Hearing on : [21.05.2017]
IN THE MOOT COURT OF UNIVERSITI TEKNOLOGI MARA SHAH ALAM
IN THE STATE OF SELANGOR DARUL EHSAN
5 (APPELLATE JURISDICTION)
CIVIL APPEAL NO: 8881‐05‐ 2017
Between
Mr Hamilton PLAINTIFF / APPELLANT
And
WRITTEN SUBMISSION FOR RESPONDENT
(On Appeal by Appellant & Cross Appeal)
15 Solicitors for Appellant Solicitors for Respondent
Umi, Fiena & Associates De Underground & Associates
Peguambela & Peguamcara Peguambela & Peguamcara
E‐Boulevard, Persiaran Neutro No 29, Jalan Seri Damai,
Alam Impian, Shah Alam Taman Seri Damai,
20 43000 Kajang, Selangor Darul Ehsan
UMI HASHEIDA BINTI HUSSAIN MOHD IZWAN BIN DATO’ ZAKARIA
(2012579745) (2013469092)
TUAN ATTFINA BT TUAN KAMALUDDIN ZARINA BINTI ZAINAL ABIDIN
25 (2012533711) (2012434212)
ZAINAB BINTI SUGI
(2014677802)
Page 1 of 49
Dengan Izin Yang Ariff,
A.Introduction
1. The case before this honourable court is assessment of damages in respect of the
High Court decision which allows the Appellant’s claims as follows:
5
1.1. Award of damages amounting to RM 4,150.00 in respect to the
Appellant’s:
1.1.1. Injury;
1.1.2. Damages towards the Appellant’s car; and
10 1.1.3. Interest.
1.2. To reject Appellant’s claims for damages in respect to the car hire charges
while the Appellant’s car underwent repairs.
15 2. The High Court have award cost to the Respondent as follows:
2.1. Cost of RM 4,000.00 from the expiry of the offer since 01.10.2008.
2.2. The cost was awarded based on the case of Carver v BAA Plc1.
20 B. Brief Facts
1. The collision on 01.04.2008:
1.1. The Appellant drove a Citroen Xsara Picasso and had just stopped at a
traffic light junction as the light was red.
25 1.2. At about the same time, the Respondent, drove a Honda Jazz, unable to
stopped in sufficient time, have rear ended and collided with the
Appellant car that was already stationary.
1.3. The Appellant have suffered a physical injury or whiplash.
1.4. The Appellant’s car sustain significant damage to the rear.
1
Carver v BAA Plc [2008], 3 All E.R. 911
Page 2 of 49
1.5. The Respondent admits liability towards the collision at the scene.
2. Post collision and replacement car offer:
5 2.1. On 03.04.2008, the Respondent’s insurer, have offered a Ford Mondeo, as
a replacement car for the Appellant’s usage for two months while the
Appellant’s car, a Citroen Xsara Picasso underwent repairs at no cost on
the Appellant.
2.2. The Appellant have refuse to accept the offer on the replacement car Ford
10 Mondeo, made on 03.04.2008, on the grounds it is not the same car as his
own and he wanted to ferry his 3 year old twin daughter comfortably.
2.3. The Appellant enquire F1 Hires to provide him with a replacement car
similar to his own.
2.4. F1 Hires, could offer a 5 seater Citroen Xsara Picasso to the Appellant,
15 which is similar to the Appellant’s car, at a rate of RM 50.00 per day, but
only after three weeks as the car is already rented out to another.
2.5. F1 Hires only able to offer a 7 seater Ford Galaxy immediately to the
Appellant, at a rate of RM 70.00 per day OR RM 63.00 per day for a
minimum of two month tenure.
20 2.6. The Appellant agreed to hire the 7 seater Ford Galaxy for two months at a
rate of RM 63.00 per day.
3. Post collision and settlement offer:
25 3.1. On 01.09.2008, the Respondent made an offer of RM 5,000.00 to the
Appellant in respect to the damage sustain to the Appellant’s car and to
the injury claimed by the Appellant. The Appellant rejected the
Respondent’s 1st offer, and on the ground that no consideration was given
for the car hire charges.
30 3.2. The Appellant made a counter offer and requesting for RM 8,000.00 from
the Respondent after taking into consideration of the car hire charges. The
Respondent rejected the counter claim made by the Appellant.
Page 3 of 49
3.3. On 01.10.2008, the Respondent made a 2nd offer of RM 6,000.00 to the
Appellant in respect to the damage sustain to the Appellant’s car and to
the injury claimed by the Appellant. The Appellant rejected the
Respondent‘s 2nd offer, and on the ground that no consideration was given
5 for the car hire charges.
3.4. On 01.11.2008, the Appellant issue a court proceedings claiming RM
10,000.00 in respect to damage sustain by the Appellant’s car, injury
claimed by the Appellant, and to the car hire charges incurred by the
Appellant while his car underwent repairs for two months.
10
C. Previous Findings of the Court
1. On 01.10.2008, as a claim had not yet been issued, Defendant's lawyers would
have been liable to pay fixed costs of RM 2,000.00.
2. From the expiry of the 1st offer of 01.10.2008, Appellant’s costs would have
15 totalled to RM 9,000.00, and Defendant's cost would have totalled to RM 6,000.00.
3. F1 Hires would have been able to provide a similar Ford Mondeo to that offered
by Defendant's insurers for RM 40.00 per day.
(Emphasises ours)
20
4. No award was made in respect of the car hire charges to the Appellant, as the car
offered by Defendant's insurers would have been adequate for Appellant's needs
and he had therefore not taken reasonable steps to mitigate his loss.
25 (Emphasises ours)
5. As the Appellant have failed to achieve a more advantageous result, thus under
Carver V BAA Plc2, the defendant should be entitled to his cost from the expiry of
the 1st offer of 01.10.2008.
30
2
Ibid
Page 4 of 49
(Emphasises ours)
D.The Appeal
1. The Appellant contended that the Respondent’s insurers offer of Ford Mondeo
5 was not equivalent to his own Citroen Xsara Picasso.
2. The Appellant contended that the Respondent had failed to prove that the
Appellant had failed to mitigate his loss.
3. The Appellant contented that the Trial judge had erred in law in its findings that
the Appellant had not taken reasonable steps to mitigate his loss. The Appellant
10 contended that the cost of hiring a car of RM 3,705.60 should be allowed.
4. The Appellant contended that the Trial judge had erred in law in its findings that
Carver3 principals applied as the Appellant’s claims was reasonable, not been
exaggerated and the reason for the rejection of the offer had been clearly stated.
15 E. The Cross Appeal
1. The Respondent contended that the Trial judge had erred in law in its findings to
award special damages on the injury claimed by the Appellant.
2. The Respondent contended that the Trial judge had erred in law in its findings that
the Respondent is fully liable for the injury claimed by the Appellant.
20
2.1. The Appellant has failed to use reasonable care for the safety of himself,
which then gives rise to his own injury.
2.2. The Appellant is contributory negligence towards his own injury.
25
3
Ibid
Page 5 of 49
F. Hire Cost Claim
1. The Appellant was driving a Citroen Xsara Picasso when the accident happen. It
has 5 seating capacity and of European Economic Community (EEC) Segmentation
Class “C‐Medium Car”4 (see RBA, Tab T, page 276).
5 2. The Appellant’s car had sustain damage to the rear as a result of the collision
between the Appellant and Respondent. The Respondent have admit liability upon
the collision at the scene of the accident.
3. On 03.04.2008, two days after the accidents, the Respondent’s insurer had offered
the Appellant a temporary car at no cost to the Appellant. This was immediately
10 rejected by the Appellant on the grounds that it is not similar to his car and he
wanted his family to be comfortable.
4. The offered by the Respondent’s insurer was a Ford Mondeo (Wagon). It has 5
seating capacity and of EEC Segmentation Class “D‐Large Car”5 (see RBA, Tab U,
page 279).
15 5. After rejecting the offer by the Respondent’s insurer, the Appellant hire a Ford
Galaxy from F1 Hires. It has 7 seating capacity and of EEC Segmentation Class “D‐
Large Car”6 (see RBA, Tab V, page 283).
6. The Appellant’s claimed cost of hiring the Ford Galaxy from F1 Hires is RM 63.00
per day.
20 7. Did the Appellant mitigate his losses in relation to the hires of the
car?
8. In Zasalim Development Sdn Bhd V Lum Siew & Sons Sdn Bhd7 (see
RBA, Tab H, page 129‐130), the breach of a contract by the Defendant in the case
contribute to the losses suffered by the Plaintiff. The Defendant contended that
4
2008 Citroen Xsara Picasso 1.6i 16V Confort (Style, Exclusive) (model for Europe ) specifications &
performance data review, http://www.automobile‐
catalog.com/car/2008/548000/citroen_xsara_picasso_1_6i_16v_confort.html, 16.05.2017.
5
2008 Ford Mondeo Estate 2.0 Edge (model for Europe ) specifications & performance data review,
http://www.automobile‐catalog.com/car/2008/979040/ford_mondeo_estate_2_0_edge.html, 16.05.2017.
6
2008 Ford Galaxy 2.0 Flexifuel Ghia (model since mid‐year 2008 for Europe ) specifications & performance
data review, http://www.automobile‐catalog.com/car/2008/976400/ford_galaxy_2_0_flexifuel_ghia.html,
16.05.2017.
