Heriyanti Muhammad Tohar

[2019] PILRU 5 v. Muhammad Hazwan Mat Sharif & Anor pg 1

HERIYANTI MUHAMMAD TOHAR

v.
MUHAMMAD HAZWAN MAT SHARIF & ANOR

Sessions Court, Bandar Baru Bangi

Engku Ahmad Rashdi Engku Abdillah SJ
[Civil Suit No: BI-A53KJ-101-04/2018]
22 January 2019

Case(s) referred to:

Ang Yee Cheng & Anor v. Ang Siang Hock [2015] MLRHU 773; [2016] 2 PIR 46
(refd)
Chock Kek Ling v. Patt Hup Transport Co Ltd & Ors [1965] 1 MLRH 351; [1966]
1 MLJ 120 (refd)
Noorianti Zainol Abidin v. Tang Lei Nge [1989] 2 MLRH 666; [1990] 2 MLJ 242;
[1990] 2 CLJ 545 (refd)

Counsel:
For the plaintiff: Gary Reginald Gomez (together with Zuratul Ain Zainol
Abidin); M/s Gary Gomez & Co
For the defendants: N Ratnavathy (together with K Viknesvaran); M/s Viknes
Ratna & Co

[Order accordingly.]

JUDGMENT

Engku Ahmad Rashdi Engku Abdillah, SJ:

Introduction

[1] This action was in relation to a motor vehicle accident involving the
plaintiff and the 1st defendant, in which the plaintiff is claiming general and
special damages. The accident occurred on 10 October 2017 at Persiaran Jaya,
Bandar Baru Bangi at around 9.15 pm between the plaintiff who was a
pedestrian and the 1st defendant who was riding a motorcycle, bearing a
registration No WXB 7555 ("the motorcycle"). The 2nd defendant is the owner
of the motorcycle.

[2] In this case, the parties have agreed as to the quantum of damages, ie, RM
251,890.00 on the 100% liability, hence the issue is only on the apportionment
of the liability.

[3] While it was agreed that a collision indeed took place on the
aforementioned date and location, there were significant conflicts between the
evidence of the plaintiff and the defendants in relation to the circumstances of
the collusion. It is therefore incumbent for the court to determine the liability
arising thereof on the balance of probabilities.
 Heriyanti Muhammad Tohar
pg 2 v. Muhammad Hazwan Mat Sharif & Anor [2019] PILRU 5

Brief Facts Of The Case

[4] On 10 October 2017 at around 9.15 pm, the 1st defendant was riding the
motorcycle from his workplace in Bandar Baru Bangi to his house in Sungai
Besi, whereas the plaintiff was walking back home from her workplace at
Berryl's factory, Bandar Baru Bangi. While riding his motorcycle at Persiaran
Jaya, Bandar Baru Bangi and after passing a traffic light, the 1st defendant's
motorcycle collided with the plaintiff who was crossing the road from the left
to the right side of the road.

[5] As a result, the plaintiff and the 1st defendant suffered multiple injuries to
their bodies. This suit was brought up by the plaintiff to claim the general and
special damages sustained by her.

The Trial

[6] During the trial, the plaintiff had called two (2) witnesses to testify in
Court, ie, Insp Salbiah binti Anis - the Investigating Officer (PW1) and the
plaintiff herself (PW2). On the other hand, the defendants had called one (1)
witness only, ie, the 1st defendant himself(DWI).

[7] After evaluating the documentary evidence, the testimonies from all
witnesses and perusing the submissions by both parties, the Court, on the
balance of probabilities, decided that the plaintiff and the defendants were
equally liable, ie, the plaintiff was 50% liable and the defendants were also
50% liable for this accident.

Contentions By The Plaintiff

[8] According to the police report (P7) lodged by the plaintiff (PW2), it was
alluded that on 10 October 2017 at about 9.15pm, she was walking from her
workplace to her house at Jalan Dusun. When reaching the traffic light at
Persiaran Jaya and the traffic light was red, she crossed the road. While
crossing the road, suddenly she was knocked down by the 1st defendant's
motorcycle which came from the said traffic light.

[9] In her police report also, the plaintiff alleged that the 1st defendant had not
stopped at the said traffic light when it was red. This averment was supported
by her friend's police report (ID 5) lodged by Hermisem who was said to be
together with the plaintiff at the scene of the accident. In this police report, he
alleged that the 1st defendant's motorcycle did not stop at the traffic light when
it was red and had knocked down on his friend, the plaintiff while she was
crossing the road.

[10] In her testimony in Court, the plaintiff told the Court that she was
crossing the road together with her 2 friends, Suswati and Hermisem and the
distance between the traffic light and the place where she crossed the road is 80
feet.
 Heriyanti Muhammad Tohar
[2019] PILRU 5 v. Muhammad Hazwan Mat Sharif & Anor pg 3

[11] Meanwhile, the investigating officer (PW1) testified that the distance
between the traffic light and the place where the accident took place is 100
metres and the defendant was issued with a summons under r 10 LN 166/59
for recklessness and causing the accident because he was alleged to not
stopping at the traffic light when it turned red.

Contention By The Defendants

[12] In contrast, the 1st defendant (DW1), in his police report (D8) averred
that when he reached the traffic light, he did not stopped there as it turned
from green to yellow and he was already at the yellow box. The 1st defendant
then admitted to knock down the plaintiff as he could not see her crossing the
road and the road was dark.

