H'NG SHEAU HUI v AMANAHRAYA BERHAD (Sebagai Pentadbir Harta Pusaka Ong Lee Hoon) (PA-12B-1-02/2021)

The Appellant’s appeal before this Court is premised on three grounds contending that the Learned SCJ had erred-i. in her findings on liability, in holding both parties equally to blame for the accident; ii. as regard to the Quantum where the award for injuries was made on a global basis; and iii. in disallowing the Plaintiff’s claim for loss of earnings.

For convenience, the parties are referred in their respective capacity at the Sessions Court. The Appellant is referred to as the Plaintiff and the Respondent is referred to as the Defendant. BRIEF FACTS [4] The Plaintiff and Defendant was involved in an accident on 3.3.2014, involving the Defendant’s motorcycle and the Plaintiff, who was crossing the road with her friends.

No police report was made by the Defendant who then passed away on 14.7.2016. Page 3 of 13 Plaintiff’s Contention [6] The Plaintiff contended that the Defendant did not lodge any police report and had since passed away, resulting in the Defendant’s version not available before the Court. The Plaintiff also contended that the SCJ, having acknowledged that the Plaintiff’s witnesses’ testimonies were consistent and unchallenged, ought to have found that the Defendant is fully liable.

The Plaintiff further contended that the Learned SCJ had wrongly relied on Kanun Lebuhraya (LN 165/1959) as a legal basis in determining negligence and apportioning liability. The Plaintiff submitted that the Code serves merely as a guide and not a binding law, and that the Sessions Court had failed to distinguish between a breach of traffic rules and actual negligent conduct.

The Plaintiff’s evidence was corroborated by independent witnesses which showed that the Defendant was riding his motorcycle at high speed, failing to put on his brake or sound the horn, thus collided with the Plaintiff. The Plaintiff also contended that both the Plaintiff and her companion (SP- 2) had waited for 3 to 5 minutes by the roadside before crossing, confirming that the road appeared clear and safe.

The Plaintiff also referred to the evidence of an eye witness (SP-4), who confirmed that the Defendant was riding at high speed and lost control of his motorcycle after the collision with the Plaintiff, thereafter crashed into SP-4’s motorcar parked by the right side of the road and skidded back to the middle of the road as the impact from the collision. It is further contended that the SCJ erred by relying on the decision in Page 4 of 13 George Lai Weng Keei v. Aryal Tek Raj [2017] MLRHU 1615, which was factually distinguishable, as in that case there was no eyewitness and both parties had passed away, whereas in the present case, the Plaintiff and two eyewitnesses testified.

The Plaintiff submitted that she and her companions had taken all reasonable precautions and that the failure to use the pedestrian crossing 50 to 100 metres away should not amount to contributory negligence, especially when the crossing was far and inconvenient to reach. Plaintiff strongly argued that the collision was caused solely by the Defendant’s excessive speed and failure to keep a proper lookout.

On quantum, the Plaintiff contended that the Learned SCJ erred in granting global awards rather than individualized assessments for each injury, resulting in inordinately low compensation. The Plaintiff further contended that each injury should be assessed separately in accordance with established judicial principles and the Revised Compendium of Personal Injury Awards 2018 and that the 10% deduction for overlapping injuries was unjustified and contrary to fairness, as the injuries involved different anatomical areas and caused separate disabilities.

As to loss of earnings, the Plaintiff submits that the Sessions Court erred in rejecting the claim despite evidence from the Plaintiff’s employer (SP-5), who is also the Plaintiff’s sister, who confirmed that the Plaintiff was working part-time prior to the accident. Page 5 of 13 Defendant’s Contention [13] The Defendant contended that the appeal is devoid of merit as the SCJ had correctly evaluated the evidence and applied the correct legal principles.

On liability, the Defendant contended that the SCJ had properly found that the Plaintiff is contributorily negligent to the accident. The evidence showed that the Plaintiff attempted to cross a three-lane road, despite the presence of a pedestrian crossing nearby, that she admitted she did not use purely for convenience.

The Defendant further pointed out that the Plaintiff’s view was obstructed by her friends who were crossing alongside her, and that she only saw the Defendant’s motorcycle when it was about three feet away. It is contended that this demonstrates that the Plaintiff had failed to exercise reasonable care for her own safety. The Investigating Officer testified that the accident could have been avoided had the Plaintiff used the pedestrian crossing, and that vehicles had the right of way along that road.

For Quantum, the Defendant contended that the SCJ had correctly applied the Revised Compendium of Personal Injury Awards (2018) and assessed damages globally for related injuries, in line with judicial practice where multiple injuries affect the same part or function of the body.

The 10% deduction for overlapping was properly applied since the injuries to the right tibia, fibula, and shin scars arose from the same limb and thus should not be double counted.

As for the claim of loss of earnings, the Defendant submitted that the Sessions Court had rightly dismissed the claim as it was unproven. The Plaintiff did not produce any documentary proof of employment. The ledger showing monthly payments of RM 1,500.00 contradicted the claim that the Plaintiff earned RM 800.00 per month, and the same amount continued to be recorded even during the Plaintiff’s medical leave. There was also no medical evidence that the Plaintiff was unfit to work after her MC period.

