1)GUNASEELAN A/L MANIKAM 2)TACHAYI AP GUNASEELAN ZARINA BINTI ISMAIL ZARINA BINTI ISMAIL

1)GUNASEELAN A/L MANIKAM 2)TACHAYI AP GUNASEELAN ZARINA BINTI ISMAIL ZARINA BINTI ISMAIL

Court found defendant negligent and liable for causing the collision but held the 9‑year‑old claimant and his guardian contributorily negligent to 40%; apportionment: defendant 60% liability, plaintiffs 40% contributory. Court quantified general damages (RM183,000) and special/future items (special damages RM1,300; future surgery RM8,000) and applied interest rates: 2.5% p.a. on special damages from date of accident to judgment; 5% p.a. on general damages from service of writ to judgment; 5% p.a. on whole judgment from judgment to settlement; awarded costs.

Citation
WA-B53KJ-31-08/2019 (Mahkamah Sesyen)
Parties
Plaintiff (father and Litigation Representative): GUNASEELAN A/L MANIKAM; Plaintiff (infant Claimant): TACHAYI A/P GUNASEELAN; Defendant (driver): ZARINA BINTI ISMAIL
Court
Sessions Court
Jurisdiction
Malaysia
Judgment Date
27 October 2020
Case Number
WA-B53KJ-31-08/2019 (Mahkamah Sesyen)
Procedural Posture
Tort Personal Injury (motor Vehicle Accident) / Judgment (trial Court Decision)
Outcome
Judgment for plaintiffs in part. Defendant held 60% liable; plaintiffs held 40% contributorily negligent. Damages and costs awarded as quantified.
Legal Topics
Contributory Negligence, Duty of Pedestrian, Liability Apportionment, Assessment of General and Special Damages, Future Medical Expenses, Interest on Damages
Source Language
Malay/English
Tort Negligence Personal Injury Road Traffic Law Damages Assessment Contributory Negligence Duty of Pedestrian Liability Apportionment +3 more

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Parties

GUNASEELAN A/L MANIKAM

Plaintiff (father and Litigation Representative)

TACHAYI A/P GUNASEELAN

Plaintiff (infant Claimant)

ZARINA BINTI ISMAIL

Defendant (driver)

Procedural Posture

Tort Personal Injury (motor Vehicle Accident) / Judgment (trial Court Decision)

Legal Issues

  1. 1 Whether defendant (driver) is solely liable or whether the 9‑year‑old plaintiff and his guardian are contributorily negligent
  2. 2 Whether a 9‑year‑old can be held to contributory negligence and to what degree
  3. 3 Proper apportionment of liability between parties

Ratio Decidendi

Court found defendant negligent and liable for causing the collision but held the 9‑year‑old claimant and his guardian contributorily negligent to 40%; apportionment: defendant 60% liability, plaintiffs 40% contributory. Court quantified general damages (RM183,000) and special/future items (special damages RM1,300; future surgery RM8,000) and applied interest rates: 2.5% p.a. on special damages from date of accident to judgment; 5% p.a. on general damages from service of writ to judgment; 5% p.a. on whole judgment from judgment to settlement; awarded costs.

Court Disposition

Judgment for plaintiffs in part. Defendant held 60% liable; plaintiffs held 40% contributorily negligent. Damages and costs awarded as quantified.

Orders

  • Award general damages (100% quantum before apportionment) totalling RM183000
  • Award special damages RM1300