PACIFIC & ORIENT INSURANCE CO. BHD 1. ) Mohd Aminizam bin Zainal Abidin 2. ) Azura Binti Md Nor 3. ) Ahmad Mustaqim bin Md Nor

PACIFIC & ORIENT INSURANCE CO. BHD 1. ) Mohd Aminizam bin Zainal Abidin 2. ) Azura Binti Md Nor 3. ) Ahmad Mustaqim bin Md Nor

The Sessions Court’s finding that the 2nd Defendant was 100% liable was set aside because the Plaintiff failed to prove on a balance of probabilities that a collision caused by the 2nd Defendant’s negligence occurred; the evidence was equivocal, contemporaneous records and forensic indicators were lacking, alternative explanations (skid on slippery road) were credible, and the trial judge misapplied res ipsa loquitur and did not properly evaluate the totality of evidence. The fraud counterclaim lacked sufficient circumstantial proof and was correctly dismissed.

Citation
BA-12B-11-02/2023 (Mahkamah Tinggi)
Parties
3rd Defendant / Appellant (perayu): Pacific & Orient Insurance Co. Bhd; Plaintiff / Respondent: Mohd Aminizam bin Zainal Abidin; 1st Defendant: Azura binti Md Nor; 2nd Defendant: Ahmad Mustaqim bin Md Nor
Court
High Court
Jurisdiction
Malaysia
Judgment Date
4 February 2025
Case Number
BA-12B-11-02/2023 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal Arising From a Sessions Court Running Down Action Involving Negligence and Insurance Intervention / Judgment on Appeal (final Disposition)
Outcome
Appeal by 3rd Defendant allowed in part; Sessions Court judgment on liability, quantum and costs set aside; dismissal of 3rd Defendant's counterclaim affirmed.
Legal Topics
Negligence, Res Ipsa Loquitur, Burden of Proof, Insurer Intervention, Fraud (counterclaim), Appellate Interference on Findings of Fact, Costs
Source Language
Malay/English
Tort Insurance Law Road Traffic Law Civil Procedure Negligence Res Ipsa Loquitur Burden of Proof Insurer Intervention +3 more

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Parties

Pacific & Orient Insurance Co. Bhd

3rd Defendant / Appellant (perayu)

Mohd Aminizam bin Zainal Abidin

Plaintiff / Respondent

Azura binti Md Nor

1st Defendant

Ahmad Mustaqim bin Md Nor

2nd Defendant

Procedural Posture

Civil Appeal Arising From a Sessions Court Running Down Action Involving Negligence and Insurance Intervention / Judgment on Appeal (final Disposition)

Legal Issues

  1. 1 Whether the Plaintiff proved on a balance of probabilities that the 2nd Defendant was negligent causing a collision
  2. 2 Whether the doctrine of res ipsa loquitur was correctly applied given ambiguous facts
  3. 3 Whether the insurer (3rd Defendant) could require proof and successfully negate liability

Ratio Decidendi

The Sessions Court’s finding that the 2nd Defendant was 100% liable was set aside because the Plaintiff failed to prove on a balance of probabilities that a collision caused by the 2nd Defendant’s negligence occurred; the evidence was equivocal, contemporaneous records and forensic indicators were lacking, alternative explanations (skid on slippery road) were credible, and the trial judge misapplied res ipsa loquitur and did not properly evaluate the totality of evidence. The fraud counterclaim lacked sufficient circumstantial proof and was correctly dismissed.

Court Disposition

Appeal by 3rd Defendant allowed in part; Sessions Court judgment on liability, quantum and costs set aside; dismissal of 3rd Defendant's counterclaim affirmed.

Orders

  • Set aside the Sessions Court judgment on liability, quantum and costs in the main action
  • Affirmed the Sessions Court dismissal of the 3rd Defendant's counterclaim (fraud)