Muhammad Akmal Roslan & Anor

[2021] MLRHU 86 v. Lim Siau Wan pg 1

MUHAMMAD AKMAL ROSLAN & ANOR

v.
LIM SIAU WAN

High Court Malaya, Muar

Awangg Armadajaya Awang Mahmud JC
[Civil Appeal No: JB-12BNCVC-12-10/2019]
11 January 2021

Case(s) referred to:

Chua Chong Cher v. Teo Lang Keow & Ors [1970] 1 MLRA 83; [1970] 2 MLJ 27
(refd)
Gunalan Ramachandran & Ors v. PP [2006] 1 MLRA 97; [2006] 2 MLJ 197;
[2006] 1 CLJ 857; [2006] 2 AMR 465 (refd)
Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 4 MLRA 89; [2017] 5 MLJ
398; [2017] 8 CLJ 491 (refd)
In Re B (Children) (Care proceedings: standard of proof) (Cafcass Intervening)
[2008] UKHL 35 (refd)
International Times & Ors v. Leong Ho Yuen [1980] 1 MLRA 438; [1980] 2 MLJ
86 (refd)
Lee Ewe Teik v. Ariffin Hussain [1990] 1 MLRH 664; [1990] 2 CLJ (Rep) 332
(refd)
Lee Ing Chin @ Lee Teck Seng & Ors v. Gan Yook Chin and Anor [2003] 1
MLRA 95; [2003] 2 MLJ 97; [2003] 2 CLJ 19; [2003] 2 AMR 357 (refd)
Master Jaya Environmental Sdn Bhd v. Pentas Flora Sdn Bhd [2020] 4 MLRA
137; [2020] 2 MLJ 117; [2020] 2 CLJ 609 (refd)
Ng Chui Sia v. Maimon Ali [1982] 1 MLRH 784; [1983] 1 MLJ 110 (refd)
S Quarry Sdn Bhd v. Desaru Development Corporation Sdn Bhd & Ors [2019] 6
MLRA 350 (refd)
Selvaduray v. Chinniah [1939] 1 MLRA 446; [1939] 1 MLJ 253 (refd)
Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd [2015] 5 MLRA 191; [2015] 5
MLJ 1; [2015] 7 CLJ 584; [2015] 5 AMR 497 (refd)
Tan Kim Khuan v. Tan Kee Kiat [1997] 2 MLRH 326; [1998] 1 MLJ 697; [1998]
1 CLJ 147; [1998] 1 BLJ 147 (refd)
Wee Lian Construction Sdn Bhd v. Ingersoll-jati Malaysia Sdn Bhd [2010] 1
MLRA 117; [2010] 3 MLJ 425; [2010] 4 CLJ 203 (refd)
Yew You & Anor v. Mah Poay Koh & Anor [1969] 1 MLRA 265; [1970] 1 MLJ
57 (refd)

Counsel:
For the appellants: Krishna Vaine Indiran; M/s Chand, Jag & Associates
For the respondent: Maizun Yaacob; M/s Thara Singh Sidhu & Kushvinder

[Dismissed the appeal with cost.]

JUDGMENT
 Muhammad Akmal Roslan & Anor
pg 2 v. Lim Siau Wan [2021] MLRHU 86

Awang Armadajaya Awang Mahmud JC:

Introduction

[1] This is an appeal against the decision of the Learned Sessions Court Judge
sitting in Muar, Johore, given on 15 October 2019 whereby the Learned
Sessions Court Judge ruled that the Appellant / Plaintiff is 100% liable for the
accident and the Respondent / Defendant is not at fault.

