James A/L Divit v Cho Chun Choong (WA-A73KJ-386-03/2024)

GROUNDS OF JUDGMENT Introduction This case pertains to a road accident involving a motorcycle (BLC 3038) ridden by the Plaintiff and a car (JUQ 811) driven by the Defendant. The accident took place on 18th August 2023 at Jalan Pahang. The Plaintiff asserts that the Defendant made an abrupt left turn without signalling, resulting in a collision. Conversely, the Defendant argues that the Plaintiff attempted to overtake from the left, thereby violating Rule 5 of the Road Traffic Rules 1959. According to the Plaintiff, he was traveling in the left lane when the Defendant, driving in the same direction, suddenly turned left without checking for oncoming traffic. As a result, the Defendant’s vehicle collided with the Plaintiff’s motorcycle, throwing him off and causing injuries. The Plaintiff maintains that the Defendant’s failure to signal and ensure a safe turn was the primary cause of the accident. On the other hand, the Defendant contends that the Plaintiff was riding at an excessive speed and attempted to overtake from the left, contributing to the collision. The Defendant asserts that he was executing a lawful turn when the Plaintiff, in negligence, tried to manoeuvre past him, leading to the accident. The Plaintiff claims against the Defendant for: a) General damages; b) Interest on general damages at a rate of 5% per annum from the date of the filing of the writ until full settlement; c) Special damages; d) Interest on special damages at a rate of 2.5% until the date of judgment and thereafter at a rate of 5% until full settlement; e) Costs to be assessed based on the terms as ordered by this Honourable Court; f) Any other relief or order deemed appropriate and just by this Honourable Court. The Investigating Officer, Sergeant Muhammad Hafiz bin Arifin, classified this case as "RTM" (Refer to Magistrate), indicating that no criminal charges were pursued against either party. Consequently, the Court must consider the following key issues:

Liability – Which party is responsible for the accident?

Credibility of Witnesses – Is the testimony of the Investigating Officer (SP1) admissible as valid evidence?

Quantum of Damages – The amount of compensation to be awarded.

Court Documents Referred

F - Ikatan Dokumen Plaintif Tambahan Witnesses Called The following witnesses were called in this case: Plaintiff’s Witnesses: a) Sergeant Muhammad Hafiz bin Arifin (SP1) b) James A/L Divit (SP2) Defendant’s Witnesses: The Defendant did not call any independent witnesses but relied on documentary evidence such as the police report and photographic evidence.

Analysis and Findings of the Court 4.1 Liability Under Malaysian law, every road user owes a duty of care to others to drive safely and avoid causing harm. The principle of negligence is established when a party fails to exercise reasonable care, resulting in damage or injury. In accident matters, the Plaintiff must establish negligence on the part of the Defendant. This principle was clearly set out in the High Court case of Che Pah Itam v. Chang Bek Lee [1998] 4 CLJ 517, where the Court held: "It is trite law that the onus of proving negligence lies on the plaintiff." Similarly, in Wong Thin Yit v. Mohamed Ali [1971] 2 MLJ 175, Ong CJ (as he then was) further emphasised: "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." In determining liability for this accident, the Court must assess the duty of care owed by both parties, the sequence of events leading to the collision, and whether either party failed to observe traffic regulations. Both parties have provided conflicting versions of events, supported by documentary and testimonial evidence, including police reports, photographs, and witness statements. The Plaintiff maintains that the Defendant’s failure to ensure a safe turn was the primary cause of the accident. At the same time, the Defendant asserts that the Plaintiff was riding at excessive speed and overtaking from the left, thereby contributing to the collision.

