Mohd Rasul Bin Mohd Zabidin Empayar Indera Sdn Bhd Projek Lebuhraya Usahasama Berhad PIHAK KETIGA Projek Penyelengaraan Lebuhraya Berhad (Propel)

Mohd Rasul Bin Mohd Zabidin Empayar Indera Sdn Bhd Projek Lebuhraya Usahasama Berhad PIHAK KETIGA Projek Penyelengaraan Lebuhraya Berhad (Propel)

The High Court found the Sessions Court misdirected itself by undervaluing credible eyewitness evidence and failing to account for incomplete patrols and investigation; on the balance of probabilities the plaintiffs established that an oil spill likely caused the accident and the highway operators breached their duty of care, so liability is apportioned equally 50/50 between the first plaintiff and defendant and the appeal is allowed with costs.

Citation
AB - 12B NCVC - 8 - 06/2019 (Mahkamah Tinggi)
Parties
Appellant / First Plaintiff: Mohd Rasul bin Mohd Zabidin; Appellant / Second Plaintiff: Empayar Indera Sdn. Bhd.; Respondent / Defendant: Projek Lebuhraya Usahasama Berhad; Third Party: Projek Penyelengaraan Lebuhraya Berhad (PROPEL)
Court
High Court
Jurisdiction
Malaysia
Judgment Date
12 January 2021
Case Number
AB - 12B NCVC - 8 - 06/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (negligence, Motor Accident) / Judgment on Appeal (high Court)
Outcome
Appeal allowed; Sessions Court finding of 100% liability against plaintiff set aside; liability apportioned 50/50 between plaintiff and defendant; plaintiff's claim allowed in part.
Legal Topics
Duty of Care, Burden of Proof (balance of Probabilities), Apportionment of Liability, Res Ipsa Loquitur, Admissibility and Weight of Witness Evidence, Investigation and Inspection of Accident Scene
Source Language
Malay/English
Tort Negligence Evidence Law Highway Safety/regulatory Obligations Duty of Care Burden of Proof (balance of Probabilities) Apportionment of Liability Res Ipsa Loquitur +2 more

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Parties

Mohd Rasul bin Mohd Zabidin

Appellant / First Plaintiff

Empayar Indera Sdn. Bhd.

Appellant / Second Plaintiff

Projek Lebuhraya Usahasama Berhad

Respondent / Defendant

Projek Penyelengaraan Lebuhraya Berhad (PROPEL)

Third Party

Procedural Posture

Civil Appeal (negligence, Motor Accident) / Judgment on Appeal (high Court)

Legal Issues

  1. 1 Whether an oil spill caused the accident and could be proven on balance of probabilities
  2. 2 Whether the highway concessionaire and third party were negligent in maintaining a safe highway
  3. 3 Whether the Sessions Court erred in finding the first plaintiff 100% liable

Ratio Decidendi

The High Court found the Sessions Court misdirected itself by undervaluing credible eyewitness evidence and failing to account for incomplete patrols and investigation; on the balance of probabilities the plaintiffs established that an oil spill likely caused the accident and the highway operators breached their duty of care, so liability is apportioned equally 50/50 between the first plaintiff and defendant and the appeal is allowed with costs.

Court Disposition

Appeal allowed; Sessions Court finding of 100% liability against plaintiff set aside; liability apportioned 50/50 between plaintiff and defendant; plaintiff's claim allowed in part.

Orders

  • Appeal allowed with costs of RM3500 subject to payment of an allocatur fee
  • Liability apportioned between parties at 50% each