7
Zasalim Development Sdn Bhd V Lum Siew & Sons Sdn Bhd [2002] 7 MLJ 119
Page 6 of 49
the Appellant should mitigate its losses in its defense. Abdul Malik Ishak J in the
case held:
“(1) The damages suffered by the plaintiff as a result of the defendant
5 failing to perform the project agreement and breaching the variation
agreement were in relation to the loss of the plaintiff's entitlements.
Evidence was adduced by the plaintiff that the damages comprised the loss
of profits that would have accrued to the plaintiff if not for the defendant's
conduct and breach (see p 133A‐B, D).
10
….
(4) Although an innocent party to a breached contract must mitigate
its losses, mitigation was not applicable in the instant case as the project
15 in question was comprehensive in nature and could only proceed with the
defendant's participation. Moreover, the duty to prove mitigation was on
the part of the defendant. Here, the defendant had failed to discharge that
duty before the SAR (see pp 145C‐D, 146D).”
20 9. Abdul Malik Ishak J elaborate his findings for the above (see RBA, Tab H, page
147):
“Mitigation
25 In regard to the issue of mitigation, I have this to say. Although it is trite
law that an innocent party to a breached contract must mitigate its losses,
yet in the peculiar circumstances of the present appeal, mitigation cannot
apply because the project in question was comprehensive in nature.
Moreover, the duty to prove mitigation is on the part of the defendant. A
30 perusal of the English case of Roper & Anor v Johnson (1872‐73) 8 Hilary
Term, 36 Vict 167 is certainly apt. There Keating J had this to say at p 178
of the report:
Page 7 of 49
It seems to me that, when the plaintiffs have shown that there has
been a distinct breach of the contract on the part of the defendant,
and have further shown that at the periods at which the coal should
5 have been delivered, they could only have obtained them at an
advanced price, they were entitled to the difference between that
advanced price and the contract price, unless the defendant gave
evidence that another similar contract might have been obtained
on more mitigated terms. For instance, if there had been a fall in
10 the market, or any other circumstances calculated to diminish the
loss, it would be for the defendant to show it.
Brett J too had this to say at pp 179‐180 of the report:
15 Now comes the question whether in such a case as this there is to
be a different rule as to proof of the amount of damage which the
plaintiff has suffered. The general rule as to damages for the breach
of a contract is, that the plaintiff is to be compensated for the
difference of his position from what it would have been if the
20 contract had been performed.
Continuing at pp 181‐182 of the report, Brett J said:
It seems to me to follow from that ruling that the plaintiffs here did
25 all they were bound to do when they proved what was the
difference between the contract‐price and the market‐price at the
several days specified for the performance of the contract, and that
prima facie that is the proper measure of damages; leaving it to the
defendant to show circumstances which would entitle him to a
30 mitigation. No such circumstances appeared here: there was
nothing to show that the plaintiffs ought to have or could have gone
Page 8 of 49
into the market, — a rising market, — and obtained a similar
contract.
Grove J too said at pp 182‐183 of the report:
5
Was there any evidence upon which the court could rely in support
of the proposition that the plaintiffs could at the time of the
admitted breach have gone into the market and made a similar
contract? I cannot gather from the notes of the learned judge who
10 tried the cause that there was any evidence upon which the jury
could have come to such a conclusion.
Continuing at p 184 of the report, Grove J said:
15 The plaintiffs having made out a prima facie case of damages,
actual and prospective, to a given amount, the defendant should
have given evidence to show and to what extent that claim ought
to be mitigated. No such evidence was attempted to be given. It is
entirely upon the absence of that evidence that I rest my judgment.
20
(Emphasise ours)
10. Abdul Malik Ishak J elaborate his findings further (see RBA, Tab H, page 147):
25 “Ian Chin J in Soosan Trading Co Ltd v Tawau Auto Sdn Bhd [1997] 4 CLJ
Supp 519 vigorously applied the case of Roper & Anor v Johnson. In that
case, the plaintiff was supplied with the wrong kind of timber — nyatoh,
and the plaintiff could have made use and/or sold the said nyatoh to
mitigate their loss but the plaintiff did not do so. The learned judge held
30 that it was for the defendant to state exactly how the nyatoh was to be
used to mitigate the losses. In the present appeal before me, the defendant
had failed before the learned SAR to discharge this duty. Be that as it may,
Page 9 of 49
the plaintiff had led unchallenged evidence showing that nothing could be
done when the defendant breached the agreements because it involved a
comprehensive development. The right of the plaintiff to claim for damages
cannot be denied. It also cannot be denied that the plaintiff here cannot be
5 forced to take any other course except to proceed to secure damages.”
11. Abdul Malik Ishak J concluded that (see RBA, Tab H, page 148):
“It must be borne in mind and I reiterate that the project was a
10 comprehensive one. If the defendant reneged as it did, the project will
simply collapse. It cannot proceed. The suggestion by the defendant that
the plaintiff' should have proceeded with the development on DBKL's land
and Lot 446 were totally illogical. How could such a development proceed
when neither DBKL nor the plaintiff would derive any benefit. At any rate,
15 it was for the defendant to prove and on this score the defendant had failed
completely. It would be correct to say that any development on DBKL's land
or on Lot 446 in the near future cannot and will not in any way mitigate the
losses already suffered by the plaintiff. It would not be out of place to
mention that the plaintiff was not seeking to be put in a better financial
20 position. Rather, the plaintiff was merely seeking to recover its losses as a
result of the defendant's breach. It must not be forgotten that the benefit
to the plaintiff was the land and the building on DBKL's land which was now
lost. The arguments of the plaintiff were quite simple and straight forward.
25 It was this. If the defendant did not breach those agreements, the plaintiff
would have received RM10.5m in profits. These handsome profits were said
to be lost forever because of the defendant's breach. Thus, the plaintiff was
seeking RM10.5m because this sum would put the plaintiff in a position it
would have been in if the defendant had not breached. Here it was said
30 that the plaintiff was not desirous of making any claim in order to be put in
any better position.”
Page 10 of 49
(Emphasise ours)
12. Then in Ang Yee Cheng & Anor v Ang Siang Hock8 (see RBA, Tab I, page
155), the court questioned the award of the Trial judge in relation to the damages
5 award, and for not factoring the loss mitigation by the Plaintiff (Respondent)
especially considering that the Plaintiff did not have a medical proof to backed the
claim for damages. Wong Teck Meng JC, held that:
“(6) The trial court was wrong to have awarded RM150,800 for
10 physiotherapy by allowing two sessions a week (totalling RM100)
multiplied by 29 years despite the non‐existence of any recommendation
from medical specialists that the respondent required such treatment. As
the respondent could obtain such treatment at the government hospital for
a fraction of the cost, if not for free, he should obtain treatment there to
15 mitigate damages. A more reasonable award was RM100 for
transportation cost per trip once a week for four years which equalled
RM19,200 (see paras 56 & 58–59).”
(Emphasis ours)
20
13. Wong Teck Meng JC, elaborate further on the point above (see RBA, Tab I, page
165):
“COST OF PHYSIOTHERAPIST
25 [53] SP5 did physiotherapy to the plaintiff and he charged RM50 per
session. According to him, the plaintiff needs about three times a week. SP5
is not a qualified physiotherapist but has about 12 years experience in this
line with Loh Guan Lye Hospital.
8
Ang Yee Cheng & Anor v Ang Siang Hock (person under disability suing through Koh Beng Guek, litigation
representative) [2016] 9 MLJ 238
Page 11 of 49
[54] The need for physiotherapy is not supported by any of the specialist
medical reports and/or no medical specialist gave evidence on the
plaintiff’s need for this treatment. SP5 agreed that he was not carrying out
physiotherapy which was advised or supervised by a doctor. Furthermore
5 SP5 agreed that physiotherapy treatment can be obtained at the
government hospital.
[55] It is my finding that since this head of claim is not supported by
medical evidence, the plaintiff simply created this claim to inflate damages
10 which are not really necessary or recommended by a doctor.”
14. Wong Teck Meng JC, the concludes (see RBA, Tab I, page 165):
“[56] The sessions court judge is therefore wrong when he awarded
15 RM150,800 by allowing two sessions a week multiplied by 29 years despite
the non existence of any recommendation from medical specialists for this
treatment. The sessions court judge is in error again for not considering
that this treatment can be obtained at the government hospital for a
fraction of the price charged by SP5, or free of charge.”
20
[57] Furthermore, there is not an iota of evidence suggesting that the
plaintiff needed this treatment for the rest of his life ie 29 years. Be that as
it may, the plaintiff should obtain this treatment at the government
hospital. As to how long such treatment is needed by the plaintiff, there
25 must be a fixed period to be determined as there is a time frame where the
usefulness or otherwise of this treatment does not make any more
difference to the plaintiff.
[58] Hence, taking into consideration that this treatment can be
30 obtained at the government hospital, it is my considered view that the
plaintiff should obtain treatment there to mitigate damages. As for the
Page 12 of 49
length of time for the treatment, a four years period is reasonable with
once a week frequency.
[59] However, in order for the plaintiff to go to the government hospital
5 for the treatment, he needs transport. My estimate for the transport should
be at 255 about RM100 each trip. The award therefore, should be RM100
x 4 x 4 years = RM19,200. The sessions court’s award of RM150,800 is
therefore set aside and substituted with RM19,200.”
