Mohd Nazri Abu Bakar & Anor

[2018] MLRHU v. Khalijah Man & Anor 1

MOHD NAZRI ABU BAKAR & ANOR

v.
KHALIJAH MAN & ANOR

High Court Malaya, Penang

Azmi Abdullah JC
[Civil Appeal No: PA-12B-30-08/2017]
6 May 2018

Case(s) referred to:

Mat Shah Mohamed & Anor v. Foo Say Meng & Ors [1983] 1 MLRA 108; [1984]
1 MLJ 237; [1983] CLJ (Rep) 254 (refd)
Rasidin Partorjo v. Frederick Kiai [1976] 1 MLRA 93; [1976] 2 MLJ 214 (refd)
Renal Link (KL) Sdn Bhd v. Dato' Dr Harnam [1997] 1 MLRA 259; [1997] 2 MLJ
373; [1997] 3 CLJ 225; [1997] 3 AMR 2430 (refd)
Sivalingam Periasamy v. Periasamy & Anor [1995] 2 MLRA 432; [1995] 3 MLJ
395; [1996] 4 CLJ 545; [1996] 3 AMR 3506 (refd)

Counsel:
For the appellants/defendants: Hema Malini S Kolandasamy; K Suganthi & Co
For the respondents/plaintiff: Chew Anthony; Haniff & Partners

[Dismissed the appeal.]

JUDGMENT

Azmi Abdullah JC:

Introduction

[1] For purposes of this appeal, the parties will be referred to as they were at
the Sessions Court hearing. The appeal dealt with by this court is the appeal by
the defendants solely on the issue of liability. As regards liability, the learned
Sessions Court Judge has apportioned blame at 80% on the defendants as
regards the 1st plaintiff and 100% pertaining to the 2nd plaintiff with the 1st
plaintiff being apportioned liability of 20%.

[2] For quantum, the learned Sessions Court Judge made these awards for
general damages and they are itemised herein for the purpose of completeness
though the awards on quantum are not appealed against:

1st plaintiff:

(a) RM 5,000 for cerebral concussion.

(b) RM 25,000.00 for open fracture left radius/ulna.

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2 v. Khalijah Man & Anor [2018] MLRHU

(c) RM 25,000.00 for closed fracture of left acetabulum.

(d) RM 20,000.00 for closed fracture of 2nd to 5th metacarpal

bone.

(e) RM 10,000.00 for amputation of left little finger.

(f) RM 5,000.00 for multiple lacerations.

(g) RM 90,000.00 for fracture left femur and left tibia/fibula.

(h) RM 12,000.00 for scars.

(i) RM 15,000.00 for skin grafting.

(j) RM 5,000.00 for costs of future surgery.

(k) RM 5,000.00 for pain and suffering arising from future

surgery.

2nd plaintiff

(a) RM 15,000.00 for fracture of left clavicle.

(b) RM 25,000.00 for fracture left pelvic bone/symphysis

pubis diathesis

(c) RM 25,000.00 for left acetabulum fracture

(d) RM 6,000.00 for multiple abrasions/laceration forehead

(e) RM 5,000.00 for loss of consciousness

(f) RM 15,000.00 for fracture of left frontal bone

(g) RM 25,000.00 for fracture left orbital roof, medial wall and
nasal bone

(h) RM 15,000.00 for splenic injury

(i) RM 3,000.00 for muscle wasting

[3] This court on 15 March 2018, after perusing the written submissions of
both counsels and hearing further oral clarifications, decided to dismiss the
appeal by the defendants lodged against the decision of the learned Sessions
Court Judge on the apportionment of liability.

[4] The defendants being dissatisfied with the findings of this court has now
filed a Notice of Appeal to the Court of Appeal on the issue of liability hence
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[2018] MLRHU v. Khalijah Man & Anor 3

these grounds for decision.

Facts Of The Case

[5] The first plaintiff's version is that she was sitting on her motorcycle No.
PHS 1048 on the edge of the road after sending her daughter to a food stall at
about 9.30 pm when suddenly the first defendant astride motorcycle PJM 7875
came and collided into her and her daughter. Her version is that her daughter
has alighted from the motorcycle and was walking when collided into. In her
evidence in court the first plaintiff narrates that she was from her house
situated quite near the food stall and was stationary when collided into. She
was in reference to the sketch plan from below the sketch and was positioned
as such near the edge of the road to enable an easy route back to her house
near the food stall.

[6] The first defendant in his police report states that the plaintiffs motorcycle
was coming from his opposite direction and cut across his path of way to enter
into a junction situated on the first defendant's left. Due to being surprised by
the plaintiff's manoeuvre he could not avoid from colliding into the plaintiff's
motorcycle.

