Julieyati Binti Abd Jalal v 1. Pengarah Kerja Raya Negeri Selangor (BA-12B-64-03/2017)

JURUMART SDN BHD (No. Syarikat: 341725-T) …RESPONDEN-RESPONDEN (Dalam Mahkamah Sesyen di Shah Alam Dalam Negeri Selangor Darul Ehsan Guaman No. B51-74-10/2015 ANTARA JULIEYATI BINTI ABD JALAL (K/P No.: 770517-01-5530) …PLAINTIF

JURUMART SDN BHD (No. Syarikat: 341725-T) …DEFENDAN-DEFENDAN) 2 GROUND OF JUDGEMENT Introduction [1] This is an appeal by the Appellant (Plaintiff) who brought a suit against three Respondents (Defendants) in one road accident case. The Session Judge dismissed the Appellant’s claim and being dissatisfied appealed to this Court. [2] At times, the term ‘the Defendants’, ‘1st and 2nd Defendants’, and ‘3rd Defendant’ will be used interchangeably. In this Judgment, the parties will be referred to as they were at the Sessions Court. [3] I dismiss the appeal on liability and quantum with cost. My grounds follow. Brief Facts [4] The salient facts relevant to this judgment based on Plaintiff’s Statement of Claim, as elucidated by the learned Session Judge (page 1 of Supplementary Appeal Record), as follows:

The Plaintiff is a Malaysian individual, age 37 and was working as Assistant Manager in a catering services company and having its address at A2-02-20 Jalan TKK 2/6 Taman Puncak Kinrara, 47180 Puchong Selangor. 3

The 1st Defendant is the Director to the State Selangor Public Works Department (Jabatan Kerja Raya), having the address at Kamar Penasihat Undang-Undang, Tingkat 4 Podium Utara Bangunan Sultan Salahuddin Abdul Aziz Shah 40582 Shah Alam Selangor. The 2nd Defendant is the Selangor Darul Ehsan State Government and having its service address at Kamar Penasihat Undang-Undang, Tingkat 4 Podium Utara Bangunan Sultan Salahuddin Abdul Aziz Shah 40582 Shah Alam Selangor.

The 3rd Defendant is a company registered under the Companies Act 1965 and having registered address at No. 9-1 Jalan 4/4C Desa Melawati Hulu Kelang 53100 Kuala Lumpur. The 3rd Defendant in its Defence stated that it was appointed to construct and complete Jalan Putrajaya to Simpang Tiga Jenederam/Jalan Bangi Lama, Daerah Sepang, Selangor (Pakej A: Menaiktaraf Laluan B17 (Jalan Bangi/Jalan Reko, Daerah Hulu Langat).

The Plaintiff claimed that at 12.30 midnight on 25.2.2015, the Plaintiff had just finished work and was on her way home from Institut Latihan KWSP, Bangi, was passing by University Kebangsaan Malaysia’s field. As pleaded, the Plaintiff claimed that the area was dark and the street lights were not lighted at the time and when Plaintiff switched on her high beam lights, she found a concrete barrier in front of her which she could not avoid and collided into the concrete barrier. The Plaintiff claimed she suffered serious injury where her left leg was 4 dismembered below the knee and sustained other injuries (paragraphs 8-9 Statement of Claim, page 8 of Appeal Record (Jilid 1)).

The Plaintiff claimed that the accident was caused by the Defendants’ negligence (paragraph 11 Statement of Claim) and detailed the negligence committed by the Defendants (page 9 of Appeal Record (Jilid 1)): “a) Gagal memastikan jalanraya tersebut selamat digunakan oleh pengguna jalanraya; b) Gagal memastikan kawasan pembinaan itu tidak membahayakan keselamatan pengguna jalanraya; c) Gagal meletakkan tanda-tanda amaran yang jelas untuk mengelakkan daripada kemalangan berlaku; d) Gagal memastikan jalanraya dan kawasan pembinaan tersebut dicahayai dengan sempurna; e) Gagal mematuhi Arahan Teknik Jalan Jabatan Kerja Raya Malaysia yang berkenaan.”

