Judgment - The High Court of Sabah & Sarawak

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5 10 15 20 25 4 [KCH-12B-7-2011] considered the submission of Counsel for defendants who appear to have conceded liability. Counsel for defendants submitted as follows: For this matter, we leave to the court to decide on the liability of the matter in which we humbly submit is against DW1 based on his inconsistency and inability to question and explain further his answer adduced in court” Decision on Liability In my opinion, the appeal on liability is without merit. The sketch plan P31 which was acknowledged by the investigating officer (P.W. 1) as the correct version clearly showed that the point of impact was on the motorcycle’s path. The 1 st defendant is a police Lance Corporal. In the premises, the Sessions Court Judge correctly noted that he should have stated in his police report that the motorcycle had encroached into his path, if that was the truth. Therefore, even if the Sessions Court Judge was wrong to suspect that the 1 st defendant was drunk and that there was an elaborate police cover up, based on the evidence of the 2 nd plaintiff, the rough sketch plan (P. 31) and the evidence of the father of 2 nd plaintiff who saw the debris on the motorcycle’s path, there was sufficient evidence for her to conclude that the 1 st defendant was wholly liable for the accident. I shall therefore dismiss the appeal on liability. Quantum The learned Counsel for defendants did not appeal against all the heads of injuries and special damages granted by the Sessions Court Judge. I shall therefore address only the relevant awards. Dependency Claim This is a claim by the father and administrator of the deceased motorcycle rider (1 st plaintiff). The employer of the deceased motorcycle rider testified
5 10 15 20 25 5 [KCH-12B-7-2011] that the deceased earned monthly income of RM650 as a worker in his pastry shop. Evidence was also tendered that the deceased and the 2 nd plaintiff operated a burger stall on a part time basis. The learned Sessions Court Judge accepted the evidence of the 1 st plaintiff that the deceased contributed RM500.00 to him monthly. Counsel for defendants submitted that RM250 a month is a more reasonable figure as there is no documentary evidence of earnings from the burger stall. In my opinion, this award justifies interference for the following reason. The learned Sessions Court Judge did not make a finding on the total income of the burger stall. She merely accepted the evidence of the 1 st plaintiff without deliberation that the deceased earned RM500 from the burger stall. She did consider that income from the burger stall is uncertain and unstable but this factor is not reflected in her decision to accept the figure of RM500 as his fixed additional income. In fact it must be noted that when the Sessions Court Judge assessed the earnings of the 2 nd plaintiff from the burger stall, she said that RM300 a month was reasonable. As the deceased only earned RM650 from his full time job as pastry shop assistant, the figure of RM250 as the monthly contribution to his parents is more reasonable. However, as Counsel for defendants conceded in the lower court that RM300 monthly contribution is reasonable, I shall reduce the multiplicand of RM500 to RM300. The dependency award of RM96,000 in favour of the 1 st plaintiff is therefore reduced to RM57,600.00. Loss of income of the 2 nd Plaintiff The 2 nd plaintiff did not work for six months after the accident. The 2 nd plaintiff testified that he earned RM450 a month as a mechanic in Loong Jye Car Service Centre. His employer told the court that he was actually paid
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Judgment - The High Court of Sabah & Sarawak

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