Mohamad Zamhuri Bin Anwar v 1. Kiar Bin Jayadi (12B-27-02/2016)

KIAN TEE ENTERPRISE … RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI KLANG DALAM NEGERI SELANGOR DARUL EHSAN SAMAN NO: Guaman No: A53KJ-01-01/2015 ANTARA MOHAMAD ZAMHURI BIN ANWAR …PLAINTIF

KIAN TEE ENTERPRISE … DEFENDAN-DEFENDAN) 2 GROUND OF JUDGMENT Introduction [1] This is an appeal against the decision of the Session Judge against the Appellant’s (Plaintiff) claim for liability and quantum in one road accident. The Session Judge decided on 20.1.2016 that the Plaintiff failed to prove its case and held the Plaintiff liable 80% and 20% for the 1st Respondent (the 1st Defendant). The Plaintiff’s claim against the 2nd Defendant and 3rd Defendant are dismissed. [2] In this judgment the parties will be known as they were in the Sessions Court. At times, the term ‘the Defendants’, ‘the 1st Defendant’, ‘the 2nd Defendant’ and 3rd Defendant’ and 1st, 2nd Defendant and 3rd Defendants’ will be used interchangeably. Brief Facts [3] The salient facts relevant to this judgment based on Plaintiff’s Statement of Claim, as elucidated by the learned Session Judge can be summarized as follows:

The Plaintiff, age 18 years at the time of accident (26.6.2013), is the motorcycle rider bearing registration number ABX 641 (page 5 of Appeal Record). The 1st Defendant is the driver of the motorcar bearing registration number WGS 5137 and the 2nd Defendant is the driver for the lorry registration number BEM 4046 and/or agent for 3rd 3 Defendant who is the owner of the lorry registration number BEM 4046 at all material time (page 5 of Appeal Record).

The Plaintiff claimed that he was riding behind the lorry driven by the 2nd Defendant and the lorry was about to turn into a junction where the 1st Defendant was about to exit from the same junction.

The Plaintiff claimed that he was behind the lorry driven by 2nd Defendant and the lorry stopped on the road before the junction. The Plaintiff claimed that Plaintiff who was behind the lorry, overtook the lorry on the right side of the lorry to continue his journey.

The Plaintiff claimed that the 1st Defendant is negligent when the 2nd Defendant exited the junction and drove into the main road and collided with Plaintiff on the main road. Due to the impact, the Plaintiff was thrown off his motorcycle and ended up under the wheel of the lorry driven by the 2nd Defendant. The 2nd Defendant at the junction turned into the junction and stopped when he realised that he had driven over the Plaintiff.

The Plaintiff claimed that the 2nd Defendant was also negligent which was denied by the 1st Defendant. The details of negligence are stated in Plaintiff’s Statement of Claim (pages 6-9 of Appeal Record). 4

The Session Judge decided that the Plaintiff is 80% liable and the 1st Defendant is 20% liable. Plaintiff’s case [4] The learned counsel for the Plaintiff submitted that the Plaintiff had the right of way as the Plaintiff was on the main road and wanted to continue with his journey straight ahead. The Plaintiff’s counsel averred that the 1st Defendant at the junction should have waited before going into the main road by turning to the right. The Plaintiff’s counsel referred to rule 3(2)(b) of the Road Transport Rules and the case of Rani A/P Varatharajoo v Chuang Kok Wai [2002] 7 MLJ 721 and quoted: “it was a duty of a motorist to enter the main road from a junction when it was safe to do so and after giving way to the vehicles travelling on the main road.” [5] Based on FC case Kek Kee Leng v Teresa Bong Nguk Chin & Anor [1997] 1 MLJ 61, the Plaintiff’s counsel averred that the 80% should be on 1st Defendant and relied on the case of Worsfold v Howe [1980] 1 All ER 1028 which held that the fact that the defendant was inching forward at junction caused the accident and there is no principle of law that a driver is entitled to emerge blindly from a minor road onto a major road. [6] The Plaintiff’s counsel averred that the lorry could not turn left and was stationed before the junction. It was pointed out to this Court by the Plaintiff’s counsel that the blood stain on the road does not determined that the Plaintiff was on the wrong side of the road. It is submitted that 5 based on the blood stain and the damage to the car, it is obvious that the car jutted out from the junction and hit the Plaintiff (photo at page 203 of Appeal Record). [7] It is averred that the Plaintiff was hospitalised for 7 months due to the serious injury suffered from the accident (Notes of Proceedings, page 37 of Appeal Record) and did not deliberately delay reporting the accident. The Plaintiff’s counsel further averred that the investigating police officer (IO) testified that the Plaintiff’s motorcycle was behind the lorry and was a few meters away. It is further submitted that the IO had fined the 1st Defendant. [8] In relation to quantum, the Plaintiff’s counsel submitted that the Plaintiff still suffers pain at the pelvis area and at his lower back although had recovered from the accident. It is submitted that the Session Judge accepted the Defendants’ submission on quantum wholly, lower than the Compendium of Personal Injury Award where fracture of the right inferior pubic rami and pubic tubercle is in the range of RM13,000.00 to RM19,

