1. ) MUHAMMAD RASIDI BIN MAZLAN 2. ) SALAHUDIN BIN MAZLAN v AHMAD KHAIRUL AMIN BIN AHMAD KHIR JOHARI

Case Significance

Illustrates an appellate court's willingness to reapportion liability in a running-down action where the trial court's finding of sole fault is not supported by the evidence, and the operation of contributory negligence to reduce a claimant's recovery.

This High Court decision at Shah Alam, delivered by Rozi binti Bainon JC in its appellate jurisdiction, concerns an appeal on liability and quantum arising from a road accident between a motorcycle and a lorry. In the Magistrates' Court the plaintiff, the motorcyclist, had succeeded against the defendants, and the Magistrate had found the defendants wholly — 100% — liable for the accident. The defendants appealed, contending that the Magistrate's findings on liability and quantum were erroneous and that the plaintiff had been contributorily negligent.

Exercising its appellate role, the High Court reconsidered the Magistrate's findings of fact on how the collision between the plaintiff's motorcycle and the defendants' lorry had occurred. While an appellate court will not lightly disturb a trial court's findings, it may intervene where those findings are not supported by the evidence, and the Court considered this to be such a case. It concluded that the Magistrate had erred in attributing the entire fault to the defendants: the first defendant, the lorry driver, had discharged his burden of proof on a balance of probabilities to show that the plaintiff bore a share of the responsibility for the collision, the manner of the collision between the motorcycle and the lorry being clear on the evidence. The Court held that it was justified in intervening in the trial court's findings of fact, the apportionment of 100% liability against the defendants not being supportable on the evidence.

The Court reapportioned liability, holding the first defendant 60% liable and the plaintiff contributorily negligent to the extent of 40%, in place of the Magistrate's finding of 100% liability against the defendants, and it revisited the quantum awarded, including the treatment costs, in light of that reapportionment. The judgment is a useful illustration of an appellate court's willingness to reapportion liability in a running-down action where the trial court's finding of sole fault is not supported by the evidence, and of the operation of contributory negligence to reduce a claimant's recovery.