1. ) Muhd Syafiq bin Roslan 2. ) Suhana Hani binti Bastani Zul Hanafi Anak Reimi

1. ) Muhd Syafiq bin Roslan 2. ) Suhana Hani binti Bastani Zul Hanafi Anak Reimi

The High Court held that the Magistrate was not plainly wrong regarding the plaintiff's contributory negligence (20%) but erred in treating the third party as non-contributory; where the third party failed to testify, an adverse inference and the facts showed sudden unexplained braking amounting to breach of duty, so liability was reallocated to defendants 50%, plaintiff 20%, third party 30%.

Citation
BA-11B-20-11/2022 (Mahkamah Tinggi)
Parties
Appellant/defendant: Muhd Syafiq bin Roslan; Appellant/defendant: Suhana Hani binti Bastani; Respondent/plaintiff: Zul Hanafi anak Reimy; Respondent/third Party: Siti Nurul Hasanan binti Mad Kamal
Court
High Court
Jurisdiction
Malaysia
Judgment Date
3 August 2023
Case Number
BA-11B-20-11/2022 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal / High Court Judgment on Liability Appeal From Magistrate Court
Outcome
Appeal allowed in part and dismissed in part. Liability apportioned Defendants 50%, Plaintiff 20%, Third Party 30%. Costs orders made as per judgment.
Legal Topics
Contributory Negligence, Liability Apportionment, Adverse Inference for Failure to Testify, Standard of Appellate Review
Source Language
Malay/English
Tort Road Traffic Accident Civil Procedure Contributory Negligence Liability Apportionment Adverse Inference for Failure to Testify Standard of Appellate Review

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Parties

Muhd Syafiq bin Roslan

Appellant/defendant

Suhana Hani binti Bastani

Appellant/defendant

Zul Hanafi anak Reimy

Respondent/plaintiff

Siti Nurul Hasanan binti Mad Kamal

Respondent/third Party

Procedural Posture

Civil Appeal / High Court Judgment on Liability Appeal From Magistrate Court

Legal Issues

  1. 1 Whether the Magistrate erred in principle or was plainly wrong in factual findings on liability
  2. 2 Whether the third party (Respondent Second) contributed to the accident and should bear part of the liability
  3. 3 Whether an adverse inference should be drawn from the third party's failure to testify

Ratio Decidendi

The High Court held that the Magistrate was not plainly wrong regarding the plaintiff's contributory negligence (20%) but erred in treating the third party as non-contributory; where the third party failed to testify, an adverse inference and the facts showed sudden unexplained braking amounting to breach of duty, so liability was reallocated to defendants 50%, plaintiff 20%, third party 30%.

Court Disposition

Appeal allowed in part and dismissed in part. Liability apportioned Defendants 50%, Plaintiff 20%, Third Party 30%. Costs orders made as per judgment.

Orders

  • Allow the appellants/defendants' appeal against Respondent Second/Third Party on liability.
  • Respondent Second/Third Party to bear 30% liability for the accident.