Mohd. Anuar Aurther Bin Abdullah v Mathew Mumim Anak Nyalu, 22-08-2011

CourtUnspecified court (Malaysia)
JudgeMusyiri Bin Peet
Judgment Date22 Aug 2011
Record Number53-51-2010 (MR)
GOJ MOHD ANUAR AURTHER 53-51-2010 (MR)

PowerPlusWaterMarkObject970874 GOJ MOHD ANUAR AURTHER 53-51-2010 (MR)


IN THE SESSIONS COURT AT MIRI

IN THE STATE OF SARAWAK, MALAYSIA

SUMMONS NO. 53-51-2010 (MR)


BETWEEN


MOHD ANUAR AURTHER BIN ABDULLAH

(WN KP 790201-13-5083)

Lot 330, Hill Top Garden,

98000 Miri, Sarawak. ... Plaintiff


AND


MATHEW MUMIM ANAK NYALU

(WN KP 640719-13-54

133 Kampong Tunku Abdul Rahman

Lambir 98000 Miri, Sarawak. .. 1st Defendant




MIRI BELAIT TRANSPORT CO. BHD. (CO. NO.101376-M)

Lot 515, Jalan Datuk Edward Jeli

Piasau Industrial Estate

98000 Miri, Sarawak. ... 2nd Defendant



GROUND OF JUDGEMENT



CHRONOLOGY OF THE CASE

Plaintiff’s claim




This case involved running down case of a personal injury claim arising out of a motor-vehicle collision. Both Plaintiff and Defendants were represented by their own advocates. I will simplify chronology of this case and took into consideration Plaintiff’s statement of claim.


At all material times, the 1st Defendant is and was the authorized driver and/or agent and/or servant and/or person driving with the permission of the owner of a motor vehicle bearing registration no QMC1969 (hereinafter referred to as “the said Bus”). 2nd Defendant is and was the registered owner of the said Bus.


On 9.12.2009 at or about 2300 hours (11.00 p.m.), the Plaintiff was lawfully driving a motor vehicle bearing registration number QMH3115 (hereinafter referred to as “the said Lorry Cargo”) from Beluru, Bakong, Miri, Sarawak towards Miri City at along Jalan Miri/Bintulu, when at KM10, Jalan Miri/Bintulu, the 1st Defendant who was driving the said Bus from Miri City towards Lambir and from the opposite direction of the said Lorry Cargo and/or the Plaintiff had so negligently droved swerved managed and controlled the said Bus out of sudden and without warning and or signal had lost controlled of the said Bus and violently skidded and encroached and/or cut across onto the said Lorry’s lane or way or path and violently collided and/or knocked and/or rammed and/or hit the said Lorry Cargo. As a direct result of the said collision, the Plaintiff sustained injuries and damaged to the said Lorry Cargo.


This case was fixed for trial on 8th and 9th of August, 2011. On the trial date, Plaintiff produced 3 witness as follows;-


1. En. Mohd Anuar Aurther Bin Abdullah – PW1 (the Plaintiff)

2. Sjn. Ravikumar a/ Marimuthu – PW2 (the investigating officer)

3. Dr. Richard Chen Shyue Woon – PW3 (Orthopaedic Specialist)

On the other hand, the Defendant’s witness are as follows:-

1. Mathew Mumin Anak Myalu – DW2 (the 1st Defendant)

2. Kiang Anak Emba (the Mechanic)


Before the trial proceed, following bundle of documents has been marked as follows;-


Bundle of Pleadings - A

Statement of Agreed Facts - B

Bundle of Agreed Documents

(Both Authenticity and Content)- C

Bundle of Agreed Documents

(Authenticity Only) - D

Bundle of Disputed Documents- E

Supplementary Bundle of Documents- F

Defendant’s Bundle of Documents - G


On 22.8.2011, ruling was delivered. After evaluating all of the evidence and giving both parties liberty to file their submissions, on the balance of probabilities, Plaintiff is entitled to 100% claim. As 2nd Defendant is the registered owner of the said Bus QMC 1969 is vicariously liable for the said accident. In respect of quantum of damages, on 100% liability, I hereby allowed total sum of RM149,600.00 for general damages and RM811.00 for special damages together with interests and costs to be taxed unless agreed. I now give my reasons. First part is on liability and second part is on quantum of damages.


