Ridhwan Hadibb bin Mohmad Haris v Herry Kurniawan (BA-12B-45-06/2025)

The Appellant claims damages for injuries caused by a collision between the motorcycle he was riding and an MPV driven by the First Respondent and owned by the Second Respondent, on the 14th of September 2018. The Sessions Court dismissed the Appellant’s claim and found that the Appellant had attempted to exaggerate his claim as well as the existence of contributory negligence on his part. Subsequently the Appellant appealed against the decision of the Sessions Court judge to the High Court.

The issues contested in this appeal include the credibility of the Appellant, the cause and mechanism of the accident, the connection between the 14 September 2018 incident and a subsequent health deterioration (including the alleged second fall in 2020), the position and nature of the police investigator’s (IO) evidence, all expert evidence issues, as well as the adequacy and quantum of damages awarded.

The case arises from a motorcar-motorcycle accident occurred on 14.09.2018 at about 8:45 a.m. along KM 17.8 of the Federal Highway towards Shah Alam, involving a motorcycle ridden by Appellant and a Multi-Purpose Vehicle driven by the First Respondent and owned by the Second Respondent. Subsequently the Appellant initiated a claim at Sessions Court Petaling Jaya through a Civil Suit, BB-A53KJ-41-04/2021 claiming for general/special damages for the pain and suffering accorded to him, on the premise that the Appellant suffered damages due to the negligence of the First Respondent in operating his vehicle.

However, the Third Respondent, the Appellant’s insurer, intervened in the proceedings following an investigation by their loss adjuster which revealed that the Appellant had been intentional exaggerating, his physical condition after the accident and had overstated the quantum of his claim against the Respondents.

The Sessions Court of Petaling Jaya, after a full trial, decided that the Appellant’s claim against the Respondents were dismissed and the insurers, were not liable to pay any compensation to Appellant. Furthermore, the Sessions Court found that the Appellant was not entitled to any compensation from Third Respondents. Subsequently, the Session Court awarded General Damages of RM480,500.00 for pain, suffering, loss of amenities and Special Damages for RM3,104.60. However, the Appellants still not satisfied, filed an appeal on the overall Session Court’s decision on issues of liability, quantum of general and special damages.

To summarise the main issues before this court: - a) Whether the Sessions Court erred in its factual finding that the Appellant failed to prove, on a balance of probabilities, the negligence of the Respondents; b) Whether there was an error in weighing the evidence, including its weight given to the IO’s and Respondent’s expert testimony, that rendered the Sessions Court’s decision plainly wrong; c) Whether the causal chain between the 14.9.2018 accident and the alleged paraparesis/paraplegia injuries was broken (novus actus interveniens); d) Whether the Appellant also contributed to his injuries through his conduct (contributory negligence); e) Whether the damages awarded were so low as to warrant a correction by this Court.

In my opinion, I agree with the Respondents that the appellate court does not have the same audiovisual advantage as the trial judge. Therefore, intervention at the appellate level must be exercised cautiously and only when it can be demonstrated that the first instance factual findings are clearly wrong, or there has been a misdirection of law or a failure to properly assess the evidence resulting in an erroneous decision. This direction guides my assessment of this matter. It is trite principle, that the Appellate Courts should be slow in disturbing the finding of facts by the trial judge. Yap Chui Kui & Anor (pentadbir harta pusaka Ho Ho Shen, si mati) v Dato’ Low Nam Hui & Ors [2014] 3 MLH 640

In the case of Ng Hoo Kui & Anor v Wendy Tan Lee Peng, Pentadbir kepada Harta Pusaka Tan Ewe Kwang (Si Mati) & Ors [2020] MLJU 1469, the Court of Appeal held that: - “[26] … “the prime issue in respect of Questions 1 to 3 is whether the Court of Appeal had erred in interfering with the findings of facts of the trial judge. It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence (See Chow Yee Wah & Anor v Choo Ah Pat [1978] 1 LNS…..” And therefore, in my view, for the Appellant to succeed, he has to proof that the Session Court’s decision is plainly wrong and caused a serious miscarriage of justice. B. Accepted Facts and Credibility Assessment Inconsistencies in the appellant’s account

The documented evidence shows significant inconsistencies in the Appellant’s account regarding the motorcycle’s position and the mechanism on how the accident occurred. The Appellant provided police statements and oral contradictions in court regarding the motorcycle’s position (B/C/D/E) and details of how the collision transpired. When observing the evidence, provided by the IO, it is a contradiction, to the evidence as provided by the Plaintiff. The IO, in giving his evidence had mentioned that, it was the Appellant’s statement to him, that his motorcycle was at the material time, on lane D-E throughout the accident. The Appellant’s himself, mentioned, during cross-examination, that he was initially at ‘B’, as there were cars intending to exit to the left, then he moved to the position at ‘C’ as can be seen in the notes of proceedings.