10 (Emphasis ours)
15. Wong Teck Meng JC, also held in Ang Yee Cheng & Anor v Ang Siang
Hock9(see RBA, Tab I, page 155):
15 “(7) The award of RM119,340 for speech therapy was wrong as there
was no necessity for the respondent to be taught to speak (at RM85 per
session) for the rest of his life. There was no medical evidence that he
needed this treatment. Speech therapy was available at the government
hospital and the respondent had a duty to mitigate damages. The proper
20 award for this head of damages was RM100 for transport at once a week
for four years (reasonable period for maximum improvement), giving a
figure of RM19,200 (see paras 60–62).”
16. Wong Teck Meng JC, elaborate further (see RBA, Tab I, page 165‐166):
25
“COST OF SPEECH THERAPIST
[60] A speech therapist SP6 was engaged to improve the plaintiff's
condition in respect of his aphasia. Again, there are no medical reports
30 recommending this treatment or evidence that the plaintiff needed this
9
Ibid
Page 13 of 49
treatment. SP6 charged RM85 per session and said that the plaintiff
treatment might take a long time. It is my considered view that there must
be a fixed time period where the treatment reaches a plateau after which
there is not much more that the speech therapist can do to help the
5 plaintiff.
[61] It is also the evidence of SP6 that speech therapy service is available
at the government hospital. Hence, the plaintiff has the duty to mitigate
damages. The proper and correct award for this head of damages should
10 be RM100 for transport multiplied by four (once a week) for 4 years
(reasonable period for maximum improvement). The amount is RM19,200.
[62] Hence, the award given by the sessions court judge for RM119,340
is wrong as there is not necessity for the plaintiff to be taught to speak for
15 the rest of his life. This claim is also created by the plaintiff to inflate the
damages. I therefore set aside the award of RM119,340 and substitute it
with RM19,200.”
(Emphasise ours)
20
17. Although the Respondent in this case admits liability, nonetheless the Appellant
have a legal obligation to mitigate his losses. The Respondent’s insurer have made
an offer to use a hire car to the Appellant in order to reduce the losses suffered by
the Appellant. The car offered was as a matter of fact of similar seating capacity
25 as the Appellant’s car, which have 5 seating capacity (see para. 4 of this section).
18. In addition, the car offered was of better class as categorised by EEC (see para. 4
of this section).
19. The offer by the Respondent’s insurer, will not impact or burden the Appellant’s
financially as no cost is impose onto the Appellant.
30 20. The Appellant however contended to the offer on the grounds of comfort for his
family.
Page 14 of 49
21. The Appellant instead choose to hire a car on his own accord without any regards
to reduce or mitigate his losses from a local hire company. The Appellant not only
do not mitigate his losses, but incurred more cost when the Appellant hire a much
expensive car, which also have more seating capacity than his own and of a better
5 class (see para. 5 and 6 of this section).
22. As shown in the case of Zasalim Development Sdn Bhd V Lum Siew &
Sons Sdn Bhd10 (see para. 8 to 11 of this section), where the Plaintiff only claim
for losses for which it have suffered as a direct result of the Defendant abandoning
the project. The damage claimed by the Plaintiff will only put the Plaintiff back in
10 a position it would have been as oppose to the act of the Appellant in this case,
the Appellant choose to have a much better car in terms of seating capacity, class
and performance than the ones that he owns.
23. Syamil J., the Trial judge of this case, had also established that the F1 Hires, the
company that the Appellant went to after rejecting the offer made by the
15 Respondent’s insurer, had a similar Ford Mondeo at the rate of RM 40.00 per day.
As the Appellant’s Citroen Xsara Picasso would be unusable as it underwent
repairs for 2 months, the cost of hires would amount only to RM 2,400.00 (RM
40.00 × 60 days) as opposed to the amount claimed by the Appellant in this appeal,
which is RM 3705.60 for the 2 months.
20 24. As shown in the case of Ang Yee Cheng & Anor v Ang Siang Hock11 (see
para. 12 to 16 of this section), the court reduce the damages award during Trial
after considering that the Plaintiff in that case would be able to receive the same
treatment at a government hospital as oppose to a private hospital.
25. The Appellant also have the choice of at the very least accept the offer of the
25 Respondent’s insurer to use the car for 3 weeks, whereby after that time, a car of
the exact model as his own, will be available to hire at the rate of RM50.00 per
day. That would meant the cost of hire would be RM 1,950.00 for the remaining
39 days (RM 50.00 × (60days – 21days)).
10
Zasalim Development Sdn Bhd V Lum Siew & Sons Sdn Bhd [2002] 7 MLJ 119
11
Ang Yee Cheng & Anor v Ang Siang Hock (person under disability suing through Koh Beng Guek, litigation
representative) [2016] 9 MLJ 238
Page 15 of 49
26. Again this is demonstrated in the case of Ang Yee Cheng & Anor v Ang Siang
Hock12 (see para. 14 to 16 of this section), where the court have reduce the
damages award by the Trial judge after considering the factor that the Plaintiff of
the case have no medical evidence to receive a prolong medical treatment of 29
5 years. Instead the court was generous enough to award pecuniary damages for
treatment for the Plaintiff for a period of 4 years considering the lack of medical
expert opinion.
27. As such the Appellant’s appeal for damages in relation to hire cost of
RM 3,705.60 must not be allowed by this court.
10
G. Carver Should Apply
1. The Appellant contended that the claims submitted was reasonable and not
exaggerated.
2. Prior to the court proceeding on 01.11.2008, the Respondent have made the 1st
15 offer (see para. 3.1., Section B Brief Facts) and it was the countered by the
Appellant (see para 3.2., Section B Brief Facts).
3. After the counter proposal of the 1st offer by the Appellant, the Respondent made
the 2nd offer (see para. 3.3., Section B Brief Facts) and it was rejected by the
Appellant (see para. 3.4., Section B Brief Facts).
20 4. The Appellant contended that Carver should not apply to the case as
the claims for the hire cost was not taken into consideration by the
Trial judge.
5. Order 22, Rules 1 of Rules of High Court 198013 (see RBA, Tab A, page 6‐
7), provides:
25
“PAYMENT INTO AND OUT OF COURT
1 Payment into Court (0 22 r 1)
12
Ibid
13
Rules of High Court 1980 [PU(A) 50/1980]
Page 16 of 49
(1) In any action for a debt or damages any defendant may at any time
after he has entered an appearance in the action pay into Court a sum of
money in satisfaction of the cause of action in respect of which the plaintiff
claims or, where two or more causes of action are joined in the action, a
5 sum or sums of money in satisfaction of any or all of those causes of action.
(2) On making any payment into Court under this rule, and on
increasing any such payment already made, the defendant must give notice
thereof in Form 37 to the plaintiff and every other defendant (if any): and
10 within 3 days after receiving the notice the plaintiff must send the
defendant a written acknowledgment of its receipt.
(3) A defendant may, without leave, give notice of an increase in a payment
made under this rule but, subject to that and without prejudice to
15 paragraph (5), a notice of payment may not be withdrawn or amended
without the leave of the Court which may be granted on such terms as may
he just.
(4) Where two or more causes of action are joined in the action and money
20 is paid into Court under this rule in respect of all, or some only of, those
causes of action, the notice of payment‐
(a) must state that the money is paid in respect of all those causes
of action or, as the case may be, must specify the cause or causes
25 of action in respect of which the payment is made; and
(b) where the defendant makes separate payments in respect of
each, or any two or more, of those causes of action, must specify
the sum paid in respect of that cause or, as the case may be, those
30 causes of action.
Page 17 of 49
(5) Where a single sum of money is paid into Court under this rule in respect
of two or more causes of action, then, if it appears to the Court that the
plaintiff is embarrassed by the payment, the Court may, subject to
paragraph (6) order the defendant to amend the notice of payment so as
5 to specify the sum paid in respect of each cause of action.
(6) Where a cause of action under section 7 of the Civil Law Act 1956 and a
cause of action under section 8 of the said Act are joined in an action with
or without any other cause of action, the causes of action under the said
10 sections of the said Act shall for the purpose of paragraph (5), be treated
as one cause of action.”
6. Order 22B, Rules 9, Rules Of Court 201214(see RBA, Tab B, page 19‐20),
provides:
15
“Costs (O. 22B, r. 9)
9. (1) Where an accepted offer to settle does not provide for costs, each
party shall bear his own costs.
20 (2) Where an offer to settle made by a defendant—
(a) is not withdrawn and has not expired before the disposal of the
claim; and
25 (b) is not accepted by the plaintiff, and the plaintiff obtains
judgment not more favourable than the terms of the offer to settle,
the plaintiff is entitled to costs to the date the offer was served and
the defendant is entitled to costs from that date.
14
Rules of Court 2012, [PU(A) 286/2012]
Page 18 of 49
(3) Any interest awarded in respect of the period before service of the
offer to settle is to be considered by the Court in determining whether the
plaintiff’s judgment is more favourable than the terms of the offer to
settle.
5
(4) Any interest awarded in respect of the period after service of the
offer to settle is not to be considered by the Court in determining whether
the plaintiff's judgment is more favourable than the terms of the offer to
settle.”
10
7. Malaysian High Court Practice – Abridger Edition15 (see RBA, Tab C, page
40)explains in depths the application of Order 22, rules 1 and its practice in
Malaysian court:
15 “Sub‐rr (1)‐(6) are substantially in pari materia with RSC O 22 r 1(1)‐(6).
except for differences in the requirement of entry of an appearance in sub‐
r (1), the Form number in sub‐r (2) and the provisions of the relevant statute
in sub‐r (6).