[13] In his testimony, the 1st defendant agreed that the distance between the
traffic light and the place where the accident took place is 100 metres and the
speed of his motorcycle at that time is 60km/h.

Findings Of The Court

[14] The plaintiff in her evidence contended that she crossed the road together
with her friends when she saw the other vehicles stopped at the traffic light,
thus she believed that the traffic light must be red at that time. On the other
hand, the 1st defendant averred that when he did not stop when he reached the
traffic light as the traffic light has turned from green to yellow and he was at
the yellow box at that time.

[15] With these 2 conflicting versions of evidence, the Court has to look at
other angles of evidence to determine the proportion of liability.

16. In this case, the Court noticed that the 1st defendant admitted to ride his
motorcycle at the speed of 60 km/h and he was also issued with a summons
under r 10 LN 166/59 for recklessness and causing the accident (refer to P3).
The summons had already been paid by the defendants.

[16] In the case of Chock Kek Ling v. Patt Hup Transport Co Ltd & Ors [1965] 1
MLRH 351; [1966] 1 MLJ 120, Raja Azlan Shah J held:

"Evidence was brought to show that the fourth defendant had pleaded
guilty to driving without due care and attention in respect of the
accident. Although this was not conclusive evidence of the fourth
defendant's negligence, it is an admissible admission which supports
the plaintiff's case and which weighs against the fourth defendant."

[17] As such, the 1st defendant was partly to be blamed for causing the
accident to happened as he did not take precaution and reasonable care to the
surrounding area which was dark after passing the traffic light when it was
turned from green to yellow as alleged by him.

[18] Furthermore the accident occurred at 100 metres away from the traffic
 Heriyanti Muhammad Tohar
pg 4 v. Muhammad Hazwan Mat Sharif & Anor [2019] PILRU 5

light as admitted by the 1st defendant. The plaintiff who was a pedestrian,
could not be wholly blamed for crossing the road at that distance and could
not be wholly at fault for choosing that path to cross the road not at the traffic
light. There was no zebra crossing or overhead bridge for her to cross the road.

[19] Even though the 1st defendant testified that he was riding his motorcycle
at the speed of 60 km/h, the fact that the injuries sustained by the plaintiff and
the 1st defendant were severe as well as the damages to the 2nd defendant's
motorcycle would suggest that the speed must be higher that 60km/h. This can
be inferred from the medical reports, police reports and the photos taken.

[20] In addition to that, form the point marked with 'X' as the point of
accident, the Court found that it was at the left side of the road. As such, it
proved that the plaintiff was just about to cross the road when the accident
happened. If the 1st defendant was not at high speed, he could surely able to
avoid the accident to happen as the road is wide enough, ie, with 2 lanes of 3.2
metres each (refer to sketch plan (P2)), for him to avoid the accident with the
plaintiff.

[21] In the case of Ang Yee Cheng & Anor v. Ang Siang Hock [2015] MLRHU
773; [2016] 2 PIR 46, Wong Teck Meng JC held:

"In the event, from the version given by the plaintiff and the
defendants, it is clear that the plaintiff was crossing the road when the
accident occurred, which is an error of judgment on his part. I do not
think that the plaintiff would have attempted to cross the road if it was
not clear of oncoming vehicles. On the other hand, since the road is
quite wide, there was ample opportunity for the second defendant to
avoid the accident. "

[22] On the other hand, the evidence canvassed by the plaintiff was also not
too cogent and strong enough to hold the defendants 100% liable. The
evidence that the traffic light was red when she was crossing the road was only
her assumption as she herself could not see the traffic light. The plaintiff only
made that suggestion when she allegedly saw all other vehicles stopped at the
traffic light. The plaintiff must also be partly to be blamed for causing this
accident as she failed to have a proper look out at the surrounding
circumstances and the movement of other motorists before crossing the road.
To put the situation worse, the road was dark at that time as admitted by both
the plaintiff and the 1st defendant.

[23] In the case of Noorianti binti Zainol Abidin v. Tang Lei Nge [1989] 2
MLRH 666; [1990] 2 MLJ 242; [1990] 2 CLJ 545, the Court held that:

"It has also been said in the event of two conflicting stories the trial
judge should not approach the case upon the basis of considering
which of the two conflicting stories he should believe but rather on the
basis of considering which version is inherently probable or
improbable - see for instance Koay Teik Choo v. R [1955] 1 MLRH
588; [1956] MLJ 52".
 Heriyanti Muhammad Tohar
[2019] PILRU 5 v. Muhammad Hazwan Mat Sharif & Anor pg 5

[24] As the Court is facing with the two conflicting accounts of the accident,
the Court must strike a balance based on the available evidence produced in
Court. In this case, the Court found that both versions of evidence of the
plaintiff as well as the 1st defendant to be equally probable.

[25] Having evaluated all the evidence adduced, the Court, on the balance of
probabilities, concludes that both the plaintiff and the defendants are equally
liable for the accident, ie, the plaintiff is 50% % liable and the defendants are
also 50% liable for the accident.

[26] As the quantum of damages has already been agreed at the sum of RM
251,890.00 on the , it must therefore be calculated accordingly together with
interests and costs.