XXXX v 1. ) Tanah Temasik Sdn Bhd (BL-A53KJ-81-02/2024)

TANAH TEMASIK SDN BHD … THE FIRST DEFENDANT

MOHD HISYAM BIN USMAN … THE SECOND DEFENDANT

This case concerns a road traffic accident in which a 14-year-old child, who at the material time was an unlicensed motorcyclist, collided with a van at a junction, bearing the ravages of the collision and thrust into the stark perils of the road.

Having evaluated the totality of the evidence before me, I find on a balance of probabilities that:

The Plaintiff has established his claim against the Defendants. I, therefore, allow the claim with costs.

(ii) The Defendants have failed to establish their counterclaim against the Plaintiff’s Mother. I, therefore, dismiss the counterclaim with costs.

My reasons for so concluding are set out in the analysis that follows.

The parties relevant to this action are as follows:

Muhammad Adam Ziqri bin Sanizakri, a 14-year-old minor (the Plaintiff), filed this claim through his mother and litigation representative, Norhayati binti Safa’ai (the Plaintiff’s Mother). At the material time, he was riding motorcycle BLW 6175 without a driving licence.

(ii) Tanah Temasik Sdn Bhd (the First Defendant) was the registered owner of the van bearing registration number JQJ 4767 (the Van).

(iii) Mohd Hisyam Bin Usman was the driver of the van at the material time (the Second Defendant). MATTERS IN DISPUTE AND EVIDENTIARY SOURCES

The twin issues at the heart of this dispute are liability and the quantum of damages. The parties contest both the question of fault and the appropriate amount damages to be awarded.

In support of their claim, the Plaintiff adduced evidence from the following witnesses:

Sergeant Mohamad Amirrul Bin Roseli, the Investigating Officer (PW1).

(ii) The Plaintiff (PW2).

(iii) The Plaintiff’s Mother (PW3).

The Defendants elected not to call any witnesses.

The accident occurred on 2.9.2022 at about 10.00 a.m. along Jalan Nipah, Pulau Indah. The Plaintiff was riding his motorcycle along the main road from A1-A2. The Second Defendant, who was driving a van from point A2 towards A3, executed a right turn into a shop on the left side of A1–A2, cutting across the Plaintiff’s path without signalling, stopping, or observing the traffic conditions. The Plaintiff braked and swerved to the right but collided with the rear side of the van, sustaining injuries which have given rise to the present action.

Before addressing the competing arguments, I find it convenient to set out below the well-established principles governing the burden of proof, to which I shall immediately turn. Statutory provisions

Elementary as it is, it is worth noting at the outset the burden and standard of proof, which is the legal burden on the balance of probabilities, as prescribed by sections 101, 102 and 103 of the Evidence Act 1950 (the Act). S. 101 of the Act reads: “101 Burden of proof

Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

S. 102 of the Act reads: “102 On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

And s. 103 of the Act reads: “103 Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

Guidelines have been developed over the years in precedents concerning the centrally relevant burden of proof. Elucidating the relevant subject succinctly, the Federal Court, speaking through Ong CJ (Malaya) in the case of Wong Thin Yit v. Mohamed Ali [1971] 1 LNS 151;[1971] 2 MLJ 175 observed: “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 of the defendant's negligence. Evidence is the foundation of proof, with which it must not be confounded. Proof is that which leads to a conclusion as to the truth or falsity of alleged facts which are the subject of inquiry. Evidence, if accepted and believed, may result in proof, but it is not necessarily proof of itself.”; see 15 Halsbury (3rd Edn.) p. 260.”

As well, a terse summation of the law was given by K C Vohrah J (later JCA) in the case of Krishna Murthey & Anor. v. Law Lye Chua [1992] 2 CLJ Rep 668 where His Lordship observed: “The onus is not on the defendant to prove that he was not negligent. As was succinctly pointed out by Hashim Yeop A. Sani J (as he then was) in Ng Chui Sai v. Maimon Bt. Ali [1983] 1 MLJ 110: In an action for negligence the onus of proving the allegation of negligence rests on the person who makes it unless there are disclosed facts which raise a presumption in favour of the plaintiff. The plaintiff must show affirmatively that there has been a breach of a specific or genuine duty by the defendant and this resulted in the damage to the plaintiff. If he fails to prove this the action must fail.” (See also: Jafri Elias v. Khor Tang Seah [1992] 2 CLJ Rep 601; MGI Securities Sdn Bhd v. Teong Teck Leng & Ors [2000] 5 CLJ 163;[2000] 1 MLJ 354; and U Television Sdn Bhd & Anor v. Comintel Sdn Bhd [2017] 10 CLJ 580;[2017] 5 MLJ 292) ARGUMENT ON LIABILITY FIRST ISSUE: WHETHER THE PLAINTIFF HAD DISCHARGED THE BURDEN OF PROOF ON THE BALANCE OF PROBABILITIES PROVING THAT ACCIDENT WAS CAUSED BY NEGLIGENCE OF THE SECOND DEFENDANT? Opposing Contentions in brief

Learned counsel for the Plaintiff submitted that the Plaintiff had discharged the burden of proof on the balance of probabilities, establishing that the accident was caused solely by the negligence of the Second Defendant, and that the Plaintiff’s account, corroborated by objective evidence and investigative findings, should be accepted in full.

In response, learned counsel for the Defendants contended that, although the Second Defendant bore primary responsibility for the accident, the Plaintiff’s actions as a 14-year-old minor riding a motorcycle without a valid license were relevant to the circumstances surrounding the collision and should be taken into account in assessing the liability.

Having assessed the Plaintiff’s competency, I am satisfied that he possessed sufficient intellectual capacity to take an oath to speak the truth when testifying. He was therefore competent to testify within the meaning of Sections 118 and 133A of the Evidence Act 1950 (see: PP v Kang Chang Heng [2025] 6 CLJ 31).

Arising from the preceding finding, I turn to the substance of the Plaintiff’s testimony, which reduced to its bare bones runs as follows:

The point of impact was marked “X” in the sketch plan.

(ii) The Plaintiff’s motorcycle showed no damage to the front wheel, with damage confined to the left side.

(iii) The Second Defendant’s van suddenly turned into the Plaintiff’s path without signalling to ensure the path was clear.

(iv) The Plaintiff had no reason to expect that the van would executed sudden manoeuvre.

The Plaintiff took evasive action by braking and swerving to the right, but because of the close distance he collided with the rear offside of the van.

(vi) After the incident, the Second Defendant apologised to the Plaintiff.

Taken together, the preceding evidence discloses a singular, coherent narrative of the collision. In the complete absence of any account from the Defendants, the events unfold with unambiguous clarity, and it is solely the Plaintiff’s testimony that accounts for the collision, leaving no rival version to challenge its probability.

On a careful and cumulative assessment, I respectfully find that the weight of the evidence, taken in its entirety, establishes on the balance of probabilities that the Plaintiff has successfully established his claims against the Defendants.

And hereinbelow are the reasons.

Mechanical Evidence Corroborating the Plaintiff’s Account

Having examined the physical evidence in its entirety, I am satisfied that it materially corroborates the Plaintiff’s account and aligns seamlessly with the circumstances he described. What speaks most persuasively, in my view, is the condition of the Plaintiff’s motorcycle. The front wheel remains undamaged, a detail of quiet yet decisive significance, which rules out any suggestion of a head-on impact. The impact is focused on the left side, consistent with the Plaintiff’s action to swerve in avoidance. The police photographs illustrate this clearly, showing a narrative conveyed not in words but through twisted metal and fractured paint. As Norhasyidan Mohd Nor @ Mohamad Hazani v. Mohd Ridhwan Asmara & Ors [2021] MLJU 627; [2021] 1 LNS 526 makes clear, they are “…the best evidence to establish the existence or non-existence of a collision”.

From a mechanical perspective, I find this pattern of damage provides independent and objective support for the Plaintiff’s account. On the strength of this physical evidence alone, it appears to be that the Plaintiff’s account is manifestly credible.

(ii) Medical Evidence Consistent with the Plaintiff’s Account

As I see it, the Plaintiff’s account is strongly supported by the nature and location of the injuries he sustained. A fractured left femur and malleolus are not trivial injuries, nor are they randomly distributed. These injuries indicate force applied laterally and correspond precisely with the Plaintiff’s description of being struck from the side after swerving to avoid the Second Defendant’s van.

And what is particularly telling is the anatomical symmetry between the Plaintiff’s injuries and the mechanical damage to the motorcycle. I take the view that this objective and unchallenged evidence aligns with the manner of impact described by the Plaintiff and reinforces the credibility of his account.

(iii) Road Layout, Point of Impact, and Evidential Silence

The sketch plan marks the point of impact near the centre of the road, a placement which, in my judgment, is highly significant. It indicates that the Second Defendant’s van had executed manoeuvre and entered the Plaintiff’s lawful path leading to the collision. This physical fact, supported by contemporaneous documentation, corroborates the Plaintiff’s account that he was travelling on his proper course when the van encroached into his lawful path. What stands out with particular force is the Second Defendant’s failure to dispute the location of the impact, owing to his absence from the witness box. That silence is not neutral as it conveys that the van did indeed enter the Plaintiff’s lawful path at the material time.

