SELIA SELENGGARA SELATAN SDN.BHD. v 1. ) NUR HANA BINTI ISMAIL 2. ) IMAM BAYDOWI BIN SUMARDI

Case Significance

Illustrates an appellate court reversing a road-accident judgment against a highway concessionaire where the key evidence of a pothole was an afterthought inconsistent with a contemporaneous record, and ordering restitution of the judgment sum already paid.

This High Court decision at Johor Bahru concerns an appeal by a highway concession company against a Sessions Court judgment arising out of a motorcycle accident. The respondents were the rider and pillion of a motorcycle who claimed general and special damages against the appellant, the concession company responsible for supervising and maintaining the Johor Bahru–Ayer Hitam road at the material time, alleging that the accident on 8 August 2020 was caused by the poor condition of the road. In the courts below the Sessions Court had found the appellant liable and entered judgment for a substantial sum. The appellant appealed both against the Sessions Court's refusal of its application to reopen its case and against the findings on liability and quantum. Examining the evidence, the High Court was troubled by the account that the motorcycle had struck a pothole. It noted that a contemporaneous newspaper article describing the incident made no mention of the motorcycle entering a pothole, and treated the witness's later insistence that it had done so as an afterthought, observing that if the omission were genuine the witness would have sought to correct the article rather than raising the point for the first time when giving evidence in court. The Court also considered that the Sessions Court ought to have provided grounds explaining its refusal of the application to reopen once an appeal had been filed against that decision, and found that the Sessions Court had erred in its directions. Allowing the appeal, the Court ordered the respondents to return the sum of RM526,300.42 to the appellant within fourteen days and awarded costs of RM5,000, subject to allocatur. The result illustrates the caution with which an appellate court treats an account of an accident's cause that surfaces only at trial and is unsupported by, and indeed inconsistent with, the record made closest to the event.