Tham Man Loong v Lee Huan Cheng (JA-11B-1-04/2024)

The Appellant (“Defendant”) in this case has filed an appeal against the entirety of the decision of the Magistrate delivered on 4 April 2024 after a full trial, which apportioned the Defendant's liability at 70% while the Respondent’s (Plaintiff) blame was listed at 30%. On the basis of 100% liability, the trial court awarded as follows –

the Defendant was ordered to pay the Plaintiff the sum of RM5,880.00, as special damages, together with interest at the rate of 2.5% per annum from the date of the accident until the date of judgment;

the Defendant was ordered to pay the Plaintiff the sum of RM51,100.00, together with interest at the rate of 5% per annum from the date of service of the writ until the date of judgment;

interest at the rate of 5% per annum on both the special and general damages awarded to the Plaintiff from the date of judgment until full settlement; and

costs of RM5,236.00.

For ease of reference in this judgment, parties are referred to as at the Magistrate's Court.

Both parties had filed written submissions and authorities in Enclosures 11,12,13,14,15 and 16. At the trial on 8 September 2025, counsel for both parties agreed to rely on their written submission without further oral submission. The decision is fixed on 26 September 2025, and this is the Court's decision.

There were two versions of the facts presented before the trial Court. According to the Plaintiff, on 11 July 2019 at approximately 10:30 p.m., he was riding his motorcycle (registration no. JSX 9478) from Masai, Johor to Taman Desa Cemerlang, Johor. At about KM 5.4 of the EDL Highway, Johor, the Defendant, who was riding a motorcycle (registration no. JNQ 6497), allegedly changed from the left lane to the right lane without giving any signal, thereby colliding with the Plaintiff.

According to the Defendant, at the material time, he was compelled to slow down his motorcycle as an unidentified car suddenly changed lanes. The Defendant stated that he managed to brake and bring his motorcycle to a stop, but immediately thereafter, he heard a loud sound from behind and discovered that the Plaintiff had collided with him.

In determining liability, the learned Magistrate concluded that, based on the evidence of SP1 and SP2 together with the photographs of the damaged vehicles tendered in the Magistrate’s Court, the Plaintiff’s motorcycle had collided with the Defendant’s motorcycle at the time the Defendant was changing from the left lane to the right lane. The damage sustained on the right side of the Defendant’s motorcycle was found to be consistent with the Plaintiff’s version of events, namely that the Defendant’s manoeuvre from the left to the right lane caused the Plaintiff to strike the right side of the Defendant’s motorcycle.

The learned Magistrate found, based on the evidence of SP1, that the Plaintiff had been riding at approximately 100 km/h at the time of the accident, which was consistent with the damage sustained on the right side of the Defendant’s motorcycle. This finding was corroborated by the evidence of SP2, who confirmed that the Plaintiff had been summoned for speeding. Accordingly, the Magistrate apportioned liability at 30% to the Plaintiff and 70% to the Defendant.

As to the general damages, the Magistrate, based on the medical report and relying on the Compendium on Personal Injury Award Revised as at 6th July 2018, awarded RM73,000 in general damages. As to the special damages, based on the evidence and receipts, the Magistrate awarded RM8,400 in special damages.

It is trite law that an appellate court would be slow to disturb the findings of the Magistrate’s Court unless it is convinced that there has been a substantial misdirection of facts and law which merited appellate intervention. [See Federal Court decision: Murugan v Lew Chu Cheong [1980] 2 MLJ 139; Rasidin Bin Partorjo v Frederick Kiai [1976] 2 MLJ 214; Topaiwah v Saileh [1968] 1 MLJ 284].