4.2 Plaintiff’s Witness Testimony Sergeant Muhammad Hafiz bin Arifin (SP1), the investigating officer assigned to the accident, was the first witness called on the day of the trial. SP1, as he was not an eyewitness to the accident, his findings were based entirely on post-accident investigations, which included statements from both parties, physical evidence at the scene, and official police reports. His testimony played a crucial role in providing insight into the circumstances of the accident, although it was not conclusive in determining liability. SP1 testified that the case was classified as "RTM" (Refer to Magistrate) due to contradictory accounts from both parties. A significant factor in the investigation was the timing of the police reports. The Defendant lodged his report within two hours of the accident, whereas the Plaintiff filed his report two months later. SP1 acknowledged that such a delay could affect the credibility of the Plaintiff’s version, as late reports raise concerns about reconstructed narratives. The Defendant's contemporaneous report was argued to carry greater evidential weight. Regarding physical evidence, SP1 referred to Exhibit D1, which included the police report and accident sketch, and Exhibit P4, which contained photographs of the Defendant’s vehicle. These photographs showed rear left-side damage to the Defendant’s car, which SP1 highlighted as a key indicator of the point of impact. However, the Plaintiff did not present his motorcycle for inspection, and no official photographs were taken. The absence of this evidence made it difficult to assess the extent of damage to the Plaintiff’s vehicle or determine the exact nature of the impact. SP1 further noted that based on the Plaintiff’s version of events, the motorcycle sustained damage to several components, including a broken cover set, front mudguard, handlebar, and footrest. However, due to the lack of official documentation or photographic evidence, the extent and cause of these damages could not be independently verified. This omission weakened the Plaintiff’s ability to prove the severity of impact and the positioning of vehicles at the time of the collision. SP1 also analysed the point of collision and its implications. He explained that if the Defendant had indeed made a sudden left turn from the middle lane, as claimed by the Plaintiff, then the expected point of impact should have been at the front or middle left side of the Defendant’s car. However, the damage was found on the rear left side, suggesting that the Defendant may have already been in the left lane before the collision. This finding casts doubt on Plaintiff’s claim that Defendant abruptly turned from his path, as the physical evidence does not entirely support this version of events. Furthermore, SP1 noted the presence of skid marks at the accident site, which indicated that the Plaintiff had applied sudden braking before impact. This observation was consistent with the Plaintiff’s claim that he had tried to avoid the collision. However, SP1 could not verify whether the Plaintiff was speeding or attempting to overtake at the time. The Defendant argued that the position of the damage and the presence of skid marks were more consistent with the Plaintiff overtaking from the left, violating Rule 5 of the Road Traffic Rules 1959. During cross-examination, the defence objected to SP1’s testimony, arguing that it was based on hearsay rather than direct observation. The Defendant’s counsel further emphasised that the Defendant’s immediate police report should be given greater weight than the Plaintiff’s delayed report, which had been lodged two months later. SP1 acknowledged that contemporaneous reports typically provide a more accurate account of events. In conclusion, SP1’s testimony does not fully support either party’s version of events but provides essential details regarding the physical evidence, police report timing, and collision analysis. The rear left-side damage on the Defendant’s vehicle suggests that the Plaintiff was in motion at the time of the collision, which aligns with the Defendant’s claim that the Plaintiff was overtaking from the left. Additionally, the lack of photographic evidence of the Plaintiff’s motorcycle and the delay in lodging the police report weakens the Plaintiff’s case. While SP1’s findings are relevant, they are not conclusive in determining fault, and the Court must consider additional evidence before deciding on liability. Building upon SP1's earlier testimony, we now turn to the evidence from James A/L Divit (SP2), the Plaintiff. His testimony is central to the Plaintiff’s case, providing a first-hand account of the accident, the injuries sustained, and the damages to his motorcycle. Through his statement, SP2 seeks to establish that the accident was caused solely by the Defendant’s negligence in making a sudden left turn without signalling. SP2 testified that on the day of the accident, he was riding his motorcycle (BLC 3038) along Jalan Pahang, traveling in the left lane. He claimed that he was riding in a straight direction at a reasonable speed when the Defendant, driving in the middle lane, suddenly made a left turn without giving any signal. SP2 said this manoeuvre left him with no time to react, leading to a collision between his motorcycle and the Defendant’s car (JUQ 811). As a result of the impact, SP2 stated that he was thrown off his motorcycle, causing him to fall onto the road and sustain injuries. He asserted that the Defendant’s failure to signal and check for oncoming vehicles before turning was the sole cause of the accident. According to SP2, he could not avoid the collision due to the Defendant’s sudden and unexpected manoeuvre. SP2 referred to Exhibit B2, which contained medical reports detailing his injuries. He testified that he suffered multiple injuries, including abrasions and pain in the left leg and arm, which required medical treatment. Additionally, he stated that his motorcycle sustained extensive damage, including a broken cover set, front mudguard, handlebar, and footrest. However, SP2 admitted that he did not immediately file a police report after the accident and only did so two months later. He explained that this delay was due to his injuries and recovery process. He acknowledged not bringing his damaged motorcycle for inspection when he lodged the police report. During cross-examination, the Defendant’s counsel challenged SP2’s credibility, raising concerns about the late police report and lack of photographic evidence of his motorcycle’s damage. The defence argued that a two-month delay in reporting the accident allowed the Plaintiff to reconstruct a version of events more favourable to him. Additionally, the defence questioned SP2 about his lack of a valid motorcycle license. SP2 admitted that he did not possess a valid motorcycle license at the time of the accident, which raised concerns about his competency in handling the motorcycle safely. The defence further suggested that SP2 was riding at excessive speed and was attempting to overtake from the left, which violates Rule 5 of the Road Traffic Rules 1959. SP2 denied these allegations and maintained that he was riding safely in his designated lane when the accident occurred.

