SHARMILA HANIM BT JAINAL @ ZAINAL (adalah ibu yang sah kepada Muhammad Syamil Azizi Bin Rosli, simati dan membawa tuntutan ini terhadap - mengikut Seksyen 7, Akta Undang-Undang Sivil 1956) (yang dipinda di bawah Akta 1984) 1. ) IBRAR HUSSAI

SHARMILA HANIM BT JAINAL @ ZAINAL (adalah ibu yang sah kepada Muhammad Syamil Azizi Bin Rosli, simati dan membawa tuntutan ini terhadap - mengikut Seksyen 7, Akta Undang-Undang Sivil 1956) (yang dipinda di bawah Akta 1984) 1. ) IBRAR HUSSAI

Plaintiff failed to prove on balance of probabilities that Defendant(1) was negligent. Physical and scene evidence (damage patterns, crushed rear of defendant's bike, front damage to deceased's bike, oil marks and debris at point of impact) and investigator's reconstruction supported defendant's version that the deceased struck defendant from the rear. Plaintiff's failure to call a material eyewitness who had given a statement led to an adverse inference under s114(g) Evidence Act 1950. Accordingly the court found the defendant not negligent, dismissed the plaintiff's claim and awarded costs to the defendants.

Citation
BJ-A73KJ-32-03/2023 (Mahkamah Majistret)
Parties
Plaintiff (mother and Claimant): Sharmila Hanim bt Jainal @ Zainal; First Defendant: Ibrar Hussain; Second Defendant: Mohd Ismail bin M. Allapitchay
Court
Magistrates' Court
Jurisdiction
Malaysia
Judgment Date
28 August 2024
Case Number
BJ-A73KJ-32-03/2023 (Mahkamah Majistret)
Procedural Posture
Civil Negligence (motor Accident) / Magistrates' Court Judgment (claim Dismissed; Appeal Filed)
Outcome
Claim dismissed; plaintiff to pay costs to defendants (costs on scale); notice of appeal filed by plaintiff 4.9.2024
Legal Topics
Liability, Burden of Proof, Causation, Assessment of Damages, Adverse Inference Under Evidence Act
Source Language
Malay/English
Civil Tort Negligence Evidence Motor Vehicle Accidents Liability Burden of Proof Causation +2 more

Case Brief

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Parties

Sharmila Hanim bt Jainal @ Zainal

Plaintiff (mother and Claimant)

Ibrar Hussain

First Defendant

Mohd Ismail bin M. Allapitchay

Second Defendant

Procedural Posture

Civil Negligence (motor Accident) / Magistrates' Court Judgment (claim Dismissed; Appeal Filed)

Legal Issues

  1. 1 Whether defendant(1) was negligent causing the fatal collision
  2. 2 Whether plaintiff proved negligence and causation on balance of probabilities
  3. 3 Effect of conflicting versions and how to determine inherently probable account

Ratio Decidendi

Plaintiff failed to prove on balance of probabilities that Defendant(1) was negligent. Physical and scene evidence (damage patterns, crushed rear of defendant's bike, front damage to deceased's bike, oil marks and debris at point of impact) and investigator's reconstruction supported defendant's version that the deceased struck defendant from the rear. Plaintiff's failure to call a material eyewitness who had given a statement led to an adverse inference under s114(g) Evidence Act 1950. Accordingly the court found the defendant not negligent, dismissed the plaintiff's claim and awarded costs to the defendants.

Court Disposition

Claim dismissed; plaintiff to pay costs to defendants (costs on scale); notice of appeal filed by plaintiff 4.9.2024

Orders

  • Tuntutan plantif ditolak (claim dismissed)
  • Plantif membayar kos kepada Defendan mengikut skala