20 [12.1.1] Purpose of the rules for payment into court
‘The main purpose of the rules for payment into court is the hope that
further litigation will be avoided, the plaintiff being encouraged to take out
the sum paid in, if it be a reasonable sum, whereas, if he goes on and gets
a smaller sum, he will be penalised wholly or to some extent in costs':
25 Findlay v Railway Executive (1950) 2 All ER 969 at 971, CA. cited in Wagman
v Vare Motors Ltd [1959] 1 All ER 326, [1959] 1 WLR 853, CA; see also O 59
r5(b) (matters court shall take into account in exercising its discretion on
cost). However, where there are several joint tortfeasors, payment into
court by one of them and the acceptance of the sum paid in does not
30 extinguish the entire action and does not preclude the plaintiff from
15
Malaysian High Court Practice – Abridger Edition, Malayan Law Journal Sdn Bhd, 1999, page237.
Page 19 of 49
proceeding with the action against the other defendants and recovering
from them any further damages that he could prove to have sustained:
Raja Shariman v C A Ribeiro & Co Ltd 1 MC 57. See also MBf Capital Bhd &
Anor v Tommy Thomas & Anor (No 2) [1997J 3 MLJ 403: Dato' V
5 Kanagalingan v Tommy Thomas & Anor [1997] 5 MLJ 229. For the
procedure where party makes an offer of contribution as a joint tortfeasor
or third party, see O 16 r 10.
‘A payment into court is simply an offer to dispose of the claim on terms’:
10 Martin French v Kingswood Hill [1961) I QB 96 at 103, [1960] 2 All ER 251
at 252. per Devlin LJ. A plaintiff who accepts a payment in is treated as if
he has settled the action by a payment under a compromise, but the
conclusion of an action in this manner is to be distinguished from a
conclusion by a judgment. ‘The payment in implies no admission about the
15 merits of the cause of action: there has been no adjudication on it, and
therefore no estoppel is created’: ibid. ‘Payment into court is wholly a
procedural matter and has no true analogy to a settlement arranged
between the parties out of court': Cumper v Pothecary [1941] 2 KB 51 at
67, per Goddard J.”
20
(Emphasise ours)
8. In Koperasi Kampung Kerian Dengan Tanggungan Berhad Insol Anak
Gaing v Taty Tjhai16 (see RBA, Tab J, page 168), the brief fact of the appeal is:
25 Power, P; Mortimer, Davies, JJ.A
“The appellants admitted liability and on 20th April 2007 made a
settlement offer of $75,000 under 0.22A of The Rules of the Supreme
Court. This offer was not accepted and on 1st October 2007 the offer was
16
Koperasi Kampung Kerian Dengan Tanggungan Berhad Insol Anak Gaing v Taty Tjhai (suing as the
administrator of the estate of Chandrawati Tjhaim, deceased) [2009] MLJU 1611
Page 20 of 49
increased to $80,000. The assessment of damages was heard by Acting
Senior Registrar Norismayanti who on 19th February 2008 awarded
damages of $42,932.35. This award was appealed to Judicial Commissioner
Findlay who allowed the appeal and increased the damages to $62,742.35
5 which with interest made a total award of about $70,000. Findlay J.C.
ordered that the appellant, the respondent in this appeal, be entitled to
the costs up to the date of the offer and that thereafter each party should
bear its own costs including the costs of that hearing.”
10 9. Power, P; Mortimer, Davies, JJ.A, findings of the case were (see RBA, Tab J, page
170):
“He submits that the Judicial Commissioner took into account "facts
connected with" the litigation when observing that 0.22A was not enacted
15 to penalize a plaintiff who had acted upon what was, on its face, sound
advice and that it was "bad luck of the draw" that she was not awarded
more than the amount paid in.
We cannot agree that either was a proper matter for consideration in the
20 exercise of the judge's discretion. 0.22A was made to ensue that plaintiffs
who did not accept the amount paid in should be penalized in costs. It is
quite wrong to suggest that it was made to discourage the pressing of ill‐
advised claims and not reasonable assessments that prove to be wrong.
The fact of the matter is that it arises are not only to enable defendants to
25 protect themselves in costs but also to penalize plaintiffs, however
reasonable or unreasonable the advice they received may have been, who
have refused to bring to an end the litigation, with all its attendant costs,
by accepting an offer which, in the outcome, was more than they received.
The proper approach was succinctly put by Lord Denning in Findlay v
30 Railway Executive [1950] 2 ALLER 969 at 972 as follows
Page 21 of 49
“The hardship on the plaintiff in the instant case has to be weighed
against the disadvantages which would ensue if plaintiffs generally
who have been offered reasonable compensation were allowed to
go to trial and run up costs with impunity. The public good is better
5 secured by allowing plaintiffs to go on to trial at their own risk
generally as to costs. That is the basis of the rules as to payment
into court, and I think we should implement them here, even
though it means that the plaintiff has to pay out much of her
damages in costs to the defendants. The only issue in the case was
10 the amount of damages. The defendants paid a reasonable sum
into court. The plaintiff took her chance of getting more, and,
having failed, she must pay the costs.”
We turn to the statement that it was the respondent's "bad luck" not to
15 have got more. This was clearly, we are satisfied, not a matter which could
be properly weighed in the exercise of discretion. The discretion must be
exercised by having regard to the amount actually awarded and not based
upon speculation of the amount the litigant, might have been awarded if
she had been lucky.”
20
(Emphasise ours)
10. David Wong J in Kho Poh Teck v Digi Telecommunications Sdn Bhd17
(see RBA, Tab K, page 186), emphasise that court has discretionary power to
25 award cost to successful and unsuccessful party:
“[57] As for costs, it usually goes to the successful party but the court has
the discretion not to award costs to the successful party or award costs to
the unsuccessful a party if the circumstances warrant it (see pp 664–665
30 of Malaysian Court Practice High Court — Practitioner Edition).”
17
Kho Poh Teck v Digi Telecommunications Sdn Bhd [2006] 6 MLJ 349
Page 22 of 49
(Emphasise ours)
11. Yaacob Md Sam J have affirmed the Order 22B, Rules 9, Rules Of Court 2012 in Dr
5 Gurmail Kaur a/p Sadhu Singh v Dr Teh Seong Peng & Anor18 (see RBA,
Tab L, page 214). The court held:
“COSTS
[105] Learned counsel for the first respondent submitted that since the
10 hearing of the proceeding had been completed and the court had decided
over the reliefs, the court should take into consideration the provision of O
22B r 9(2) of the Rules of Court 2012 in deciding costs to be awarded. He
further submitted that the first respondent via letters dated 23 April 2012
and 17 July 2012 had made an offer to settle with terms not less favourable
15 than the judgment obtained by the petitioner herein but was rejected by
the petitioner. Thus, it was submitted that the first respondent is entitled
to costs from that date. Learned counsel for the petitioner on the other
hand submitted that since the terms of the offer was incomplete it was
disagreed by the petitioner. He further submitted that there are
20 enclosures/applications that have been decided against the first
respondent in which the court ordered for costs in the cause. Hence, it was
submitted that the court should also take into consideration on those
orders in determining the sum to be awarded as costs. Learned counsel for
the petitioner prayed for RM150,000 as costs due to the complexity of this
25 case and the fact that the trial has spanned from mid 2011 to date, and
taking into account the number of days the trial proceeded before this
court (16 days). Having given due consideration to the submission and
circumstances, I am of the considered opinion that a sum of RM60,000 is
fair and reasonable to be ordered as costs be paid by the first respondent
30 to the petitioner. I so order.”
18
Dr Gurmail Kaur a/p Sadhu Singh v Dr Teh Seong Peng & Anor [2014] 11 MLJ 84
Page 23 of 49
12. The Appellant claims for the hire cost was an exaggeration and unreasonable. The
Appellant have the 2nd opportunity to hire the same type of car as was offered by
the Respondent’s insurer (see para. 23., Section F); and the Appellant could have
5 accept the car offered by the Respondent’s insurer and then hire an exact car
model as his car as soon as it is permitted (see para. 25., Section F). The Appellant
have failed to mitigate his losses by acting for the advantageous of the Appellant’s
self.
13. Court of Appeal (Brunei) have cited Lord Denning in Findlay v Railway
10 Executive19 (see para. 9 of this section), lays the foundation which can be seen
in Part 36 Civil Procedure Rules 1998 and applied in Carver v BAA.
14. The Malaysian High Court Practice – Abridger Edition20 (see para. 7 of
this section), have highlighted Lord Denning in Findlay v Railway Executive and its
application and practice on Order 22, Rules 1, of Rules of High Court
15 198021 (see para. 5 of this section) in Malaysian court.
15. Order 22, of Rules of High Court 198022 was repealed and replaced with
Order 22B, Offer to Settle of Rules of Court 201223. The changes made
was to ensure the standard of judgement in accordance to the principal laid in
Findlay v Railway Executive24 (see para. 9 of this section), which lays the
20 foundation which can be seen in Part 36 Civil Procedure Rules 1998 and applied in
Carver v BAA. It will be a backward position if the court would revert the previous
Trial judge findings in awarding cost to the Respondent according to Carver v BAA.