4.3 Defendant’s Evidence After examining the Plaintiff’s account of the accident, it is necessary to consider the Defendant’s version, which was presented through documentary evidence rather than oral testimony. Unlike the Plaintiff, the Defendant relied entirely on official records, including his police report, vehicle photographs, and the accident sketch, to substantiate his claims. His primary contention was that the accident was not caused by his negligence but rather by the Plaintiff’s attempt to overtake from the left when executing a lawful left turn. According to the Defendant’s police report, he was already in the left lane and had turned on his left signal before turning into a junction. The Defendant denied the Plaintiff’s claim that he suddenly switched lanes from the middle lane and asserted that the Plaintiff, while riding his motorcycle, attempted an unsafe overtaking manoeuvre from the left, leading to the collision. The Defendant lodged his police report within two hours of the accident, maintaining that he had exercised due caution before turning and that the Plaintiff had collided with the rear left side of his vehicle. To support his account, he provided photographic evidence (Exhibit P4) showing visible damage to the rear left side of his car. In support of his version of events, the Defendant submitted the following documents: a) Police Report – Filed shortly after the accident, detailing the sequence of events from the Defendant’s perspective. b) Photographs of the Defendant’s Vehicle (Exhibit P4) – Showing damage to the rear left side, which the Defendant argued aligned with his version of the collision. c) Accident Sketch (Exhibit D1)—Prepared by the police, this sketch depicts the positioning of vehicles at the time of impact.

4.4 Determination of Liability Having carefully examined the evidence presented by both parties, the Court finds that several key issues must be considered in determining liability. The contradictory accounts provided by the Plaintiff and the Defendant, coupled with physical evidence at the scene, require a comprehensive evaluation of whether the Defendant executed a negligent left turn or whether the Plaintiff was attempting an improper overtaking manoeuvre from the left. Given the circumstances of the case, the Court finds that liability must be apportioned equally between both parties at 50:50 as both contributed to the occurrence of the accident in different ways.

4.5 The Plaintiff’s Allegation Against the Defendant The Plaintiff contends that the accident was caused solely by the Defendant’s negligent left turn without proper signalling or checking for oncoming vehicles. According to him, he was riding in the left lane at a constant speed when the Defendant, who was in the middle lane, suddenly switched lanes and turned left into his path. The Plaintiff argues that this abrupt manoeuvre left him with no time to react, so he collided with the Defendant’s vehicle. The Plaintiff further submits that the Defendant, as the driver making a turn, owed a duty of care to ensure that the left lane was clear before executing his manoeuvre. Under road safety principles, a driver turning into a junction must check for oncoming vehicles and ensure the turn can be completed safely. The Plaintiff maintains that his presence in the left lane was lawful and that the Defendant’s failure to signal appropriately or take adequate precautions directly caused the accident.

4.6 The Defendant’s Version of Events The Defendant, however, disputes this claim, arguing that he was already in the left lane before turning and had activated his left signal adequately before manoeuvring. The Defendant denies making a sudden lane switch and submits that the accident was not caused by his actions, but rather by the Plaintiff’s attempt to overtake from the left, which is prohibited under Rule 5 of the Road Traffic Rules 1959. The Defendant further contends that the Plaintiff was not merely traveling straight in the left lane, as he claims, but was attempting to pass the Defendant’s vehicle from the left at the time of the accident. The Defendant submits that the Plaintiff’s improper overtaking attempt was the real cause of the collision, as overtaking from the left is inherently dangerous, mainly when another vehicle executes a left turn.

4.7 The Point of Impact as a Key Factor A crucial aspect of this case is the point of impact on both vehicles, as it provides objective evidence that may support or contradict the parties' respective claims. The Defendant’s vehicle sustained damage on the rear left side, and this detail is central to assessing which version of events is more probable. If the Plaintiff’s claim is accurate, and the Defendant had abruptly turned from the middle lane, the expected point of impact would be at the front or middle left side of the Defendant’s car. However, physical evidence suggests that the rear left side of the Defendant’s vehicle was damaged, which raises questions about whether the Plaintiff collided into the Defendant’s car while attempting to pass, rather than the Defendant cutting into the Plaintiff’s lane unexpectedly. The Defendant argues that the position of the damage aligns with his version of events. If the Defendant had swerved suddenly into the Plaintiff’s path, the impact should have been at the front or midsection of the Defendant’s car. However, since the impact occurred towards the rear left side, the more probable scenario is that the Plaintiff was in motion and overtaking at the time of the collision.

