JOTHILETCHUMI A/P PERIASAMY (Seorang wakil diri litigasi kepada KESAVAN A/L RAJASEKAR seorang yang kurang upaya dan/atau dari segi perubatan seorang yang tidak waras (unsound mind) v 1. ) GUNALAN A/L SANKARAN 2. ) MEGALIFT SDN BHD

Case Significance

Shows an appellate court willing to increase a defendant's share of liability where heavy-vehicle negligence predominates, while applying the settled restraint against disturbing a trial court's quantum assessment that falls within the guideline range and is supported by evidence.

This High Court decision at Shah Alam disposes of cross-appeals from the Sessions Court in a serious road-accident claim, and this record concerns the plaintiff's appeal on liability. The plaintiff, who sustained catastrophic brain injury and is of unsound mind, suing through a litigation representative, had been injured when the defendants' articulated trailer, carrying an unusually large 'cutter head' load, collided with him in the early hours on a dark, narrow, unlit stretch of the Banting-Dengkil road, the load projecting more than 1.5 metres across into the oncoming lane he was using. The first defendant was the driver and the second defendant, Megalift Sdn Bhd, the operator. The Sessions Court had apportioned liability 70% to the defendants and 30% to the plaintiff. By this appeal the plaintiff sought to raise the defendants' liability to 100%, while the defendants cross-contended that the plaintiff should be wholly liable. Reviewing the evidence — the oversized load crossing the carriageway without adequate warning lights, an invalid permit, failures in the escort standard operating procedure, and the higher duty of care owed by heavy vehicles under rule 16 of the Road Traffic Rules 1959 — the court held that the Sessions Court's finding on liability should be varied in the plaintiff's favour, though not to the full extent sought. It allowed the plaintiff's appeal in part, revising the apportionment from 70:30 to 90% against the defendants and 10% against the plaintiff, while declining to hold the defendants wholly liable. On quantum, the court found the Sessions Court had carefully assessed each head of damage within the range of judicial practice and comparable cases, and that the plaintiff had shown no basis to increase the award; the further appeal on quantum was dismissed. The court maintained the quantum, adjusted only to reflect the new apportionment, and awarded the costs of the appeals to the plaintiff.