[2] The Appellant / Plaintiff filed a Writ of Summons and Statement of Claim
against the Respondent / Defendant seeking for the following:

Special Damages

a) Removal of interlocking nail in the right femur - RM2,333.00

b) Future pain and suffering - RM5,000.00

c) Transport fare for family members to Sultanah Fatimah Specialist

Hospital, Muar and fare to Sultanah Fatimah Specialist Hospital,
Muar for outpatient treatment - RM1,200.00

d) Transport fare for family members to Pantai Hospital, Ayer Keroh -

RM300.00

e) Transport fare for outpatient treatment to Pantai Hospital, Ayer

Keroh - RM500.00

f) Medical expenses at Pantai Hospital, Ayer Keroh - RM16,040.05

g) Cost of further treatment at Pantai Hospital, Ayer Keroh sebanyak

5 kali (dibenarkan 1/3 daripada RM551.15) - RM183.71

h) Expenses incurred for the purchase of Aluminium Light Wheel -

RM468.00

i) Cost of crutches / walking aid - RM75.00

j) Cost of repair of motorcycle - RM1,000.00

TOTAL = RM27,099.76

k) Cost of obtaining specialist report at Sultanah Fatimah Specialist

Hospital, Muar - RM80.00

l) Cost of obtaining specialist report at Pantai Hospital, Ayer Keroh -

RM150.00

m) Cost of obtaining police reports, sketch plans and keys and

 Muhammad Akmal Roslan & Anor
[2021] MLRHU 86 v. Lim Siau Wan pg 3

photographs from the Royal Malaysian Police Force (below actual

cost) - RM26.00

n) Cost of obtaining specialist report from Datuk Dr Peraba -

RM990.00

o) Cost of obtaining reports from the Road Transport - RM10.00

Under Cost (K-O) - RM1,256.00

Interest

a) Interest at 2.5% p.a. on the sum of RM66,000-00 (general damages for the
Plaintiffs) from18 September 2018 (date of service of Writ of Summons and
Statement of Claim) until 15 October 2019 (date of judgment) (392 hari).

b) Interest at 2.5% p.a. on the sum of RM27,099-76 ((general damages for the
Plaintiffs) from 29 January 2017 (date of accident) until 15 October 2019 (date
of judgment) (989 hari).

c) Interest at 5% p.a. on the judgment sum of RM93,099-76 from the date of

judgment 15 October 2019 until the date of full and final settlement (RM12.89
per day).

[3] The Cause Papers are as follows:

i. Notice of Appeal

ii. Appeal Record (Sessions Court)

iii. Supplementary Appeal Record

iv. Supplementary Appeal Record 2

Background Facts

[4] The 1st Plaintiff is a rider on the motorcycle with the registration No. JPJ
1294 and he has a valid driving license. He is a Child and is suing by his next
friend who is his father, the 2nd Plaintiff.

[5] On 29 January 2017 at about 5.15 pm, while the 1st Plaintiff was riding on
the motorcycle no. JPJ 1294 from his house to his grandmother's house and
upon reaching Jalan Permatang Pasir, a collusion between the motorcycle no.
JPJ 1294 and a motorcar with the registration No. MCQ 6680 driven by the
Defendant suddenly came out of the left shoulder of the road and drove into
his path and caused the accident on the said road.

[6] The Plaintiffs alleged that this is due to the carelessness and negligence of
the Defendant being the driver and registered owner of the motorcar with the
registration No. MCQ 6680.
 Muhammad Akmal Roslan & Anor
pg 4 v. Lim Siau Wan [2021] MLRHU 86

[7] In the Statement of Defence the Defendant alleged that the accident was a
result of the negligence of the 1st Plaintiff among others, riding too closely
behind the car, failing to slow down or stop when near a car, riding too fast,
failing to slow down when reaching the junction.

The Issues In This Appeal

[8] They are as follows:

i. Whether the Defendant's version or the 1st Plaintiff's is more

credible.

ii. Whether either party has contributory negligence.

