THUNDER EXPRESS SDN BHD EUROPEIA PORTUGUESE INTER COMMERCIO (M) SDN BHD

THUNDER EXPRESS SDN BHD EUROPEIA PORTUGUESE INTER COMMERCIO (M) SDN BHD

The High Court held the Sessions Court correctly found negligence on the balance of probabilities based on CCTV and documentary evidence and permissibly drew an adverse inference under s114(g) for the plaintiff's failure to call the driver; appellate intervention was not justified because the trial court's factual evaluation was not plainly wrong, therefore the set-off and resulting judgment sum were upheld.

Citation
BA-12BNCvC-34-08/2023 (Mahkamah Tinggi)
Parties
Appellant / Plaintiff: Thunder Express Sdn Bhd; Respondent / Defendant: Europeia Portugese Inter Commercio (M) Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
6 November 2023
Case Number
BA-12BNCvC-34-08/2023 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal From Sessions Court Judgment / Appeal (disposal on Merits)
Outcome
Appeal dismissed; Sessions Court judgment upheld
Legal Topics
Negligence, Set Off, Adverse Inference, Burden of Proof, CCTV Evidence, Costs Discretion, Appellate Intervention
Source Language
Malay/English
Contract Tort Evidence Civil Procedure Negligence Set Off Adverse Inference Burden of Proof +3 more

Case Brief

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Parties

Thunder Express Sdn Bhd

Appellant / Plaintiff

Europeia Portugese Inter Commercio (M) Sdn Bhd

Respondent / Defendant

Procedural Posture

Civil Appeal From Sessions Court Judgment / Appeal (disposal on Merits)

Legal Issues

  1. 1 Whether respondent proved loss on balance of probabilities
  2. 2 Whether adverse inference under s114(g) Evidence Act could be drawn for failure to call material witness (driver)
  3. 3 Whether set-off against plaintiff's claim was justified

Ratio Decidendi

The High Court held the Sessions Court correctly found negligence on the balance of probabilities based on CCTV and documentary evidence and permissibly drew an adverse inference under s114(g) for the plaintiff's failure to call the driver; appellate intervention was not justified because the trial court's factual evaluation was not plainly wrong, therefore the set-off and resulting judgment sum were upheld.

Court Disposition

Appeal dismissed; Sessions Court judgment upheld

Orders

  • Sessions Court judgment upheld: net judgment in favour of Respondent of MYR 117970 after set-off against Plaintiff's admitted MYR 9,130 debt
  • Interest on judgment at 5% per annum from 31 July 2023 until full settlement (as ordered by Sessions Court)