DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG
RAYUAN SIVIL NO__________________
ANTARA
1. Aliff Ismail Haidar bin Abdul Manaf
2. Abdul Manaff bin Ismail
Perayu-Perayu
DAN
1. Mohd Khairul Anuar bin Mohd Ali
2. Pua An Ni
3. Loo Kok Choy
Responden-Responden
(Dalam perkara di Mahkamah Sesyen Di Butterworth melalui
Guaman Sibil No. : 53-208-2007)
ANTARA
Mohd Khairul Anuar bin Mohd Ali
Plaintif
DAN
1.
2.
3.
4.
Pua An Ni
Loo Kok Choy
Aliff Ismail Haidar bin Abdul Manaff
Abdul Manaff bin Ismail
Defendan-Defendan
ALASAN PENGHAKIMAN
A.
Liability
B.
4 vehicles were involved in a chain reaction road accident which
occurred on 15 February 2006 at around 7.20am along Jalan
Perusahaan Perai. According to the police investigating officer the
first accident occurred between two cars. Motorcar PBJ 1510 collided
1
A.
into the rear of motorcar PEB 3280. The plaintiff who was riding a
motorcycle came from behind and stopped behind motorcar PBJ
1510. He was then collided into from the rear by another motorcycle
ridden by the 3rd defendant.
B.
Plaintiff’s Version
C.
The plaintiff saw the accident that occurred between the two
motorcars ahead in front of him. He braked gradually and moved his
motorcycle to the left side of the road and stopped. As he had moved
to the left and stopped in time, he did not collide into the car in front
of him. After he had stopped, the 3rd defendant’s motorcycle collided
into his motorcycle which caused him to crash into the rear of
motorcar PBJ 1510.
D.
In his police report lodged about a month after the incident, the
plaintiff stated “…m/kar no. PBJ 1510 telah terbabas kekiri jalan saya
cuba elak ke kiri dan brek, tiba-tiba sebuah m/sikal no. PGL 2971
yang datang dari arah belakang terus langgar pada m/sikal saya, dan
saya telah terbabas lalu terkena bahagian belakang m/kar
tersebut…”
E.
F.
G.
H.
I.
When question by defence counsel as to the seeming
contradiction between his evidence in court and his police report, the
plaintiff stuck to his story that he had already braked and had
stopped about half the distance of one car behind the car in front. He
said it was a small discrepancy but what he meant was his
explanation when he gave evidence in court.
1st defendant
The 1st defendant is the driver of car no. PEB 3280. She said she
was driving to work along Jalan Perusahaan Perai when she was
collided into from the rear by the 2nd defendant’s car. When she
came down from her car she saw the other car and 2 motorcycles
lying on the road. Prior to the accident she said she did not brake or
slow down her car and had not swerved her car. According to her the
road in front of her was not busy. She denied defence counsel’s
challenge that she had suddenly applied her brakes causing the 2nd
defendant to collide into her car.
2nd Defendant
The driver (SD 2) of the car in front of the plaintiff came to court
and testified that he collided into the car in front of him because it
2
A.
B.
C.
D.
E.
F.
G.
H.
I.
came to a sudden and abrupt stop leaving him no opportunity to
avoid it. He could not stop in time and so he collided into the rear of
the car that was in front of him. A few seconds later he heard a
couple of sounds from the back of his car. He said he could not
swerve to the left or right to avoid the 1st accident because the
accident happened so quickly and also because the road was narrow
with enough space for only one car to pass through at a time.
3rd Defendant
The 3rd defendant being the rider of the motorcycle which
crashed into the rear of the plaintiff’s motorcycle did not attend court
to give his version of how the collision happened.
Findings of the Court
The plaintiff had proven on a prima facie basis that it was the 3rd
defendant who had collided into his motorcycle after he had already
come to a full and complete stop in front. If the 3rd defendant disputes
this version he must attend court to rebut this statement and show he
was not negligent. Since the 3rd defendant failed to attend court, the
plaintiff’s version stands unrebutted. On my part, I am satisfied that
there was a prima facie case of negligence against the 3rd defendant.
