Maturaiveeran A/L Perumal v Lee LI Teng (BA-12B-8-01/2016)

Antara

SEE LAI QUEEN OOI CHIN GHEE … Plaintif-Plaintif

LEE LI TENG ... Defendan-Defendan

VITHTRA MATHAN A/L KIRISHNAN ... Pihak Ketiga 2 GROUND OF JUDGMENT Introduction [1] This appeal concerns the Appellant, who is the 2ndDefendant, and the Respondent who is the 1st Third Party, on liability and quantum involving a road accident. There are four appeals heard before this Court where the accident involved the Defendant who was driving the motorcar, the 1st Third Party who was riding the motorcycle and another motorcar driven by the 1stPlaintiff at a road intersection. [2] The three other appeals heard before this Court are,case number BA- 12B-6-01/2016 where the 1st and 2nd Plaintiffs appealed against the Appellants and the Respondent on quantum. In that appeal, the Session Judge mistakenly allowed general damages to the 2nd Plaintiff based on the injuries suffered by the 1st Third Party. In the case of BA-12B-7-01/2016, the Appellants (the 1st and 2nd Defendants), appealed against the 1st and 2nd Plaintiffs, the Respondent (1st Third Party) and another 2nd Third Party, on liability and quantum and in the case of BA-12B-7-01/2017, it is an appeal between the 1st Third Party against the 2nd Defendant on quantum. [3] The Defendant had filed an application to consolidate the appeal cases BA-12B-6-01/2016, BA-12B-7-01/2016 and BA-12B-8-01/2016 with this appeal which was allowed pursuant to a court order dated 24.5.2016. The Defendants applied for Third Party notice to add Mr. Maturaiveeran A/L Perumal as the 1st Third Party. The 1st Third Party also appealed on quantum (BA-12B-7-01/2017)as the Session Judge had mistakenly 3 awarded to the 2nd Plaintiff based on the 1st Third Party injuries and no award was given to the 1st Third Party. The 1st Third Party was the Plaintiff at the Magistrate’s Court who brought the suit against the Defendants (case of A73KJ-296-05-2014) before it was transferred to the Sessions Court and given a new registration number (A53KJ-825-12-2014). The 1st Third Party was the Plaintiffs’ witness for case A53KJ-825-12-2014. [4] In this judgment, the parties are referred to as they were in the Sessions Court. At times, the pleadings of the Plaintiffs are referred to for ease of reference. Brief Facts [5] The salient facts leading to this appeal based on the Appeal Record, the written submissions of the counsels and the written judgment of the Session Judge can be summarised as follows:

The 1st Third Party was the rider of motorcycle bearing registration number BHY 9645 at the time of the accident.

The Defendants are the driver and owner of motorcar bearing registration number AEX 2255 at the time of the accident.

The Plaintiffs who are the 1st and 2nd Plaintiffs were in the motorcar bearing registration number WVL 7105, where the 1st Plaintiff (SP2) was the driver at the time of the accident. 4

The 1st Third party’s version of the accident as in his Statement of Claim (page 16 of Appeal Record): “3. Pada 27/7/2013 jam lebihkurang 5.00 petang PihakPlaintif secara sah di sisi undang-undang sedang menunggang M/sikal No. BHY 9645 dari Tempat kerja menghala ke rumah di Taman Sentosa. Apabila sampai di atau berhampiran Jalan Kebun Nenas, Kg Jawa, Klang di dalam Negeri Selangor Darul Ehsan, Plaintif memberhenti untuk membelok kekanan, tiba-tiba sebuah M/kar No. AEX 2255 yang dipandu dengan cuainya oleh Pihak Defendan telah keluar dari simpang sebelah kanan jalan lalu merentasi laluan sah Pihak Plaintif dan menyebabkan perlanggaran di antara M/sikal No. BHY 9645 dengan M/kar No. AEX 2255.” The 1st Third Party pleaded that the accident was caused by the Defendant’s negligence.

