1. ) SIVANYANAM A/L GAHASAN 2. ) LEEBOH TRADING & TRANSPORT SDN BHD NURSAFARINA BINTI AHMAD

1. ) SIVANYANAM A/L GAHASAN 2. ) LEEBOH TRADING & TRANSPORT SDN BHD NURSAFARINA BINTI AHMAD

The trial judge materially misdirected himself by failing to properly consider unchallenged eyewitness SD2 and the investigating officer's findings; the deceased was primarily at fault for overtaking and failing to keep a lookout in the emergency lane, and the Defendants failed to prove they provided sufficient warning but bore only 25% liability while the Plaintiff (deceased's estate) bore 75% liability; appellate intervention was warranted to set aside the 50:50 apportionment.

Citation
BA-12B-29-08/2021 (Mahkamah Tinggi)
Parties
Appellant/defendant: Sivanyanam a/l Gahasan; Appellant/defendant: Leeboh Trading & Transport Sdn. Bhd.; Respondent/plaintiff: Nursafarina binti Ahmad
Court
High Court
Jurisdiction
Malaysia
Judgment Date
14 April 2022
Case Number
BA-12B-29-08/2021 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal – Motor Vehicle Negligence (fatal) / High Court Appeal on Liability From Sessions Court Judgment
Outcome
Appeal allowed in part; Plaintiff's cross-appeal dismissed on liability.
Legal Topics
Apportionment of Liability, Use of Emergency Lane, Warning Triangle / Duty to Warn, Eyewitness Credibility, Appellate Interference With Factual Findings
Source Language
Malay/English
Tort Negligence Motor Vehicle Law Civil Procedure Evidence and Appellate Review Apportionment of Liability Use of Emergency Lane Warning Triangle / Duty to Warn +2 more

Case Brief

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Parties

Sivanyanam a/l Gahasan

Appellant/defendant

Leeboh Trading & Transport Sdn. Bhd.

Appellant/defendant

Nursafarina binti Ahmad

Respondent/plaintiff

Procedural Posture

Civil Appeal – Motor Vehicle Negligence (fatal) / High Court Appeal on Liability From Sessions Court Judgment

Legal Issues

  1. 1 Whether the deceased motorcyclist was negligent in using/overtaking on the emergency lane
  2. 2 Whether the lorry was parked wholly within the emergency lane or encroached into the adjacent lane
  3. 3 Whether the emergency warning triangle was placed at a sufficient distance to warn approaching traffic

Ratio Decidendi

The trial judge materially misdirected himself by failing to properly consider unchallenged eyewitness SD2 and the investigating officer's findings; the deceased was primarily at fault for overtaking and failing to keep a lookout in the emergency lane, and the Defendants failed to prove they provided sufficient warning but bore only 25% liability while the Plaintiff (deceased's estate) bore 75% liability; appellate intervention was warranted to set aside the 50:50 apportionment.

Court Disposition

Appeal allowed in part; Plaintiff's cross-appeal dismissed on liability.

Orders

  • Set aside the trial court's 50:50 apportionment of liability.
  • Apportion liability: Defendants liable for 25% and Plaintiff liable for 75% on issue of liability.