All things considered, I treat the objective evidence as affirming the Plaintiff’s account, unchallenged by any other evidence. As succinctly observed by Wan Suleiman FCJ in the Federal Court case of Mohamed Salleh Bin Awang & Anor v. Low Han Leong & Anor [1982] 1 MLJ 82; [1981] 1 LNS 140, the Court is justified in placing reliance on the sketch plan and drawing the necessary inferences as to who is liable.

(iv) Independent Investigative Evidence Confirming Second Defendant’s Negligence and Breach of Duty

I place particular weight on the testimony of the Investigating Officer (PW1). He is neither advocate nor partisan. I regard him as a seeker of facts, disciplined by experience and guided by duty. And I am persuaded that his evidence credible, offering me a lens through which I can examine the collision with clarity and precision. (See: Lim Jeh Haur v. Nicholas Thomas Philip & Anor [2019] MLJU 1016; [2019] 1 LNS 1351) As Lim Beng Choo J, later JCA, observed in Chan Sau Chuan v. Choi Kong Chaw & Yap Yun Chan [1990] MLJU 9; [1991] 2 CLJ Rep 394: “… although … not an expert witness in the strict sense of the words nevertheless he is more than competent to give his views because of his experience as an investigation officer in traffic accidents and the quality of the evidence he gave in this trial.”

I am guided by this observation in giving full weight to PW1’s credibility. PW1’s testimony demonstrates clearly that the Second Defendant executed sudden manoeuvre prematurely, creating a hazard that left the Plaintiff with no reasonable opportunity to avoid collision. I am satisfied that the law expects any driver turning across oncoming traffic to proceed with foresight and care. In the words of Raja Azlan Shah J in K R Taxi Service Ltd & Anor v. Zaharah & Ors [1968] CLJU 53; [1969] 1 MLJ 49, “A driver in turning across the path of on-coming traffic is not absolved from the prescribed duty to see that he must not endanger approaching traffic. On my reading, and in the context of the present case, the elementary precautions, id est signalling, stopping, and observing the traffic conditions before manoeuvring, are not perfunctory steps. They constitute the very essence of the duty of care owed by the Second Defendant to other road users, including the Plaintiff.

PW1’s evidence establishes that the Second Defendant omitted the preceding elementary precautions. Considered collectively with the entire body of evidence, I am persuaded that the Second Defendant did not signal to indicate his intention, did not stop to ensure the way was clear, and did not observe the traffic conditions before manoeuvring into the Plaintiff’s lawful path. In my judgment, these omissions are decisive in establishing the Second Defendant’s breach of duty.

By and large, I find that PW1’s testimony, impartial and forensic in character, corroborates the Plaintiff’s account in all material respects. And the Second Defendant’s omissions constitute a clear and actionable breach of duty. (See: Siti Athirah Mohd Sapuan v. Razanatul Ain Hassan & Anor [2015] 6 CLJ 295; [2015] 4 MLJ 359 and Mohamad Khirul Mizan Shafie & Anor v. Yue Ah Kai [2002] 8 CLJ 672; [2002] 6 MLJ 471)

The Second Defendant’s Admission and Compounding under Rule 3(2)(b) as Supporting Evidence of Negligence

The evidence before me indicates that the Second Defendant was issued a summons under Rule 3(2)(b) of the Road Traffic Rules [LN 166/59], which requires giving a proper signal when turning. Notably, the Second Defendant did not contest the charge and chose to compound the offence by paying a fine of RM300.00.

It is well-established that compounding a traffic offence does not constitute an express admission of civil liability. (See: Mohd Salleh Samad v. Zainuddin Dongking [2001] MLJU 623; [2002] 1 CLJ 139; and Rozita Ahmad & Yang Lain lwn. Mohd Yusof Saidin & Satu Lagi [2015] MLJU 1265; [2015] 1 LNS 1289). But it bears noting that, though not determinative of liability, it is nonetheless a pertinent and telling fact deserving of reliance. (See Bong Chee Min v. Jacknoris Golinjun [2020] MLJU 151; [2020] 1 LNS 120).

Manifestly as it is, the Second Defendant’s failure to take elementary precautions was not merely alleged. It has been affirmed by the Investigating Officer (PW1), substantiated by the Plaintiff’s sworn testimony, and reflected in the pattern of factual findings throughout this case. Seen in that light, the Second Defendant’s decision to compound the offence assumes a supportive evidentiary role. It corroborates that the Second Defendant manoeuvred into the Plaintiff’s path without warning and without the care expected of a driver executing such a manoeuvre.

(vi) Adverse Inference from the Defendants’ Silence

Of considerable weight in my assessment of this case is the decision of the Defendants, particularly the Second Defendant, not to testify. I regard his absence as far from inconsequential. In a claim involving serious assertions of negligence, the absence of the principal party from the witness box is both legally significant and factually revealing. It deprives the Court of the only account that could have addressed the Plaintiff’s narrative and invites scrutiny under established principles of evidence.

Under Section 114(g) of the Act, I am entitled to draw an adverse inference where a party fails to call evidence within his knowledge, particularly where that party is the only person capable of directly explaining a material issue. The Second Defendant was the driver of the van. He alone could have explained why he turned across the Plaintiff’s path, what precautions he took if any, and what he observed in the crucial moments leading to the collision. His pleaded account as set out in his Defence, remains wholly unsubstantiated as no evidence was led to support it (See: Paragraph 6 of the Statement of Defence).

In Jaafar Bin Shaari v Tan Lip Eng & Anor [1997] 3 MLJ 693, the Supreme Court drew an adverse inference against a defendant motorcyclist who was not called to give evidence. The Court observed that in the absence of any credible account from the defendant it was open to infer that his evidence would not have assisted his case and might well have confirmed the Plaintiff’s account of negligence. By my reckoning, the same principle applies here.

While I accept that the Defendants have a right not to testify, such a right does not prevent the Plaintiff from invoking Section 114(g) of the Act where material evidence is withheld. The absence of testimony from the person who holds the facts gives rise to a presumption that the evidence, if adduced, would have been adverse. This is not merely procedural silence. It amounts to suppression of material evidence (See: Munusamy Vengadasalam v. PP [1987] 1 MLJ 492; [1987] 1 CLJ 250)

If the Second Defendant had a credible explanation, if facts existed that could plausibly absolve him, I would reasonably have expected him to come forward. In my judgment, his silence casts itself squarely against his position. It leaves his pleaded defence untested and unsupported by any direct evidence.

Viewed broadly, I regard the Second Defendant’s decision not to testify as more than a missed opportunity. It is, in my view, a silent concession. The unavoidable inference is that his testimony could have done little to fortify his case. In the absence of any rebuttal, the Plaintiff’s account stands as the sole evidentiary account before the Court, and I accept it.

(vii) Internal Consistency and Evidentiary Coherence of the Plaintiff’s Account

As established in Jayabalan v. UT Of Pondicherry [2010] 1 SCC 199 which was recently cited with approval by the Federal Court in Teoh Kiang Hong v. Theow Say Kow & Other Appeals [2025] 2 CLJ 683; [2024] MLJU 3611, "The primary endeavour of the court must be to look for consistency".

A striking feature of the Plaintiff’s case, as I see it, is the consistency and coherence with which it has been presented across all relevant forms of record and evidence including pleadings, sworn testimony, medical documentation and the investigative findings. This internal harmony, reinforced by objective and contemporaneous materials, persuades me of the reliability of his account.

His testimony, though tested under cross-examination, remained steady and unshaken. It was corroborated by a slew of corroborative evidence. The details he gave in court matched with precision these materials in terms of sequence, location and physical effects, from the identified point of impact and the damage to the vehicles to the position and nature of his injuries. This alignment between oral testimony and external evidence convinces me of the credibility of the Plaintiff’s account.

The Defendants, by contrast, rest on bare pleadings unsupported by witness testimony or corroborative evidence. With nothing on record to contradict the Plaintiff’s case, his evidence stands alone as the only narrative sustained by a matrix of consistent and verifiable facts.

(viii) Credibility of the Plaintiff and the Plaintiff’s Mother Affirmed

Having considered the internal consistency and evidentiary coherence of the Plaintiff’s account, I now turn to assess the credibility of the Plaintiff and his mother, whose testimony I found credible. As is trite, the weight to be attached to evidence is closely linked to the manner in which it is delivered, making it appropriate to evaluate their demeanour in determining the reliability of their testimony.

From my vantage on the bench, I found the demeanour of the Plaintiff and his mother in the witness box to be calm, measured, and marked by candour. I discerned no evasion or hesitation in their responses during cross-examination. In the words of Hishamudin Yunus J (later JCA) in Mohamad Khirul Mizan Shafie, “They had been cross-examined and their testimony remained unshaken”. Their consistent, clear, and composed testimony underscores its credibility rather than any embellishment.