500.00 for each injury but the Session Judge awarded RM18,000.00 for both injury. The Plaintiff’s counsel submitted that the Session Judge ought to award RM40,000.00 to the Plaintiff for the two injuries. For the degloving injury of the buttocks and the lumbar region, the Session Judge awarded RM8,000.00 and the counsel sought this Court for a higher award of RM22,000 based on the medical specialist report dated 17.9.2014 (page 158 of Appeal Record). 6 Defendant’s case [9] The learned counsel for the Defendants submitted that based on IO’s evidence (Notes of Proceedings, page 77 of Appeal Record), the Plaintiff has gone to the opposite lane. It is submitted that based on the sketch plan (page 148 of Appeal Record), the blood was on the next lane. It is submitted that the IO’s report of investigation is consistent with 1st Defendant’s report and the Plaintiff only made the police report after 6 months. It is further submitted that the police did not summoned the 1st Defendant. [10] It is submitted that the lorry has to stop to allow the motorcar to go out from junction which shows that the evidence of 1st Defendant is consistent with 2nd Defendant’s evidence. It is further averred by the Defendants’ counsel that the Plaintiff is turning to the left based on the police report and was not going straight, as turning to the left is to his home and the police report made was not amended. [11] In relation to quantum, it is submitted that based on the medical report (page 220 of Appeal Record), the quantum for injury is for the same part and therefore a deduction of 10% ought to be made for overlapping and further argued that as the injury is completely healed, the award of RM18,000 is sufficient. [12] The Defendants’ counsel submitted that the 2nd and 3rd Defendants argued that the Plaintiff’s claim is only against the 1st Defendant. 7 APPEAL [13] Having read both counsels’ written submissions and heard both counsels’ oral submissions, I allowed the appeal on liability and the award for damages is sustained. My reasons follow. [14] 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 and I rely on the Federal Court case of Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1 [15] This suit was brought by the Plaintiff and the burden is on the Plaintiff following section 101 of 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. [16] The burden of proof stipulated under section 102 of Evidence Act 1950, is the burden to adduce evidence, to rebut the claim in order to discharge the burden of proof. The Federal Court Judge Salleh Abbas (as he then was) in the case International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86 that was referred in the case of Letchumanan Chettiar Alagappan (supra) had this to say, “The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of 8 evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to ss 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail.” [17] In this instant case, the Plaintiff pleaded that the Defendants were negligent and caused the accident. 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 Supreme Court’s decision of Lai Yew Seong v Chan Kim Sang [1986] 1 MLRA 245 that the principle test of contributory negligence is based entirely on the conduct of the plaintiff. In that case, although the facts differ to a certain extent involving an accident of two motorcars, one of the motorcars suddenly stopped without giving an indication, the Supreme Court decided that the trial judge failed to take that matter into account and his failure affected the defendant’s case and defence that the plaintiff was negligent at the time of accident. [18] The Plaintiff claimed that he has the right of way since he is on the main road and wished to proceed straight down the road. The 1st Defendant on the other hand, claimed that he was at the junction and the lorry stopped to give him way to turn right into the main road. The Session Judge having heard the 1st Defendant’s evidence that its car collided with the Plaintiff’s motorcycle, decided that the Plaintiff’s action heading straight on the main road is dangerous by overtaking the lorry 9 that stopped by the junction and held the Plaintiff to be responsible (pages 33 – 34 and pages 40-42 of Appeal Record). [19] The crux of the matter is who has the right of way, whether it is the Plaintiff who was on the main road to turn left or the 1st Defendant who was at the junction and seeking to turn right onto the main road. Based on the facts, the main road is a straight road and the lorry which was in front of the Plaintiff, intended to turn left into the junction, had stopped to give way to the 1st Defendant. The Plaintiff reported that the lorry stopped in the middle of the road which prompted him to overtake the lorry and Plaintiff had indicated to turn left (page 144 of Appeal Record). [20] This Court holds the view that the 1st Defendant who was at the junction and was about to turn right onto the main road is obliged to give way to vehicles coming from the right and therefore must wait and ensure that the main road in front of him is clear, that no vehicles coming from the right before he could proceed to turn right onto the main road. The 1st Defendant reported in his police report that that there were vehicles behind the lorry which were coming from his right (page 147 of Appeal Record). This means that the 1st Defendant should be careful to see the vehicles behind the lorry either driving or riding straight ahead or turning into the junction before he could turn right to get onto the main road. [21] The traffic rules is clear that all road users must give way to vehicles coming from the right. Although the Plaintiff’s counsel may mistakenly submitted a typo error referring to the ‘Road Transport Act 2012’ in its written submission rather than the Road Traffic Rules, this Court’s finding is Rule 3(2)(a) and (b) of Road Traffic Rules 1959 (LN 10 166/59) which the reference is correctly placed at Tab 1 of Plaintiff’s counsel’s written submission document, provides that, “3. Keeping to the left