I shall deal with the issues accordingly

i. Whether the Defendant's version or the 1st Plaintiff's is more

credible

ii. Whether either party has contributory negligence

[9] In view of the issues raised, I kept in mind the following basic principles
with regard to the burden and standard of proof. It is settled law that the
burden of proof rests throughout the trial on the party who asserts that the fact
exist. Where a party on whom the burden of proof lies has discharged that
burden, then the evidential burden shifts to the other party. However, if the
party on whom the burden of proof lies fails to discharge it, the other party
need not call any evidence (per Chief Justice Arifin Zakaria in Hong Yik
Trading v. Liziz Plantation Sdn Bhd [2017] 4 MLRA 89; [2017] 5 MLJ 398;
[2017] 8 CLJ 491 at page 497). In such a case it will not do for the plaintiff to
say that the defendant has not established his case (see Selvaduray v. Chinniah
[1939] 1 MLRA 446; [1939] 1 MLJ 253).

[10] In a situation where a prima facie case is shown to exist, the evidential
burden shifts to the opposing party. The party on whom the evidential burden
has shifted has the responsibility of adducing evidence to discharge that
burden. Such burden can be discharged by cross-examination of witnesses of
the party on whom the burden of proof lies or the other party himself giving
evidence or by calling witnesses of his own. If the opposing party does not
adduce any evidence when the burden has shifted to him, he will fail. (see
International Times & Ors v. Leong Ho Yuen [1980] 1 MLRA 438; [1980] 2
MLJ 86; Tan Kim Khuan v. Tan Kee Kiat [1997] 2 MLRH 326; [1998] 1 MLJ
697; [1998] 1 CLJ 147; [1998] 1 BLJ 147).

[11] This court in hearing this appeal will therefore have to decide if the
decision of the Sessions Court ought to be interfered with, bearing in mind the
principles in which appellate interference is warranted.

[12] The 1st Plaintiff's version was that he was riding along the same road for
 Muhammad Akmal Roslan & Anor
[2021] MLRHU 86 v. Lim Siau Wan pg 5

about one kilometre. The weather was fine and view unobstructed. Out of the
blues, a car came into his path and it was going to take a right turninto a
smaller road. The 1st Plaintiff could not brake in time and knock unto the back
fender of the car with the registration number MCQ 6680.

[13] The Defendant's version was that he was driving along the same road and
he decided to enter a small feeder road on the right and he gave a signal lights
while stopping in the middle of the road. Suddenly he heard a loud noise and
he felt the car was being forced to move forward. The next thing he knew was
that the 1st Plaintiff was hurled from behind to the side of the car and he
quickly alighted and saw that the motorcycle which the Plaintiff was riding
knocked into the rear of his car causing quite some damage.

[14] I have seen the photographs in Enclosure 3 at pages 272 and 273 and the
sketch plan at page 266 and 267 of the same Enclosure. I found nothing
incredible about the evidence given by the Respondent / Defendant and is
quite consistent with the 2 documents above.

[15] I am guided by the principles of law in Yew You & Anor v. Mah Poay Koh
& Anor [1969] 1 MLRA 265; [1970] 1 MLJ 57 where the Federal Court ruled
that:

"It is elementary law that the onus on the plaintiff's is satisfactorily

discharged once it appears to the court on balance of probabilities that
the circumstances are more consistent than not with the defendant's
negligence. Evidence in support of the plaintiff's case is not necessarily
confined to what is adduced on their behalf, but the whole of the
evidence, from whatever source, must also be taken into
consideration....... In the nature of things the plaintiffs were compelled
to rely mainly on the mute testimony of the sketch plan and
photographs, together with the observations of the investigating officer
as the foundation of their case. They could also avail themselves of
admissions by the defence."

[16] In Lee Ewe Teik v. Ariffin Hussain [1990] 1 MLRH 664; [1990] 2 CLJ
(Rep) 332; where it was ruled that:

"In the instant case, the photographs, plans and measurements of the
scene and the nature of the damage to each vehicle must provide the
most reliable guides to which the version of P and the driver of the
motor/lorry can be tested."