16. Thus the Appellant claims is an exaggeration and unreasonable for
which the Appellant failed to mitigate his losses as held by the Trial
25 judge. Carver should be applied in this case in accordance to
19
Findlay v Railway Executive [1950] 2 ALLER 969 at 972
20
Malaysian High Court Practice – Abridger Edition, Malayan Law Journal Sdn Bhd, 1999, page237.
21
Rules of High Court 1980 [PU(A) 50/1980]
22
Ibid
23
Rules of Court 2012 [PU(A) 286/2012]
24
Findlay v Railway Executive [1950] 2 ALLER 969 at 972
Page 24 of 49
Malaysian High Court Practice – Abridger Edition25 (see para. 7 of this
section) and Malaysian Court Practice High Court — Practitioner
Edition pp 664–665, which was cited in David Wong J in Kho Poh Teck
v Digi Telecommunications Sdn Bhd26 (see para. 10 of this section).
5
H.Cross Appeal – Damages for Injury
1. The Respondent did not deny any liability for the collision. This is shown in the
respondent immediate admission of liability at the scene of the accident and
10 followed by the Respondent’s insurer offer, 2 days after the accident, to
temporarily provide the Appellant another transportation with a similar car, while
the Respondent’s car underwent repairs at no cost.
2. The Appellant also claimed to suffer a whiplash injury due to the collision.
3. Although the Appellant did not submit any proof in relations to his alleged
15 whiplash injury, the Respondent had offered the Appellant not once but twice for
damages to the alleged whiplash injury in good faith and for the damaged sustain
to the car. The 1st offer of RM 5,000.00 was made on 01.09.2008 and the 2nd offer
of RM 6,000.00 was made 10.01.2008 upon the rejection of the 1st offer by the
Appellant. The 2nd offer made by the Appellant was also rejected by the Appellant.
20 4. The Appellant then initiate a court proceeding and submit a claim of RM 10,000.00
for damaged sustain to the Appellant’s car, for the Appellant’s injury and for hire
cost of the replacement car. Again the Appellant did not submit any proof of claims
or any medical report to substantiate the whiplash injury suffered.
5. Did the previous erred in awarding damages in relation to the
25 Appellant alleged injury?
6. Section 12 of the Evidence Act 195027 (see RBA, Tab D, page 53) provides:
25
Malaysian High Court Practice – Abridger Edition, Malayan Law Journal Sdn Bhd, 1999, page237.
26
Kho Poh Teck v Digi Telecommunications Sdn Bhd [2006] 6 MLJ 349
27
Evidence Act 1950, Act 56
Page 25 of 49
“12. In suits for damages facts tending to enable court to determine
amount are relevant
In suits in which damages are claimed any fact which will enable the court
5 to determine the amount of damages which ought to be awarded is
relevant.”
7. Section 101 of Evidence Act 195028 (see RBA, Tab D, page 54‐55)provides:
10 “101. Burden of proof
(1) Whoever desires any court to give judgment as to any legal right or
liability, dependent on the existence of facts which he asserts, must prove
that those facts exist.
15
(2) When a person is bound to prove the existence of any fact, it is said that
the burden of proof lies on that person.”
8. In Mohd Ridzwan Bin Abdul Razak v Asmah Binti Hj Mohd Nor29 (see
20 RBA, Tab M, page 223), Suriyadi Halim Omar FCJ describe the power of the court
to award damages in general damages and special damages or pecuniary
damages:
“(C) Entitlement to damages
25
[75] For purposes of this appeal, we shall only discuss the general and
aggravated damages awarded by the High Court, which were subsequently
affirmed by the Court of Appeal. Civil courts have at their disposal coercive
powers, the main object being to redress harm and restore injured parties
28
Ibid
29
Mohd Ridzwan Bin Abdul Razak v Asmah Binti Hj Mohd Nor [2016] MLJU 277
Page 26 of 49
to their former position, if possible. General damages may be awarded for
injuries that the law presumes to be a necessary result of the harm
committed by the tortfeasor. Any pleaded and successfully proven
damages may be awarded too e.g. medical expenses (categorized as
5 special damages).”
9. The Respondent have not submit any proof of injury during the Trial. As in
Mahadeva a/p Krisanon v Teja Singh30 (see RBA, Tab N, page 226), Chew
Soo Ho JC held:
10
“(5) In the instant case, the plaintiff had failed to prove his injuries by
not producing any evidence to prove the special and general damages he
had pleaded (see para 20).”
15 (Emphasise ours)
10. In Mahadeva a/p Krisanon v Teja Singh31, Chew Soo Ho JC findings were
(see RBA, Tab N, page 234):
20 “[19] The plaintiff also claimed that he could not walk and has to be
wheel‐chair bound (he came to court on a wheel chair) but when being
referred to his medical specialist report (bundle B pp 99–101) in cross‐
examination where the plaintiff was seen by consultant orthopaedic
surgeon on 15 August 2003 which is also about seven years after the
25 accident, he changed to say that he could walk with 'tongkat' but disagreed
with the specialist's finding which said that he could walk with full weight
bearing. Nevertheless, the plaintiff agreed that after the said accident, he
had worked with four companies namely Twenty Leith Street Sdn Bhd, MJ
Reject Shop, SMCI Globetronics Technology and Len Hoe Electrical
30
Mahadeva a/p Krisanon v Teja Singh (practised as advocate and solicitor under the name and style of Messrs
Teja Singh Penesar & Co) [2010] 9 MLJ 480
31
Ibid
Page 27 of 49
Engineering. He could not walk but yet he could work. The doubt is
obvious. One other fact disclosed in his cross‐examination is that the
plaintiff was involved in another accident on 8 November 1999. Though
the defendant's solicitor had written to the plaintiff's solicitors requesting
5 the plaintiff to be present at the Gleneagles Medical Centre for a second
medical opinion on the plaintiff's medical condition, the plaintiff failed to
attend giving reason that he had no money and there was no one to bring
him; exhs D2 and D3 are referred. I find this to be another unreasonable
excuse. The plaintiff could have obtained the assistance if he wanted to
10 and had made an effort to do so. His failure to be examined by another
medical specialist on invitation by learned counsel for the defendant has
given rise to a doubt as to whether the plaintiff's medical condition was as
a result of or perhaps aggravated by his second accident on 8 November
1999 and was not due to the accident on 10 September 1996 or otherwise.
15 The plaintiff's case, as a whole, is full of doubts and uncertainties and there
is no attempt to erase them.”
11. Chew Soo Ho JC further elaborates (see RBA, Tab N, page 234‐235):
20 “[20] As to damages that the plaintiff had pleaded, I must agree with the
submission of learned counsel for the defendant that there is absolutely no
evidence to prove the special and general damages. The plaintiff himself
admitted he has no evidence to prove the special damages and the medical
reports as enclosed in the plaintiff's bundle B were not proved and
25 produced as exhibits nor did the plaintiff call any of the doctors to testify
as to his medical conditions. Learned counsel for the plaintiff submitted
that the general damages need not be proved but are to be assumed. I find
it to be a misnomer for learned counsel to say damages can be assumed. I
presume what learned counsel for the plaintiff was trying to say is that
30 general damages are to be quantified from the injuries that the plaintiff
had sustained. For the purpose of quantification of general damages, the
basic requisite element is the proof or evidence of injuries. In the instant
Page 28 of 49
case, the plaintiff had failed to prove his injuries which he could have done
so by proving the medical reports but failed to do so. The production of
plaintiff's photographs showing his scars or injuries does not suffice to
prove the kinds of injuries that he had sustained for the purpose of
5 assessment of quantum. The injuries cannot be simply assumed.”
(Emphasise ours)
12. Dato' Asmabi Binti Mohamad JC in Asari @ Asha' Ari Bin Mohd Amin
32
Asari @ Asha' Ari Bin Mohd Amin v Zainalabidin Bin Mohamed Husain [2012] MLJU 227
Page 29 of 49
13. The Appellant only claims to suffer “whiplash” injury as a result of the collision.
Although “whiplash” injury is common in read end collision accident in numerous
cases, be as that may, the Appellant still have to proof for the injury suffered.
14. As shown in Mahadeva a/p Krisanon v Teja Singh33 (see para. 10 of this
5 section), the court findings were that even if plaintiff came in to the court in
wheelchair, there is no medical evidence to validate the alleged injury the Plaintiff
suffered was due to the 1st accident on 10.09.1996 (the case on Trial), or the 2nd
accident on 08.09.1999.
15. The Plaintiff also failed to allow himself to be examined by a second medical
10 examiner although was requested to undergo for it by the Defendant’s solicitor
(see para. 11 of this section). Instead the plaintiff only submits photographs of
scars on the alleged injury suffered. The court held that it was not sufficient for
assessment on quantum.
16. Dato' Asmabi Binti Mohamad JC in Asari @ Asha' Ari Bin Mohd Amin
15 v Zainalabidin Bin Mohamed Husain34 (see para. 12 of the section), also
stressed the requirement to proof claims for general damages and special
damages.
17. In Mohd Ridzwan Bin Abdul Razak v Asmah Binti Hj Mohd Nor35,
Suriyadi Halim Omar FCJ (see para. 8 in this section), also held that the purpose of
20 damages is to “redress harm and restore injured parties to their former position”,
if possible. As, the Appellant in this case have not provide any shred of evidence
of his alleged “whiplash” injury, the court could not determine what was the
former position of the Appellant prior to the collision on 01.4.2008.