Where there are two conflicting versions, the principle is also clear. In Tabarani Mohd Arsad & Anor v. Chan Tenn Yeu [1999] 3 CLJ 188, Abdul Malek Ishak J, referred to Thomas v Thomas [1947] AC 484, Development & Commercial Bank Bhd. v. Num Tjuan Sdn. Bhd. [1989] 1 CLJ 26, Sepang Omnibus Sdn Bhd v Christina Loh Soo Pang & Ors [1970] 2 MLJ 234 explained the following – “These three authorities lay down a simple principle of law for an appellate court to follow. It is this. When a question of law has been tried by a judge and it is not suggested that the judge has misdirected himself in law, an appellate court in reviewing the record of the evidence should attach the greatest weight to the opinion of that judge as that judge saw and heard the witnesses, and consequently, the appellate court should not disturb the judgment of that judge unless it is plainly unsound. The appellate court is free to reverse the conclusions of the judge if the grounds given by the judge are totally unsatisfactory by reason of material inconsistencies or inaccuracies or if it appears unmistakably from the evidence that in arriving at that decision the judge has not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and bearing together with the effect of the circumstances admitted or proved.

For this appeal, this Court determine the following issues –

whether the collision occurred as a result of the Defendant’s sudden lane change; or

whether the collision was a rear-end impact caused by the Plaintiff’s failure to maintain a safe following distance.

The Appeal Record discloses two competing versions –

based on the Plaintiff’s testimony at the trial, he was travelling in the right lane when the Defendant suddenly changed lanes without signalling, cutting into his path. The Plaintiff asserted that he had no opportunity to avoid the collision. His police report dated 15 July 2019 reflected this account and listed damages to the front rim, handlebars, fork, footrest, tank, meter, and front lamp of his motorcycle; and

based on the Defendant's evidence, he testified that he was already riding in the right lane when, at KM 5.3, an unidentified car entered his lane from the left, forcing him to brake suddenly. While braking, he felt an impact from behind and realised the Plaintiff’s motorcycle had struck him. His police report dated 12 July 2019 recorded damage to the rear lamp, exhaust, rear rim and cover set. He denied ever changing lanes or cutting into the Plaintiff’s path. With these two conflicting accounts, the crux lies in the proper appreciation of the physical evidence.

This Court notes that the learned Magistrate placed emphasis on the alleged damage to the right side of the Defendant’s motorcycle as supporting the Plaintiff’s version. However, upon careful scrutiny of the record and SP1’s testimony, the actual damage identified was to the rear lamp and exhaust, not the right flank. The Magistrate’s conclusion that the damage was on the right side is therefore inconsistent with the photographs, police reports and SP1’s evidence. This misappreciation of the physical evidence undermines the finding that the Defendant changed lanes and caused a side impact.

Because of the two conflicting versions, this Court finds that the evidence of the investigation officer (“SP1”) is very crucial. SP1 testified that he investigated the accident site and the motorcycles involved. His inspection revealed that the Plaintiff’s motorcycle sustained frontal damage to the rim, fork, handlebars and related components. In contrast, the Defendant’s motorcycle bore damage at the rear, namely to the rear lamp and exhaust. SP1 concluded that the collision was consistent with a rear-end impact. He further noted that the Plaintiff admitted to travelling at approximately 100–110 km/h and failed to keep a safe distance. A summons was consequently issued to the Plaintiff for failing to keep a safe distance.

Based on the evidence, this Court finds that the damage patterns, which are frontal damage on the Plaintiff’s motorcycle and rear damage on the Defendant’s, are consistent with a rear-end impact. On the other hand, there is no objective evidence of a side collision to support the Plaintiff’s version on the side impact.

The position of law on the duty to keep a safe distance on the road is well established. In Mahmad Azhar Yaacob v. Norhafishah Abu Hasan [2018] CLJU 1874 the High Court explained the following – “[16] …Firstly, it is trite that a rear vehicle is legally duty bound to follow the front vehicle at a safe distance…” [see also: Jina Julaihi v. Sarmizi Mohamad Daud & Anor [2018] CLJU 1763]

Further, in Mahmad Azhar Yaacob, the Court explained that what constitutes a “safe distance” must be assessed on the facts of each case. In the present case, even if the Plaintiff was about two motorcycle lengths behind the Defendant, such a distance was plainly inadequate given his speed of 110 km/h. At that speed, the Plaintiff could not possibly have slowed down or stopped safely once the Defendant braked. The collision was therefore consistent with a rear-end impact arising from the Plaintiff’s failure to maintain a proper and safe distance.

