is no dispute regarding the Pothole or other ancillary matters. This distinction renders the evidential focus here both narrower and more straightforward.

(ii) Calling of Witnesses on the Issue of Jurisdiction In Khasbullah, the Plaintiff called three witnesses, namely the Principal Assistant District Officer (Property Management) of the Gombak District and Land Office (PW3), the Legal Officer at the Selangor State Legal Advisor’s Office (PW4), and the Facility Engineer at the Gombak Public Works Department (PW5) to led evidence on jurisdiction. S/N 8qzIqMHWg0u1uTsJxoy9A By contrast, the Plaintiff here elected not to call any witness to give evidence on the issue of jurisdiction, leaving the Court without any evidential basis upon which his version could rest.

(iii) Evidential Distinction in the Use of “MARRIS Online” In Khasbullah, the Defendants relied on MARRIS Online to assert that JKR bore responsibility for the road, but no supporting documents were produced, and the Plaintiff led evidence suggesting the system referred only to the road. By contrast, in this case, I observe that the Plaintiff adduced no evidence at all on jurisdiction or responsibility. I find that the Defendant’s reliance on MARRIS Online not only corroborates the testimony of four of its witnesses but also aligns consistently with the Memo issued, furnishing a coherent and reliable evidential foundation.

On the whole, I am of the view that Khasbullah offers no assistance to the Plaintiff. The authority is manifestly distinguishable on its facts, and its reasoning does not advance the Plaintiff’s position in any material respect. The evidential circumstances underpinning Khasbullah differ fundamentally from the present case, rendering it largely inapposite to the circumstances of the present case. S/N 8qzIqMHWg0u1uTsJxoy9A

(ix) Credibility of the Defendant’s Witnesses Affirmed

Turning to the credibility of the Defendant’s witnesses, I find it necessary to consider not merely the content of their evidence, but the manner in which it was delivered. In my observation, the weight of testimony is intimately connected to the witnesses’ demeanour, the consistency of their accounts, and the professional composure with which they approached their task. Taken together, these qualities guide me in assessing the reliability of their evidence and the probative value it commands.

In this regard, I find that the Defendant’s witnesses’ demeanour in the witness box was calm, forthright, and consonant with the professional responsibilities reposed in their office. I discerned no sign of evasiveness or partiality in their responses to cross-examination. Their consistency and composure throughout the proceedings lend added weight to the reliability of their testimony, which I accept as a reflection of credibility rather than contrivance.

That said, I remain mindful of the caution expressed by Ong Hock Thye FJ in the Federal Court decision of Ah Mee v. Public Prosecutor [1967] 1 MLJ 220; [1967] 1 LNS 3, wherein His Lordship observed: “To avoid undue emphasis on demeanour, it may be well to remember what was said by Lord Wright, and often quoted, from his judgment in Powell and Wife v. Streatham Manor Nursing Home [1935] AC 267 of the possibility of the Judges being S/N 8qzIqMHWg0u1uTsJxoy9A deceived by adroit or plausible knaves or by apparent innocence.” That wise admonition is not lost on me.

Considering both the demeanour observed and the substance of their testimony, I regard the Defendant’s witnesses as credible. Their evidence, tested through cross-examination, bore the hallmarks of reliability, and I therefore attach weight to it.

Liability and Causation Cannot Be Attributed Sans Jurisdiction

In this context, and for the reasons already elaborated regarding jurisdiction, I have also considered the reliance placed by learned counsel for the Plaintiff upon the Defendant’s statutory standing as the local authority for Klang, said to arise under Section 3 of the Street, Drainage and Building Act 1974 and Sections 2, 63 and 101 of the Local Government Act 1976. This proposition is reflected in the pleadings, where the Plaintiff expressly asserts that the Defendant bears responsibility for the relevant road infrastructure and associated duties. (See: Paragraph 2 of the Plaintiff’s Statement of Claim). It was contended that, by virtue of these provisions, the Defendant bears responsibility for the relevant road infrastructure and associated public duties, a position further reinforced by reference to Majlis Daerah Mersing v. Tenaga Nasional Berhad [2008] 7 MLRH 546; [2008] MLJU 390. In Majlis Daerah Mersing, the Court emphasised that a local authority, as the statutory custodian of public places within its district, carries a duty to supervise and maintain such areas to safeguard public safety and convenience. S/N 8qzIqMHWg0u1uTsJxoy9A

Be that as it may, I find that learned counsel for the Plaintiff’s reliance on Majlis Daerah Mersing and the preceding statutory provisions does not advance the Plaintiff’s case in any material sense. The dispute before me is not resolved by reference to institutional capacity or statutory powers in the abstract. The true enquiry is narrower and more exacting, namely whether the Defendant possessed actual authority over the situs of the Accident Scene. The Defendant made it clear through its defence that it bore no such authority (See: Paragraph 2 of the Defendant’s Statement of Defence). In my judgment, this is a matter of fact, and the evidential burden rested squarely upon the Plaintiff. Having failed to discharge this burden, the matter remained unproven and unresolved.