In my opinion, the IO does not have personal knowledge of the intent or driving standards required at the time beyond what is stated in the parties’ statements. In my view, the Sessions Court took the appropriate method in evaluating the details of police reports and relevant scene inspections but not allowing the IO’s opinion on negligence to replace the court’s role as the legal fact-finder. Teo Bee Leng v Mohd Farhan Azizan Adnan [2020] 1 LNS 659 In Lim Jeh Haur v Nicholas Thomas Philip & Anor [2019] MLJU 1016 where the High Court had held that: - [24] The court should not attach any weight to the evidence of an IO that a particular party has been negligent or not (or words to that effect) because

whether a party is liable for negligence or otherwise is to be decided by the court;

an IO has no personal knowledge regarding the accident. The IO’s knowledge of the accident is derived solely from the results of the IO’s investigation. In other words, the IO’s evidence regarding who is negligent or not, constitutes hearsay evidence. I rely on the following judgment of Ong Hock Thye Ag CJ (Malaya) (sitting as a High Court Judge) in Public Prosecutor v Siew Sung [1966] 1 MLJ 145, at 145, as follows “The inspector’s evidence that his enquiries led him to believe that the accused was owner of the machine, was rightly struck out as hearsay, upon objection raised by defence counsel.” (emphasis added); and

an IO’s evidence regarding who is negligent or otherwise, is purely his or her opinion. The court cannot accept opinion evidence unless there is a relevant issue before the court which is beyond the court’s competence wherein the court may accept an expert opinion under s 45(1) EA. Section 45(1) EA provides as follows – “Opinions of experts” 45(1) When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts.” (emphasis added). Riding between larger vehicles

Furthermore, the Appellant admitted to riding between larger vehicles and failing to use the designated motorcycle lane. This action by the Appellant is, in itself, dangerous because it exposes riders to blind spots, sudden lane changes, and high collision risks. Larger vehicles often cannot see motorcycles, and skipping the motorcycle lane removes a critical safety buffer designed to protect riders. Motorcycle lanes are designed to separate riders from heavier traffic, reducing exposure to blind spots and collisions and riders can be fined for not using designated lanes, weakening their position in accident liability cases. Chang Chew Soon lwn Projek Lebuhraya Usahasama Bhd (Edgenta Propel Bhd, pihak ketiga) [2024] MLJU 2163 Delay in reporting to the police

There was a delay in reporting to the police, namely the accident report was made after more than a year, without a reasonable explanation. Courts may view the delay as negligence or an attempt to conceal fault, which can affect compensation claims. The longer the delay, the harder it is to gather accurate witness statements, photos, or police assessments. I believe, that this weakens the Appellant’s position. Moreover, the Respondents highlighted the fact that the Appellant had made other police reports for different incidents occurring after 2018, indicating his ability to move and drive on those dates.

In my general assessment of oral and documentary evidence, there is a tendency for the Appellant’s testimony to be inconsistent and in some aspects, not entirely trustworthy. The first instance judge made a credibility assessment based on the direct observation of the testimonies during trial and I see no reason to conclude that this assessment is clearly wrong. C. Independence and Admissibility of the Expert Evidence

The Respondents presented expert reports that raised doubts about the neurological manifestations and functional changes of the Appellant. The Respondents’ experts, including those who directly assessed the Appellant, requested confirmatory tests namely a comprehensive MRI of the spine, (SSEP/MEP) to clarify the link between spinal injuries and neurological function. This court takes note that these tests were not completed due to the Appellant’s lack of full cooperation.

An expert medical analysis at this juncture can have significant consequences, because medical experts play a central role in establishing the extent of injuries, causation, and the correct extent of damages. Without the experts’ medical evidence, it is harder to prove the severity of injury, leading to lower or denied damages. In my view, the argument that the Respondent’s expert reports are prejudiced, solely because their findings do not support the appellant is insufficient. It is important to note that the integrity and independence of the experts are assessed through scrutiny of their: - I. examination methods, II. requests for additional tests, and III. efforts to obtain complete information.