The 1st and 2nd Defendants and the 3rd Defendant denied negligence (paragraphs 2-4 of Defence, pages 12-13, paragraph 5 of Defence, page 17 of Appeal Record (Jilid 1)) 5 and stated that warning signage had been installed by the 3rd Defendant to warn road users of the temporary bend with other safety measures (paragraphs 5.1 – 5.4, page 17).

The 1st and 2nd Defendants claimed that they had passed full responsibility in managing the construction site to the 3rd Defendant following clause 14.0 of contract terms JKR/SEL/453/2012 (Construction Contract) where the 3rd Defendant is to indemnify the 1st and 2nd Defendants.

The Session Judge found that the Plaintiff wholly liable for failure to proof her claim against the Defendants and dismissed Plaintiff’s claim with cost at RM10,000.00. Plaintiff’s case [5] Briefly, the learned counsel for the Plaintiff submitted that the Session Judge had erred in deciding that the Plaintiff had failed to prove her claim against the Defendants. The Plaintiff’s counsel averred that the Defendants witness, DW4, had admitted that there were shortcomings to the stretch of road under construction, where DW4 admitted during cross-examination that the “blinkers” (battery powered flashing lamps) are to be installed but were not which is be against the ‘Arahan Teknik Jalan’ of the Public Works Department (JKR). In addition, it was submitted that the Defendants’ witness, DW2 testified that the road diversion was made in the afternoon and no workers were placed at night to signal oncoming traffic to warn of the new diversion. 6 [6] It is submitted by the counsel that there was no supervision by the 3rd Defendant and the spotlight was not illuminated on the night of the accident. The Plaintiff’s counsel further averred that the Session Judge was erred in deciding (paragraph 24 of her Ground of Judgment) that the Plaintiff failed to switch on her motorcycle lights. Quantum [7] The Plaintiff’s counsel averred that the Session Judge erred in disallowing the award for damages after finding the Plaintiff liable 100%. It is submitted that the Plaintiff should be awarded for damages (paragraphs 30 – 65 of counsel’s written submission) where the total award amounts to RM950,000.00 and had them listed (paragraph 30 of counsel’s written submission). [8] Mainly, the Plaintiff’s counsel submitted that the Session Judge should have awarded the Plaintiff RM150,000.00 for pain and suffering and loss of amenities for Plaintiff went through an ordeal upon seeing her own dismembered left lower leg. [9] For loss of earnings, it is submitted that the Plaintiff could be awarded RM237,600.00 where the calculation of multiplicand of RM3,300 – 1/3 =RM2200.00 x 12 months = RM26,400.00, 55 years – 37 years old = 18/2 = 9 x RM26,400 = RM237,600.00. The Plaintiff’s counsel submitted that the Court, in the alternative, make an award for loss of earning capacity even if it is not pleaded. The Plaintiff’s counsel submitted that the Plaintiff had returned to work with lesser capacity and with less basic salary of RM2,100. It is submitted that the loss of earning 7 capacity based on loss of earnings at RM1,200 x 12 months = RM14,400 x 18 years (55-37 age) = RM259,200.00. [10] The Plaintiff’s counsel submitted the claim for prosthetics of RM110,000.00 and concedes that no specific evidence of the cost was admitted during trial but relied on cases, for instance Uthayakumar a/l M Subramaniam v Ang Teng Bee [2016] MLJU 879 where the court in that case awarded for above knee amputee, RM 141,223.80. [11] The Plaintiff’s counsel submitted that Plaintiff should be entitled for aggravated damages of RM500,000.00 and relied on the Federal Court case of Mohd Ridzwan Bin Abdul Razak v Asmah Binti Hj. Mohd Nor [2016] MLJU 277, arguing there was blatant disregard for safety showed by the Defendants who were in fact government servants at all material times. 1st and 2nd Defendants’ case [12] Briefly, the learned counsel for the 1st and 2nd Defendants averred on the main points that the safety measures were installed on that night of the accident. It was brought to the attention of this Court that the safety measures are the warning signage, the speed limit signage and includes the ‘cats eyes’ on the road, the solar warning flasher, a spot light and flashing arrow (page 4 of written submission of counsel). 