[7] Appraising the sketch plan and key marked as P1 during trial which is
found at pp 191 to 192 of the Record of Appeal and cross referred to the
versions given by both parties, it can be gathered that the first defendant was
travelling from the bottom of the sketch plan being from Kepala Batas. The
food stall is at the edge of the road marked as G in the sketch plan.

[8] The actual Investigating Officer has passed away before the trial
commenced resulting in the evidence at trial before the learned Sessions Court
Judge to be given by the Assistant Investigating Officer who gave evidence as
SP1. According to him, the motorcycle of the first plaintiff sustained damages
to its rear with the motorcycle of the first defendant not having sustained any
damages.

The Plaintiff's Argument

[9] The traffic summons issued against the first defendant was only in pursuant
of a telephone conversation with no inquiry being made from anyone
including the 2 plaintiffs.

[10] The sketch plan and key together with the photographs are the best
indicators of which version is more probable.

[11] The position of the vehicles in the sketch plan is consistent with the
evidence of the first plaintiff that her motorcycle was stationary in a slanting
position pointing towards the drain when collided into. The plaintiff's
motorcycle was positioned near the junction to enable the first plaintiff to go
back to their house situated near the food stall.

[12] The first defendant's version is improbable as the marking X deemed as

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4 v. Khalijah Man & Anor [2018] MLRHU

the point of collision made by the first defendant himself together with the
scratch mark are situated before the junction. If the version of the first
defendant is to be accepted, then the markings would be situated after the
junction according to the law of physics. Since the plaintiff's house is near the
food stall thus the first plaintiff did not have the need to cross the road as per
the first defendant's version.

[13] The first defendant lodged his police report only 2 1/2 years after the
accident with the details being supplied by the adjuster who was also present
when the police report was lodged. The first defendant also admitted that he
was riding the bike at a speed of 140-150 km/h at the time of the accident. He
spotted the first plaintiff from quite a distance but at the distance of 30 feet he
could not avoid from colliding.

The Defendant's Argument

[14] The burden of proof is on the plaintiff to prove the case on a balance of
probability.

[15] The pleadings state that the first defendant was from the rear but during
trial the evidence was that the first defendant was coming from the left side
and this version would support the version of the first defendant that the first
plaintiff cut across the first defendant's path of way.

[16] The evidence of the Assistant Investigating Officer is not supportive of the
first plaintiff's version as the direction of travel was not stated in the police
reports and the fact that the first plaintiff has been issued with a summons is
indicative of her being at fault.

[17] The scratch mark of F2 on the sketch plan would indicate that the
collision was on the tarred road hence this supports the version of the first
defendant of the first plaintiff encroaching into his path of way. The photos
show both vehicles being on the road and the scratch mark starts in the middle
of A-B.

[18] The police report of the plaintiff failed to state the direction they were
travelling from and this is a non-disclosure of a material fact. The damage to
the left side of the first defendant's motorcycle indicates the first plaintiff's
motorcycle was cutting across the first defendant's path of way and this is
supportive of the first defendant's version. The injury to the first plaintiff's leg
is also consistent with the first defendant's version.

Sessions Court Findings

[19] The learned Sessions Court Judge made the finding that based on the
evidences of the 2 plaintiffs together with the first defendant, the learned
Sessions Court Judge finds that the version of the plaintiffs to be more
probable. The junction is situated after the food stall marked G and the
marking of X made by the first defendant is before the junction and it would be
improbable for the collision to occur before the junction as this would be
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[2018] MLRHU v. Khalijah Man & Anor 5

inconsistent with the first defendant's own version that the turning attempt by
the first plaintiff was to enter the junction. According to this version the
collision would occur right in front of the junction.

[20] The motorcycles were situated before the junction and not in front or after
the junction hence it would be illogical to accept the first defendant's version of
the first plaintiff suddenly attempting turning right to enter the junction. The
position of the motorcycles would show that the plaintiff's motorcycle was
collided into from the rear.

[21] The learned Sessions Court disagrees with the argument by the defendant
counsel that it's not possible for the first defendant to collide into the first
plaintiff's motorcycle causing it to be hurled into the drain then to further
collide into the second plaintiff. The learned Sessions Court Judge finds it
consistent that the first plaintiff was sitting on her bike with the bike pointing
towards the drain. It was possible for the first plaintiff to be hurled into the
drain when collided into by a motorcycle travelling at a speed of 140-150 kmp.
It's also possible for him to the collide into the left side of the second plaintiff
and there is no evidence that she was walking right near the drain.