4.8 Reliance on Testimony and Documentary Evidence The Plaintiff relies on the testimony of SP1, the investigating officer, who confirmed that the Plaintiff’s motorcycle sustained damage to its cover set, front mudguard, handlebar, and footrest. However, a significant omission in the Plaintiff’s case is that no official photographs of his motorcycle were submitted for inspection. Furthermore, the Plaintiff only lodged his police report two months after the accident, which raises concerns regarding the reliability and accuracy of his account. Conversely, the Defendant lodged his police report within two hours of the accident, providing a contemporaneous record of events. He argues that his version of the accident aligns with the physical evidence, particularly the point of impact on his vehicle, which contradicts the Plaintiff’s claim of a sudden lane switch. The Defendant further contends that the presence of skid marks near the accident site, as noted by SP1, supports his position that the Plaintiff was in motion and attempting to overtake at the time of the impact. This raises the question of whether the Plaintiff’s actions contributed significantly to the collision, even if not the sole cause of the accident. The Court must now consider whether the doctrine of contributory negligence applies in this case, as both parties had a duty to exercise reasonable care on the road. If it is found that the Plaintiff’s overtaking manoeuvre played a role in the accident, this would justify an apportionment of liability rather than placing full blame on one party alone.

4.9 Contributory Negligence and Legal Precedents The principle of contributory negligence applies when both parties contribute to the occurrence of an accident. In Zurich Insurance Malaysia Berhad v. Satesh Kumar a/l Johnson & Ors [2021] 1 PIR 526, the Court held: "When both parties are found to have acted in a manner that contributed to the accident, the trial court must allocate liability proportionally. The degree of fault must be assessed based on the evidence available, including the physical damage to the vehicles and the credibility of the witnesses." Similarly, in Mohd Shahril bin Abdul Rahman v. Ahmad Zulfendi bin Anuar [2021] MLJU 1121, the Court ruled: "In cases where both parties are equally responsible for the accident, a fair and just apportionment of liability should be 50:50. This principle applies particularly in road accidents where both parties could have exercised greater caution to prevent the incident." Applying these principles, the Court finds that both parties bear equal responsibility for the accident: The Defendant failed to ensure that his turn could be made safely. Even if he had signalled his intention to turn, he had to check for oncoming vehicles and ensure that his manoeuvre did not risk other road users. The Plaintiff, however, was likely moving at the time of impact. If he had been overtaken from the left, he would have violated Rule 5 of the Road Traffic Rules 1959, making him contributorily negligent. Having carefully considered the evidence presented by both parties, including their testimonies, documentary evidence, and the findings of the investigating officer (SP1), the Court finds that liability must be apportioned equally between the Plaintiff and the Defendant at 50:50. The contradictory accounts provided by the parties, coupled with the available physical evidence, indicate that both contributed to the accident in different ways. Accordingly, the Plaintiff’s claim for damages shall be reduced by 50% to reflect his contributory negligence.

Quantum of Damages As the Court moves to assessing damages, it is necessary to consider the nature and extent of the Plaintiff’s injuries, the supporting evidence presented, the arguments put forth by both parties, and the applicable legal principles governing compensation. The Plaintiff claims damages under several categories, including general damages for pain and suffering, special damages for medical expenses and related costs, future medical costs, and other related claims. The Defendant disputes the quantum sought, arguing that some claims lack sufficient supporting documentation and that specific injuries do not warrant the amounts claimed.

The Plaintiff’s Injuries and Claim for General Damages The Plaintiff sustained facial and eye injuries, including: a) Facial Injuries: a) Right eye lower lid laceration wound. b) Abrasion wound over the right cheek. b) Eye Injuries: a) Right eye subconjunctival haemorrhage. b) Right eye preorbital hematoma. The Plaintiff argues that these injuries caused significant pain and suffering, warranting compensation. He relies on medical records submitted in court to support his claim. The Plaintiff submits that his injuries, particularly those to his eye and face, have resulted in prolonged discomfort and require further medical attention. He further argues that similar injuries in past cases have resulted in substantial awards, and he is entitled to comparable compensation.