That said, I remain mindful of the caution expressed by Ong Hock Thye FJ in the Federal Court decision of Ah Mee v. Public Prosecutor [1967] 1 MLJ 220; [1967] 1 LNS 3, wherein His Lordship observed: “To avoid undue emphasis on demeanour, it may be well to remember what was said by Lord Wright, and often quoted, from his judgment in Powell and Wife v. Streatham Manor Nursing Home [1935] AC 267 of the possibility of the Judges being deceived by adroit or plausible knaves or by apparent innocence.” That wise admonition is not lost on me. Balancing the observed demeanour with the substance of their testimony, I see no good reason to question their credibility.

Having considered the evidence as a whole, I am satisfied that the Plaintiff’s account is entirely credible, coherent, and firmly grounded in objective and contemporaneous materials. The collision arose from the Second Defendant’s negligent conduct, and there is no evidence to mitigate that breach of duty. I therefore hold the Second Defendant fully responsible for the accident, and the Plaintiff’s claims is established in full. SECOND ISSUE: WHETHER PLAINTIFF WAS CONTRIBUTORILY NEGLIGENT?

Learned counsel for the Plaintiff submitted that the collision arose solely from the negligence of the Second Defendant, with no evidence of any fault on the Plaintiff, and that his absence of a licence cannot give rise to contributory negligence or mitigate the Second Defendant’s liability.

In response, learned counsel for the Defendants maintained that, although the Defendants bore primary responsibility for the accident, the Plaintiff’s own conduct as a 14-year-old minor riding a motorcycle without a valid licence, demonstrating a contumacious disregard for the law, remained a matter of significance in determining whether contributory negligence should be attributed to him.

As emerges from the argument, the Defendants seek to anchor their plea of contributory negligence upon the Plaintiff’s absence of a licence, treating that legal deficiency as a lever by which liability may be shifted to him. As I assess it, the thrust of the argument is not that he was riding carelessly at the time of the collision, but that the bare fact of his unlicensed status should suffice to dilute the Second Defendant’s responsibility.

While learned counsel for the Defendants underscores a supposed “contumacious disregard for the law” in riding unlicensed, such considerations however pertain to regulatory compliance rather than the substantive elements of tortious negligence, and therefore cannot on its own and in isolation bear upon the assessment of contributory negligence.

I must make plain that as a matter of legal principle, the absence of a driving licence does not translate into actionable negligence in tort. Nor does it furnish a foundation for apportioning blame. This principle was lucidly articulated by Mohd Nazlan Mohd Ghazali JCA in Ahmad Zulfendi Anuar v Mohd Shahril Abdul Rahman [2022] 6 MLRA 30; [2022] 4 MLJ 892, where His Lordship observed: “[103] ... the failure to have a driving licence, in breach of the RTA ought not to amount to an actionable negligence if there is no causal nexus between the negligence as alleged in transgressing the RTA and the collision causing the injuries sued for. The absence of licence per se cannot be the proximate cause of the plaintiff's injuries. The absence of such a licence would be no evidence whatsoever that the driver was not a safe, capable and skilled driver...”

I accept this authority as sound and binding. Here, the legal question is not whether the Plaintiff was in technical breach of the law, but whether that breach bore a causal connection to the accident. That distinction lies at the heart of my analysis in this case.

Considered in light of the afore-cited observations, and weighed against the factual matrix and circumstantial peculiarities of the present case, I find that the cumulative force of the evidence establishes, on the balance of probabilities, that there was no contributory negligence on the part of the Plaintiff.

And hereinbelow are the reasons:

Statutory Breach and

It seems to me essential to keep distinct what the law itself has kept apart. I cannot permit myself to blur the boundary between a breach of the Road Transport Act 1987 and negligence in tort. The absence of a licence is an infraction of statute, but it is not a legal fault in the realm of negligence. To hold otherwise would be to collapse two distinct regimes of law, and to render every unlicensed rider presumptively blameworthy. In my judgment, such an approach would be unjust and doctrinally unsound.

(ii) Unlicensed Status Is No Proof of Unsafe Conduct

When I scrutinise the point with deliberation, I see that unlicensed status speaks only to legal incapacity and says nothing of how a vehicle was in fact ridden. I do not accept that the Plaintiff’s mere absence of a licence may be construed as evidence of recklessness or incompetence on his part. The law, as I understand it, requires me to look for causal fault and not to indulge in assumptions untethered to conduct.

(iii) Contributory Negligence Requires Causation

In my analysis, contributory negligence cannot be inferred from technical breaches alone. It requires a causal nexus between the alleged fault and the accident and must rest on actual carelessness or negligent conduct. The absence of licence explains neither the trajectory of the motorcycle nor the collision itself. Fault must lie in conduct that materially contributes to harm, not in status or formality. To treat an unlicensed child rider as blameworthy when struck by a negligent driver would conflate two distinct wrongs. Here, the Defendants have shown no act or omission by the Plaintiff that influenced the outcome, and I find it neither principled nor just to apportion blame on such a fragile foundation.

(iv) Authority Is Clear and Binding

I draw strength from the clarity of principle established in Ahmad Zulfendi Anuar, wherein it was observed with precision that the absence of licence is “no evidence whatsoever” of incompetence, and cannot serve as the proximate cause of injury. I accept that statement of law as both binding and persuasive. This established principle aligns fully with my conclusions, and I adopt it without reservation.

Against this prism, learned counsel for the Defendants’ assertion that the Plaintiff, “being a minor and riding a motorcycle with no driving licence… contributed to the negligence”, falters when measured against the preceding established legal principle.

No Justification to Dilute the Second Defendant’s liability

It further seems to me that to reduce the Second Defendant’s liability on the mere footing of the Plaintiff’s unlicensed status would be to misconstrue the doctrine of contributory negligence. That doctrine was conceived to share loss where both parties have, by their conduct, caused harm. It was never meant to become a refuge for a defendant seeking to displace responsibility by pointing to a collateral illegality. I recognise the force of argument advanced by Mr Karamjeet Singh for the Plaintiff that “illegality principle cannot be used as a shield for the Defendant’s negligence”. In my judgment, the absence of a licence is incapable of carrying that burden, and cannot constitute contributory negligence in respect of the collision.

(vi) Duty of Care Is Owed Equally to All Road Users

As established in Donoghue v Stevenson [1932] AC 562, a person owes a duty of care to those who may reasonably be foreseen as likely to be affected by their actions. Applied to road traffic, this principle extends to all road users, including not only lawful motorists but also the inexperienced, the underage, the unlicensed, and other vulnerable individuals who may foreseeably be harmed by negligent driving. Here, the Plaintiff’s absence of a valid licence does not diminish the Second Defendant’s duty to exercise vigilance and care on the road. A licence is merely a regulatory condition and cannot serve as the yardstick of fault in the event of an accident. That duty, in my view, binds the Second Defendant in respect of every road user.

I find the authorities relied upon by learned counsel for the Plaintiff to be plainly distinguishable, both in fact and in context. They pose no real obstacle to the Plaintiff’s claim. The distinctions are:

Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009] 6 CLJ 626; [2009] 6 MLJ 1 In Lee Nyan Hon, the plaintiff’s claim for breach of contract and trespass was barred by its own illegal acts, including erecting structures without approval and operating an unlicensed business. The Court of Appeal applied the doctrine of ex turpi causa, holding that a party cannot rely on its own illegality to seek relief. The claim for damages, including exemplary damages, was accordingly dismissed. By contrast, the present case arises from the Second Defendant’s negligent driving. The Plaintiff’s claim does not rest on any illegality on his part, such as riding without a licence, which bears no causal connection to the collision. His right to relief derives solely from the Second Defendant’s breach of duty. Lee Nyan Hon is therefore distinguished.

(ii) Sinuri Bin Tubar & Anor v Syarikat East Johore Sawmills Sdn Bhd [1987] 1 MLJ 315 Sinuri Tubar concerned a child trespasser who lost his hand when caught under timber logs in a sawmill yard. He claimed the bathroom on the premises, with its water supply, was an allurement imposing a duty of care. The Court dismissed the claim, holding that timber logs could not constitute an allurement, the plea was misconceived, the absence of prior incidents showed the mishap to be exceptional, and no liability could be imposed on the occupiers for what was a tragic accident without legal fault. In contrast, the present case does not concern liability arising from general supervision but a traffic collision caused by negligent driving. Unlike Sinuri Tubar, the decisive issue here is not the Plaintiff’s presence on the road but the Second Defendant’s negligent manoeuvre, which was the sole and operative cause of the accident.

(iii) Mohd Hafizul bin Mokhtar & Anor v Mohd Zaki bin Kamarudin [2007] MLJU 747 In Mohd Hafizul, the plaintiff’s absence of a valid motorcycle license and insufficient knowledge of the Highway Code undermined the claim. The High Court found that the plaintiff’s legal incompetence and absence of demonstrated skill contributed to the accident, weakening any entitlement to damages. By contrast, Second Defendant’s liability in the present case is clear and admitted, encompassing failure to take elementary precautions. There is no evidence that the Plaintiff’s conduct caused the accident. Importantly, Mohd Hafizul confirms that the absence of a licence alone does not constitute negligence, reinforcing that the Plaintiff’s absence of licence does not diminish his legal protection. Summing-up

All in all, I am therefore clear that the Plaintiff’s absence of licence cannot attract contributory negligence. It remains a regulatory breach, collateral to the accident, and incapable of shifting or sharing the liability. To treat it otherwise would be to confuse the absence of legal capacity with the presence of causative fault, a conflation I cannot endorse. In my judgment, the doctrine of contributory negligence must be anchored in conduct that contributed to the collision, not in the mere fact of the Plaintiff’s unlicensed status.