Even with the existence of the pothole at the Accident Scene established, any question of the Defendant’s liability turns on proof that it possessed both legal and practical authority over the road, encompassing the capacity to undertake proper maintenance. To my mind, such authority is not a mere formality. Indeed, it is the essential foundation for establishing jurisdiction and responsibility. The evidential record, including uncontroverted testimony from DW1, DW2 and DW3 and corroborative documentary material, demonstrates that the Accident Scene does not fall under the purview of the Defendant. Accordingly, in the absence of such authority, it is not feasible to attribute responsibility for the road to the Defendant, and, without jurisdiction, liability and causation cannot be established. S/N 8qzIqMHWg0u1uTsJxoy9A

Viewed through the full compass of the evidence, I find that the Plaintiff has not discharged the burden of proving that the Accident Scene fell within the Defendant’s jurisdiction. And by contrast, the Defendant placed before the Court evidence both clear and unassailable, demonstrating that jurisdiction and responsibility over the Accident Scene did not rest with it. Accordingly, I hold the Defendant’s version to be the more probable and determinative of the jurisdictional issue. SECOND ISSUE: WHETHER THE DEFENDANT OWED A DUTY OF CARE TO THE PLAINTIFF Opposing contentions in brief

Learned counsel for the Plaintiff submitted that the Defendant owed a duty of care. Supporting her argument, she relied upon established principles of negligence and contended that the Defendant bore responsibility in relation to the Plaintiff.

64.

I am guided by the enduring principles of negligence, as articulated in Arab-Malaysian Finance Bhd v. Steven Phoa Cheng Loon & Ors and Other Appeals [2003] 1 CLJ 585; [2003] 1 MLJ 567, where the Court held that to establish negligence, the Plaintiff must demonstrate three essential elements:

there is a duty of care on the part of the defendant;

(ii) the defendant breaches this duty; and

(iii) the breach causes damage that is not too remote to the plaintiff, although these elements are not necessarily exclusive of the other at all times.

These elements, though analytically discrete, are nonetheless intertwined. I therefore begin with the threshold question, namely whether the Defendant owed a duty of care in view of the particular facts of this case.

As a prelude, guidance on the existence of a duty of care may be found in the decision of Wong Kian Kheong J (now JCA) in De Tebrau Makmur Sdn Bhd & Anor v Bank Kerjasama Rakyat Malaysia Bhd [2017] CLJU 252; [2017] 1 LNS 252; [2017] MLJU 201, wherein His Lordship distilled the test articulated in Lok Kok Beng v Loh Chiak Eong [1979] 2 MLJ 151. At paragraph [50], His Lordship set out the following principles: S/N 8qzIqMHWg0u1uTsJxoy9A “[50] My understanding of Lok Kok Beng is as follows

in deciding whether a party X owes a duty of care to another party Y, the Court shall consider the following

whether there is ‘sufficient legal proximity’ between X and Y. It is to be noted that Courts have also applied the test of whether it is reasonably foreseeable that Y will suffer loss or damage arising from X's misstatement. In this respect, the following considerations are relevant

the nature of relationship between X and Y

(ii) whether X has voluntarily assumed responsibility to Y regarding X’s misstatement

(iii) whether Y has relied on X’s misstatement

(iv) whether there is physical proximity

whether there is circumstantial proximity

(vi) whether there is causal proximity

if there is ‘sufficient legal proximity’ between X and Y, X owes a prima facie duty of care to Y. The next question is whether X’s prima facie duty of care is negated by policy consideration. The following matters are pertinent

the factual matrix of the case

(ii) whether there is a contract between X and Y

(iii) the relative bargaining positions of X and Y …” S/N 8qzIqMHWg0u1uTsJxoy9A

Armed with these principles, I turn to the present case. On the pleaded claims and established facts, I am unpersuaded that the Defendant owed any duty of care to the Plaintiff.

My findings will unfold according to the following sequence:

Nature of Relationship In my view, the parties stood as complete strangers in law. I see no assumption of responsibility by the Defendant toward the Plaintiff, no act or representation that could reasonably have invited reliance by the Plaintiff, and no control over the circumstances giving rise to the accident that could have created a relational bond. As observed in De Tebrau Makmur, proximity cannot be conjured from mere foreseeability. It must arise from a tangible interweaving of reliance and responsibility. And even if I were to impose a duty under these circumstances, doing so would undermine the very principle reflected in the nature of the parties’ relationship, for it would be to forge legal obligations where no relational bond or assumption of responsibility exists. S/N 8qzIqMHWg0u1uTsJxoy9A

(ii) Legal Proximity The first and most decisive obstacle is the absence of legal proximity. While foreseeability may exist at a general level, I am conscious that foreseeability alone cannot establish a duty of care. The question, as I see it, is whether the Defendant assumed any responsibility toward the Plaintiff, or whether the Plaintiff relied on such responsibility. In this case, I find that no voluntary assumption of responsibility arises. The parties were legal strangers, and the Defendant undertook no obligation, express or implied, that could give rise to the relational closeness required for a duty of care. And even if I were to impose a duty here, doing so would disregard the absence of legal proximity and create obligations between parties who share no relational connection, an approach the law does not sanction.

