Shahbadrul Azmi Bin Zulkefli v Nurul Munirah Binti Abdullah (DA-12B-40-12/2025)

NURUL MUNIRAH BINTI ABDULLAH

MOHAMAD FAIZA BIN DAUD (NO. K/P: 910731-03-5649) … RESPONDEN-RESPONDEN

This is an appeal by the Appellant against the decision of the learned Sessions Court Judge delivered after a full trial. The learned Sessions Court Judge found that the 1st Respondent was negligent in causing the accident but further held that the Appellant was contributorily negligent. Liability was accordingly apportioned at 70% against the Respondents and 30% against the Appellant. The Appellant appeals against the finding of contributory negligence.

Having considered the Record of Appeal, the grounds of judgment, the evidence adduced at trial, the submissions of the parties and the relevant authorities, I am of the view that the appeal ought to be allowed for the reasons which will be explained in this grounds of judgment.

The accident occurred on 1.1.2023 at approximately 9.45 a.m. along Jalan Wakaf Bharu near a junction leading into Jalan Masjid. The Appellant was riding his motorcycle along the main road whilst the 1st Respondent was driving from the opposite direction at the material time.

The learned Sessions Court Judge found that the First Respondent turned right across the path of the Appellant's motorcycle and thereby caused the collision. That finding is not been challenged before this Court.

The sole issue in this appeal is whether the learned Sessions Court Judge was correct in further finding that the Appellant was contributorily negligent.

The principles governing appellate intervention are well settled. In Gan Yook Chin & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1, the Federal Court held that appellate intervention is warranted where there has been an insufficient judicial appreciation of the evidence resulting in an erroneous conclusion.

In this regard, I find that there is a fundamental flaw with the learned Sessions Court Judge's approach to contributory negligence. The law is trite that he who asserts must prove.

The burden of proving negligence rested on the Appellant. In the present case, the Appellant discharged that burden and the learned Sessions Court Judge found that the 1st Respondent negligently turned right across the Appellant's path and thereby caused the collision. In any event, this finding is not challenged in this appeal.

Once that finding of negligence of the 1st Respondent is made, the burden of proving contributory negligence rested squarely on the Respondents. Contributory negligence is a positive defence. It is not for an Appellant to prove that he was entirely free from blame. The burden of proving contributory negligence always lie on the Respondents to establish, on a balance of probabilities, that the Appellant failed to exercise reasonable care for his own safety and thereby contributed to the damage suffered.

The latin maxim ei incumbit probatio qui dicit, non qui negat meaning the burden of proof rests on who asserts, not on who denies, which is encapsulated in s. 101 of Evidence Act applies squarely to the facts of this case.

As stated above, the burden never shifted to the Appellant to disprove contributory negligence, nor was the Appellant under any legal duty to prove that he was entirely free from fault.

With respect, portions of the learned Sessions Court Judge's reasoning suggest that he found that contributory negligence of the Appellant should be inferred because there was no evidence demonstrating that the Appellant was not contributorily negligent. I disagree with such approach as it effectively reverses the burden of proof.

The question to be answered by the learned Session Court Judge was not whether the Appellant had disproved contributory negligence. The correct question was whether the Respondents had proved contributory negligence.

The learned Sessions Court Judge relied on the extensive damage sustained by the Appellant's motorcycle and concluded that there was a possibility that the motorcycle was being ridden at speed. With respect, I find that conclusion was unsupported by the evidence.

In Siti Athirah bt Mohd Sapuan v Razanatul Ain bt Hassan & Anor [2015] 4 MLJ 359, the Court of Appeal held: " The appellant was not liable for contributory negligence. Except for her evidence that she was riding her motorcycle at 50km per hour at the material time, there was no evidence to show she was speeding or that she had exceeded the prescribed speed limit. The investigating officer was never cross-examined on the speed limit on the stretch of road where the accident occurred. It was wrong of the trial court to infer the appellant was speeding merely based on the extent of damage to the car as seen in the photographs." (emphasis added)

Further, there was not an iota of evidence at all to the effect that the plaintiff was speeding adduced by the Respondent. The learned Sessions Court Judge was therefore not entitled to infer excessive speed merely from the extent of damage sustained by the motorcycle. The inference is speculative and unsupported by any evidence.

