SAINUDDIN BIN SUKKUR v 1. ) MOHMD SAAD BIN ISMAIL 2. ) Zakaria Bin Tajuddin (Disaman Sebagai Wakil Diri Kepada Harta Pusaka Muhammad Hamidi Bin Zakaria, Simati Kedua)

Case Significance

Illustrates the 'plainly wrong' test for appellate review of a Sessions Court's apportionment of liability in a fatal road accident, allowing the appeal where a pleaded defence was unsupported by any witness and the objective evidence contradicted the trial findings.

This High Court decision at Shah Alam, sitting in its appellate jurisdiction and hearing cross-appeals together, concerns liability for a fatal road accident and the circumstances in which an appellate court may disturb a trial court's findings of fact. The action was brought under section 8 of the Civil Law Act by the representative of a deceased person's estate against two respondents, the second of whom was sued as the personal representative of the estate of a second deceased. The Sessions Court had apportioned liability equally, at 50:50, between the parties. On appeal the central issue was whether the plaintiff had discharged the burden of proof on liability, in circumstances where the defence had pleaded that the first defendant was involved in the accident and that the plaintiff's side had been negligent, yet no witness for the first defendant was called to support that pleaded case. The Court weighed the evidence of the investigating officer and the chemist report, and applied the "plainly wrong" test governing appellate intervention, drawing on the Federal Court's statement in Ng Hoo Kui & Anor v Wendy Tan Lee Peng that an appellate court should not interfere with a trial judge's factual findings unless satisfied that the decision was plainly wrong or one that no reasonable judge could have reached. Applying that standard, the Court concluded that the factual findings of the learned Sessions Court judge were incorrect and inaccurate. It therefore allowed the plaintiff's appeal, displacing the equal apportionment of liability. The decision illustrates how the absence of supporting witness evidence for a pleaded defence, combined with the objective evidence, can lead an appellate court to find that a trial court's apportionment was plainly wrong. The Court added that where a defendant pleads a positive case of the plaintiff's negligence but calls no evidence to support it, that failure bears on the assessment of liability, and here it reinforced the conclusion that the equal apportionment could not be sustained on the record.