[17] In the sketch plan, the motorcar MCQ 6680 was slightly before the
junction into the feeder road. It was however due to the impact of the
collusion, pushed forward. I have seen the photographs at pages 272 and 273
and I found that there was a slight tilt towards the right but the damage to the
car was at the rear and the glass window was almost totally shattered due to
the collusion impact. In my view, this indicates the speed at which the
Appellant was riding. Whether it exceeded the speed limit is a different issue.
The fact is the Appellant could not brake in time and he collided with the car.
 Muhammad Akmal Roslan & Anor
pg 6 v. Lim Siau Wan [2021] MLRHU 86

The speed would not be too slow for the rider (Appellant / Plaintiff) to not
being able to brake in time and reduced the damage upon impact. The
impression I get is that, there was no braking or insufficient braking by the
Appellant.

[18] The road which I gather from the photographs was not very wide. Hence
on a straight road in good weather, it is fairly easy to see ahead. In fact I could
see little if any hindrance on the rider's view. Either he was not paying
attention to the traffic ahead or that he was speeding on the road. Either way,
it cannot be blamed upon the Respondent.

[19] I have scrutinised the alleged discrepancies of both the Appellant's and the
Respondent's evidence and what comes to my mind is Gunalan Ramachandran
& Ors v. PP [2006] 1 MLRA 97; [2006] 2 MLJ 197; [2006] 1 CLJ 857; [2006] 2
AMR 465 where the Federal Court held that, inter alia:

"What need to be considered is whether the discrepancies relate to

material aspects of the case or otherwise. As stated in Sarkar on
Evidence 15th edn. p. 112:

Minor discrepancies are possible even in the version of

truthful witnesses and such minor discrepancies only add to
the truthfulness of their evidence (Sidhan v. State of Kerala
[1986] Cri LJ 470, 473 (Ker)). But discrepancies in the
statements of witnesses on material points should not be
lightly passed over, as they Seriously affect the value of their
testimony (Brij Lal v. Kunwar, 36 A 187: 18 CWN 649: A
1914 PC 38). The main thing to be seen is whether the
inconsistencies go to the root of the matter or pertain to
insignificant aspects thereof.....

[20] I have also taken into account the allegation of the Appellant / Plaintiff
that the Respondent / Defendant was on the left shoulder of the road when he
suddenly swerve to the right to enter a feeder road. The road as I have said
earlier is not large enough for swerving purposes. Even if he did (which I don't
think so) the Appellant would have seen him from quite a distance of 500
metres and it was alleged that the Appellant could not brake at the distance of
100 metres.

[21] Yes I agree with the Appellant IF the appellant was riding at fast speed
which was denied by the Appellant. It was also in the pleadings that the
Appellant was riding too close to the Respondent's car that the Appellant
could not brake in time when the Respondent's car gave signal lights to
indicate his intention to make a right turn into the feeder road.

[22] In view of the fact that the Respondent's evidence is not without support
particularly from the sketch plan and the photographs while the Appellant's
evidence that he was surprised by the swerving of the Respondent's car and
after evaluating the police reports, sketch plan as well as the photographs, I am
of the view that the Respondent's version is more credible.
 Muhammad Akmal Roslan & Anor
[2021] MLRHU 86 v. Lim Siau Wan pg 7

[23] In a civil appeal such as this, the Appellant bears the burden of showing
where did the Learned Trial Judge went wrong either on his findings of facts,
his interpretation of the law, or his application of the law into the facts. With
the greatest respect to the Appellant, I am unconvinced of such error.

[24] Keeping in mind, the principle of law on appeal that in exercising its
appellate function this court is under a duty to re-hear the case by examining
the evidence contained in the record of appeal and to arrive at its own finding,
but always bearing in mind it has neither seen nor heard the witnesses and
always paying due regard to the trial judge's finding and his reasons therefore
(see Chua Chong Cher v. Teo Lang Keow & Ors [1970] 1 MLRA 83; [1970] 2
MLJ 27).