[22] On the argument by the defendant counsel that it was not possible for the
first plaintiff to be parked pointing towards the drain, the learned Sessions
Court Judge accepts the evidence of the first plaintiff that the motorcycle was
in a slanting/horizontal position to ease her manoeuvre to head back to her
house.

[23] The damage to the first plaintiff's motorcycle which is to the rear as stated
by the Assistant Investigating Officer is consistent with the version of the
plaintiffs that the collision was from the rear.

[24] The scratch mark on A-B starting before the junction and not in front or
after it supports the version of the first plaintiff that the first plaintiff was
coming from below the sketch plan and not from the opposite direction and
suddenly turning into the junction.

[25] The evidence of the plaintiffs was that they were from their house situated
behind the food stall marked G hence there would be no reason for the first
plaintiff to do as alleged by the first defendant.

[26] The learned Sessions Court disregards the summons against the first
plaintiff as it was issued in a peculiar way whereby only the first defendant was
called and interviewed without any input from the 2 plaintiffs.

[27] The learned Sessions Court Judge doubts the credibility of the first
defendant as his police report was only lodged 2 1/2 years after the accident
and when it was lodged, the adjuster was present raising the question of who
actually described the details found in the police report. The first defendant
admitted that he completely has no recollection of the details of the accident.

[28] The sheer speed of the first defendant in testing the motorcycle led to
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6 v. Khalijah Man & Anor [2018] MLRHU

result of the first plaintiff being hurled into the drain upon colliding and the
first defendant then ended up colliding into the second defendant.

Governing Principles

[29] This court would like to revisit the principles of appeals before delving
further into the main issues of this appeal. The case of Rasidin Partorjo v.
Frederick Kiai [1976] 1 MLRA 93; [1976] 2 MLJ 214 has had the Federal
Court observing that:

"A court of appeal always starts with the working presumption that
any decision appealed against is right in every aspect. So to succeed in
an appeal the appellant must convince us that the decision appealed
from is wrong. If we are not so convinced, the appeal fails."

[30] The Federal Court in the precedent of Mat Shah Mohamed & Anor v. Foo
Say Meng & Ors [1983] 1 MLRA 108; [1984] 1 MLJ 237; [1983] CLJ (Rep)
254 has stated:

"The learned Judge in this case had the advantage of seeing and
hearing the witnesses which opportunity the appellate court did not
enjoy and there was no reason in this case for the appellate court to
interfere in the case."

[31] The Court of Appeal case of Sivalingam Periasamy v. Periasamy & Anor
[1995] 2 MLRA 432; [1995] 3 MLJ 395; [1996] 4 CLJ 545; [1996] 3 AMR
3506 has enunciated that:

"It is trite law that an appellate court will not readily interfere with the
findings of fact arrived by the trial court to which the law entrusts the
primary task of evaluation of the evidence."

[32] In Renal Link (KL) Sdn Bhd v. Dato' Dr Harnam [1997] 1 MLRA 259;
[1997] 2 MLJ 373; [1997] 3 CLJ 225; [1997] 3 AMR 2430, the Court of
Appeal made these observations:

"This appeal turned upon a pure question of fact based upon the
credibility of the witnesses who gave evidence at the trial. The
function of determining where the truth lies, on a balance of
probabilities, is entrusted by law to the trial court. Unless the appellate
court is convinced that there was no judicial appreciation of the
evidence by the trier of fact, or that the audio-visual advantage
reserved to a trial judge had been missed or that the findings made do
not accord with the probabilities of the case when taken as a whole, it
would not be open to the appellate court to intervene and upset the
findings made by a trial Judge. The judgment under appeal did not
contain any error warranting appellate interference. On the other
hand, the learned Judge had done all that was required of her by law."
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[2018] MLRHU v. Khalijah Man & Anor 7

[33] It is apparent from these cases that the court in exercising its appellate
jurisdiction should exercise restraint from interfering against the decisions of
the court of first instance as the trial judges would have the benefit of seeing
the conduct and demeanour of witnesses whilst giving evidence and especially
when faced with being interrogated by counsels during cross examination.
There must be very substantive misdirection of facts and law before there
would be merit to any such interference from the court sitting on appeal.

Deliberations Of The High Court On Liability

[34] This court first and foremost addresses the argument by the defendants'
counsel that the learned Sessions Court has misdirected himself by stating in
his Grounds of Judgment that the junction in reference to the sketch plan and
key inserted at pp 191-192 of the Rekod Rayuan Perayu is found after the food
stall marked G. The defendant counsel avers that this is a clear and obvious
mistake on the learned Sessions Court Judge as it is evident the junction is
situated before the food stall.