The Defendant on the other hand denied that the accident was caused by the Defendant. The Defendant pleaded in his Defence (page 21 of Appeal Record) by stating that, “4. Secara alternatifnya, jika Mahkamah yang Mulia ini mendapati bahawa satu kemalangan wujud, maka Defendan memplidkan bahawa penunggang motorsikal nombor BHY 9645 (selepas ini dirujuk sebagai “penunggang motorsikal tersebut”) yang gagal memerhatikan keadaan jalan di 5 sekitarnya terutamanya kedudukan /pergerakan kereta Defendan telah secara tiba-tiba dan dengan cuainya serta tanpa sebarang amaran/isyarat keluar dari satu simpang lalu menghalang arah perjalanan kenderaan Defendan yang berada di laluan utama, justeru itu mengakibatkan satukemalangan (“kemalangan pertama tersebut”) pada sekita rtarikh, masa dan tempat yang dinyatakan dalam Penyata Tuntutan Plaintif.”

The Session Judge made a finding of fact that the 1st Third Party did take safety measures before turning to the right while on the middle of the intersection and the Defendant was found to be speeding and held the Defendant to be wholly liable towards the 1st Third Party.

In relation to quantum, the Plaintiffs in their Memorandum of Appeal for case no. BA-12B-6-01/2016 stated that the Session Judge had mistakenly granted the quantum for personal injuries to the 2ndPlaintiff (pages 1-2 of Appeal Record BA-12B-6- 01/2016) which are the injuries sustained by the 1st Third Party (page 31 of Appeal Record for file case no. BA-12B-6-01/2016).

