H'NG SHEAU HUI v AMANAHRAYA BERHAD (Sebagai Pentadbir Harta Pusaka Ong Lee Hoon)

Case Significance

Illustrates an appellate court's willingness to revisit a liability apportionment resting on a deceased defendant's untested version, while declining to disturb a trial court's quantum assessment absent demonstrable error.

This High Court appeal from the Sessions Court in Georgetown, Pulau Pinang, turned on the apportionment of blame and the assessment of damages arising from a road accident in which a pedestrian was struck by a motorcycle while crossing a road with friends on 3 March 2014. The Sessions Court Judge had divided liability equally, at 50:50, between the pedestrian (the plaintiff) and the motorcyclist. The appeal advanced three grounds: that the equal apportionment of blame was wrong, that the award for personal injuries had been made on a global basis rather than itemised, and that the claim for loss of earnings had been wrongly disallowed. A distinctive feature of the case was that the motorcyclist had made no police report and had died on 14 July 2016, so his account was never before the court, while the pedestrian's witnesses gave evidence that was described as consistent and unchallenged. The High Court reweighed the liability finding and concluded that the rider had failed to take precautionary measures to avoid the collision — an eyewitness confirmed that he had neither sounded his horn nor braked in time — and noted that the pedestrian had not been charged with any traffic offence. On that footing the court reapportioned liability to 90 percent against the motorcyclist's estate and 10 percent against the pedestrian. On the remaining grounds, however, the court found no merit warranting appellate intervention: applying appellate-restraint authorities including Ong Leong Chiou v Keller (M) Sdn Bhd, it declined to disturb the Sessions Court's assessment of quantum and its treatment of loss of earnings, so those awards stood as originally made. The appeal was accordingly allowed only in part. The decision is a useful illustration of how an appellate court will readily revisit a liability apportionment resting on an absent defendant's untested version, while leaving a trial court's quantum findings undisturbed absent demonstrable error.