Ahmad Zulfendi Bin Anuar v Mohd Shahril Bin Abdul Rahman

Court of Appeal Civil Appeal Suit No. A-04(NCVC)(W)-246-05/2021

INTRODUCTION

This is a landmark decision wherein the Court of Appeal has ruled that the lack of driving license, road tax or insurance coverage should not be factored into increasing the liability of the said road user in a motor vehicle accident claim.

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BACKGROUND FACTS

The subject matter of this case is in relation to a motor vehicle accident which occurred back then in 2018 where each party contended that the other party ought to be found wholly liable for the accident.

Initially, the Sessions Court upon considering the conflicting evidence given by both parties ruled that the motorcyclist was 30% liable while the car driver was 70% accountable for the crash.

However, upon appeal, the High Court while agreed that the SCJ’s apportion of liability premised upon the evidence is fair, subsequently increased the liability percentage of the motorcyclist to 60% on the grounds that the motorcyclist had no driving license, road tax or insurance coverage at the time of the accident, and hence not entitled to his full entitlement to 70% liability on the part of the car driver and shall be discounted by a further 30%.

COURT OF APPEAL’S DECISION

The motorcyclist who was dissatisfied with the High Court’s decision then further filed an appeal to the Court of Appeal.

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1. A. Liability

Upon hearing the case, the Court of Appeal allowed the motorcyclist’s appeal on liability. The High Court’s decision on liability was set aside and the Sessions Court’s assessment of liabilities was reinstated:-

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1. 1) The liability in tort must be decided based on how the collision took place. The lack of driving license, road tax or insurance coverage did not make the motorcyclist more negligent and should not be factored into increasing the motorcyclist’s liability, especially in the facts of this case where the motorcyclist’s contribution towards his negligence has been assessed by the SCJ to be 30% liable.
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3. 2) However, the Court of Appeal emphasized that such decision does not mean that the Court is condoning the blatant breach of road traffic laws. If there had been any breach of the Road Transport Act 1987 (RTA), then the penalties under RTA could be enforced in which it shall be the duty of the public prosecutor to prosecute such a breach and the relevant court to impose the necessary punishment. In any event, the breach of RTA cannot be deemed as a reason to increase the liability for a road user’s negligence in a motor vehicle accident claim.
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5. 3) It was also mentioned that the Court of Appeal while arriving at its decision did appreciate the point of public policy but undeniably, the motorcyclist is merely claiming for personal injuries sustained and is not in any way profiting from his breach of the RTA where licensing, road tax and insurance is concerned.
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7. 4) Based on the above, the Court of Appeal held that there is no good reason to interfere with the SCJ’s finding and apportionment of liability. To increase the apportionment of liability by 30% or any part thereof on such ground would be to take into account an irrelevant consideration which does not affect the way the accident happened.
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1. B. Quantum

On the other hand, the Court of Appeal dismissed the motorcyclist’s appeal as to quantum and affirmed the decision of the High Court on quantum.

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It was held that there is no evidence that the motorcyclist cannot return to normal work as persons with such disability and even with prosthetic legs are able to return to some semblance of normal life and work. Nevertheless, granted that the motorcyclist may need to adjust to his disability and endure some pain before returning to his new normal, the Court of Appeal awarded general damages for loss of earning capacity amounting to RM50,000.00 to the motorcyclist based on 100% liability and interest as prayed.

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COMMENTARY

This decision of the Court of Appeal serves as an important development to motor vehicle accident claims in Malaysia as it clarified that driving / riding without a license, road tax or insurance coverage shall be punished under the Road Transport Act 1987 but not to be dealt with in motor vehicle accident claims to assess a road user’s liability for negligence.

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This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.

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About the Author

Meyer Thor Xiao Xi

Associate

Halim Hong & Quek 

meyer.thor@hhq.com.my