However, for the sake of completeness, and in the event that I have fallen into error in my earlier finding, I shall allow the evidence its full voice and consider whether any foundation exists upon which contributory negligence may properly be attributed to the Plaintiff.

On the evidence as they presently stand, and having regard to the circumstances peculiar to this case, I find that the evidence in its cumulative force points but to one conclusion that no contributory negligence may be ascribed to the Plaintiff.

And the reasons run as follows:

The Plaintiff Was in Lawful Control of His Vehicle at All Material

From my assessment of the evidence, I can find no basis for suggesting that the Plaintiff was doing anything other than riding properly before the collision, for the evidence establishes that he was an experienced rider. He rode steadily, stayed in the correct position, did not ride negligently, and remained in his lawful path.

As I have already found, the Defendants offered no evidence to the contrary. To my mind, this is decisive. The law requires a real departure from ordinary care, but none has been demonstrated by the Defendants against the Plaintiff. From my standpoint, the Plaintiff was in lawful control of his motorcycle until the Second Defendant’s negligent manoeuvre placed him in sudden peril. His conduct was beyond reproach, and that is why I cannot accept the plea of contributory negligence.

(ii) The Evidential Burden to Establish Contributory Negligence Lies with the Second Defendant and Cannot Be Satisfied by Speculation and Evidential Silence

The position remains trite that it lies upon the Defendants to establish that the Plaintiff’s actions fell short of reasonable care and contributed to the accident. That burden cannot be satisfied by pointing only to the absence of a licence.

During cross-examination, learned counsel for the Defendants did not advance any affirmative case of contributory negligence against the Plaintiff. From my perspective, the challenges raised concerned two points: (i) the Plaintiff’s speed while riding the motorcycle, to which he testified that he was travelling at approximately 30 to 40 km/h; and (ii) the suggestion that the collision was unavoidable, to which he gave firm denial. Manifestly, no suggestion was advanced to him in cross-examination that he was riding at an excessive speed, or that his conduct in doing so was negligent or causative of the collision.

In my assessment, the preceding line of challenges is too slender a basis upon which to construct a case of contributory fault. Contributory negligence must be founded on a proven lapse, not on conjecture or evidential silence. The law requires it to be established by proper proof that the Plaintiff’s conduct contributed to the collision. That, in my judgment, offers no foundation upon which contributory negligence could be apportioned.

(iii) The Plaintiff’s Evasive Action Was a Reasonable Response to Sudden Danger

Having reviewed the totality of the evidence, I find that the circumstances of this collision engage the doctrine of the “agony of the moment” established in Govinda Raju v. Laws [1966] 1 MLJ 188; [1965] 1 LNS 45, which applies when a person is suddenly placed in immediate peril by another’s wrongful act and must react instinctively without time for considered reflection.

At the material time, the Plaintiff was proceeding lawfully along his lawful path. As recognized by Privy Council in Tiong Ing Chiong v. Giovanni Vinetti [1984] CLJU 35; [1984] 2 MLJ 169, “… until the car embarked upon its fatal turn, the Plaintiff could reasonably presume that he faced no threat to his safety.”

On the facts of this case, the fulcrum upon which events turned is plain. It lay in the sudden and negligent manoeuvre of the Second Defendant’s van across the Plaintiff’s lawful path, executed without signalling, stopping, or observing the traffic conditions beforehand. The Plaintiff’s evidence, which I accept as credible, shows that he braked and swerved right in a split-second attempt to avoid impact. On any fair view, his unsuccessful attempt is not a reflection of negligence, but rather a product of an impossibly narrow window for reaction.

(iv) The Second Defendant’s Breach Was the Direct Cause of the Collision

On the totality of the evidence, the Second Defendant’s actions were not peripheral but the direct and sole cause of the collision. He manoeuvred negligently across the Plaintiff’s lawful path without exercising the vigilance required of a prudent road user. When a motorist abruptly turned across oncoming traffic without signalling, and the Plaintiff had no reason to anticipate, Chan Kim Hee v. Karam Singh & Anor [1980] CLJU 112; [1981] 2 MLJ 273 makes plain that it was the Second Defendant “… who was wholly to blame for the collision’’. He must answer fully for the collision and its consequences.

By comparison, the authorities relied upon by the Defendants are plainly distinguishable in both fact and context. They arise from materially different circumstances and do not bear upon the issues before me. I therefore do not regard them as relevant to the issue directly in concern.

From the foregoing, a comparative analysis naturally emerges:

Nui Chai Kian v Hasbi bin Omar [2021] MLJU 640; [2021] 7 CLJ 281 Nui Chai Kian concerned a motorcycle collision where the plaintiff, lacking proper skill and licence, failed to adjust his speed at a busy intersection and thereby breached the Highway Code. The Court held him partly responsible for the collision. By contrast, the Plaintiff in this case has not been shown to have breached the Highway Code or any traffic rule. There is no evidence of excessive speed, negligent conduct, or failure to anticipate hazards. The circumstances here place responsibility entirely on the Second Defendant.

(ii) Mohd Riduan bin Zainon & Anor v Muhammad Hafizuddin bin Azhar & Anor [2023] MLJU 2915; [2023] CLJU 2588 Mohd Riduan involved conflicting versions of a motorcycle-lorry collision, with liability apportioned 70:30 on account of the child plaintiff’s absence of licence and competence. The absence of skill was treated as contributing to the accident. The present case differs materially. The collision is uncontested and there is no evidence that the Plaintiff’s conduct contributed to the same. Liability rests squarely with the Second Defendant.

(iii) Goh Beng Seng v Dol Bin Dolah [1970] 2 MLJ 95b Goh Beng Seng involved a collision where both vehicles were travelling too fast and strayed near the centre of a road without markings, with the plaintiff’s own negligence contributing to his injuries. Here, the facts diverge sharply. The collision occurred within the Plaintiff’s lawful path and resulted solely from the Second Defendant’s negligent manoeuvre. There is no evidence of negligent or improper riding by the Plaintiff.

(iv) Khairun Nizad bin Daud & Anor v Juprin Paul [2018] 9 MLJ 32 Khairun Nizad concerned a collision where, despite having the right of way, the plaintiff failed to slow down or yield when he had the opportunity, leading to a 20% apportionment of contributory negligence. The present case is distinguishable. The Defendants have shown no act or omission by the Plaintiff that might reasonably have avoided the accident. Unlike in Khairun Nizad, no lapse of vigilance or failure of caution is disclosed on the Plaintiff’s part. Summing-Up

By and large, I can find no basis to ascribe contributory negligence to the Plaintiff. The absence of a licence bears no causal link to the collision. His conduct was steady and faultless, his reaction to sudden peril was reasonable, and the Defendants have not established any contributory act. The collision, on the evidence before me, was the direct result of the Second Defendant’s breach alone. I, therefore, find that full liability must rest with him. THIRD ISSUE: WHETHER THE DEFENDANTS HAD DISCHARGED THE BURDEN OF PROOF ON THE BALANCE OF PROBABILITIES PROVING THEIR COUNTERCLAIM AGAISNT THE PLAINTIFF’S MOTHER? Opposing contentions in brief

Learned counsel for the Defendants submitted that the counterclaim should succeed against the Plaintiff’s Mother, as liability ought to be apportioned to her for failing to take adequate precautions, thereby permitting the minor Plaintiff to ride a motorcycle in breach of Section 39(5) of the Road Transport Act 1987.

In response, learned counsel for the Plaintiff argued that the counterclaim against the Plaintiff’s Mother should be dismissed, as she took all reasonable steps to prevent the Plaintiff’s unauthorised riding and there is no evidence to substantiate any allegation of parental negligence.

Pared back to its core, the counterclaim turns on the averment that the Plaintiff’s Mother failed in her duty of care by allowing an underage and unlicensed child to ride, thereby endangering both him and the public (See: Paragraph 6 of the Defendants’ Statement of Defence - Page 18 to 19 Bundle of Pleadings).

Having scrutinised the evidence and applicable legal principles, I am compelled to conclude that the Defendants’ counterclaim is entirely without merit and must be dismissed.

I now turn to my reasons.

No Foreseeable Duty Owed by the Plaintiff’s Mother to the

I am guided by the principles as articulated in Arab-Malaysian Finance Bhd v. Steven Phoa Cheng Loon & Ors and Other Appeals [2003] 1 CLJ 585; [2003] 1 MLJ 567, wherein the Court held that to establish negligence, three essential elements must be present:

there is a duty of care on the part of the defendant;

the defendant breaches this duty; and

the breach causes damage that is not too remote to the plaintiff, although these elements are not necessarily exclusive of the other at all times.

