DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU
RAYUAN SIVIL NO. 12B-210-12/2012
ANTARA
… PERAYU
MUNIANDY A/L SUBRAMANIAM
DAN
1.
KUMARAVELL A/L KRISHNA PILLAI
2.
MUNIYAMA A/P SINNIAH
… RESPONDEN-RESPONDEN
(DALAM PERKARA GUAMAN SIVIL NO. 53-690-05-2012
MAHKAMAH SESYEN JOHOR BAHRU
ANTARA
1.
KUMARAVELL A/L KRISHNA PILLAI
2.
MUNIYAMA A/P SINNIAH
…PLAINTIF-PLAINTIF
DAN
MUNIANDY A/L SUBRAMANIAM
… DEFENDAN
DI HADAPAN
YANG ARIF TUAN GUNALAN A/L MUNIANDY
PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI
GROUNDS OF DECISION
[1]
This is an appeal against the decision of the learned Sessions
Court Judge („SCJ‟) in a running down claim arising out of a collision
between a motorcycle ridden by the First Plaintiff and another motorcycle
ridden by the Defendant. The appeal is against both issues of liability and
quantum. On liability, the SCJ found the Defendant wholly liable for
negligence in causing the collision. On quantum, the appeal was against
the award of the SCJ for the cost of engaging a relief worker to manage the
First Plaintiff‟s minimarket business during his medical leave.
Liability
[2]
On the day in question, the collision occurred at about 7.40 p.m.
along Jalan Masai, Seri Alam, Johor. The First Plaintiff (SP4) was riding
his motorcycle from the top to the bottom in the police sketch plan (pg. 114
Appeal Record) while the Defendant was riding in the opposite direction
and intending to turn right into a lane on the opposite side of the road.
[3]
SP4‟s version was that before the collision he was proceeding
straight on his lawful path when on reaching the place of collision the
Defendant‟s motorcycle suddenly encroached into his lawful path from the
opposite direction while intending to turn right into a lane on the right side
of the road. While he did not deny having seen the Defendant‟s motorcycle
before the collision, he said that the Defendant encroached into his path
suddenly without warning or signal. SP4 applied his brakes and attempted
to evade the collision but was not able to do so. The point of impact was
as per „X‟ in the sketch-plan.
[4]
The Defendant (SD1) gave a conflicting version of how the
collision occurred. While confirming his direction of travel, he alleged that
before turning right to make a U-turn he stopped at the centre of the road.
On seeing that there were no vehicles approaching from the opposite
direction he proceeded to make the U-turn and after having done so he
stopped at the left side of the road along line A2 as shown in the sketchplan. He was then suddenly collided into from the rear. At the time of
incident, the scene was dark and visibility was poor without any road lights
visible. SD1 admitted in cross-examination that he intended to turn into the
right lane across the road to reach his destination. He denied not having
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stopped before turning right and insisted that he had ensured that it was
safe for him to cut across to the right. His motorcycle was collided into at
the exhaust pipe.
[5]
The investigating Officer (SP1) confirmed that the collision
occurred on the lawful path of SP4 and that, upon investigations, SD1 was
charged for causing the collision under Rule 3(2) (B), Road Traffic Rules
1959 LN 166/59. More importantly, his evidence was, as reflected in the
sketch-plan, that the road at the scene of accident had a double white line
at the centre which meant that vehicles were prohibited from turning right or
making any U-turn across the opposite path. From SP1‟s examination,
damages to SP4‟s motorcycle were to the entire front section while SD1‟s
motorcycle was damaged only at the rear rim and cover.
[6]
Having heard the testimonies of both parties involved in the
collision, i.e. SP4 and SD1, who were eye-witnesses, together with the
independent evidence of the I.O (SP1), the trial Court made a finding of fact
that the negligence of SD1 was the sole cause of the accident without any
evidence of contributory negligence by SP4. The SCJ had the audio-visual
advantage of seeing and hearing the material witnesses and assessing
their credibility in arriving at his finding. The question that arose in this
appeal on liability was whether the SCJ had seriously erred in fact or law in
his decision that warranted interference on appeal. It is trite law that the
appellate court, which does not have the audio-visual advantage as alluded
to, would as a general rule be slow to interfere with findings that are purely
and essentially factual in nature save in exceptional circumstances.
[7]
In the Federal Court case of Bong Nyi Moi v. Narayanasamy &
Anor [1973] 1 MLJ 250, Gill, FJ (as he then was) said at p. 253:
“The main issue in the case being one of fact, and as the learned
trial judge based his decision on the opinion which he formed as to
the comparative reliability of witnesses, it is not open to this court
to interfere with that decision.”.