The injuries sustained by the 1st Third Party are Cerebral Concussion and retrograde and amnesia, award at RM5,000.00; Open Fracture right tibia and fibula at RM22,000.00; Right greater trochanters fracture at RM20,000.00; Right 5th metatarsal bone fracture at RM6,500.00; Degloving injury at right elbow and laceration 6 wound right index finger at RM5,000.00 and Scars at RM8,000.00 (page 45 of Appeal Record). 1st Third Party’s case [6] The learned counsel for the 1st Third Party submitted that the appellate court should be slow to disturb the finding of fact ofthe Sessions Court and that there was no miscarriage of justice: China Airlines Ltd v Maltran Air Corp Sdn Bhd [1996] 2 MLJ 517 (Kes No.1). [7] It was brought to this Court’s attention that the Defendants were not present at the Sessions Court to testify and therefore did not rebut the evidence of the 1st Third Party. This Court heard that the Session Judge accepted the evidence of the 1st Third Party and the Plaintiffs, and has the advantage of observing the demeanour of the witnesses. [8] The counsel for the Third Party averred that at the trial, the Plaintiffs’ and the 1stThird Party’s evidence corroborate one another. The counsel pointed out that the 1stPlaintiff, who was driving the motorcar, testified that she saw the first collision between the Defendant and the 1st Third Party which was caused by the Defendant. It was also submitted that the 1stPlaintiff had reported stating that theDefendant's car was the one which first collided with the 1stThird Party’s motorcycle. It is averred that the 1st Plaintiff had agreed during the oral evidence that the first collision occurred when the 1st Third Party’s motorcycle was about to turn right at the intersection and he agreed that the Defendant’s car was travelling at a high 7 speed which had been accepted by the Session Judge (page 87 of Supplementary Appeal Record). [9] In reference to the sketch plan, the counsel addressed the Court that the point of collision was marked as “M”, which is in the middle of the intersectionand can be inferred that the 1stThird Party’s motorcycle had already passedhis junction and was on the middle of the intersection when the Defendant's car speededdown the road towards the 1st Third Party and collided with the 1st Third Party. [10] The counsel for the 1st Third Party submitted that the Defendants failed to give evidence in court and therefore their police report cannot be accepted as evidence. It is also submitted by the counsel that the Defendants’ police report would be a hearsay evidence where the maker of the police report was not called. [11] It was brought to this Court’s attention that the Session Judge had considered that even when the four cases were consolidated and Plaintiff had closed their case on 19.11.2015, the Defendant was still unprepared to produce their witnesses and there was no written application for adjournment filed (paragraph 34, pages 81-82 of Supplementary Appeal Record). Defendants’ case [12] The learned counsel for the Defendants submitted that the Session Judge has erred when she made a finding that the 1st Third Partywas 8 cautious and if it was not because of Defendant’s act of speeding, the 1st Third Party could have avoidedthe Defendant’s car. [13] The counsel for the Defendants submitted that during the cross-examination of the 1st Third Party, there was an admission that he did not see the Defendant’s oncoming car and has no knowledge as to how the collision occurred (pages 44- 45 of Supplementary Appeal Record) and this is further supported by the 1stPlaintiff whom testified that the motorcycle was rushing out from the junction in high speed. [14] The Defendant’s counsel submitted that the Session Judge found the first collision was caused by the Defendant’s speeding car and argued that the Session Judge had failed to consider the totality of the 1st Plaintiff’s evidence since the 1st Plaintiff also informed that the motorcycle was speeding from the junction as well. The Defendant’s counsel argued that the Defendant was on the main road and indeed has the right of way. It is averred that the 1st Third Party was speeding when he turned right at the intersection and caused the collision. [15] It is argued that the Defendant had marked ‘W’ on the sketch plan (page 82 of Appeal Record for file case no 12B-6-01/2016) as the first impact and the Defendant hit the Plaintiffs at marked ‘X’ (see also Notes of Proceedings, pages 35 – 36 of Supplementary Appeal Record for file case no. 12B-6-01/2016). [16] It is submitted that the absence of the Defendants’ evidence is immaterial because the Plaintiff has the burden to prove and failed to prove 9 negligence on the part of the Defendant since the 1st collision was caused by the 1st Third Party.It is submitted that the 1st Third Party has failed to notice the Defendant’ car and was speeding when he should have stopped and allow the Defendant to pass first. APPEAL [17] Having read the written submissions, all the Appeal Records and heard the oral submission of the counsels, I dismissed the Defendant’s appeal and find the Defendant wholly liable to the 1st Third Party. The quantum is as allowed in the first appeal BA-12B-6-01/2016for the personal injuries of the 1st Third Party that was mistakenly awarded to the 2ndPlaintiff and the cost of motorcycle claimed by the 1stThird Party is disallowed. My grounds follow. [18] The burden of proof as well as the initial onus to prove the claim rest with the plaintiff and the plaintiff is to discharge its onus to prove its cause of action against the Defendants as decided by the Federal Court in the case of Letchumanan Chettiar Alagappan @ L. Allagapan, M. Venkatachalam S/O Venkatachalam Chettiar v Secure Plantation Sdn Bhd [2017] 4 MLJ 697.Based on Letchumanan Chettiar (supra) case, section 101 of the Evidence Act 1950 was referred holding that the burden to establish the case rests throughout on the party who asserts the affirmative of the issue.In this instant appeal, the 1st Third Party is placed in the shoes of a plaintiff in bringing the suit against the Defendants. 10 [19] In a case where negligence is pleaded, the onus is not on the defendant to prove that he was not negligent. This was pointed out in the case of Ng Chui Sai v Maimon Bt. Ali [1983] 1 MLJ 110.The Federal Court in the case of Wong Thin Yit v Mohamed Ali [1971] 2 MLJ 175had the occasion to say: “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 that the Defendant is negligent.” It is for the injured party to show that he did not in his own interest, take reasonable care of himself and contributed by his want of care, to his own injury: Nance v British Columbia Electric Railway Company [1951] AC