These elements, though analytically discrete, are nonetheless intertwined. I therefore begin with the threshold question, namely whether the Plaintiff’s Mother owed a duty of care in view of the particular facts of the present case.

As a prelude, guidance on the existence of a duty of care may be found in the decision of Wong Kian Kheong J (now JCA) in De Tebrau Makmur Sdn Bhd & Anor v Bank Kerjasama Rakyat Malaysia Bhd [2017] CLJU 252; [2017] MLJU 201, wherein His Lordship distilled the test articulated in Lok Kok Beng v Loh Chiak Eong [1979] 2 MLJ 151; [2015] 7 CLJ 1008. At paragraph [50], His Lordship set out the following principles: “[50] My understanding of Lok Kok Beng is as follows

in deciding whether a party X owes a duty of care to another party Y, the Court shall consider the following

whether there is ‘sufficient legal proximity’ between X and Y. It is to be noted that Courts have also applied the test of whether it is reasonably foreseeable that Y will suffer loss or damage arising from X's misstatement. In this respect, the following considerations are relevant

the nature of relationship between X and Y

(ii) whether X has voluntarily assumed responsibility to Y regarding X’s misstatement

(iii) whether Y has relied on X’s misstatement

(iv) whether there is physical proximity

whether there is circumstantial proximity

(vi) whether there is causal proximity

if there is ‘sufficient legal proximity’ between X and Y, X owes a prima facie duty of care to Y. The next question is whether X’s prima facie duty of care is negated by policy consideration. The following matters are pertinent

the factual matrix of the case

(ii) whether there is a contract between X and Y

(iii) the relative bargaining positions of X and Y …” (See also: Lim Jeh Haur v. Nicholas Thomas Philip & Anor [2019] CLJU 1351; [2019] MLJU 1016)

Armed with these principles, I turn to the present case. On the pleaded claims and the proven facts, I am not persuaded that any duty of care can properly be imposed upon the Plaintiff’s Mother. The decisive deficiency lies in the absence of sufficient legal proximity, which I examine under the following dimensions.

Nature of Relationship The parties stood as complete strangers in law. I can discern no assumption of responsibility by the Plaintiff’s Mother, no conduct inviting reliance, and no vestige of control over the circumstances that gave rise to the accident capable of creating a relational bond. As made clear in De Tebrau Makmur, proximity cannot be distilled from bare foreseeability. It must rest upon the interlacing of reliance and responsibility. To impose a duty here would be to forge obligations between those who share no juridical connection, a step which principle does not sanction and authority does not permit. In my judgment, kinship alone cannot conjure a duty for proximity is measured in responsibility and not in blood.

Physical Proximity At the material time, there was no physical or territorial nexus between the Plaintiff’s Mother and the Second Defendant. She was not present at the scene, having been at work, and bore no capacity to supervise or control the motorcycle once the keys had been hidden. As I see it, presence at the scene is the crucible of physical proximity and absence leaves nothing for the law to seize upon. Without such a tangible link, the duty contended for would float free of place and circumstance, extending liability into a field without discernible boundary. In my view, proximity cannot be built on absence for the law demands presence before it can ascribe responsibility.

Circumstantial Proximity The surrounding circumstances reveal no threads connecting the Plaintiff’s Mother to the Second Defendant. I cannot see how mere happenstance or opportunity could impose responsibility where none was assumed. No action or interaction linked the Plaintiff’s Mother conduct to the Second Defendant. In my view, the law will not conjure proximity from chance or coincidence.

Causal Proximity The evidence equally fails to establish a causal bridge between the Plaintiff’s Mother’s conduct and the harm alleged. She had expressly forbidden the Plaintiff from using the motorcycle, had hidden the keys, and was absent at the material time. The Plaintiff’s deliberate disobedience was an independent act severing any causal chain. I cannot view prohibition as the architect of harm. And to my mind, to recognise a duty here would be to conjure an abstract obligation unanchored in action or omission, an expansion I refuse to endorse.

I further note in passing that learned counsel for the Defendants’ attempt to invoke statutory penalties under Section 39(5) of the Road Transport Act 1987, on the basis that a child under sixteen rode a motorcycle as a platform to ascribe liability to the Plaintiff’s Mother, is wholly untenable. Such a provision governs traffic offences and may guide a criminal or regulatory proceeding, but it has no application in determining civil liability in a tortious negligence claim.

Weighed in full, I conclude that no duty of care can be ascribed to the Plaintiff’s Mother. And this conclusion is consonant with the observation in Lim Jeh Haur that: “…the 2nd Plaintiff does not owe any duty of care to the Defendant to ensure that the 1st Plaintiff rides a bicycle on a road in a gated residential community under supervision.”

(ii) Reasonableness of the Plaintiff’s Mother’s Conduct and the Intervening Act of the Plaintiff

Even if proximity were to be assumed (which I do not find to be the case), the evidence demonstrates independently that the Plaintiff’s Mother acted as a responsible parent, taking sufficient precautions and supervision.

To the preceding aspect, I shall now turn.

Reasonableness of the Plaintiff's Mother’s Conduct The Plaintiff gave clear and consistent evidence that his mother had expressly forbidden him from riding the motorcycle, as he was underage and unlicensed. He further testified that she had hidden the keys to prevent access. That account was corroborated in full by the Plaintiff’s Mother, who stated under oath that she had taken those precautions and that she was at work at the material time. The Plaintiff’s Mother’s evidence, that she had concealed the motorcycle key, remains unchallenged, and I therefore accept it as an established fact. This evidence was neither contradicted nor weakened in cross-examination, and I therefore accept it without reservation. Against that evidential backdrop, I find no basis for suggesting that she permitted, encouraged, or acquiesced in the Plaintiff’s conduct on the fateful day. This is not, in my judgment, a case of passive acquiescence or silent approval, nor is it one of parental dereliction. On the contrary, the Plaintiff’s Mother’s conduct embodied the level of care the law expects of a responsible parent. The law does not require omnipresent control, nor does it expect parents to anticipate every act of defiance. What it requires is reasonableness, and in my assessment that standard was satisfied. Had she encouraged the behaviour, or ignored a pattern of misconduct, I might have reached a different conclusion. But the evidence here discloses no such circumstance. To my mind, there is no basis for attributing parental liability in the absence of any authorisation or encouragement. The Second Defendant has not shown that the Plaintiff’s Mother enabled, permitted, or turned a blind eye to her son’s conduct. The weight of the evidence, on the contrary, affirms her diligence.

The Plaintiff’s Independent Actions and the Absence of Parental Liability I find that the Plaintiff acted entirely of his own volition, choosing to disregard his mother’s clear instructions and safety precautions. His conduct was deliberate, undertaken in her absence, and directly contrary to the warnings she had given him. In my view, no parent, however careful or vigilant, can be expected to prevent every deliberate act undertaken by a child once reasonable safeguards are in place. Therefore, learned counsel for the Defendants’ assertion that the Plaintiff’s Mother “… failed to take sufficient precautions and supervision” collapses entirely when measured against this. It is clear to me that the events that followed were set in motion by the Second Defendant’s negligence. The Plaintiff’s independent actions do not, and cannot, attract liability to his mother. In weighing the circumstances, I am persuaded that parental responsibility cannot fairly be extended to situations where a child acts in secret defiance. Hence, in the absence of any negligence on the Plaintiff’s part, the Second Defendant must bear sole responsibility for the collision.

(iii) Public Policy and the Limits of Parental Responsibility

Learned counsel for the Defendants’ invocation of Phipps v Rochester Corporation [1955] 1 QB 450, as cited with approval in Sinuri Tubar is, in my judgment, unmoored from its proper foundation. Devlin J’s dictum in that case locates primary responsibility for the safety of young children upon their parents, lest that burden be shifted to others. That principle, however, does not avail the Defendants. The Plaintiff was no wandering infant but a wilful adolescent who, in deliberate disobedience, procured access to the motorcycle despite his mother’s clear prohibition and precautions. To invoke Phipps here is to misconstrue its ratio, for it guards against shifting parental duties to third party, not against absolving a negligent driver by fastening liability on a diligent parent.

I must bear steadily in mind that the law does not extend liability beyond what is reasonably foreseeable. A parent is not an insurer of every act of a child. Public policy therefore precludes the creation of any such duty, reinforcing the limits of parental responsibility in tort. That view I advance is not without judicial echo. In Azman Sulaiman v. Muhammad Aqil Afdhal Ruslan (a child suing through his father and next friend, Ruslan Disa) & Anor [2018] 3 CLJ 241; [2017] MLJU 1505, Azmi Abdullah J sounded a note of caution against placing upon parents an impossible burden of omnipresent vigilance. His Lordship remarked: “[24] For the court to impose responsibility on the parent to be aware of a child's every movement, furthermore a five-year old, every second of the day is something beyond what is humanly impossible, this court dares to say. Such an imposition is to set the bar at an impossibly high standard which few parents, if any at all, can live up to. Hence this court decides to dismiss the action by the defendant against the third party father in this case and in the same breath concurs with the decision of the learned Sessions Court Judge."