FIRST PART: LIABILITY

SUBMISSIONS ON LIABILITY ISSUES


Plaintiff’s submissions can be summarized as follows:-


1. Plaintiff counsel’s submitted that on 9.12.2009 at or about 2300 hours (11.00 p.m.), the Plaintiff lawfully driving a motor vehicle bearing registration number QMH3115 (hereinafter referred to as “the said Lorry Cargo”) from Beluru, Bakong, Miri, Sarawak towards Miri City at or along KM10, Jalan Miri/Bintulu from the direction of Bintulu (Point L of sketch plan) [see Exhibit P3 & P3k] towards the direction of Miri (Point K of Sketch Plan) while the 1st Defendant’s vehicle (QMH3115) (“the said Bus”) was from the direction of Miri (Point K of Sketch Plan) and these facts are not disputed and/or challenged.



2. It is also not disputed that the Plaintiff has the right of way on the said road and it is submitted that the 1st Defendant who was coming from Point K had encroached and cut across onto the Plaintiff’s rightful lane or way and the Plaintiff who was traveling on a straight road and who has the right of way from Point L could not avoid the said Bus which suddenly lost control, skidded and encroached and cut across the Plaintiff’s lane causing the said collision somewhere at Point M and Point X in the sketch plan where the glass splinters were located after the said collision. We humbly submit that the Plaintiff on the principle of “a reasonable man” could not reasonably avoid the said collision as the 1st Defendant suddenly lost control the said Bus and skidded from Point K towards Point L leaving the Plaintiff in the state of emergency and with no room to avoid colliding with the said Bus as the said Lorry Cargo was already very close when the 1st Defendant lost control the said Bus and skidded onto the Plaintiff’s lane. We also humbly submit that the said Bus was the one to be blamed as it had lost control and skidded towards the Plaintiff’s lane and as a direct consequences, the Plaintiff was the one who suffered severe injuries and serious damage to the said Lorry Cargo.



3. It is humbly submitted that from all the evidence of PW1, PW2 and DW1, the 1st Defendant had driven the said Bus from Point K and lost control and skidded towards Point L without giving way to the Plaintiff and/or the said Lorry Cargo who was coming from Point L and thereafter the said collision occurred somewhere at Point M and Point X at the sketch plan.



4. It is further submitted that from the evidence of the investigating officer (PW2) and salient evidence [the sketch plan – exhibit P3 & P3k], the 1st Defendant is solely responsible for causing the said collision and even from the 1st Defendant’s evidence (DW1) during cross examination, he admitted and agreed with all the facts of the case that he was from Point K and lost control and skidded towards Point L and point of impact is at Point M which is on the Plaintiff’s lane. These admissions by the 1st Defendant clearly explained that he is prima facie negligent for causing the said collision.



5. The Plaintiff submits that the 1st Defendant should have been more careful while driving the said Bus on the said road and he clearly has a greater duty of care to other road users and should have given a higher degree or proper lookout on other vehicles on the said road in which the 1ST DEFENDANT CLEARLY FROM HIS EVIDENCE HAD FAILED TO DO SO. The facts that there were no brake marks from the said Lorry Cargo only show that the Plaintiff was not able or in time to apply the brake of his Lorry Cargo to avoid the said accident/collision as the said collision happened in a split second and the Plaintiff could not do anything as the said Bus was already very close to him when the 1st Defendant suddenly lost control and skidded onto his lane and collided at Point X and leaving glass splinters at Point M in a sudden manner without giving way and proper lookout towards the Plaintiff who was driving the said Lorry Cargo from Point L. This also indicates that the 1st Defendant was driving without due care and attention. At this juncture, we humbly submit to the Honourable Court that the 1st Defendant should be 100% be blamed for causing the said accident.



Thus, on the issue of liability, the Plaintiff submit that the 1st Defendant is wholly to be blamed for causing the said collision/accident and the 2nd Defendant as the registered owner of the said Bus is vicariously liable for the said collision/accident.


On the other hand, Defendant’s submissions can be sum up as follows:-


1 The Defendant submitted that the accident was inevitable. Ordinary care and skill could not have prevented the collision. A defendant who relies on this defence must show that something had happened over which he has no control, and the effect of which he could not have avoided by the greatest care and skill. The test is that of a reasonable explanation. In “Hamri Bin Noorsae & Anor v Mas Robil Bin Buang & Ors” (1995) MLJU 117 Abdul Malik Ishak J (as he was then) emphasized the well accepted the ‘now famous principle’ in Thangachimmah & Anor v. Flower (1968) 2 MLJ 248, the defence of inevitable accident was raised and the court there accepted the now famous principle that inevitable accident should be defined as "that which the party charged with the offence could not possibly prevent by the exercise of ordinary care, caution and maritime skill." The Court there also went further and adopted the principle that the burden of proving inevitable accident was on the Defendant and that "he can only get rid of that proof against him by shewing inevitable accident, that is by shewing that the cause of the collision was a cause not produced by him, but a cause the result of which he could not avoid." In that case, the court followed “Zainun bte Abdul Ghani & Anor v. Chong Ah Seng & Anor...

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