KANAGESH KUMAR A/L MAHENDRAN SADIAH BINTI MUHAMMAD TAIB

KANAGESH KUMAR A/L MAHENDRAN SADIAH BINTI MUHAMMAD TAIB

The trial judge erred in excluding bystander statements and photographs as inadmissible hearsay because the statements formed part of the res gestae and the photographs were admissible circumstantial evidence; the Affidavit of Non-Service was admissible under s.32(1)(b) and s.73A and the court could have exercised its discretion to admit it, so there was no justification for drawing an adverse inference for non-production of the Investigating Officer; on the totality of admissible evidence the Plaintiff discharged the burden on a balance of probabilities and liability was established; the Sessions Court's assessment of quantum was not so erroneous as to warrant appellate interference.

Citation
JA-12B-103-12/2020 (Mahkamah Tinggi)
Parties
Appellant/plaintiff: Kanagesh Kumar a/l Mahendran; Respondent/defendant: Sadiah binti Muhammad Taib
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 July 2021
Case Number
JA-12B-103-12/2020 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (personal Injury/motor Accident) / Appeal on Liability and Quantum From Sessions Court Judgment
Outcome
Appeal allowed in part (liability only)
Legal Topics
Res Gestae, Hearsay and Exceptions, Admissibility of Affidavits and Documentary Evidence (s73 A), Burden of Proof, Adverse Inference (non Production of Witness), Circumstantial Evidence, Assessment of Damages/quantum
Source Language
Malay/English
Evidence Civil Procedure Tort Personal Injury Motor Accident Law Res Gestae Hearsay and Exceptions Admissibility of Affidavits and Documentary Evidence (s73 A) +4 more

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Parties

Kanagesh Kumar a/l Mahendran

Appellant/plaintiff

Sadiah binti Muhammad Taib

Respondent/defendant

Procedural Posture

Civil Appeal (personal Injury/motor Accident) / Appeal on Liability and Quantum From Sessions Court Judgment

Legal Issues

  1. 1 Whether bystander statements and photographs were admissible (res gestae/circumstantial evidence)
  2. 2 Whether Affidavit of Non-Service was admissible despite maker not being called
  3. 3 Whether adverse inference should be drawn for non-production of the Investigating Officer

Ratio Decidendi

The trial judge erred in excluding bystander statements and photographs as inadmissible hearsay because the statements formed part of the res gestae and the photographs were admissible circumstantial evidence; the Affidavit of Non-Service was admissible under s.32(1)(b) and s.73A and the court could have exercised its discretion to admit it, so there was no justification for drawing an adverse inference for non-production of the Investigating Officer; on the totality of admissible evidence the Plaintiff discharged the burden on a balance of probabilities and liability was established; the Sessions Court's assessment of quantum was not so erroneous as to warrant appellate interference.

Court Disposition

Appeal allowed in part (liability only)

Orders

  • Liability of Defendant established in respect of the accident of 5 June 2018
  • Quantum awards of the Sessions Court for general damages affirmed