And I am no less fortified in my view by the principle established in Wong Chew Ling & Anor v. Nur Aleeya Yusri & Anor [2016] CLJU 857; [2016] MLJU 428 wherein it was observed: "[13] As for the third-party proceedings taken by the Appellants against the 2nd Respondent (father), it was argued that the father ought to have taken some form of care, control and supervision over his daughter. He was not at or near the scene of the accident. It was in evidence that he was at work at the time of the accident. Based on this premise, I do not think he can be made liable to indemnify the defendants under a Third-Party proceeding."

Equally fortifying my view is the observation of Wong Kian Kheong J (now JCA) in Lim Jeh Haur: “... parents who do not have financial means to have insurance coverage for their children and if their children suffer personal injuries in accidents caused by defendants (such as in this case), the parents have to contribute to or indemnify the defendants (by way of third party proceedings) for the defendants' liability regarding their children's injuries.”

In my judgment, therefore, liability cannot be placed upon the Plaintiff’s Mother for an act she did not permit, enable, or reasonably foresee, for her mere relationship to the Plaintiff does not translate into liability sans proximity.

Drawing the threads together, I find no sufficient proximity to ground a duty of care upon the Plaintiff’s Mother, no breach of any recognised standard of parental responsibility, and no causal nexus between her conduct and the accident. The Court of Appeal in Tan Wei Hong & Ors v Malaysia Airlines System Bhd & Ors [2017] 4 MLJ 540 affirms the trite principle that negligence is not a monolithic concept but a sequence of interdependent elements, namely duty of care, breach, causation, and remoteness. The absence of the first renders the others otiose (See also: Tan Wei Hong & Ors v. Malaysia Airlines Bhd & Other Appeals [2018] 9 CLJ 425 (FC)). On that premise, the Defendants’ counterclaim is devoid of foundation and must be dismissed. ARGUMENT ON QUANTUM

Before turning to quantum, I first consider the Medical and Specialist Reports. These describe the injuries sustained by the Plaintiff in the accident. The parties have agreed to their admissibility for this purpose, subject to submissions, namely:

Initial Medical Report from Hospital Tengku Ampuan Rahimah, Klang dated 20.10.2022.

(ii) The Plaintiff’s Orthopaedic Specialist Report by Dr. Mohd Noor Manukaran, Consultant Orthopaedic Surgeon, Pantai Hospital Cheras dated 1.6.2023.

(iii) The Plaintiff’s Plastic Surgery Report by Dr. Jagjeet Singh, Consultant Plastic Surgeon, Bukit Tinggi Medical Center dated 8.10.2024.

(iv) The Defendants’ Orthopaedic Specialist Medical Report by Dr. Vivek from UM Specialist Centre dated 24.9.2024.

The Defendants’ Plastic and Reconstructive Surgery Report by Dr. Kong Chee Kwan, Plastic and Reconstructive Surgeon from PPUM dated 24.12.2024. CONFLICTING SPECIALIST REPORTS

I should, at this juncture, heed the salutary statement of principles by Harmindar Singh Dhaliwal JCA (now FCJ) in the Court of Appeal case of Jitweer Singh a/l Ojagar Singh v. Public Prosecutor [2017] 2 CLJ 561; [2016] 4 MLJ 525, where His Lordship addressed with utmost clarity the manner in which conflicting expert medical opinions to be evaluated, that merit quotation in full: “[43] It is trite law that a judge must not consider expert evidence in a vacuum in the sense that the same should not be artificially separated from the rest of the evidence. When there is conflicting expert opinion, a judge should test it against the background of all the other evidence available in that particular case in order to decide which expert evidence is to be preferred. In particular, a judge must have regard to the direct evidence, whether in the form of oral evidence or contemporaneous documents, and the overall circumstances material to the issue at hand. The version more consistent with these ought to be accepted as being more trustworthy and reliable. [44] The Supreme Court of India in Piara Singh and Ors v. State of Punjab 1977 AIR 2274 laid down the approach to be adopted when the opinion of one expert differs from another as follows: What has happened is that two experts, namely, Dr Jatinder Singh and Dr Paramjit Singh had differed in their opinions. The High Court rightly observed that in view, of the difference of opinion between the two experts the evidence of Dr Jatinder Singh must be preferred as it is supported by the evidence of the eye-witnesses whose evidence is both reliable and trustworthy and is also supported by other circumstances proved in the case. It seems to us that where there is a conflict between the opinion of two experts the Court should normally accept the evidence of the expert whose evidence is corroborated by direct evidence of the case which according to the Court is reliable. [45] It is also trite that a trial judge should not be quick to reject evidence of an expert whose findings are based on reports of facts unless the judge is satisfied that the inference or opinion derived from the said reports of facts is unsound. In evaluating the conflicting experts' evidence the approach ought to be to examine the scientific grounds and bases on which they rely (Singapore Finance Ltd v. Lim Kah Ngam (S'pore) Pte Ltd & Eugene HL Chan Associates (Third Party) [1984] 1 LNS 3; [1984] 2 MLJ 202).” (Emphasis added)

In assessing the damages, I have weighed the Medical and Specialist Reports, the guidance of the Compendium, the comparative levels of compensation in cognate cases, and the particular circumstances which give this case its distinct character.

Also, I have duly considered the permanent disabilities borne by the Plaintiff, as established through unchallenged evidence, which include:

a permanent limp with difficulty in walking, running, and jumping;

(ii) inability to participate in sports - takraw and badminton;

(iii) difficulty in climbing stairs, kneeling, and lifting heavy objects;

(iv) thigh pain in cold weather and nocturnal stiffness

prone to fatigue and muscular discomfort; and

(vi) restricted ability to kneel for prayer and to sit cross-legged. For convenience, I shall hereafter refer to these conditions as “the Plaintiff’s residual disabilities”.

Upon that canvas, I now turn to my assessment of damages.

Closed Fracture Shaft of Left Femur With 2 cm Muscle Wasting

Learned counsel for the Plaintiff submitted an amount of RM35,000.00. The comparable awards relied upon were the cases of Parthiba Kumar a/l Subramaniam v Amiruddin bin Biden [2025] 1 PIR [17], wherein the Sessions Court awarded

Whereas, learned counsel for the Defendants submitted for a range of RM25,000.00 to RM30,000.00, relying on the comparable award in Shakty Suriavarma a/l Saseetharan v. Ho Kee Kean [2023] MLJU 2117, wherein the Sessions Court awarded RM25,000.00 for closed fracture shaft of left femur. And he submitted an amount of RM3,000,00, relying on Zahida Bt Mohd Yazid Yogasuaran v Mazlina Bt Awang [2023] MLJU 3141, wherein the Court awarded RM3,00.00 for muscle wasting.

The Compendium states that compensation for femur fracture without shortening ranges from RM21,000.00 to RM48,000.00.

I agree with learned counsel for the Plaintiff and observe:

The Plaintiff sustained not only closed fracture of the shaft of the left femur but also 2 cm of muscle wasting.

(ii) The Plaintiff’s recovery is not measured by X-rays or a normal range of movement alone. What matters is whether he continues to suffer pain and how the injuries restrict his daily life.

(iii) The Plaintiff’s Residual disabilities are firmly established by the unchallenged evidence during the trial. And both the Plaintiff’s and the Defendants’ Specialists acknowledge the same.

(iv) Learned counsel for the Defendants’ reliance on Shakty Suriavarma is misplaced, as that case lacked a specialist disability assessment. By contrast, the concurrent Specialists’ Reports here confirm the Plaintiff’s residual disabilities.

Compensation must reflect the Plaintiff’s lived reality. The law is not confined to the survival of bone but extends to the diminution of mobility, the endurance of pain, and the quality of life post-injury arising from the accident caused by the Second Defendant’s negligence.

I, therefore, award RM30,000.00 under this head of injury.

(ii) Open Bimalleolar Ankle Fracture

Learned counsel for the Plaintiff submitted an amount of RM45,000.00. The comparable awards relied upon were the cases of Mohamad Zaki Bin Hassan v Mohd Fauzi b Mashood & Anor [2024] 2 PIR [37] wherein the Sessions Court awarded RM45,000.00 for open fractures of posterior and medial malleolus, as well as Saraswathy a/p Krishnan v Majlis Perbandaran Sungai Petani [2024] 2 PIR [49], wherein the High Court increased the award from RM16,000.00 to RM20,000.00 for fracture of lateral malleolar of the right ankle and increased from RM8,000.00 to RM20,000.00 for fracture of posterior malleolus of the right ankle.

Whereas, learned counsel for the Defendants submitted for a range of RM18,000.00 to RM20,000.00, relying on the comparable award in Salamat (Selamet) b Abu Bakar v Fuzi b Othman & Anor [2009] 2 PIR [9], wherein the Sessions Court awarded RM18,000.00 and Kanniappan a/l Andy v Lim Ah Soi [2011] 2 PIR [9], wherein the Sessions Court awarded RM20,000.00.