The learned Sessions Court Judge further appears to have concluded that the Appellant ought to have avoided the collision. With respect, that approach imposes a higher standard than that required by law. In K.R. Taxi Service Ltd & Anor v Zaharah & Ors [1969] 1 MLJ 49, the Federal Court quoted the judgment of English Court of Appeal in Brophy v Shaw (unreported) The Times, June 25, 1965[1965] CLY 2677 CA as follows: "The short answer to this appeal was to remember that the defendant's duty, like that of any other road user, was to exercise reasonable care. He was not under a duty to be a perfectionist. It would be going too far to say that in the circumstances surrounding this accident the defendant should have observed the negligent and irresponsible action of these two men earlier than he did. The judge was clearly right when he dismissed the claim and his Lordship would dismiss the appeal." The Federal Court further approved the following observation: "It is possible that the perfect and most expert driver might have done a little better. The standard, however, is not that of the perfect driver, but the driver using ordinary care and skill."

The law therefore requires reasonable care, not perfection. The mere fact that the Appellant was unable to avoid the collision does not establish negligence on his part. Indeed, the Federal Court further observed: " Turning to the instant case the fault of the taxi-driver was said to lie in his failure to reduce speed and keep a proper lookout. To be found wanting in these respects, however, I think there should have been a finding of fact not only as to the speed at which he was going but also the interval of time and space affording him opportunity to avoid the consequences of the other driver's recklessness after he should reasonably have anticipated danger. How far did visibility extend when the taxi reached the brow of the hill and both drivers were in sight of each other? How far apart were the two vehicles when the Penghulu gave unmistakable indication, if any, of his intention to cross the path of the taxi? To these questions I have been looking for an answer. It seems to me, therefore, that without these essential primary findings of fact the inference of any want of care cannot be legitimately drawn." (emphasis added)

Perusal of the appeal records shows that no such evidence existed in the present case. There was no evidence regarding the distance between the vehicles when the 1st Respondent commenced the turn. There was also no evidence showing that the Appellant had sufficient opportunity to avoid the collision after the danger was created by the First Respondent.

Accordingly, there was no evidential basis upon which the learned Sessions Court Judge could properly conclude that the Appellant failed to keep a proper lookout or failed to take reasonable evasive action.

The evidence clearly established that the accident was caused by the negligence of the 1st Respondent in turning right across the Appellant's path.

Further, the Respondents failed to adduce evidence establishing excessive speed, failure to keep a proper lookout, failure to take evasive action or any other act or omission on the part of the Appellant amounting to contributory negligence. In short, the Respondents failed to discharge the burden resting upon them.

The learned Sessions Court Judge therefore erred in finding that the Appellant was contributorily negligent. This is a case where the learned Sessions Court Judge insufficiently appreciated the evidence and consequently arrived at an erroneous conclusion, thereby warranting appellate intervention.

For the reasons stated above, the appeal is allowed with costs of

The finding that the Appellant was 30% contributorily negligent is hereby set aside. The Respondents shall be held 100% liable for the accident. This Grounds of Judgment is dated 30.6.2026 SHAMSUL BAHRIN BIN ABDUL MANAF Pesuruhjaya Kehakiman Mahkamah Tinggi (3) Kota Bharu Kelantan PIHAK-PIHAK: Peguam bagi pihak Perayu: Tetuan Azhar Fazuny Seksyen 14, Jalan Bayam, 15200 Kota Bharu, Kelantan. Peguam bagi pihak Responden-Responden: Tetuan Kenneth William & Associates Lot No. 5-P-8, 5th Floor, Kota Bharu City Point, 15050 Kota Bharu, Kelantan.