[20] Before this Court, there are two versions as to the cause of the accident submitted by counsels. One of the Defendant’s main grounds is that the Session Judge had erred in placing 100% liability on Defendants’ shoulders when the accident was allegedly contributed by 1st Third Party’s negligence (paragraphs 1 – 6, page 7 of Supplementary Appeal Record). [21] Reverting to the facts, the 1st Third Party claimed that he was about to turn right at the intersection, on the main road when he was hit by the Defendant’s car who was driving down the road and the impact of the first collision had caused the Defendant’s car to swerve into the opposite direction and crashed into the Plaintiff’s car.The Defendant on the other hand averred that the collision was caused when the 1st Third Party 11 suddenly came out from the junction which resulted the collision with the 1st Third Party and Defendant lost control of his car and the Plaintiff’s car hit the Defendant’s car. [22] Turning to the police report of the 1st Third Party (page 43 of Appeal Record), it was reported that he was coming out from a junction at the intersection of Jalan Nenas where he was approaching the middle road of the intersection to turn right, when suddenly the motorcar AEX 2255 coming from his right, in high speed, collided into the 1st Third Party. [23] It is trite law where there are two conflicting versions by the parties to the dispute in a running down case, the silent evidence of the photographs of the damage, the scene of the accident, the sketch plan will be the guiding force in evidence and decision-making: Ng Aik Sian v Sia Loh Sia [1997] 2 CLJ 218. [24] The 1st Third Party’s evidence is further supported by the sketch plan of the point of collision that was marked as “M” which is located at the middle of the intersection. Having scrutinised the sketch plan of the intersection which is the main road, it can be reasonably inferred that the 1stThird Party’s motorcycle had left the junction, when the Defendant's car was speeding towards his direction. [25] This Court also finds that nowhere in the Defendant’s pleaded grounds that the collision caused by the 1st Third Party can be either at marked ‘W’ or ‘M’ of the sketch plan,and the issue of marked ‘W’ or ‘M’ proves to show that the 1st Third Party had left his junction and the accident 12 occurred nearer to the middle of the intersection (page 82 of Appeal Record case BA-12B-6-01/2016). The fact remains that the 1st Third Party was already on the main road, when the accident occurred. This Court viewed that the Defendant although may be driving on a straight road, when approaching an intersection, the Defendant must also have a proper look out. [26] Upon careful perusal of the Notes of Proceedings and the written judgment of the Session Judge, it is of the view that the version as to the collision is consistent with the findings of the investigation carried out by the police investigating officer (SP1) whom testified that the first collision was between the motorcycle and Defendant’s car and the impact of the first collision had caused the second collision between the Defendant’s and Plaintiffs’ car(marked ‘X’, page 82 of Appeal Record case BA-12B-6- 01/2016) which was travelling on the opposite direction. [27] The collision is further corroborated by the damage on the motorcycle which was on the right side of the 1st Third Party’s motorcycle and in the middle part of the motorcycle and the version of the collision is consistent with the 1stPlaintiff’sgiven evidence (police report, page 44 of Appeal Record). [28] This Court also finds that the 1st Plaintiff had testified during cross-examination that she saw the 1st Defendant driving fast before hitting the 1st Third Party (page 36 Appeal Record (file case BA-12B-7-01/2017) where she stated that, 13 “Ya saya nampak motokar Defendan 1 itu dipandu laju sebelum berlanggar dengan motorsikal itu. Saya setuju kemalangan pertama itu berpunca daripada motokar Defendan 1 yang dipandu terlampau laju.” [29] This Court finds that based on the pleadings, the police report and the testimony of the 1st Third Party and the 1stPlaintiff’s, the evidence corroborates one another. This Court viewed that the collision of the Defendants’ motorcar and the 1st Third Party motorcycle caused the impact for the Defendant’s