….

The driver of each and every vehicle when driven on a road shall-

Give right of way to traffic on or approaching from his right at any roundabout;

Give right of way to traffic travelling straight ahead before turning across the path of such traffic. ..…” [22] The law is clearly provided in the road traffic rules and had the Session Judge relied on the rule 3(2)(b) of Road Traffic Rules 1959, the Session Judge would have decided otherwise. The Road Traffic Rules 1959 is directly relevant to the facts of the case and this Court must give effect to its meaning to which a breach of the Road Traffic Rules 1969 is an offence. [23] It is submitted by Defendants that the Plaintiff was not heading straight but intended to turn left into the junction. The undisputed facts is that the Plaintiff was on the main road and was coming from 1st Defendant’s right based on the police reports made by Plaintiff (page 145 of Appeal Record). [24] Based on the facts and evidence before this Court, on the balance of probabilities, it is this Court’s finding that the 1st Defendant is liable at 80% and the Plaintiff is liable at 20% for overtaking the lorry although the 11 Plaintiff was on the main road following rule 6(1) of Road Traffic Rules 1959. [25] The quantum as decided by the Session Judge is sustained as I find that the Session Judge evaluated the evidence and made her assessments in reference to the authorities of the Federal Court (pages 44 – 51 of Appeal Record). I do not find that the Session Judge was plainly wrong in her awards (page 43 of Appeal Record) based on the plainly wrong test as enunciated by the Federal Court case of Gan Yook Chin v Lee Ing Chin [2005] 2 MLJ 1. [26] In light of the above reasons, I allow the appeal on liability, reversing the Sessions Court Judge’s decision and decide that the 1st Defendant is liable at 80% and the Plaintiff is liable at 20%. On quantum, the amount of RM71,000.00 for general damages as decided by the Session Judge is sustained. Partial appeal allowed with cost and the appeal deposit be refunded to the Plaintiff. Dated: 10 April 2018 (ZALITA BINTI DATO’ ZAIDAN) Judicial Commissioner Shah Alam High Court 12 COUNSEL FOR THE APPELLANT:

ALICE GEORGE Tetuan Alice George Peguambela & Peguamcara E-5-3A, Starparc Point Jalan Taman Ibukota Off Jalan Genting Klang 53300 Kuala Lumpur [Ruj No: AG/LM-1020/Ag-M/12/s] Tel: 03-4144 3833 Faks: 03-4144 3834 COUNSEL FOR THE 1st RESPONDENT: SANGEETHA NAIDU Tetuan Azim, Tunku Farik & Wong Peguambela & Peguamcara Unit 5-03, 5th Floor Straits Trading Building No. 2, Lebuh Pasar Besar 50050 Kuala Lumpur [Ref: 8.01.3188(BK)] Tel: 03-2697 0355 Faks: 03-2693 8060 13 COUNSEL FOR THE 2nd & 3rd RESPONDENT: - Tetuan Chen Lim & Associates Peguambela & Peguamcara Suite 7C-2, Wisma TCT, 516/1 Batu 3, Jalan Ipoh 51200 Kuala Lumpur [Ref: cla/474-0215/MMIP-BEM4046/L]