The Compendium states that compensation for fracture of Medial/Lateral Malleoli ranges from RM14,500.00 to RM26,500.00.

I agree with learned counsel for the Plaintiff and observe:

The Plaintiff sustained an open fracture involving both the medial and lateral malleoli. As opposed to a singular fracture, this was a bimalleolar injury, leaving the residual disabilities.

(ii) Learned Counsel for the Defendants relied on their Specialist findings of “the fractures of the lateral and medial malleoli of the left ankle have united” and “there is no significant swelling of the left ankle” to support the assertion that the condition of the left ankle has improved. However, it appears to me that such reliance loses sight of the Plaintiff’s unchallenged testimony establishing the current condition of his residual disabilities.

(iii) Learned Counsel for the Defendants further asserted that the Plaintiff’s “… left ankle is stable with no joint tenderness” to support the present condition of the Plaintiff’s ankle. However, I find this assertion misplaced, as their Specialist Report makes no mention of the same.

(iv) Both the Defendants’ and the Plaintiff’s Specialists acknowledged the Plaintiff’s residual disabilities. Where both experts and the Plaintiff are in accord, the Defendants’ assertion of full recovery is unsustainable.

As it stands, the principle distilled in Ahmad Farhan bin Ahmad Ghazali v. Thai Siew Moi & Anor [2024] MLJU 2364 does not mandate automatic preference for the most recent medical report. Rather, it directs the court to discern which assessment most accurately reflects enduring impairment. In my judgment, the Specialists’ Reports establishing the Plaintiff’s residual disabilities, further corroborated by his unchallenged testimony, carry greater probative weight in gauging the true impact of the injury.

I, therefore, award RM40,000.00 under this head of injury.

(iii) Secondary Osteoarthritis of Left Ankle

Learned counsel for the Plaintiff submitted an amount of RM10,000.00. The comparable awards relied upon were the cases of Zaidatul Azwa binti Zainuddin v. Zaliza binti Mohamad [2023] 1 PIR [57], wherein the Sessions Court awarded RM8,000.00 for secondary osteoarthritis.

Whereas, learned counsel for the Defendants did not address the claim under this heading.

The Compendium states the sum of RM5,000.00 for osteoarthritis.

I, therefore, award RM5,000.00 under this head of injury.

(iv) Unsightly scars

Learned counsel for the Plaintiff submitted an amount of RM10,000.00. The comparable awards relied upon were the cases of Calvin Thomas a/l Rayappan & Anor v. Loh Ka Lin & Anor [2024] 1 PIR [6], as well as Muhammed Fairus Mohd Ali Rominidass v. Puvanesvaran Sandaran & Yang Lain [2024] PILRU 34, wherein the Court awarded RM5,000.00 for scars affecting aesthetic appearance.

Whereas, learned counsel for the Defendants submitted an amount of RM10,000.00, relying on the comparable award in Juliah binti Samsuri v. Kamarajan a/l Suburamaniam [2018] MLJU 1664, wherein the Sessions Court awarded RM10,000.00.

The Compendium states that compensation for scars ranges from RM2,750.00 to RM12,000.00.

I, therefore, award RM10,000.00 under this head of injury.

Future surgeries

Implant removal surgery.

Learned counsel for the Plaintiff submitted an amount RM8,000.00 for implant removal surgery.

Learned counsel for the Defendants, however, submitted that the claim under this head ought to be dismissed on the ground that the Plaintiff had not demonstrated any cogent basis for it. In the alternative, he proposed an award of RM2,666.70.

I agree with learned counsel for the Plaintiff and observe:

Both specialists are ad idem on the necessity of implant removal surgery and on that point their consensus is unequivocal.

(ii) The Plaintiff’s Mother credibly testified that government hospitals gave no assurance of timely treatment, with procedures subject to protracted delay. Evidence shows that no official documentation or forms were issued upon her oral inquiry. Her account, consistent and unshaken in cross-examination, is accepted as reliable.

(iii) So far as concerns the costs for the future treatment, the principle remains trite that the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah Mohd Helmi (A Child Suing Through Her Father And Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885; [2016] MLJU 02. The Plaintiff, therefore, bears the duty to lead compelling evidence, proving the reasonableness of the amount. As addressed above, learned counsel for the Plaintiff relied on the Plaintiff's Specialist Report in claiming the amount RM8,000.00 for implant removal surgery (See: the Plaintiff’s Orthopaedic Specialist Medical Report by Dr. Mohd Noor Manukaran, Consultant Orthopaedic Surgeon dated 1.6.2023 – Agreed Bundle of Documents, page 19). To my mind, the amounts so posited are not without evidential support. Indeed, they derive from the figures stated by the Plaintiff’s specialist, who gave his estimation based on his medical experience and expertise in his capacity as the Consultant Orthopaedic Surgeon at Pantai Hospital Cheras. Stated differently, the sum was not conjured in vacuo but rests upon an authoritative foundation.

(iv) The Defendants’ Specialist had not served at Government hospital to justify the figure he advanced, nor was there any reference to the costs of such treatment at the institution where he practised (University Malaya Specialist Centre). The estimate thus appears speculative and lacking in any convincing foundation.

Even if the Defendants’ Specialist’s speculative figure is taken at its highest, it does not, in my considered view, dislodge the reasonableness of the figure advanced by the Plaintiff’s Specialist. From my standpoint, the mere fact that the quantum estimated by the Plaintiff’s Specialist surpasses that estimated by the Defendants is, in the circumstances, insufficient to render it unreasonable.

I am satisfied that the Plaintiff has, on a balance of probabilities, established that the amount claimed under this head is reasonable. I, therefore, award the amount RM8,000.00 for the implant removal surgery.

Scar revision surgery

Learned counsel for the Plaintiff submitted an amount RM RM58,900.00 for scar revision surgery

Learned counsel for the Defendants, however, submitted that the claim under this head ought to be dismissed on the ground that the Plaintiff had not demonstrated any cogent basis for it. In the alternative, he proposed an award of RM 20,566.67.

I agree with learned counsel for the Plaintiff and observe:

Both specialists are ad idem on the necessity of scar revision surgery and on that point their consensus is unequivocal.

(ii) The Plaintiff’s Mother credibly testified that government hospitals gave no assurance of timely treatment, with procedures subject to protracted delay. Evidence shows that no official documentation or forms were issued upon her oral inquiry. Her account, consistent and unshaken in cross-examination, is accepted as reliable.

(iii) As alluded to earlier, the Plaintiff must “show that the amount claimed for such treatment is reasonable” to which Abdull Hamid Embong FCJ alluded to in Inas Faiqah. As addressed above, learned counsel for the Plaintiff relied on the Plaintiff's Specialist Report and the testimony of the attending witnesses in claiming the amount RM58,900.00 for scar revision and related treatment. To my mind, the amounts so posited are not without evidential support. Indeed, they derive from the figures stated by Dr. Jagjeet, who gave his estimation based on his medical experience and expertise in his capacity as the Consultant Plastic Surgeon at Bukit Tinggi Medical Centre. Putting it differently, such an amount was not plucked out of thin air but rather stemmed from an authoritative source.

(iv) The Plaintiff tendered a detailed treatment plan which includes serial scar revision, CO2 laser treatment as well as silicone laser treatment, and costings breakdown from his Specialist (See: The Plaintiff’s Plastic Surgery Report by Dr. Jagjeet Singh dated 8.10.2024 - the Plaintiff’s Additional Bundle of Documents, page 11). The Plaintiff’s Specialist’s estimation of RM58,900.00 rests on a structured, holistic assessment offering timely redress.

By contrast, the Defendant’s Specialist’s lower estimate anchored in reliance upon government hospitals, overlooks the practical realities of prolonged delay, restricted treatment options, and incomplete relief (See: The Defendant’s Plastic and Reconstructive Surgery Report by Dr. Kong Chee Kwan, Plastic and Reconstructive Surgeon from PPUM dated 24.12.2024 - the Defendants’ Additional Bundle of Documents, page 3).

(vi) The Defendants’ assertion that scar revision is unnecessary because the scars are concealed beneath clothing and the surgical intervention is “merely cosmetic” are unpersuasive. The Plaintiff’s mother gave unchallenged evidence that the Plaintiff continues to suffer pain, itching, and emotional trauma. As I see it, the visibility of the scars does not diminish the reality of suffering. The object of compensation, as I apprehend it, is to restore the Plaintiff, so far as may reasonably be done, to the status quo ante. It follows, therefore, that the need for such treatment is dictated by medical necessity, not by discretion.

All spectrums considered, I am satisfied that the Plaintiff has, on a balance of probabilities, established that the amount claimed under this head is reasonable. I, therefore, award the amount RM58,900.00 for the scar revision surgery. One-third reduction

As regards one-third reduction argument advanced for the Defendants, I note here the following observations:

The Defendant’s reliance on Muhammad Yazid Tasra & Satu Lagi v. Purwanto Purwadi & Satu Lagi [2020] MLJU 112; [2020] CLJU 104 is, with respect, inapplicable. In Muhammad Yazid, the Plaintiff relied solely on counsel’s assertion grounded in general knowledge. By contrast, the Plaintiff’s Mother gave direct, sworn, and unshaken evidence that she personally attended Tengku Ampuan Rahimah Hospital, Kuala Lumpur Hospital and University Malaya Medical Centre, was informed that only critical cases were being prioritised, and they have to face lengthy waiting lists.