[25] The standard of proof required in negligence cases is on the balance of

probabilities (Ng Chui Sia v. Maimon Ali [1982] 1 MLRH 784; [1983] 1 MLJ
110). It was recently settled by the Federal Court in Sinnaiyah & Sons Sdn Bhd
v. Damai Setia Sdn Bhd [2015] 5 MLRA 191; [2015] 5 MLJ 1; [2015] 7 CLJ
584; [2015] 5 AMR 497 that the standard of proving fraud is also on a balance
of probabilities. The standard of proof refers to the degree of persuasion which
the tribunal must feel before it decides that the fact in issue did happen. The
Federal Court agreed with the principle stated by Baroness Hale of Richmond
in In Re B (Children) (Care proceedings: standard of proof) (Cafcass Intervening)
[2008] UKHL 35 which is articulated as follows:

In our legal system, if a judge finds it more likely than not that
something did take place, then it is treated as having taken place. If he
finds it more likely than not that it did not take place, then it is treated
as not having taken place. He is not allowed to sit on the fence. He has
to find for one Side or the other. Sometimes the burden of proof will
come to his rescue: the party with the burden of showing that
something took place will not have satisfied him that it did. But
generally speaking a judge is able to make up his mind where the truth
lies without needing to rely upon the burden of proof...... The inherent
probabilities are simply something to be taken into account, where
relevant, in deciding where the truth lies.

Conclusion

[26] An appellate court will not, generally speaking, intervene and interfere
unless the trial court is shown to be plainly wrong in arriving at its conclusion.
Matters of finding of facts and legitimate exercise of discretion by the courts of
original jurisdiction are often not interfered with by the appellate courts. (See:
Wee Lian Construction Sdn Bhd v. Ingersoll-jati Malaysia Sdn Bhd [2010] 1
MLRA 117; [2010] 3 MLJ 425; [2010] 4 CLJ 203, Master Jaya Environmental
Sdn Bhd v. Pentas Flora Sdn Bhd [2020] 4 MLRA 137; [2020] 2 MLJ 117;
[2020] 2 CLJ 609)

[27] However, appellate interference is warranted where the trial judge has
made a decision which is plainly wrong. A decision is plainly wrong if it is one
 Muhammad Akmal Roslan & Anor
pg 8 v. Lim Siau Wan [2021] MLRHU 86

which no reasonable judge could have reached.

[28] The Federal Court in S Quarry Sdn Bhd v. Desaru Development

Corporation Sdn Bhd & Ors [2019] 6 MLRA 350 laid down several instances
when decisions are considered to be plainly wrong or perverse. Some of the
instances where the trial judge's decision is perverse, are where he had:-

(i) misdirected itself on the evidence;

(i) failed to judicially appreciate the evidence;

(iii) I failed to consider any material evidence;

(iv) acted on some irrelevant evidence as to render the decision wholly

erroneous;

(v) made wrong inference from facts;

(vi) misapprehended the facts;

(vii) I gave reasons which are wholly unsatisfactory or contradictory of

each other.

(See also: Lee Ing Chin @ Lee Teck Seng & Ors v. Gan Yook Chin and Anor
[2003] 1 MLRA 95; [2003] 2 MLJ 97; [2003] 2 CLJ 19; [2003] 2 AMR 357)

[29] I was invited by the Learned Counsel for the Appellant to interfere in the
findings of the Learned Sessions Court Judge and to set aside the decision of
the Sessions Court. I have scrutinised the Appeal Records, the written
submissions of parties as well as hear parties. I am unable to find the error
allegedly made by the Learned Sessions Court Judge. The Appellant failed to
show to the Court that there was such an error that merits such appellate
interference. With the greatest respect, I must decline the invitation.

[30] For the reasons aforesaid, I dismiss this appeal with cost and I affirmed
the decision of the Learned Sessions Court Judge on liability and quantum.