18. The provision in Section 12 of the Evidence Act 195036 (see para. 6 of this
Evidence Act 195037 (see para. 7 of this section), the burden of proof lies to the
33
Ibid
34
Asari @ Asha' Ari Bin Mohd Amin v Zainalabidin Bin Mohamed Husain [2012] MLJU 227
35
Mohd Ridzwan Bin Abdul Razak v Asmah Binti Hj Mohd Nor [2016] MLJU 277
36
Evidence Act 1950, Act 56.
37
Ibid
Page 30 of 49
parties that desirous to receive judgment to any legal rights or liability. This was
not done in the case of the Appellant.
19. Thus the Appellant should not be awarded any damages either
general damages or special damages in relation to his alleged
5 “whiplash” injury.
I. Cross Appeal ‐ Contributory Negligence
10 1. The Respondent did not deny any liability for the collision. This is shown in the
respondent immediate admission of liability at the scene of the accident and
followed by the Respondent’s insurer offer, 2 days after the accident, to
temporarily provide the Appellant another transportation with a similar car, while
the Respondent’s car underwent repairs at no cost.
15 2. The Respondent also claimed to suffer a whiplash injury due to the collision.
3. The Respondent would like to submit to this honourable court, a new fact
discovery, which will proof the Appellant was also a contributor towards his own
injury.
4. The Appellant is also a contributor towards his own injury by:
20
4.1. Fail to adhere to statutory responsibility by wearing a seatbelt;
4.2. Fail to ensure the positioning of the headrest at the recommended
optimum level.
25 5. Was the Respondent fully liable for the injury allegedly suffered by
the Appellant?
Page 31 of 49
6. Part II; Classification, Registration And Licensing Of Motor Vehicles
And Drivers; Miscellaneous; Section 66 (1) (ff) of the Road Transport
Act 198738 (see RBA, Tab E, page 80‐81) prescribe:
5 “Rules
66. (1) The Minister may make rules for any purpose for which rules may
be made under this Part and for prescribing anything which may be
prescribed under this Part and generally as to the construction,
maintenance, use, age and equipment of motor vehicles and the conditions
10 under which they may be used, and otherwise for the purpose of carrying
this Part into effect and in particular, but without prejudice to the
generality of the foregoing provisions, may make rules—
....
(ff) to require safety seatbelts to be fitted to such class or
15 description of motor vehicles as may be specified, to prescribe the
minimum standards of quality of material and construction with
respect to road safety seatbelts and the position in which such
safety seatbelts shall be fixed, to require the use of such safety
seatbelts and to prohibit the sale or supply of such safety seatbelts;
20 ....”
7. Part III; Roads; Section 88 (1) (r) of the Road Transport Act 198739 (see
RBA, Tab E, page 82‐83) prescribe:
25 “Rules
88. (1) The Minister may make rules for any purpose for which rules may be
made under this Part and for prescribing anything which may be prescribed under
this Part, and generally for the purpose of carrying this Part into effect and for
regulating traffic on roads and relieving congestion and facilitating the providing
38
Road Transport Act 1987, Act 333
39
Ibid
Page 32 of 49
for the safety of road users and, without prejudice to the generality of the
foregoing provisions, may make rules—
....
(r) for requiring drivers and persons in charge of motor vehicles and vehicles to
5 drive and use such vehicles, and persons using roads to use such roads, in
accordance with rules made under this Part, and to comply with all directions
given to them by any police officer or traffic warden for the time being engaged in
the regulation of traffic;
....”
10
8. Part V; Offences And Miscellaneous Provisions; Section 128 of the
Road Transport Act 198740 (see RBA, Tab E, page 84) prescribe:
“Repeal, transitional and saving
15 128. (1) The Road Traffic Ordinance 1958 [Ord. No. 49 of 1958] and
the Modification of Laws (Road Traffic Ordinance) (Extension and
Modification) Order 1984 [P.U. (A) 136/1984] in so far as they do not relate
to the licensing of commercial vehicles are hereby repealed:
20 Provided that all subsidiary legislations made under the repealed
Ordinance in so far as they do not relate to the licensing of
commercial vehicles shall be deemed to have been made under this
Act and shall continue to remain in force until amended or revoked:
25 Provided further that any certificate, licence, permit, plate,
mark, registration certificate or any other document in
respect of a motor vehicle, or any reduction of fees or any
exemption, issued or granted under the repealed Ordinance
and in force immediately before the commencement of this
30 Act shall, in so far as its issue or grant is not inconsistent
40
Ibid
Page 33 of 49
with this Act, be deemed to have been issued or granted
under this Act and shall continue in force until it expires, or
is varied, amended or revoked thereunder.
5 (2) Where any appeal in respect of a decision made under the repealed
Ordinance is pending before any authority or court or where any right to
appeal in respect of such decision has accrued, the proceedings in respect
of the appeal or in respect of any appeal under the accrued right to appeal,
shall be continued or had, as the case may be, under this Act as if in respect
10 of a decision under this Act, subject to all such directions as the authority
or the court, as the case may be, may deem fit or expedient to give in the
matter.”
9. Rule 2, Motor Vehicles (Safety Seatbelts) Rules 197841 (see RBA, Tab E,
15 page 97), stated:
“2. Front seat of motor vehicle to be fitted with safety seatbelt.
(1) Subject to rule 6, every front seat of a motor vehicle shall be
fitted with a safety seatbelt with three built‐in anchorage points
20 located in the best position for such fitting.
(2) Paragraph (1) shall come into force
(a) on the 1st November 1977 in respect of a motor
vehicle registered on or after that date; and
(b) on the 1st January 1979 in respect of a motor vehicle
25 registered between the 1st January 1967 and the 31st
October 1977.
(3) Where a motor vehicle referred to in paragraph (2) is found not
to be fitted with a safety seatbelt, the owner of such vehicle shall
be guilty of an offence.”
30
41
Motor Vehicles (Safety Seatbelts) Rules 1978, [PU (A) 378/1978]
Page 34 of 49
10. Rule 3, Motor Vehicles (Safety Seatbelts) Rules 197842 (see RBA, Tab E,
page 97), stated:
“3. Constitution of safety seatbelt.
5 (1) Every safety seatbelt shall consist of
(a) the full harness belt or the lap and diagonal strap
belt; and
(b) a buckle of quick‐release pattern which cannot be
unclipped accidently and has provision for adjustment to
10 suit the wearer.
(2) Notwithstanding paragraph (1) of rule 2, where by reason of the
nature and construction of a motor vehicle to which rule 2 applies
it is not possible or practicable to have the three built‐in anchorage
points in respect of the safety seatbelt for the middle seat of a front
15 bench seat or for any other front seat, the safety seatbelt for such
seat may consist only of the lap belt and the buckle referred to in
paragraph (1)(b).”
11. Rule 4, Motor Vehicles (Safety Seatbelts) Rules 197843 (see RBA, Tab E,
20 page 98), stated:
“4. Every person in front seat of motor vehicle to wear safety seat‐belt.
Subject to rule 7, every person in the front seat of a motor vehicle to which
25 rule 2 applies shall wear a safety seatbelt in the manner required by its
nature and construction from the 1st April 1979.”
42
Ibid
43
Ibid
Page 35 of 49
12. Rule 7, Motor Vehicles (Safety Seatbelts) Rules 197844 (see RBA, Tab E,
page 98), stated:
“7. Certain categories of persons exempted from wearing safety seat‐
5 belts.
Rule 4 shall not apply
(a) to any person in a police, military or fire service motor vehicle or
an ambulance;
(b) to any person who is certified by two registered medical
10 practitioners that he is medically unfit to wear a safety seatbelt;
(c) to any person or class of persons who may be exempted by the
Minister by order from time to time.”
13. Section 12 (1) of the Civil Law Act 195645 (see RBA, Tab F, page 107)
15 provides:
“Apportionment of liability in case of contributory negligence
12. (1) Where any person suffers damage as the result partly of his own
20 fault and partly of the fault of any other person, a claim in respect of that
damage shall not be defeated by reason of the fault of the person suffering
the damage, but the damages recoverable in respect thereof shall be
reduced to such extent as the Court thinks just and equitable having regard
to the claimant’s share in the responsibility for the damage:
25
Provided that ‐
(a) this subsection shall not operate to defeat any defence arising
under a contract; and
44
Ibid
45
Civil Law Act 1956, Act 67
Page 36 of 49
(b) where any contract or written law providing for the limitation
of liability is applicable to the claim the amount of damages
recoverable by the claimant by virtue of this subsection shall not
5 exceed the maximum limit so applicable.”
14. Section 12 (6) of the Civil Law Act 195646 (see RBA, Tab F, page 108)
provides:
10 “12. (6) In this section “fault” means negligence, breach of statutory
duty or other act or omission which gives rise to a liability in tort or would,
apart from this Act, give rise to the defence of contributory negligence.”
15. Thatcham Research47 (see RBA, Tab W, page 286), established in 1969 by the
15 motor insurance industry in United Kingdom, is the motor insurer’s automotive
research centre in the UK. Thatcham Research is also a founder member of the
international Research Council for Automotive Repairs (RCAR) in 1972 and a
member of the European New Car Assessment Program (Euro NCAP) since 2004.