8 [13] The 1st and 2nd Defendants’ counsel further submitted on the condition of the Plaintiff on that fateful night, that she is long sighted, she was not well and tired from work which contributed to Plaintiff speeding and collided into the concrete barrier (Notes of Proceedings, pages 29 – 31 of Appeal Record (Jilid 1)). [14] It was further averred that the 1st and 2nd Defendants are not responsible for the accident based on the Construction Contract between 1st and 2nd Defendants and the 3rd Defendant where the 3rd Defendant is fully responsible under the Construction Contract to indemnify the 1st and 2nd Defendants if the 3rd Defendant is found to be liable and relied on the English House of Lords case of Ferguson v Welsh and Others [1987] 1 WLR 1553. 3rd Defendant’s case [15] Briefly, the learned counsel for the 3rd Defendant submitted that the safety issue raised by the Plaintiff that the 3rd Defendant had failed to provide safety measures, had been explained by the 3rd Defendant’s witness DW3 that the supervision at the construction site is provided during the work in progress and not for twenty-four hours (page 133 of Appeal Record (Jilid 1)). [16] It was submitted that the 3rd Defendant’s worker by the name of Malik testified that the flashing arrow was lighted and even if it is not lighted, it would be reflective due to lights. 9 [17] The 3rd Defendant’s counsel submitted that the Plaintiff admitted that the road is under construction and had traffic diversion and knew that the road diversion always changes. It was also submitted that when the Plaintiff came on the road for about 3 minutes ride, she knew the road was dark. On that point, the counsel submitted that the Plaintiff contributed negligent by not switching on her motorcycle lights (pages 18 Defence of Appeal Record (Jilid 2)). [18] The counsel for the 3rd Defendant submitted that the Plaintiff is 100% liable but in the alternative, seeking liability at the most, 30%. In relation to indemnity, the 3rd Defendant’s counsel argument is that as pointed out by the 1st and 2nd Defendants, their role has nothing to do with the Plaintiff and there should be an indemnity notice filed which was not done as the Session Judge found them not liable. It is submitted that if the 1st and 2nd Defendants are found liable, the matter would need to be remitted to the Sessions Court. Quantum [19] In relation to the aggravated damages claimed by Plaintiff, the 3rd Defendant’s counsel submitted that there is no ill intention on the part of the 3rd Defendant for the Plaintiff to claim for aggravated damages as decided in the authority relied by Plaintiff, the case of Mohamad Ridzwan Bin Abdul Razak (supra). [20] Regarding loss of earnings, the 3rd Defendant’s counsel averred that the Plaintiff’s counsel submission on Plaintiff’s entitlement is a statement from the Bar and further averred that the Plaintiff is back at 10 work and such award, if to be allowed, is an accelerated damages which should be with a 30% deduction. [21] About the claim for cost of prosthesis, it is averred that there was no evidence adduced by the Plaintiff. It is argued that the Plaintiff could have a letter from SOCSO about the cost of prosthesis but the Plaintiff did not adduce any evidence. Further, it was averred that the Plaintiff did not seek from private providers for a quotation to claim for the type of prosthesis suitable based on Plaintiff’s leg condition. The counsel pointed to this Court that it would be dangerous to just rely on other cases without submitting any evidence from the Plaintiff. [22] On the award for future treatment, the counsel submitted that no evidence was led as to how much it would cost and should be dismissed by this Court. Plaintiff’s In Reply [23] The Plaintiff’s counsel in reply argued that the condition of the Plaintiff as contended by the Defendants does not absolve the Defendants’ liability, and argued that there is a duty by the Defendants towards the Plaintiff. It is further submitted that the Plaintiff’s witness P2 arrived safely to the scene of the accident because she already knew of the accident of the Plaintiff. 