The Defendant further submitted that the SCJ had carefully analysed all the evidence and given sound reasons for her findings on liability, quantum, and loss of earnings. There was no misdirection of law or misappreciation of evidence warranting appellate interference. Decision of the Sessions Court Judge Findings on Liability [20] The SCJ held that the burden of proof lies on the Plaintiff to prove negligence on a balance of probabilities. Six witnesses were called for the Plaintiff, including the investigating officer (SP1), two eyewitnesses (SP2 and SP4), a medical officer, the Plaintiff’s employer, and the Plaintiff herself. The Defendant called no witnesses.

The investigating officer confirmed that there was a pedestrian crossing controlled by traffic lights located about 30 to100 metres from the accident site. The Plaintiff and her companions did not use it, crossing instead at a section of road that was part of the vehicle’s right of way. The Plaintiff’s own witnesses agreed that the crossing existed.

The evidence showed that the motorcycle, while moving fast, collided with the Plaintiff in the middle of the lane. The Defendant had not filed a police report and was deceased. The Court found the Plaintiff’s witnesses credible, noting that their testimony was consistent and corroborated the investigation report.

However, the Court held that the Plaintiff bore a duty of care to ensure her own safety when crossing the road. Although the Defendant’s rider should also have been cautious and could have avoided the accident, the Plaintiff’s failure to use the pedestrian crossing amounted to contributory negligence.

On a balance of probabilities, the Court apportioned liability equally, holding both the Plaintiff and Defendant 50% liable each for the accident. Findings on Quantum General Damages: [25] The Plaintiff sustained multiple injuries, including traumatic brain injury, skull and facial fractures, and compound fractures of the right tibia and fibula. Based on medical reports and the Revised Compendium of Personal Injury Awards (2018), the Court made a global assessment with some specific awards as follows: BIL KECEDERAAN HUJAH PLAINTIF HUJAH DEFENDAN KEPUTUSAN MAHKAMAH Page 8 of 13 1 Cerebral Concussion & Retrograde Amnesia 10,000 5,000 6,000 2 Fracture of Left Temporal bone 30,000 - Award diambil kira di bawah item 4. 3 Left Fronto-Temporal Craniectomy 40,000 - Award diambil kira di bawah item 4. 4 Moderate Traumatic Brain Injury: i. Left Fronto-temporo-parietal Extradural Haemorrhage with midline shift, ii. Left Temporal Contusion with Subdural Haemorrhage iii. Post Traumatic Encephalomalacia iv Pneumocranium With post traumatic ‘recent memory impairment’ with ‘minimal personality changes’ 150,000 60,000 70,000 5 Facial Fractures: Fracture of Right Nasal bone Floor of right orbit Left Zygomatic Arch 50,000 25,000 25,000 6 Comminuted Fracture of right tibia 60,000 28,000 30,000 7 Non-union fracture of Right Midshaft Fibula 60,000 - Award diambil kira di bawah item 6. 8 Right Shin laceration wound and multiple wound over limb 12,000 5,000 5,000 Page 9 of 13 9 Muscle wasting on right thigh 7,000 Telah diambil kira di bawah item 6. Award diambil kira di bawah item 6. 10 Scars: i. Right leg 17.5 cm incision scar ii. Right leg four external fixator scars 1 cm each iii. Right leg middle medial aspect 3cm transverse scar 20,000 4,000 Overlapping 10% - 33,300 for right legs. 5,000 Untuk item 6, 8 dan 10, ditolak 10% overlapping

Total General Damages (100%) = RM142,000.00. Special Damages: [27] The Plaintiff produced medical bills from Pantai Hospital totalling RM57,677.30. The Court accepted that payment by insurance did not extinguish her claim and allowed the full amount, finding her transfer to a private hospital reasonable.

The Court disallowed claims for physiotherapy and loss of earnings on the basis that the Plaintiff had failed to produce documentary proof of employment and, in any event, had resumed her studies and later established her own business.

Upon full consideration of the evidence and submissions, the Court held that the Plaintiff had successfully proved negligence on the part of the Defendant on a balance of probabilities. However, the Plaintiff was found contributorily negligent for failing to use the pedestrian crossing located approximately 100 metres away from the accident site. Page 10 of 13 ANALYSIS AND FINDINGS Appellate Intervention [30] The “plainly wrong” test is the test applicable when determining whether an appellate Court should intervene with the lower courts’ decision. The “plainly wrong” test means when the “learned trial Judge had gone plainly wrong … in the sense that it could not reasonably be explained or justified and so was one which no reasonable Judge could have reached.” (See: Tengku Dato' Ibrahim Petra Tengku Indra Petra v Petra Perdana Bhd & Another Appeal [2018] 2 MLJ 177; [2018] 2 CLJ 641; [2018] 1 MLRA 263 (FC), Ng Hoo Kui & Anor v Wendy Tan Lee Peng, Administrator Of The Estates Of Tan Ewe Kwang, Deceased & Ors [2020] 12 MLJ 67; [2020] 10 CLJ 1; [2020] 6 MLRA 193 (FC), Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; [2004] 4 CLJ 309; [2004] 2 MLRA 1 (FC);.