motorcar to be swerved and collided with the Plaintiffs’ car and not as how the Defendants reported in the police report,that is the Plaintiff’s motorcar which was travelling in the opposite direction hit the Defendant’s motorcar (page 80 of Appeal Record file case BA-12B-6- 01/2016).The Defendant reported that, “…APABILA SAYA SAMPAI DI JALAN KEBUN NENAS, SAYA JALAN TERUS, TIBA-TIBA SEBUAH M/SIKAL NOMBPOR BHY 9645 DARI ARAH KIRI MELANGGAR M/KAR SAYA DAN SAYA HILANG KAWALAN LALU M/KAR NOMBOR WVL 7105 DARI ARAH BERTENTANGAN MELANGGAR M/KAR SAYA. ……KEROSAKAN M/KAR SAYA IALAH MADGAD DEPAN KIRI KEMEK, PINTU DEPAN KIRI KEMEK, BUMPER DEPAN PECAH, BONET DEPAN KEMEK, CERMIN BESAR DEPAN PECAH, AIRBAG KEDUA-DUA KELUAR DAN LAIN-LAIN TIDAK PASTI….” 14 [30] I viewed that evidence of the Plaintiffs and the 1st Third Party, weighed and tested with the contemporaneous evidence before this Court, are more probable and reliable as evidence for the 1st Third Party: Lee Ing Chin v GanYook Chin[2003] 2 CLJ 19. I hold the view that the 1st Third Party had discharged its burden to prove and the onus shifts to the Defendant to rebut by evidence. [31] This Court viewed that the evidence of the 1st Third Party and the 1st Plaintiff had been accepted by the Session Judge after evaluating all the facts and evidence: Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1. The fact that the maker of the police report that is the 1st Defendant renders it inadmissible and could not be relied upon. The Session Judge in her written judgment particularly at pages 79-87 of Supplementary Appeal Record stated that the Plaintiffs had successfully proven the burden of its claim where the evidence corroborates the evidence of the 1st Third Party and the Defendant had failed to rebut the evidence.This Court holds the view that as the Defendant failed to testify, all the evidence led by the Plaintiffs and the 1st Third Party must be assumed to be true: Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997] 4 CLJ 509, Supreme Court. [32] This Court is also of the view that the 1st Third Partybeing issued with a traffic summon does not warrant him to be liable. The finding of facts that the 1stThird Party was nearer to the middle of the intersection when the Defendant collided into the 1st Third Party’s motorcycle had yet to be rebutted by the Defendant. 15 [33] Following the ‘plainly wrong test’ as enunciated by the Federal Court in the case of Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1, I do not see that the Session Judge was plainly wrong in fact and law to have held the Defendants wholly liable to the 1st Third Party that warrants this Court’s intervention. [34] At the hearing, the parties have consented that the awards (general damages) as pleaded by the 1st Third Party but were awarded to the 2nd Plaintiff, be awarded to the 1st Third Party.I do not find that the award for the personal injuries suffered by the 1st Third Party is manifestly excessive that requires this Court to disturb.In fact upon careful perusal, the Session Judge had evaluated and made reference to the compendium of personal injury and case laws. [35] To my mind, the cost of motorcycle claimed by the 1st Third Party is disallowed as I find that the 1st Third Party did not plead for the cost of motorcycle in his claim (pages 18-20 of Appeal Record). In relation to the special damages, it is trite law it must be specifically pleaded and based on cogent evidence following 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] 1 PIR [16] where based on the receipts of the hospital bills and the purchase of the wheelchair (pages 117-120 of Appeal Record case BA-12B-7-01/2017), I allow for the claim of RM772.00. 16 In light of the above reasons, I dismiss the appeal as to liability and quantum with costs. Dated: 31 May 2018 (ZALITA BINTI ZAIDAN) Judicial Commissioner Shah Alam High Court 17 COUNSEL FOR THE APPELLANT / DEFENDANT JEYAVEERAN S NAICKER Messrs Naicker & Associates No. 33 (2nd Floor), Jalan Desa Taman Desa 58100 Kuala Lumpur [Ref:NA/BS1-24/Apeal-COA-Sivaraja/18.NSI] Tel: 03-7981 7329 Fax: 03-7981 8729 COUNSEL FOR THE RESPONDENT / PLAINTIF NUR ALEEYA ARIA NYAKOT BT ABDULLAH Messrs Sivaraja & Co. No. 325A, Jalan Sri Serawak 18 Kawasan 2, Taman Seri Andalas 41200 Klang Selangor Darul Ehsan [Ref: RSR/MATURA/PI/106/2013]