Defendant’s Argument on General Damages The Defendant, however, disputes the severity of the injuries, arguing that the medical reports lack independent verification and that no medical expert was called to testify regarding the long-term impact of the injuries. The Defendant contends that: a) The Plaintiff’s injuries were not severe enough to justify a high award. b) The Plaintiff failed to call medical experts to confirm the long-term impact of his injuries. c) The Plaintiff recovered within a reasonable timeframe, and there is no evidence of permanent disability or disfigurement.

Legal Precedents on General Damages Compensation for injuries of a similar nature has been considered in several cases. In Normiza bt Nordinn & Ors v Chen Kong Meng & Anor [2024] MLJU 1973, the Court awarded RM8,000 for multiple abrasions, lacerations, and scars. Similarly, in Devarajan a/l Kunasekaran v Leon Ngim Chong & Anor [2023] MLJU 2766, RM5,000 was granted for a subconjunctival hemorrhage and periorbital hematoma. Further, in Siti Hajar bt Ibrahim v Chuan Kiat Cheng [2022] MLJU 3692, the Court upheld RM5,000 for similar eye injuries.

Court’s Analysis and Determination on General Damages The Court considers the severity of injuries, the recovery period, comparable case precedents, and the submissions of both parties. While the Plaintiff has sustained some level of pain and suffering, his injuries did not result in permanent disability, disfigurement, or prolonged medical treatment beyond the usual recovery period. The Court is mindful that awards must be fair and proportionate to the actual suffering sustained. Based on precedent cases and the arguments submitted, the Court awards RM12,000 in general damages, subject to the 50:50 apportionment.

Claim for Special Damages The Plaintiff claims medical expenses and related costs, but the Defendant contends that there is insufficient proof to justify such an award. The Defendant highlights the following: a) There is a lack of supporting receipts and documents. b) The fact that specific medical reports were marked only as ID and were not agreed upon. c) The Plaintiff did not call the medical report makers to give evidence. d) There is an absence of a medical certificate to support loss of earnings. The principle governing special damages is well established. In Sam Wun Hoong v Kader Ibramshah [1981] 1 MLJ 295, the Court held that special damages must be specifically pleaded and strictly proven. Similarly, in Karanjit Singh Upal v Nor’Apipi Haji Abdullah & Ors [2025] MLJU 61, the Court reaffirmed that claims for special damages require exact proof.

Court’s Determination on Special Damages Applying these principles, the Court finds that the Plaintiff has failed to produce sufficient evidence to justify an award for special damages. Accordingly, no special damages are granted.

Claim for Future Medical Costs The Plaintiff also seeks an award for future surgery and medical expenses. However, the Defendant challenges this claim on the basis that: a) There is no medical evidence confirming that surgery is required. b) The Plaintiff did not call any expert witness to verify the necessity of future treatment. c) The Plaintiff initially sought private treatment, but later continued treatment at a government hospital. In Muhammad Yassein Zuliskandar v Kerajaan Malaysia & Ors [2019] 4 CLJ 289, the Court held that private treatment costs must be justified when government treatment is available. Similarly, in Lim Hock Boon v Aw Chee Keong [2019] 1 LNS 1531, the Court applied the 1/3 reduction principle for private hospital claims, noting that such expenses must be assessed against the availability of alternative treatment. Given the lack of medical evidence supporting the necessity of future treatment, the Court finds that no award shall be made for future medical costs.

Apportionment of Damages and Final Award Having assessed the claims made by the Plaintiff and considered the relevant case law, the Court determines that the appropriate compensation is as follows: Summary of Awarded Quantum Category Claimed Amount Court Awarded After 50:50 Apportionment General Damages - 12,000 6,000 Special Damages Not proven 0 0 Future Surgery Not justified 0 0 Eye Drops No receipts provided 0 0 Final Total - 12,000 6,000

Final Determination on Quantum After reviewing the evidence, case law, and compensation guidelines, the Court awards the plaintiff RM12,000 in general damages. Given the 50:50 liability apportionment, the Plaintiff is entitled to RM6,000. No special damages, future surgery, or medical costs are awarded. Each party shall bear its own legal costs. This decision aligns with Zurich Insurance Malaysia Berhad v Satesh Kumar a/l Johnson & Ors [2021] 1 PIR 526, where the Court held that contributory negligence requires a proportional reduction of damages. It also follows the principles outlined in Mohd Shahril bin Abdul Rahman v Ahmad Zulfendi bin Anuar [2021] MLJU 1121, where the Court found that both parties’ contributions to an accident necessitate equal damages. Accordingly, the Plaintiff shall receive RM6,000 as the final award. Dated this 6 Mac 2025 …………………….sgd……………………..