Further, in Merita Merchant Bank Singapore Ltd v Dewan Bahasa dan Pustaka [2014] MLJU 1807; [2014] 9 CLJ 1064 (FC), it was held- “[45] It is trite law that an appellate court will not readily interfere with the findings of fact arrived at by the court of first instance to which the law entrust the primary duty of evaluation of the evidence. However, the appellate court is under a duty to intervene in a case where the trial court has so fundamentally misdirected itself. In our judgment, we find that there was insufficient judicial appreciation by the learned trial Judge of the pleadings and contemporaneous evidence in the instant case when she allowed Merita’s claim. Such erroneous finding warranted appellate interference which the Court of Appeal rightfully done so, and we have no reason to disagree.”

This Court has perused the grounds of the SCJ and found that it is not necessary to interfere with the SCJ’s decision except on the part of the portion of liability of the Plaintiff as she was also found to be contributorily negligent.

The Defendant had not lodged any police report for the accident on 3/3/2014 and later passed away on 14/7/2016. So, the only available version is that of the Plaintiff’s. On this, the Federal Court in Wong Thin Yit v. Mohamad AH [1971] 1 MLRA 483; [1971] 2 MLJ 175 held - "In a negligence action, the onus of proof rest wholly on the Plaintiff, whether or not the Defendant gives evidence. The Plaintiff cannot succeed without proof of the Defendant's negligence."

Nevertheless, it was apparent, based on the evidence adduced; from the impact of the accident as well as the testimony of witnesses, that the Defendant was riding his motorcycle in high speed and failed to observe any obstruction or pedestrian nearby. Eye witness (SP-4), testified that the Defendant was riding his motorcycle at high speed and confirmed the fact that after the collision with the Plaintiff and Plaintiff's friend, the Defendant lost control and crashed into SP-4’s motorcar parked by the right side of the road and then skidded and thrown back to the middle of the road as reflected from the Witness Photographs marked as Exhibit P- 11(D).

This Court is of the opinion that it is high time for motor vehicles to be observant of obstructions (and probability of obstructions) while on the road, and to pay attention to other road users as well as pedestrians. It should be the duty of motor vehicle drivers to take due care and attention while on the road.

This Court further opines the fact that there is a pedestrian crossing which is indeed to reduce the risk of accident but the Plaintiff failed to even avoid that risk, has made the Plaintiff contributorily negligent (see George Lai Weng Keei v. Aryal Tek Raj [2017] MLRHU 1615). It is further supported in a Supreme Court decision in Lai Yew Seong v Chan Kim Sang [1986] 1 MLRA 245, which discusses the test of contributory negligence where it is based entirely on the conduct of the Plaintiff. In the case of Paris Bin Ariff & Anor v Wan Ya Bin Wan Hussin & Ors [2017] MLJU 1227 the HC opined that the Highway Code is for road users and pedestrians to adhere to and therefore both parties are held liable. However, in the present case, this Court found that the percentage of liability of Plaintiff should be lesser, taking into account that the Defendant was speeding and had failed to take precautionary measures to avoid the collision, including sounding the horn or putting on his brakes, as confirmed by an eyewitness, otherwise he may be able to stop in time to avoid the collision. The Plaintiff was also not charged for any traffic offence due to the accident. Therefore, this Court apportioned the liability of the Plaintiff at 10% and the Defendant at 90%.

For the appeal on loss of earnings and quantum, the Court finds that there is no merit to warrant appellate intervention based on the grounds given by the SCJ (See Ong Leong Chiou v. Keller (M) Sdn Bhd (FC) [2021] 4 MLRA 211; [2021] 3 MLJ 622; [2021] 4 CLJ 821, Tengku Dato' Ibrahim Petra Tengku Indra Petra v Petra Perdana Bhd & Another Appeal [2018] 2 MLJ 177; [2018] 2 CLJ 641; [2018] 1 MLRA 263 (FC), Ng Hoo Kui & Anor v Wendy Tan Lee Peng, Administrator Of The Estates Of Tan Ewe Kwang, Deceased & Ors [2020] 12 MLJ 67; [2020] Page 13 of 13 10 CLJ 1; [2020] 6 MLRA 193 (FC) and MMC Oil & Gas Engineering Sdn Bhd v. Tan Bock Kwee & Sons Sdn Bhd [2016] 3 MLRA 144; [2016] 2 MLJ 428; [2016] 4 CLJ 665 (COA)). CONCLUSION [38] Based on the above deliberations, the appeal is allowed in part; liability is apportioned at 90% on the Defendant and 10% on the Plaintiff. The quantum of damages remained as awarded by the Sessions Court. Dated: 12 November 2025 -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of the High Court OCVC 2 Pulau Pinang For the Appellant : Saravana Kumar Messrs Jega Kumar & Partners (Butterworth) For the Respondent : Joshua Narendran and Darshayini A/P Visuvanathan Pillai Messrs Ajmer Sandhu & Ong (Georgetown)