Thatcham Research is equipped state of the art vehicle research workshop and a
20 Euro NCAP approved Crash Laboratory to conduct its own testing.
16. A new fact was recently discovered which give rise to the question was the
Respondent fully liable for the alleged injury suffered by the Appellant. Or did the
Appellant negligently contribute towards his own alleged injury? According to the
25 Thatcham in its “Thatcham Research News Whiplash 2010 Update: New
Seat Designs Are Improving48 (see RBA, Tab W, page 288)” publication:
46
Ibid
47
About Thatcham Research; https://www.thatcham.org/about; 05.15.2017.
48
Thatcham Research News – Whiplash 2010 Update: New seat design are improving, Special Edition 10/No.1;
Page 37 of 49
“Although researchers still do not fully understand the mechanisms of
whiplash injury, many agree that the risk of injury can be reduced through
good seat design. The key to effective whiplash injury prevention is the car’s
seat, and in particular, the size and placement of the head restraint and its
5 ability to lock.”
17. Thatcham have also conducted a rear crash test on numerous car seat from
various car manufacturer and model to simulate the safety of the car seat in
minimising the whiplash injury. This test result is also publish in the “Thatcham
10 Research News Whiplash 2010 Update: New Seat Designs Are
Improving49” (see RBA, Tab W, page 288):
“Thatcham’s testing aims to limit the differential movement by
encouraging the manufacturers to design seats which keep the head and
15 body moving together. Only a head restraint that is very close to the head
can do this.”
18. The Thatcham rear crash test on 23.09.2004 on Citroen Xsara Picasso seat50 is of
an “Acceptable” rating based on 4 level of rating that is “Good”, “Acceptable”,
20 “Marginal” and “Poor”. The following is the description of each rating found in the
“Thatcham Research News Whiplash 2010 Update: New Seat Designs
Are Improving51” (see RBA, Tab W, page 293):
“Good:
25 A seat that offers good protection for most sizes of occupant – may be
fitted with specific anti whiplash protection.
Acceptable:
49
Ibid
50
Thatcham ‐ Citroen Xsara: RATING – ACCEPTABLE: SL30‐68, 23.09.2004,
https://youtu.be/GhsKL3bAqG4?list=PLuE1xryyXLqBTW5ZP5vAJd7TLi‐DyZ3d4, 27.04.2010.
51
Ibid
Page 38 of 49
A seat that offers reasonable protection for small to average sized drivers.
Marginal :
A seat that offers some protection for small to average occupants.
5
Poor :
A seat that offers little protection from whiplash‐type injuries.”
(Emphasise ours)
10
19. In “Common Car Accident (Whiplash) Myths: Denver Chiropractic
Centre52 (see RBA, Tab X, page 298)” stated:
“The best way to minimize the whiplash injury is to have a well‐designed
15 seat belt system where the height of the chest harness can be adjusted to
the height of the driver so that the chest restraint doesn’t come across the
upper chest or neck.”
(Emphasise ours)
20
20. In Yuan v. Farstad53 (see RBA, Tab P, page 249‐250), the question whether did
the Plaintiff negligently contribute towards his own injury? Munroe J. findings in
this case were:
25 “11. In support of such submission the defendants called as witnesses
Captain E. T. Corning, retired captain of the Seattle Police Force, and Dr.
Peter Fisher, a Seattle physician and surgeon and specialist in internal
medicine. Each of these men has made a study of the effectiveness of seat
52
Glenn Hyman; Common Car Accident (Whiplash) Myths: Denver Chiropractic Centre;
http://www.denverback.com/2012/11/26/common‐car‐accident‐whiplash‐myths‐part‐2/; 26.11.2012
53
Yuan et al. v. Farstad et al. [1967] B.C.J. No. 193
Page 39 of 49
belts in safeguarding motorists from injuries. Their qualifications and
experience entitle them to give opinion evidence. Captain Corning has
investigated hundreds of automobile accidents. Based upon his experience
and studies, he is firmly of opinion that lap seat belts, when worn, do tend
5 to lessen the severity of injuries in most automobile accidents. Based upon
personal observations made at race tracks as well as other studies made
by him, Dr. Fisher is of opinion that a lap seat belt will prevent ejection from
a vehicle and will lessen the severity of any steering wheel injury because
it prevents body displacement. While a lap seat belt has the capability of
10 causing serious abdominal injury, such injury, he said, is so rare as to be
improbable and in any case, is correctible by surgery. He concluded that in
most cases the injury resulting from failure to use a seat belt is greater than
any injury likely to be caused by use thereof. Based upon the evidence of
these two experts, which was uncontroverted, and based upon the general
15 knowledge of mankind, it is clear, and I find, that lap seat belts are effective
in reducing fatalities and minimizing injuries resulting from automobile
accidents.”
(Emphasise ours)
20
21. Munroe J. also stated (see RBA, Tab P, page 250):
“the deceased was thrown forward against the steering wheel and then was
thrown violently out of the car onto the asphalt roadway. In addition to numerous
25 lacerations and abrasions, he suffered a fracture of the right collar‐bone and
breastbone, and factures of each of his ribs, on both sides, at two sites. His liver
and spleen were badly torn. He died of shock resulting from internal bleeding and
a collapse of his lungs due to the rib fractures. Such injuries occurred, I find, partly
within the car when the deceased was thrown forward against the steering wheel,
30 but largely outside upon the roadway. Dr. Fisher expressed the opinion that those
fatal injuries would not have happened if the deceased had been wearing a seat
belt at the time of the collision. I find that the deceased, even if he had been
Page 40 of 49
wearing a seat belt, may and probably would have suffered injury to his chest and
internal organs, correctible by surgery, but he would probably not have been
ejected from the car and would probably not have suffered fatal injuries.”
5 22. Munroe J. also raised the issue (see RBA, Tab P, page 250):
“Can a person reasonably anticipate that when driving his car in a city he may be
involved in a collision? The answer to that question, I think, must be in the
affirmative. That being so, such a person must use reasonable care and take
10 proper precautions for his own safety and such precautions include the use of an
available seat belt.”
(Emphasise ours)
15 23. Munroe J. then further elaborated (see RBA, Tab P, page 250):
“I am not unmindful of the fact that in driving without having his seat belt done
up, the deceased was committing neither a crime nor any breach of statute. He
was lawfully entitled to drive without using his seat belt, but that is not
20 determinative of the issue as to whether or not in so doing he failed to take proper
precautions for his safety and thus contributed to his injuries. If he did so fail the
defendants are entitled to be relieved of some degree of responsibility for the
resulting injuries, as is provided by the Contributory Negligence Act. I do not say
that in British Columbia a motorist commits any breach of the law when he fails to
25 use a seat belt.”
(Emphasise ours)
24. Munroe J. conclusion in the case were (see RBA, Tab P, page 250):
30
“I say only that where a motorist fails to use an available seat belt and where it is
shown that the injuries sustained by him would probably have been avoided or of
Page 41 of 49
less severity had he been wearing a seat belt, then the provisions of s. 2 of the
Contributory Negligence Act, are applicable. Since s. 206 of the Motor‐vehicle Act,
was enacted [1966, c. 30, s. 347], all cars manufactured since December 31, 1963,
must be equipped with not less than two seat belts for use in the front seat. Such
5 enactment, while it does not make mandatory the wearing of seat belts, does give
some legislative sanction to the, wearing of same. Although as I have said, no
Canadian authorities were cited to me, the Appeal Court of Wisconsin in Bentzler
v. Brawn, (1967), 34Wis. (2d) 362, 149 N.W. 2d 626, being of opinion that a person
is safer wearing a seat belt than without one, found a duty, based on common law
10 standards of ordinary care, to use an available seat belt and held that when a
causal relationship is shown between the failure to wear a seat belt and the
injuries sustained, the jury should be instructed in this regard. So, too, the Appeal
Court of California in Mortensen v. Southern Pacific Co., (1966), 53 Cal. Rptr. 851,
held that even where there was no statute which made the installation of belts
15 mandatory, it was a question for the jury to decide whether the defendant's failure
to provide seat belts for its employees amounted to negligence.”
(Emphasise ours)
20 25. In Gagnon v. Beaulleu, Fraser Valley Frosted Foods Ltd. and Jones54
(see RBA, Tab Q, page 254255), Fulton J. agrees with Munroe J. that he summarise
the issue as:
“9. What Munroe J. seems to me to have clearly said is this: that in the
25 light of modern‐day knowledge of the benefits and reduction of danger of
injury flowing from the use of seat belts, an occupant of a motor vehicle in
which such apparatus is provided for his use who nevertheless fails to wear
it is negligent in that he has failed to take reasonable precautions for his
own safety. If in those circumstances he is injured in a collision, and if it is
30 established as a fact that in the circumstances of that collision the wearing
54
Gagnon v. Beaulleu, Fraser Valley Frosted Foods Ltd. and Jones [1976] B.C.J. No. 1313, [1977] 1 W.W.R. 702
Page 42 of 49
of the seat belt provided would have prevented or lessened the injuries he
sustained, then his negligence in failing to wear it has contributed to the
extent of his injuries and becomes contributory negligence. If, of course, it
is not shown in connection with the particular circumstances of the
5 accident in question that the wearing of the seat belt would have prevented
or lessened the injuries, then the failure to wear it, while negligent in itself,
does not constitute negligence contributing to the injuries or to the extent
thereof.”