This Court also considers that SP1 did not attend the scene of the accident immediately. His visit was only a day later, by which under normal circumstances, the road layout and any skid marks could no longer be properly ascertained. Moreover, the photographs of the damaged motorcycles that SP1 relied on were not taken by him but were furnished by the Defendant. This necessarily limits the weight to be placed on SP1’s testimony, as his reconstruction was not based on first-hand contemporaneous observation but on secondary materials.

This is consistent with the cross-examination of SP2. When confronted with the absence of any brake mark in the photographs tendered by SP1, SP2 explained that he had, in fact, observed the brake mark at the time of the accident. This exchange highlights the limitations of relying on photographs taken after the fact, particularly since SP1 only visited the scene the following day. This Court is reminded that such evidence must be considered with caution, bearing in mind that contemporaneous observations may differ from what is later recorded.

Further, the Plaintiff also admitted that he had paid the summons issued against him. While not conclusive, the Plaintiff’s admission to the summons carries probative weight. This is consistent with Raja Azlan Shah J’s observation in Chock Kek Ling v. Patt Hup Transport Co Ltd & Ors [1965] CLJU 25. [See also Lim Ah Toh v. Ang Yau Chee & Anor [1969] CLJU 91].

Further, under cross-examination, the Defendant clarified that his leg was not injured; only his toes were affected. This aspect of the evidence undermines the Plaintiff’s version. If indeed the Plaintiff’s motorcycle had collided with the Defendant from the side, as alleged, it is improbable that the Defendant’s leg would have escaped injury, given its natural position alongside the motorcycle. The fact that only the toes were impacted is more consistent with a rear-end collision, where the Plaintiff’s front wheel or handlebar struck the rear portion of the Defendant’s motorcycle near the exhaust and rear lamp.

Considering the totality of the evidence, in particular the consistent pattern of damages and SP1’s assessment, this Court finds that the most probable version is the Defendant’s version that the collision was a rear-end impact. The trial court, in preferring the Plaintiff’s version, overlooked or misappreciated the objective physical evidence. On a balance of probabilities, the collision was caused by the Plaintiff’s failure to maintain a safe following distance.

While this Court is mindful that the Magistrate had the advantage of observing the witnesses, the decisive aspects here are objective and physical: the location of the damages, the Plaintiff’s own admissions, and the investigating officer’s testimony. These matters do not depend on the credibility of witnesses. Where such objective evidence has been misappreciated, the appellate court is duty-bound to intervene notwithstanding the usual restraint. On this basis, and applying the principles in Tabarani Mohd Arsad & Anor, this appeal falls within the recognised exception justifying appellate interference.

Having carefully reviewed the record, this Court finds that the objective and physical evidence - namely the location of the damages, the Plaintiff’s own admissions and the investigating officer’s testimony - compels a different conclusion from that reached at the trial. While the learned Magistrate’s findings were made after hearing the witnesses, the appreciation of the physical evidence is central and in this respect, cannot be sustained. On a balance of probabilities, the collision was caused by the Plaintiff’s failure to maintain a safe following distance.

Accordingly, this Court allows the Defendant’s appeal. The Magistrate's decision apportioning liability at 70:30 is set aside. Liability is placed wholly on the Plaintiff, and the Plaintiff’s claim is dismissed with costs. Dated : 26 September 2025 -signed-Dr. Noradura Binti Hamzah Judicial Commissioner High Court Civil 2 Johor Bahru Appellant’s Solicitor : Messrs Ram Yogan Sivam Respondent’s Solicitor : Messrs Saleem Gill & Partners