(ii) The Defendant’s reliance on Chai Yee Chong v. Lew Thai [2004] 2 CLJ 321; [2004] 2 MLJ 465 to justify a one-third deduction is unfounded and inapplicable. The principle in Chai Yee Chong applies only where the Plaintiff fails to justify the choice of private treatment over public alternatives, which is not the situation here.

(iii) The trite principle remains apparent that claims for private healthcare expenses must be assessed on the standard of reasonableness, not curtailed by formulaic one-third reduction. As Harminder Singh Dhaliwal JCA (later FCJ) put it in Muhammad Yassein Zuliskandar (A Child Suing Through His Father And Next Friend; Zuliskandar Md Pechor) v. Kerajaan Malaysia & Ors [2018] MLJU 2185; [2019] 4 CLJ 289, having considered Chai Yee Chong, “…we agree that in Chai Yee Chong, no such ‘one-third principle’ was set out. Indeed, as was pointed out in the case itself, no such principle is provided under any written law. It has only become a matter of practice through the adoption of case precedents. Instead, it was decided that the test of reasonableness should be applied in deciding whether the claimant is entitled to recover the full sum of the private healthcare medical expenses.”

On a cumulative whole, I find that the Plaintiff has satisfied the test of reasonableness and is entitled to the full amount claimed, without reduction.

Learned counsel for the Plaintiff submitted that the Plaintiff ‘s specialist recommended two future surgeries, namely: (i) implant removal; and (ii) scar revision. He submitted an amount of RM7,000.00 for each surgery, totalling RM14,000.00. The comparable award relied upon was the case of Shanmugam a/l Gopal v. Zizah Abidin Bin Nazim & Anor [2003] MLRH 410 wherein the Court awarded RM5,000.00 for pain and suffering. Also, he placed reliance on the case of Raji Transport Sdn Bhd & Anor v Idayu Zulkifli [2004] 1 MLRH 552 which established that “The changes in the value of money, the decreased in the purchasing power of the Ringgit and the increase in the cost of living were relevant factors in the assessment of damages”. Concluding his argument, learned counsel for the Plaintiff submitted an amount of RM7,000.00 for pain and suffering for each of the future surgeries, totalling RM14,000.00

Whereas, learned counsel for the Defendants did not address the claim under this heading.

Assessing the award to be granted, I place emphasis on the strength of the authorities cited in the argument. On the same score, I draw reference to the High Court case of Nur Ali v. Varghese Mathew & Satu Lagi [2018] 1 LNS 184, where Ahmad Kamal Md Shahid JC (now HCJ) affirmed the award of RM15,000.00 for pain and suffering for three future operations granted by the Sessions Court Judge. Further, I tethered reliance to the High Court case of Shanmugam Gopal, where Mohd Noor Abdullah J (later JCA) reversed the Sessions Court Judge’s decision in not granting the award for pain and suffering for future operation and awarded RM5,000.00,wherein it was observed: “The next issue raised by the appellant's counsel was with regard to the failure of the Sessions Court judge to make an award for pain and suffering for the future operation which the plaintiff had to undergo for the removal of the plate and screws. Undoubtedly, no person likes to undergo an operation. The anxiety caused is terrible. The plaintiff will have to travel back and forth from the hospital for dressing of the surgical wound and the removal of stitches. General damages which are awarded for a tortuous act committed against a person or his property is a civil remedy which has as its aim to put the injured party back as it were, as far as possible to his original position maintained by him prior to the tortuous act which resulted in injury or damage…. Although this is a future operation, the award for pain and suffering has to be made at the date of the decision so as to bring about the finality of the claim.”

I, therefore, award the sum of RM10,000.00 for pain and suffering in respect of the two future surgeries.

Medical Record

I order the award follows the costs of the matter.

(ii) Police Report

I order the award follows the costs of the matter.

(iii) JPJ Report

I order the award follows the costs of the matter.

(iv) The Plaintiff’s Family’s Travelling Expenses to Visit the Plaintiff Whilst He Was in the Hospital

Learned counsel for the Plaintiff submitted an amount of RM1,100.00 for the Plaintiff’s family’s travelling expenses to visit the Plaintiff whilst he was in the hospital.

In reply, learned counsel for the Defendants submitted that as the Plaintiff failed to provide documentary evidence to prove and support the claim, the claim should be dismissed.

I agree with learned counsel for the Plaintiff and observe:

The Plaintiff led evidence in court indicating that his family members visited him whilst he was in the hospital.

(ii) The Plaintiff expressly pleaded the Plaintiff’s family’s travelling expenses to visit the Plaintiff whilst he was in the hospital in paragraph [d] under “BUTIR-BUTIR GANTIRUGI KHAS PIHAK PLAINTIF” of his statement of claim, constituting part of the special damages.

(iii) It requires little imagination to accept that the Plaintiff, a 14- year-old child confined to hospital by injury, would be visited by his family. Such visits are the natural and foreseeable response to his condition, and they inevitably attracted costs, which were properly pleaded and substantiated by direct testimony in court.

Assessing the Plaintiff’s claim under the present heading, I place reliance on the observation by L C Vohrah J in Kasirin Kasmani v. The Official Administrator & Anor [1991] 1 MLRH 325; [1991] 2 CLJ 800, wherein His Lordship observed: “As to the claims for the items of special damages not agreed upon, in the absence of any proof of actual expenditure in the form of receipts I would award the sum of RM560 at the rate of RM20 per day for the wife's transport and living expenses for the 28 days she had to reside in Johore Bahru in order to visit the plaintiff at Hospital Sultanah Aminah in Johore Bahru…. Again in the absence of actual proof, I would award the sum of RM400 for her transport expenses for her visits to the plaintiff at Hospital Daerah Banting which is near the kampong where she lived.”

Also, I subscribe to the observation by Yusof Abdul Rashid J in Chan Kim Hee, wherein His Lordship observed: “The court was of the view that the taxi fare to and from Malacca General Hospital was about $20. It was reasonable for the members of the plaintiff's family to visit him while the plaintiff was hospitalised. According to the plaintiff, the family visited him sometimes twice a week. The court found that it was reasonable for the members of the family to have made 10 trips and so awarded a sum of $200 under this item.”

I, therefore, award the sum of RM1,100.00 under this head of claim.

The Plaintiff’s Travelling Costs – outpatient treatments

Learned counsel for the Plaintiff submitted an amount of RM500.00 for the Plaintiff’s travelling costs for outpatient treatments.

In reply, learned counsel for the Defendants submitted that as the Plaintiff failed to provide documentary evidence to prove and support the claim, the claim should be dismissed.

I agree with learned counsel for the Plaintiff and observe:

The Plaintiff led evidence in court indicating that he sought outpatient treatment.

(ii) The Plaintiff expressly pleaded travelling expenses for such visits in paragraph [e] under “BUTIR-BUTIR GANTIRUGI KHAS PIHAK PLAINTIF” of the statement of claim, forming part of the special damages.

(iii) Outpatient treatment necessarily entails both travel and attendant cost.

I, therefore, award the sum of RM500.00 under this head of claim.

(vi) Specialist Medical Report

I order the award follows the costs of the matter.

(vii) Items (f), (h), (i), (k), (l), (m) and (n)

Learned counsel for the Plaintiff submitted that the Plaintiff has withdrawn the claim under these heads of claim.

In summation, the findings I draw crystallise into the following:

I allow the Plaintiff’s claim with costs.

(ii) I award the above damages, on a 100% liability basis, together with interests and costs.

(iii) For the interest, I order as follows:

interest at the rate of 5% per annum for the general damages from the date of the service of the writ of summons until the date of the decision;

interest at 2.5% per annum for the special damages from the date of the accident to the date of decision (no interest for future treatments); and

interest at the rate of 5% per annum for all damages from the date of the decision until the date of the full and final settlement.

(iv) And for the costs, I order the costs according to the scale as set out in the Rules of Court 2012. The Defendants’ Counterclaim Against the Plaintiff’s Mother

I dismiss the Defendants’ counterclaim with costs.

(ii) And for the costs, I order the costs according to the scale as set out in the Rules of Court 2012. Signed (NOORHISHAM MOHD JAAFAR) Judge Sessions Court Klang, Selangor Dated: 12 September 2025 Counsel for the Plaintiff : Karamjeet Singh Solicitors for the Plaintiff : Messrs. Karamjeet Singh & Co 2nd Floor, Wisma Khoo Boon Kim, No. 9, Jalan Pos Baru 41300 Klang Selangor Counsel for the Defendants : Kamal Ismail Bin Mohd Arif Syahirah Binti Suhaimy Solicitors for the Defendants : Messrs. Radzi Sheikh Ahmad & Sachpal J-3-6, Solaris Mont Kiara Jalan Solaris, Mont Kiara 50480 Kuala Lumpur.