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[8]
The Defendant referred to the Federal Court case of Multar v. Lim
Kim Chet & Anor [1982] 1 MLJ 184 where Syed Othman, FJ held at p. 185:
“We are loath to disturb the findings of facts by the trial court. But
in the circumstances of this case, we find that we have to interfere
as we are satisfied that crucial evidence has been misconstrued
resulting in the uncertainty of the first respondent‟s evidence as to
how he came in contact with the motorcycle being put in a
favourable light and the consistency of the appellant‟s evidence
being disregarded. On the evidence before the court, we are
satisfied that the first respondent was wholly to blame for the
accident.”.
[9]
In the Singapore High Court case of Loh Jue Tee & Anor v. Low
Chick Sum [1989] 3 MLJ 332 Chan Sek Keong, J (as he then was) said:
“It is well established that an appellate court will not normally
disturb the findings of fact of the trial judge based upon an
evaluation of the oral testimonies of the parties and their witnesses
as he is in a far better position to assess their credibility having
seen and heard them. However, where the findings of fact on
which the decision is based are themselves inferences from
primary facts, the appellate court “is in as good a position, or as
bad a position, as the trial judge to form a view as to what
happened‟ (per Thomson CJ in Foong Yit Yoon v. Yap Tiam &
Anor at p 108).”.
[10]
Having set out the established principles on appellate interference
as regards findings of facts, the finding of the SCJ has to be examined in
the light of these principles. The SCJ, after considering the versions of
both SP4 and SD1, found that there was an admission by the defence that
the primary cause of the accident was the negligence of SD1 in trying to
make a U-turn. He then went on to consider whether there was any
contributory negligence on the part of SP4. The SCJ rejected the version
of SD1 that this was a rear collision as alleged as SD1 himself had
admitted that his motorcycle was collided into at the exhaust pipe which
indicated that at the time of collision SD1 had not completed crossing
SP4‟s path as claimed but was in the process of doing so. He made a
finding that SD1 could not have been collided into from the rear near the
4
left side table (A2 in the sketch plan). Hence, the SCJ concluded that SD1
should be held wholly liable for the accident without any contribution from
SP4.
[11]
It can be observed that the conclusion of the trial Court on liability
was based on findings of primary facts after a comparative analysis of
conflicting versions. It was important to note that before the collision SD1
had made an illegal turn in breach of traffic rules. SP4, travelling on his
lawful path, could not be expected to foresee or anticipate any vehicle from
the opposite direction doing so, what more in a sudden manner without
warning or signal. The SCJ had not seriously erred in finding the defence
version to be unacceptable on the ground that the evidence did not support
the allegation of this being a rear collision.
[12]
The defence contended that the SCJ had misconstrued the
evidence and misdirected himself on the facts when he rejected SD1‟s
version on the sole ground that that point of impact on SD1‟s motorcycle
was on the exhaust pipe. The premise for this contention was that the
exhaust pipe was on the right of the vehicle and did not indicate that SD1
had not completed crossing SP4‟s path. This contention, was, in my view,
untenable as the actual position of the vehicles immediately prior to the
sudden impact is unknown. The fact remained that the allegation of rear
collision which was central to the defence case was negatived by the
evidence. The unlawful act by SD1 in cutting across the lawful path of SP4
was the real and proximate cause of the collision.
[13]
The Defendant further contended that the SCJ had failed to direct
his mind to the evidence of SP4 himself which disclosed breach of duty of
care towards other road users contrary to Rules 8, 10 and 25 of the
Highway Code. Reference was made to the principle that failure to
observe provisions of the Highway Code may be invoked by any party to
the proceedings to establish or negative liability. [See MA Cycle v. Wong
Ak Mei & Anor [1970] 2 MLJ 183] In this regard, the Defendant referred to
the purported admission by SP4 that he did not notice the Defendant‟s
motorcycle until it was in front of him and SP4‟s insistence that he need not
look ahead as he was only proceeding straight on his right of way. It was
argued that had he observed his duty of care towards vehicles from the
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front, he would probably have been able to avoid the collision and for failing
to do so, contributory negligence should have been found against him.
[14]
In essence, what the defence contended was non-direction on
material evidence that resulted in an erroneous finding.
[15]
In Ong Yam Chong & Anor v. Chan Wah [1962] MLJ 184, Ong, J.
(as he then was) said:
“Like many others of his ilk he appears to have thought that he
owed no duty of care to the other road users so long as his vehicle
kept to its own half of the road, however closely he might be
hugging its centre line.”.
