JANAKI A/P KRISHNA NAIR v 1. ) SALIM BIN LATIF 2. ) WONG KHENG CHONG

Case Significance

Illustrates appellate re-apportionment of liability in a running-down claim where the trial court's 100% finding was unsupported by the evidence, alongside the settled restraint an appellate court exercises before disturbing a trial judge's assessment of quantum.

This decision of the High Court of Malaya at Temerloh concerns an appeal from a Sessions Court judgment in a road-traffic personal-injury claim, challenging both liability and quantum. The collision occurred at night on the Kuala Lumpur–Kuantan road, and the Sessions Court had apportioned liability entirely against the defendants, finding them 100% liable to the plaintiff, before assessing damages. The plaintiff had been driving a motorcar that came into collision with a motor jeep. On appeal the High Court re-examined the basis of the trial court's liability finding and concluded that it was not supported by the evidence on the record.

The appellate court noted several difficulties with the plaintiff's account. The investigating officer's evidence was that the plaintiff had encroached into the defendant's path, that a summons had been issued against the plaintiff, and that the plaintiff had pleaded guilty and been bound over to be of good behaviour for one year. The plaintiff's own evidence was inconsistent — shifting, when questioned and re-questioned, as to which side of the jeep the impact occurred — and there was no supporting evidence for the plaintiff's assertion that the accident happened when the defendant turned right. Weighing these matters, the court held that the trial judge's finding of total liability against the defendants could not stand and substituted an apportionment of 50% against the plaintiff and 50% against the defendants. On quantum, however, the court applied the principle that an appellate court should not disturb a trial judge's assessment of damages unless it was made without foundation in the reports or evidence or offended the governing principles; finding no such error, it declined to interfere and maintained the quantum on the revised 50:50 basis. The court emphasised that its own disagreement with an award is not, by itself, a ground to set aside the trial judge's assessment; interference is warranted only where the finding was reached without reference to the reports or witness evidence, or where the governing principles on damages were not observed. The appeal on liability was allowed and the appeal on quantum dismissed.