(iii) Physical Proximity The second impediment I perceive in imposing a duty of care lies in the absence of physical proximity. This difficulty becomes immediately apparent when one considers the nature of the Defendant’s authority and the scope of its responsibility. In my view, the Defendant exercised no custodial or jurisdictional authority capable of placing the Plaintiff within its sphere of influence. S/N 8qzIqMHWg0u1uTsJxoy9A In that light, I am unable to accept learned counsel for the Plaintiff’s reliance on the Federal Court case of Ahmad Jaafar Abdul Latiff v. Dato' Bandar Kuala Lumpur [2014] 9 CLJ 861; [2014] MLJU 1873, for that authority must be understood within its own factual context, where the accident site lay within the jurisdiction of the local authority, thereby giving rise to a statutory duty of care. In the present case, however, the locus of the Accident Scene falls outside the Defendant’s territorial responsibility, and without such a jurisdictional nexus no duty of care, whether statutory or common law, can arise. The reliance on Ahmad Jaafar is therefore misconceived and inapplicable. In my judgment, no nexus arose from which any genuine control, guidance, or influence could reasonably be inferred. And even if I were to impose a duty under these circumstances, doing so would contravene the requirement of physical proximity and risk extending liability where no tangible bond or sphere of responsibility exists, an outcome the law does not condone

(iv) Circumstantial Proximity The surrounding circumstances reveal no threads connecting the Defendant to the Plaintiff. I cannot see how mere happenstance or opportunity could impose responsibility where none was assumed. No action or interaction linked the S/N 8qzIqMHWg0u1uTsJxoy9A Defendant’s operations or supervisory role to the Plaintiff. As is trite, the law will not conjure proximity from chance or coincidence. And even if I were to impose a duty under such fortuitous circumstances, it would contravene the requirement of circumstantial proximity, effectively extending liability where no genuine relational or contextual connection exists, something the law provides no warrant.

Causal Proximity The evidence equally fails to establish a causal bridge between the Defendant’s actions or omissions and the harm alleged. I note that the Defendant has not demonstrated any direct chain linking the Second Plaintiff’s conduct to the loss claimed. The absence of control, assumption of responsibility, or reliance, in my view, severs any causal thread. And even if I were to impose a duty under these circumstances, it would fail the requirement of causal proximity, imposing liability without any demonstrable link between the Defendant’s conduct and the harm alleged, contrary to established legal principle. S/N 8qzIqMHWg0u1uTsJxoy9A

Taken cumulatively, I find that the legal, the physical, the circumstantial and the causal proximity are absent. Foreseeability, standing alone, cannot supply the missing relational nexus. There was no assumption of responsibility, no control, and no interaction capable of generating reliance. Without that anchor, no duty of care arises.

Ex hypothesi, I recognise that one cannot breach a duty one does not owe. In my judgment, the Plaintiff has not established the foundational duty required to sustain a negligence claim against the Defendant. On the evidence before me, any attempt to impose such a duty would be purely speculative and legally unsustainable. In the absence of a relational nexus, any alleged duty remains unrealised, and the claim cannot stand.

In sum, I hold that the Defendant owed no duty of care to the Plaintiff in the circumstances of this case. The claim falters on this essential element from the outset. The logical consequence flows inexorably from this finding. The Court of Appeal in Tan Wei Hong & Ors v Malaysia Airlines System Bhd & Ors [2017] 4 MLJ 540 affirms the trite principle that negligence is not a monolithic concept but a sequence of interdependent elements, namely duty of care, breach, S/N 8qzIqMHWg0u1uTsJxoy9A causation, and remoteness. The absence of the first renders the others otiose (See also: Tan Wei Hong & Ors v. Malaysia Airlines Bhd & Other Appeals [2018] 9 CLJ 425 (FC)). On that premise, the Plaintiff’s claim cannot proceed, for without a duty of care, there is no foundation upon which breach, causation, or damage can be evaluated.

In summation, the findings I draw on the balance of probability crystallise into the following:

The Plaintiff has not discharged the burden of proving that the Accident Scene fell within the Defendant’s jurisdiction; and

(ii) The Defendant owed no duty of care to the Plaintiff.

Accordingly, I dismiss the Plaintiff’s claim with costs.

And for the costs, I order the costs according to the scale as set out in the Rules of Court 2012. Signed (NOORHISHAM MOHD JAAFAR) Judge Sessions Court Klang, Selangor 19 September 2025 S/N 8qzIqMHWg0u1uTsJxoy9A Counsel for the Plaintiff : Adiatul Akmar binti Baharuddin Solicitors for the Plaintiff : Messrs. Izzan Farah & Associates No.7a, Jalan Sri Damak 17 Taman Sri Andalas Klang, 41200, Selangor Counsel for the Defendant : Gavrie Ang Qai Zen Lee Guo Wen Solicitors for the Defendant : Messrs. Gan Ho & Razlan Hadri Suite K-3-10, 2, Jalan Solaris, Solaris Mont Kiara, 50480 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur S/N 8qzIqMHWg0u1uTsJxoy9A