[16]
On the duty of care owed by a driver exercising his statutory right
of way towards other road users, Gunn Chit Tuan, J (as he then was) in
Wong Mun Kong v. Pacific & Orient Underwriters (M) Sdn. Bhd. [1978] 1
MLJ 183 said:
“The statutory right of way of a driver must be used with due
regards to the rights of others. Therefore, if a driver knows or
ought to know that some other person by that person‟s fault is in a
position of danger, the statutory right of way cannot be exercised
without due care being taken to avoid the consequences of that
other‟s fault.”.
[17]
As to whether the alleged breach of duty of care by SP4 had
contributed to the accident, it is crucial to take into account the actual
evidence of SP4 pertaining to this issue. Granted that SP4 maintained that
as he had the right of way he need not look out for vehicles from the
opposite direction. Yet, he admitted having seen SD1‟s approaching from
the front. The reason for not being able to take evasive measures other
than applying the brake was that SD1 had suddenly cut across and
obstructed his path. SD1‟s act was, thus, unforeseeable and had directly
caused the collision. On the evidence, the allegation of SP4 having
disregarded his duty of care towards the presence of SD1‟s vehicle despite
having the right of way was not shown to be a contributory factor.
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[18]
In the above circumstances, I held that the Defendant had not
demonstrated that the SCJ had misconstrued the evidence or misdirected
himself on the facts in arriving at his finding on the cause of the collision. It
was not shown that the finding of fact, based purely on an evaluation of
testimonies of material witnesses, was clearly wrong or a serious error of
law or fact. There were, therefore, no valid grounds to disturb the decision
of the SCJ on liability which I, accordingly, affirmed.
Quantum
[19]
The Defendant is dissatisfied with the decision of the SCJ to allow
an item of claim under Special Damages for the sum paid to one
Ramachandra A/P Alagumalai for managing the First Plaintiff‟s minimarket
business at RM2,500.00 for 12 months amounting to RM30,000.00. The
person engaged to do the job during the period of SP4‟s medical leave was
his mother (SP3) who had previously assisted in the business as a cashier.
[20]
The period of SP4‟s medical leave of 12 months was not disputed.
Evidence was led that during this period SP4 had to engage a worker to
relieve him in managing his business as his wife, the Second Plaintiff (SP3)
stayed home to take care of him during his recuperation. SP3 used to
previously assist in the business as a cashier. In managing the business
during SP4‟s absence, SP2‟s main function was as a cashier. According
to SP2, she was paid the sum of RM2,500.00 per month and sometimes
even more due to the long hours of operation as the minimarket was open
for business from 8.00 a.m. right up to 12.00 a.m.
[21]
On the evidence of the relevant witnesses, the figure of
RM2,500.00 per month could not be seriously disputed. Even though SP2
acted basically as a cashier, it was noteworthy that she was principally the
person running the business during SP4‟s absence with the assistance of
only a manual worker. In the circumstances, the payment of this sum as
her salary cannot be considered to be excessive or unjustified. The
documentary evidence produced pertaining to this payment was not
contradicted or rebutted.
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[22]
The defence contended in the alternative that as SP3 had stopped
work for only 6 months to take care of SP4, the claim for hiring SP2 should
be limited to 6 months only. This contention was on the basis that after the
6 month period, SP3 could have taken over the role of cashier, which she
was accustomed to, without incurring any additional expenditure. However,
the principle of special damages is that a Plaintiff ought to be compensated
for expenses that have been actually incurred and specifically pleaded
flowing from the tortious act. The claim for the expenditure incurred in
paying the salary of SP2 for 12 months, which was unrebutted, cannot, in
my view, be resisted on the ground that she should have been hired for
only 6 months when it was actually incurred.
[23]
It is trite law that in an appeal on quantum, the assessment of
damages by the trial Court will not be interfered with unless it is manifestly
high or inordinately low and against the discernible trend or is a wholly
erroneous estimate of damages that ought to be awarded. In the instant
case, on the evidence led, none of these grounds were shown to exist to
justify interference with the above award by the SCJ. The award was, in
the circumstances alluded to, reasonable and not manifestly excessive. I,
accordingly, found no reason to disturb the award which was justified on
the facts and upheld it.
Conclusion
[24]
In view of the foregoing, I held that the Defendant‟s appeal on both
liability and quantum was devoid of merits and without basis in fact or law.
I, therefore, dismissed the appeal with costs of RM2,000.00 to the
Respondents.
Dated: 11th December 2013.
( GUNALAN A/L MUNIANDY )
Judicial Commissioner
High Court
Johor Bahru.
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For the Appellant
For the Respondents
:
En. Mustafa Cheng &
En. Fadzil bin Abdullah
Messrs Taye & Company
Advocates & Solicitors
Melaka.
:
En. Gove Veloo
Messrs Gove Veloo & Co.
Advocates & Solicitors
Segamat.
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