Hence, the Respondent’s experts clearly took necessary steps to examine the facts and form opinions and the delays or refusal by the Appellant to cooperate, weakens the Appellant’s position to challenge the expert opinions. D. Causation and Novus Actus Interveniens

The Appellant claims that the deterioration of his health was directly caused by the 14 September 2018 incident. However, material facts before this court show that the main deterioration date, the fall in 2020, occurred nearly two years after the 2018 incident. There are no concurrent medical records establishing a clear causal link between the spinal injury causing paraparesis and the 14 September 2018 accident.

The post-fall medical reports after 2020 do not show evidence of structural changes on MRI, confirming new spinal cord injuries attributable to the 2018 collision. Additionally, the Respondent’s experts argue supplementary tests were needed to conclusively determine and establish the true nature and cause of the injury nevertheless such tests were not performed. The allegation that the Respondent’s experts were not independent or colluded with the Respondent’s lawyers, are not supported by credible evidence.

In my opinion, the Respondent’s expert reports show efforts to obtain complete information, recommend relevant additional tests, and express concerns about discrepancies between prior clinical observations and the current conditions of the Appellant. His refusal to undergo the requested additional tests reduces the likelihood of establishing the necessary causal link and therefore, objections to the Respondent’s expert reports on biasness is not accepted by this court.

There are descriptions, by witnesses and documentation, that show the Appellant had returned to work and was driving after the initial recovery, reducing the likelihood that, the severe injuries in 2018 continued to worsen without new events. Considering the above facts, there is no basis for this court to conclude that the Appellant’s paraparesis was primarily caused by the 14 September 2018 incident. The absence of objective evidence linking the two events and conflicting medical findings, suggest that the Appellant failed to establish this causal link on a balance of probabilities.

The facts show that the Appellant did not use the designated motorcycle lane and was riding between larger vehicles during a busy morning. As I have mentioned in the above passages, this conduct was extremely risky and contrary to road safety regulations which intended to reduce such types of accidents. The failure to use the facilities provided by law and riding in a weaving manner provides grounds to find contributory negligence. The Sessions Court correctly assessed the situation by reference to: - I. time, II. estimated speed, and III. position in the fast lane and concluded that the Appellant was partly responsible. I am satisfied that this assessment was based on the evidence and is not clearly plainly wrong.

The Sessions Court rejected part of the Appellant’s special damages because: a) Many of the claimed expenses were not considered or not detailed in the amended statement of claim, affecting the Respondents ability to prepare their defense; b) Several receipts and expenses were not directly related to the 14 September 2018 injuries; and c) The element of future loss of income was not proven with a strong causal link between job loss and the claimed injuries namely the documents indicated employment termination related more to a corporate restructuring.

The Session Court’s assessment of the general damages rate was based on the opinions of the medical experts presented and factual evaluation. I find no evidence that the awarded sum is so extreme as to warrant an appellate intervention. There are no significant legal errors in the valuation done, that would justify altering the amount awarded.

Therefore, this appeal is dismissed on the grounds that the Appellant failed to prove, on a balance of probabilities, that the Respondents were negligent and that the primary injuries now claimed directly resulted from the 14 September 2018 accident.

In short, I uphold the decision, by the Sessions Court, in absorbing the following circumstances in its findings, such as: - 1) the delayed police reports; 2) contradictory statements of the Appellant; 3) withholding of material medical information from doctors; 4) refusal to cooperate with requested additional tests; 5) evidence of riding in the wrong lane; and 6) speeding and weaving through traffic. That provide a solid basis for the judgment and therefore, dismiss this appeal with costs to the Respondents. Dated : 9 April 2026 SGD SHOBA DORAI RAJAH JUDICIAL COMMISSIONER KUALA LUMPUR HIGH COURT Solicitor for the Appellant: Edwin A/L Jerome E Lewis [MESSRS EDWIN LEWIS] Solicitor for the Respondents: Dato’ SS Gill for 3rd Respondent Vinoshini Saminathan for 1st and 2nd Respondent [MESSRS ISHARIDAH HO CHONG & MENON]