11 [24] The Plaintiff’s counsel averred that the Plaintiff should get the award for loss of earnings relying on the case of MTD Prime Sdn Bhd vs See Hwee Keong & Ors and another appeal [2016] 4 MLJ 695. APPEAL [25] It is trite law that an appellate court would be slow to disturb the trial judge’s findings of facts unless the trial judge was plainly wrong in law that warrants this Court to intervene. There are many authorities to support the cardinal principle of appellate intervention, I rely on the Federal Court case of Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1 and the Federal Court case attributed by the 3rd Defendant’s counsel, the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 CLJ 453. [26] This suit was brought by the Plaintiff and the burden is on the Plaintiff under section 101 of the Evidence Act 1950 and the Federal Court case of Letchumannan Chettiar Alagappan @ L Allagappan (a executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697 where the burden of proof principle and the standard of balance of probabilities are deliberated extensively. [27] In this instant case, the Plaintiff pleaded that the Defendants were negligent and caused the accident. The heart of the matter is whether the Defendants were negligent to cause the accident. This Court holds the view that where negligence is pleaded, the burden to 12 prove rests on the Plaintiff that she did not cause or contribute to the harm or the accident. [28] I turn to the Plaintiff’s argument in relation to the approach taken by the Session Judge that the Plaintiff bears the burden in negligence claim as to be wrong by relying on the Court of Appeal case of MTD Prime Sdn Bhd (supra) which decided that the duty of the trial judge is to first determine negligence of the defendants by considering the particulars of negligence provided in the pleadings and the evidence adduced at the trial. [29] I stand to be guided by the Federal Court decision in Wong Thin Yit v Mohamad Ali [1971] 2 MLJ 175 where it was held that in negligence action, the onus of proof rests wholly on plaintiff and whether or not defendant gives evidence, the plaintiff cannot succeed without proof. I also rely on the case of Foong Nan v Saga Evan [1971] 2 MLJ 24 as attributed by the 3rd Defendant that the plaintiff pleading for negligence must prove as to whether his fault caused the damage. [30] Reverting to the facts, it is the Plaintiff’s pleaded case that the accident was caused by the Defendants. The law is crystal clear that all road users must drive or ride with care in accordance with the road traffic rules. The Plaintiff must prove that the Plaintiff was careful while riding her motorcycle, more so when the road is undergoing construction, the Plaintiff must firstly prove that she was riding with care before this Court can scrutinise Defendants’ evidence. This burden to proof will shift 13 once the Plaintiff successfully established her claim where the onus to rebut by evidence shifts to the Defendants. [31] Upon careful perusal of the Plaintiff’s Statement of Claim, this Court finds that the Plaintiff stated herself that the area was dark while she was riding on her way home along the road Jalan Bangi (paragraphs 8 - 9 of Statement of Claim, page 8 of Appeal Record (Jilid 1)) and when she switched on her high beam lights, she saw the concrete barrier which was too near to avoid. [32] This point to the fact that the Plaintiff was riding her motorcycle when she finds the area was dark without the street lights that she switched on her high beam lights. In this regard, this Court analyse the facts and the evidence as to whether the Plaintiff had taken the precaution to avoid the concrete barrier. This Court viewed that, had the Plaintiff switched on her high beam lights earlier, the chances of her avoiding the concrete barrier would be greater. [33] This is derived from the Plaintiff’s Statement of Claim where Plaintiff admitted that she switched on her motorcycle lights when she was already on the road. I viewed that the Plaintiff’s factual statement supported by her own oral evidence that the motorcycle lights if it is switched on, will be reflected by the road’s cats’ eyes, and will not be a dark road (page 28 of Appeal Record (Jilid 1)). [34] It can be reasonably inferred that such factual statement supported by her own testimony is an admission that she did not actually 14 switched on her motorcycle lights on that fateful night following section 17 of Evidence Act 1950. This Court cannot allow the Plaintiff to pass the blame to the Defendants when the accident was clearly caused by her own negligence. [35] Despite warning signage placed by the road under construction, the Plaintiff failed to avoid the concrete barrier which shows that she failed to switch on her motorcycle lights and was speeding, consistent with the brake marks of her motorcycle found at the scene of the accident which the impact of the collision caused the concrete barrier to fall. The argument