[35] This piece of finding and evidence is most crucial in determining the
outcome of the appeal as it would also affect the other issues and arguments
raised during the appeal. This court however does not concur with the
submission raised. There is actually a simple explanation for the finding of the
learned Sessions Court Judge and this court finds it not to be a material error
in his appreciation of facts. This court hereby reproduces the finding of the
learned Sessions Court Judge at p 41 of the Rekod Rayuan Tambahan Perayu
in its original language:

"Jika dilihat pada rajah kasar P1, adalah jelas simpang kiri yang
dimaksudkan oleh Defendan Pertama adalah terletak selepas kedai
makan yang ditandakan G."

[36] This court is convinced that the finding is as such in the Grounds of
Judgment as the learned Sessions Court Judge is addressing his mind as
regards the sketch plan from the viewpoint of the top of the document. The
counsel for the defendants however is addressing her viewpoint from the
bottom of the said document and this had led her to interpret the finding of the
learned Sessions Court judge as erroneous. This court thus finds no reason to
dispute this finding by the learned Sessions Court Judge.

[37] The marking X on the sketch plan indicating the point of collision is made
by the first defendant himself. This court finds that the marking is inconsistent
with the first defendant's own version of events. If the first plaintiff was from
the opposite direction of the first defendant and suddenly turned right to enter
the junction (cutting across the first defendant's path of way as the junction
would be on the first defendant's left) the marking of X should not be where it
is marked by the first defendant, instead it should be right in front of the
junction. The marking X however is found before the junction that the first
plaintiff was supposed to be attempting to enter. Hence the observation by the
learned Sessions Court Judge in disbelieving the first defendant's version is
correct and astute.
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8 v. Khalijah Man & Anor [2018] MLRHU

[38] The defendant counsel also argues that to accept the first plaintiff's version
in reference to the markings on the sketch plan and key, most pertinently F1-
F2, would mean that the motorcycle of the first plaintiff was stopping on the
road rather than at its edge. This court disagrees with this argument as there is
no evidence pertaining to the distance of F1-F2 to the edge of the road since no
measurement has been made in the sketch plan and key. From the
photographs found at pp 184-190 of the Rekod Rayuan Perayu, the vehicles
are near the edge of the road and not in the middle of the road lending
substance to the first plaintiff's version that her bike was collided into as she
was at the road's edge. The position of the motorcycles as reflected in the
sketch plan and key would indicate the resting place of the first plaintiff's
motorcycle and not necessarily the place of collision.

[39] The first defendant under cross examination admitted to riding the bike at
a speed of 140 km/h which is definitely excessively fast especially at the time
of 9.30 pm. Due to this excessive speed, it led to him crashing into the first
plaintiff sitting on the motorcycle and further on crashing into the second
plaintiff who was on foot heading towards the food stall.

[40] The first defendant only lodged his police report SPT/006282/15 found at
p 232 of the Rekod Rayuan Perayu only on 17 April 2015 though the accident
occurred on 14 November 2012, a period of almost 2 1/2 years later. The
extreme delay which goes unexplained ensures that the version narrated in his
police report to be much diminished in its accuracy and credence.

[41] The first defendant's version can be further doubted as he was very much
guided by the adjuster when making his police report. Excerpts from p 25 of
the Rekod Rayuan Tambahan is reproduced below:

Q: Tarikh kemalangan, masa dan lain-lain, adjuster yang bagitahu?

A: Ya

Q: Report D18 sekali dengan adjuster?

A: Ya. Dia bawa saya ke balai.

Q: Masa kemalangan adjuster beritahu?

A: Ya,

Q: Motosikal plaintif belok masuk simpang, adjuster beritahu?

A: Ya.

[42] From this sequence of evidence it brings doubt to the version of events as
narrated by the first defendant as the version contained in his police report
seems to be what was told to him by the adjuster and not of his own self.
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[2018] MLRHU v. Khalijah Man & Anor 9

[43] This court on appeal is very much aware that to interfere with the findings
of facts of the trial judge would necessitate there being a clear misdirection of
facts and law on the part of the learned Sessions Court Judge.

[44] Based on the observations and findings made, this court is of the
considered opinion that the learned Sessions Court Judge has not made any
serious mis-appreciation of facts and law in his findings in this case. Thus this
court finds no reason to disturb the finding of liability derived at by the learned
Sessions Court Judge.

Conclusion

[45] This court after revisiting and re-appraising the evidence adduced in the
trial before the learned Sessions Court Judge decides to dismiss the appeal by
the defendants maintaining the decision of the learned Sessions Court Judge
on liability with agreed costs of RM 1,000.00 granted to the plaintiffs.