“Having no driving licence or road tax is irrelevant" - The landmark case that changed road accident claims in Malaysia
Have you ever heard someone saying to you that in a road accident, the party without a valid driving licence, road tax or insurance coverage will automatically be liable in a motor vehicle accident claim? It is unknown where this understanding came from, but it’s something many Malaysians believed in up until today.
In actuality, this can’t be further from the truth. Well, at least, it hasn’t been for the past two years or so thanks to a ruling by the Court of Appeal on 16 June 2022.
A landmark decision which essentially changed how liability is considered when calculating damages in negligence suits in our country, read on to learn more.
Ahmad Zulfendi bin Anuar v Mohd Shahril bin Abdul Rahman [2022] MLJU 1587
This case is a claim for general and special damages originally filed at the Sessions Court in which the appellant, Ahmad Zulfendi Anuar, suffered injuries when the motorcycle he was riding on was involved in an accident with a car owned by the respondent, Shahril Abdul Rahman at KM 30 Jalan Langkap-Kampar near Tapah Road, Perak on 15 December 2017.
The Sessions Court then apportioned liability between the parties at 70 per cent against the car owner for being responsible for the collision and 30 per cent against the motorcyclist for contributory negligence. Furthermore, the Sessions Court allowed the appellant’s claim for, among others, loss of future earnings of RM192,000 (with a multiplicand of RM 1,000) and actual loss of income of RM 28,333.30 (after a one-third deduction from RM 2,500).
The appellant then appealed to the High Court, where an appeal and cross-appeal on both liability and quantum, the High Court affirmed the findings of the Sessions Court. Significantly, the learned Judicial Commissioner of the High Court decided to impose an additional 30 per cent contributory negligence on the appellant.
This was due to the appellant riding without a valid driving licence, road tax and insurance during the crash. Accordingly, the High Court revised the apportionment of liability considerably between the respondent and the appellant, from 70%: 30% to 40%: 60%.
Dissatisfied, the motorcyclist then filed an appeal to the Court of Appeal, where the primary focus of the appeal was whether contributory negligence or additional liability ought to fasten on a motorist who suffers injuries in a motor vehicle accident caused by the negligence of another.
Moreover, the appeal seeks to determine whether the appellant ought not to be entitled to relief, in whole or in part, if, at the time of the accident, he did not hold a valid licence to ride a motorcycle which also had no road tax and no policy of insurance against third party risks.
The Court of Appeal’s landmark ruling
Ultimately, the Court of Appeal allowed Ahmad Zulfendi Anuar’s appeal on liability, setting aside the High Court’s decision on liability and the Sessions Court’s assessment of liabilities was reinstated.
Moreover, the Court of Appeal found that the liability in tort must be decided based on how the collision took place and the lack of driving licence, road tax or insurance coverage if they are not directly related to the negligent or collision so should not be a determining factor, didn’t make the motorcyclist more negligent and should not be factored into increasing his liability.
However, the Court of Appeal emphasised that this doesn’t mean that it was condoning the blatant breach of road traffic laws as if there had been any breach of the Road Transport Act 1987, the applicable penalties could be enforced. For this, it is the duty of the public prosecutor to prosecute such a breach and the relevant court to impose the necessary punishment.
The judgement reads,
“[124] We are of the view that the non-holding of such licence should not be factored into increasing the liability of the said motorist especially given the facts of this case where his contribution towards his negligence has been assessed by the Sessions Court to be 30% liable. The factors of lack of a licence or road tax or insurance do not in the circumstance of this case make the appellant more negligent or contributed much more to his negligence other than as previously held by the Sessions Court to be assessed at 30%. These factors should not deny the right of the appellant from claim relief either in whole or in part.
[125] We see no good reason to interfere with this finding and apportionment of liability. To increase the apportionment of liability by another 30% or any part thereof for that matter would be to take into account an irrelevant consideration which does not, in the circumstances of this case, affect the way the accident had happened.
[126] We appreciate the point of public policy but we cannot say that the appellant is profiting in any way from his breach of the RTA where licensing, road tax and insurance is concerned. He is merely claiming for personal injuries sustained.
[127] As such we therefore allow the appeal of the appellant on liability and set aside the High Court’s decision on liability and reinstate the Sessions Court’s assessment of liability.”
The binding precedent set by the ruling
Accordingly, this decision set precedence in which driving or riding without a valid driving licence, road tax or insurance coverage can’t be a factor in determining a road user’s liability for negligence in a motor vehicle accident claims.
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