10 26. Fulton J. findings in the case were (see RBA, Tab Q, page 259):
“29. On the whole of the evidence I am satisfied that the plaintiff knew
or ought to have known that the wearing of the seat belt provided,
including the shoulder harness, would reduce the possibility of his being
15 injured in a collision, that at the time of this accident he was not wearing
the seat belt equipment provided and that, had he been wearing it, and
particularly the shoulder harness, his injuries would have been less severe,
if not prevented altogether. I consider that the expert, Mr. Shiels, was not
merely speculating as to this result, but had a sound basis for his opinion.
20 Applying the law which I have held to be applicable to these circumstances
in this province, I find it to have been established that the plaintiff was
negligent and that his negligence contributed to the nature and extent of
his injuries.”
25 (Emphasise ours)
27. Then in Jaswal v. Tait55, Ruttan J. quoted Fulton J. in Gagnon v. Beaulleu,
Fraser Valley Frosted Foods Ltd. and Jones56 (see RBA, Tab R, page 265):
55
Jaswal v. Tait [1987] B.C.J. No. 1540
56
Gagnon v. Beaulleu, Fraser Valley Frosted Foods Ltd. and Jones [1976] B.C.J. No. 1313, [1977] 1 W.W.R. 702
Page 43 of 49
“WAS THE PLAINTIFF GUILTY OF CONTRIBUTORY NEGLIGENCE FOR
FAILURE TO WEAR A SEAT BELT?
The plaintiff has admitted that although his taxi was equipped with the
5 required shoulder and hip belts, he was driving along Kingsway with the
seat belt assembly undone. The applicable principles are set out by Mr.
Justice Fulton in Gagnon v. Beaulieu [1977] 1 W.W.R. 702 at 707‐708:
(c) In the case of this particular form of contributory negligence, the onus
10 is on the defendant to satisfy the court, in accordance with the usual
standard of proof, not only that the seat belt was not worn but also that
the injuries would have been prevented or lessened if the seat belt had been
worn. The court should not find the second of these facts merely by
inference from the first, even if that has been established.
15
This constitutes negligence, and if he suffers injury as a result of the motor
vehicle being involved in an accident, and if it appears from the evidence
that if seat belts had been worn the injuries would have been prevented or
the severity thereof lessened, then failure to wear a seat belt is negligence,
20 which has contributed to the nature and extent of those injuries.”
(Emphasise ours)
28. Jaswal v. Tait57, also cited Judge van der Hoop in Hansen v. Taylor (see RBA, Tab
25 R, page 266‐267):
“Judge van der Hoop quoted the above in Hansen v. Taylor (citation) and
carried on with his own judgment as follows:
57
Jaswal v. Tait [1987] B.C.J. No. 1540
Page 44 of 49
Since that case, of course, the wearing of seat belts has become
mandatory. But if in reading that quotation the words "properly
positioned headrest" are used in place of "seat belt" it seems to me
that the reasoning is the same and applies to this situation. The
5 evidence before me does establish that there was an adjustable
headrest for this vehicle, that the Plaintiff failed to make use of it,
and that the injuries sustained by him would probably have been
avoided or of less severity had he properly positioned that
headrest.”
10 ”
(Emphasise ours)
29. While in Wong Fook & Anor V Abdul Shukur Bin Abdul Halim (Wong
15 Piang Loy, Third Party)58, Abdul Malek J held that (see RBA, Tab S, page 269):
“(3) The reduction in liability for not wearing a seat belt may be considered
if the person not wearing the seat belt is the driver, who is implicated on
the question of negligence; but a passenger is entitled to damages
20 irrespective of whether the driver of the car he was in or the driver of the
vehicle which collided into the car in which he was a passenger is found to
be negligent by the court. As such there should be no reduction of liability
against the defendant especially when the court accepted the fact that the
second plaintiff was wearing a seat belt at the time of the accident.”
25
(Emphasise ours)
30. Munroe J. findings (see para. 24 of this section) that although wearing seat belts
is not made compulsory by the state at that time, it does however gave the
58
Wong Fook & Anor V Abdul Shukur Bin Abdul Halim (Wong Piang Loy, Third Party) [1991] 1 MLJ 46
Page 45 of 49
impression that it is the legislation intention to impose the wearing of seatbelt
when there is a law made to impose the installation of seat belts in cars.
31. Munroe J. findings was also supported by Fulton J. (see para. 25 of this section) by
reconstruction Munroe J. findings in his own words.
5 32. In Malaysian current situation, the compulsion and imposition made by law or
regulation to install seat belts and to wear seat belt was clearly sets in Motor
Vehicles (Safety Seatbelts) Rules 197859 in Rule 2, Rule 3 and Rule 4 (see
para. 9 to 11 of this section). The importance and the safety impression made of
wearing seat belts in a motor vehicle is clear, when the Government of
10 Malaysia, impose the installation and wearing of seat belts in all
motor vehicle60 set in Motor Vehicles (Safety Seatbelts) Rules 197861
Rule 3 and Rule 4 was amended in 2008, for all seats and passengers whether at
the front or back seat to have a 3 point seat belt and 2 point seat belt system
installed and to wear it. This amendment is enforced in 01.01.2009.
15 33. There are however exceptions to Rule 4 of Motor Vehicles (Safety
Seatbelts) Rules 197862, which is detailed in Rule 7 (see para. 12 of this
section), where in certain conditions, persons are not compulsory to wear a seat
belt, which is not the Appellant situation at the time of the accident.
34. As wearing a seat belt is a statutory duty of person(s) in a motor vehicle (see para.
20 10 of this section), by virtue of Section 12 (6) of the Civil Law Act 195663
(see para. 14 of this section), any omission shall give rise of defence by the
Respondent. This is in contrary to Wong Fook & Anor V Abdul Shukur Bin
Abdul Halim (Wong Piang Loy, Third Party)64 (see para. 29 of this section),
where the court held that the reduction of liability of the Defendant shall not gave
59
Motor Vehicles (Safety Seatbelts) Rules 1978, [PU (A) 378/1978]
60
Penguatkuasaan pemakaian tali pinggang keledar tempat duduk belakang perlu tegas – MIROS,
http://www.astroawani.com/berita‐malaysia/penguatkuasaan‐pemakaian‐tali‐pinggang‐keledar‐tempat‐
duduk‐belakang‐perlu‐tegas‐miros‐80414, Rahimah Abdullah, Astro Awani, 11.11.2015
61
Motor Vehicles (Safety Seatbelts) Rules 1978, [PU (A) 378/1978]
62
Ibid
63
Civil Law Act 1956, Act 67
64
Wong Fook & Anor V Abdul Shukur Bin Abdul Halim (Wong Piang Loy, Third Party) [1991] 1 MLJ 46
Page 46 of 49
effect to one of the Plaintiff should the Plaintiff be a passenger on that motor
vehicle.
35. In addition Jaswal v. Tait65, also cited Judge van der Hoop in Hansen v. Taylor
(see para. 28 of this section), where it was the finding of the court that wearing a
5 seat belt is simply not enough, the plaintiff must also adjust the head rest or head
restrain in order to avoid the injury or reduce the probability and severity of the
injury.
36. The new fact that we have brought forward in relation to the Appellant’s car,
Citroen Xsara Picasso safety features (see para. 17 and para. 18 of this section) and
10 the combine proper usage of the seat belt i.e. the shoulder height adjustment of
the seat belt which is made available in the Appellant’s car, should reduce or
minimise the possibility of a “whiplash” injury claimed suffered by the Appellant.
This new fact is in line with Munroe J. findings in para. 19 of this section, where
the testimony of experts in the Trial was taken into consideration. In today’s
15 modern world, where information is made available via the Internet, the expert
testimony in this case was replaced by a reputable and renowned research
findings by persons or institute of the same or higher calibre.
37. The Respondent have proved that the Appellant injury could only have been a
result from failing to wear a seat belt and to adjust the head rest or head restrain,
20 as the Appellant’s car was of “Acceptable” safety features in terms of to reduce or
minimise the possibility of a “whiplash injury claimed by the Appellant as Rultan J.
have findings and quoted Fultan J. (see para. 27 of this section).
38. The Respondent plea to this honourable court to consider the reduction of the
damages awarded with relation to the “whiplash” injury as shown by Abdul Malek
25 J. (see para. 29 of the section).
39. The Appellant failure to wear the seat belt and to adjust the head
rest or head restrain accordingly was the logical explanation which
have cause the Appellant to suffer a “whiplash” injury as claimed by
the Appellant when the Respondent have collided with the back of
65
Jaswal v. Tait [1987] B.C.J. No. 1540
Page 47 of 49
the Appellant’s car. Thus the Appellant should not be allowed to
receive a full damages relating to the injury claimed to be suffered.
This Section is left empty intentionally
5
10
15
20
25
30
Page 48 of 49
J. Conclusion
1. Based on the foregoing, the Respondent humbly request to the court to reject
both the Appellant’s grounds of appeal and to grant both the Respondent’s cross
5 appeal.
Dated 19.05.2017
10 ……………………….……………………………………………….
MOHD IZWAN DATO’ ZAKARIA
Senior Council for the Respondent / Defendant
15
20
This Outline Submission is filed by Messrs De Underground & Associates, solicitors for the
Respondent / Defendant whose address for service is at No 29, Jalan Seri Damai 1, Taman Seri
Damai, 43000 Kajang, Selangor Darul Ehsan.
25 Tel. No.: +60 12 651 0159
Ref: Group 6/March2017 /Dr. Irini
Page 49 of 49