The 3rd defendant has chosen not to make any attempt to show he
was not negligent. I think an adverse inference must be drawn
against him.
Be that as it may, the court was convinced on a balance of
probabilities that the plaintiff’s version from his testimony in court was
inherently probable as his evidence was corroborated by the
evidence of SD 2. Despite the minor discrepancy found in his police
report, the court was of the view that the plaintiff’s version was
probable and reasonable. The most important point to keep in mind
was that the plaintiff as the following vehicle had managed to stop
and avoid the car in front of him. That showed that he was keeping a
proper lookout for vehicles in front of him and he had exercised
ordinary care in handling his motorcycle.
The court makes a finding of fact based on all the available
evidence before it that the Plaintiff had indeed come to a stop behind
the 2nd defendant’s car before the 3rd defendant collided into him.
This is borne out by the evidence of the 2nd defendant who said that
he heard the sound of two crashes only after he had collided into the
car in front. Even though the plaintiff’s police report makes no
specific mention that he had stopped before the 3rd defendant
3
A.
collided into him, the evidence that emerged from the several
testimonies of the witnesses has shown that the plaintiff had
successfully come to a stop behind the 2nd defendant’s car before he
himself was hit from the back.
B.
From the evidence adduced, it is clear that the 2 accidents did
not happen all at once. It showed that there was a significant gap of
time between the occurrence of the 1st accident and the 2nd accident.
The 3rd defendant as the following vehicle and coming only after the
collision between the two cars had happened some precious
seconds earlier was under a duty to ensure that he kept a safe
distance from vehicles ahead of him and he had to ensure that he
could at any time stop in time in the event of any emergency in front
of him. If the plaintiff could stop in time, why could the 3rd defendant
who was further behind not stop in time too?
C.
D.
As such the court was firmly of the view that it was the 3 rd
defendant and him alone who was responsible for the collision as
well as the injuries sustained by the plaintiff. The plaintiff could not be
faulted in any way for contributing to the accident.
E.
As a result of the accident the plaintiff sustained an open fracture
of the tibia and fibula of the right leg. The medical report from
Hospital Seberang Jaya as well as the specialist report from Strand
Specialist Hospital are agreed documents and have been marked
and tendered into court.
F.
The specialist report states that there is a 1 cm shortening of the
right tibia and therefore the plaintiff walks with an antalgic gait.
Although the fractures have united there is a deformity and sclerosis
of the right tibia and lower fibula. Due to this pain the specialist is of
the opinion that the plaintiff will have difficulty lifting heavy objects
while at work.
G.
H.
Counsel for the 3rd defendant had adopted the submissions on
quantum made by counsel for the 2nd defendant. Having considered
the authorities offered as comparisons by all the parties, I find that I
agree with the submissions made by counsel for the defendant that a
reasonable award for the fractures to the right tibia and fibula should
be the sum of RM25,000. The case of Gokulachandran a/l
Arulnasalam v Loo Kim Soon(2007) 1 PIR 44 was referred to and
accepted.
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A.
There were 2 surgical scars measuring 14 x 7 cm on the right
shin and 1 x 2 cm over the right buttock. I referred to the cases of
Sumber b Dollah and Hong Chee Fatt. Based on these cases, I am
of the view that a sum of RM10,000 would be reasonable as an
award for the plaintiff in this case.
B.
Special Damages
The plaintiff was on medical leave for 5 months after the
accident. The medical certificates show proof of this fact. As a junior
technician the plaintiff earned a basic salary of RM898 per month.
According to the employer who testified, the plaintiff was also paid a
monthly allowance of RM33.84. Therefore his total take home salary
was RM931.84.
C.
D.
The loss of earnings for 5 months is RM4659.20.
The plaintiff is hereby allowed the usual rate of interests meant for
running down claims as well as costs of this suit.
Dated 10 December 2009.
Julie Lack
Hakim Mahkamah Sesyen
Butterworth
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