that the 3rd Defendant’s failure to adhere to Arahan Teknik Jalan of JKR does not go to the root of the cause of the accident where warning signage had been placed and the Plaintiff has the prior knowledge of the construction site and the diversion of traffic along the road where she is expected to be careful. [36] I must disagree with the Plaintiff’s counsel’s averment that even though the Plaintiff had been speeding and is only a contributing factor which does not absolve the liability of the Defendants, the fact remains that the Plaintiff caused the accident as there was no proof of an intervening factor to break the causal link between the Plaintiff and the accident. [37] Failure to discharge its burden by the Plaintiff resulting the Plaintiff’s claim to fail following the principle as enunciated in the Federal Court cases, Mohamad Salleh Bin Awang & Another v Low Han 15 Leong & Anor [1981] 1 MLRA 306 and Topaiwah v Salleh [1968] 1 MLJ 284. [38] In relation to the appeal on quantum, before this Court can interfere, it must be satisfied that the trial judge was plainly wrong in law in her judgment where there has been lack of judicial evaluation of the facts and evidence and such award should be set aside: Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1. A claim for damages for loss must be proven where in the absence of it, the claim fails. The Federal Court case of Inas Faiqah Mohd Helmi (a child suing through her father and next friend, Mohd Helmi Abdul Aziz) v Kerajaan Malaysia & 2 Ors [2016] 2 CLJ 885, Justice Hamid Embung FCJ (as he then was) had the occasion to say on damages, to which I cannot resist but to quote, “It is trite that damages served as compensation, not a reward, less still a punishment. In assessing damages, the courts should not be motivated by sympathy and award fair compensation based on cogent evidence. The court could not descend into a domain of speculation. The evaluation of evidence which form the basis of any risk of future damage, must still be undertaken…..” [39] Loss of earnings had been decided in the Federal Court case of Ngooi Ku Siong & Anor v Aidil Abdullah [1984] 1 CLJ 294. This Court holds the view that there must be evidence to show that the Plaintiff will face a real or substantial risk in her earning capacity being affected in the future due to the disability she sustained from the 16 accident. Based Plaintiff’s oral evidence, this Court finds that there is no evidence adduced to show that Plaintiff will face a real or substantial risk in her earning capacity. This Court finds that the Plaintiff was paid with salary for the first two months after the accident and was then paid half salary by PERKESO and returned to work and will continue to work at the same employment (pages 33 - 34 of Appeal Record (Jilid 1)). [40] This Court also finds that there is no evidence adduced by the Plaintiff for cost of prosthesis and no evidence adduced for pain and suffering and loss of amenities, for future treatment and aggravated damages. In fact, the Plaintiff had been fitted with prosthesis from SOCSO. Following the plainly wrong test in the Federal Court case Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1, this Court finds that the Session Judge had evaluated the evidence of Plaintiff’s (page 5 of the Supplementary Appeal Record) and also took the opportunity to look into Defendants’ evidence. I find that the Session Judge was not wrong in law in deciding Plaintiff wholly liable and in dismissing Plaintiff’s claim for damages. In light of the above reasons, I dismiss the appeal with cost of RM3,000.00 each that is for 1st and 2nd Defendants and the 3rd Defendant respectively. Dated: 5 April 2018 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 17 COUNSEL FOR THE APPELLANT KEE MOHD THARIQ BIN K ZAINAL ABIDIN ANUAR RAUF Tetuan Fariz Halim & Co. V2-13B Block L, Tingkat 2 Jalan Plumbum V7/V Pusat Komersil Seksyen 7 40000 Shah Alam Selangor Darul Ehsan Tel: 03-5510 4109 Fax: 03-5510 4128 COUNSEL FOR THE 1st AND 2nd RESPONDENT MOHD ABDUL HAKIM BIN MOHD ALI Penasihat Undang-Undang Negeri Selangor Kamar Penasihat Undang-Undang Negeri Selangor Tingkat 4, Podium Utara, Bangunan SSAAS 40512 Shah Alam Selangor Darul Ehsan [Ref: PU.SEL.ACC.0007/15] Tel: 03-5510 2775 Fax: 03-5544 7971 18 COUNSEL FOR THE 3rd RESPONDENT S. CHRISHANTHINI Tetuan Murali B. Pillai & Associates Suites 1504/5, 15th Floor Wisma Lim Foo Yong No. 86, Jalan Raja Chulan 50200 Kuala Lumpur Ref: BM/L/00 (547) k10]