AHMAD ZULFENDI BIN ANUAR v MOHD SHAHRIL BIN ABDUL RAHMAN [2022] 4 MLJ 892

Court of Appeal (Putrajaya)

Tort – Road Accident

1.      This appeal arises from the decision of High Court Ipoh imposing an additional 30% contributory negligence on the Appellant due to the fact that Appellant was riding without a valid driving license, road tax and insurance at the material time.

2.      On 15 December 2017, a road accident occurred involving the Appellant, who suffered injuries when the motorcycle he was riding on collided with a motorcar driven by the Respondent.

3.      In this case, there were two conflicting versions of facts as follows:

(a)  Respondent stated that the Appellant who was riding his motorcycle had suddenly exited out of a slip road and collided with the Respondent’s motorcar which was rightfully travelling straight along the main road;

(b)  Meanwhile the Appellant stated that the Respondent had made a U-turn from the opposite direction and encroached into the Appellant’s rightful way which resulted in the collision.

4.      Since the accident occurred at 2 a.m. and no eye witnesses were present at that time, the Court decided that the accepted version based on the silent evidence such as debris on the lane, scratch marks on the road and nature of damage to the respective vehicles as well as the one that is more inherently probable would be the Appellant’s version of story.

5.      The Sessions Court allotted liability between parties at 70% against the Respondent for being responsible for the collision and 30% against the Appellant for contributory negligence after  he was found to have been riding his motorcycle too fast.

6.      Both parties appealed to the High Court. The High Court held that since the Appellant had ride the motorcycle without a valid driving license, road tax and insurance at the material time, the High Court imposed against the Appellant an additional 30% contributory negligence which resulted in the allotted liability between parties to change from the Appellant’s favour of 70%:30% to 40%:60% in favour of the Respondent.

7.      The Appellant then appealed to the Court of Appeal against this apportionment liability.

Issues

Whether additional liability of 30% shall be imposed merely because the Appellant did not have valid driving license, road tax and insurance during the accident?

1.    Whether additional liability of 30% shall be imposed merely because the Appellant did not have valid driving license, road tax and insurance during the accident?

(a)    A driving license is required before a person is allowed to drive a motor vehicle as provided in Section 26 (1) Road Transport Act 1987 (Act 333) where-

“Except as otherwise provided in this Act, no person shall drive a motor vehicle of any class or description, on a road unless he is the holder of a driving license authorizing him to drive a motor vehicle of that class or description, and no person shall employ or permit another person to drive a motor vehicle on the road unless the person so employed or permitted to drive is the holder of such a driving license.”

(b)    Section 26 (2) of the Act 333 clearly mentioned that driving or riding without a driving license is a serious offence as follows:

“Any person who contravenes subsection (1) shall be guilty of an offence and shall on conviction be liable to a fine not less than three hundred ringgit and not more than two thousand ringgit or to imprisonment for a term not exceeding three months or both.”

(c)    Since the Appellant in this case was found out to not possessing a valid driving license during the accident, the issue that arises is whether the doctrine of ex turpi causa non oritur actio is applicable in this case.

(d)    The doctrine of ex turpi causa non oritur actio means that no action can arise from an illegal act.

(e)    The Court of Appeal was on the view that driving or riding without a license should not per se be negligent as the negligence must be evaluated by the manner and conduct of the party who failed to act responsibly and in a safe manner.

(f)       The violation of traffic laws should be dealt with the specific laws itself which is the Act 333 hence the Court shall not imposed additional penalty against the offender.

(g)    The liability of the Appellant shall not be increased merely because he did not hold a valid driving license because such factor does not make the Appellant more negligent.

Decision

The Court allowed the Appellant’s appeal on liability, setting aside the High Court’s decision and reinstated the Session’s Court assessment of liability.

1.      Generally, when an accident occurred involving someone who did not hold a valid driving license, most of us would think it is only right to impose heavier punishment on him because he had violated the law at the first place and as a consequence, causing the accident.

2.      However, the Court of Appeal in this present case has ruled that the lack of driving license should not be factored into increasing the liability as the liability in tort must be decided based on how the collision took place. Such decision does not mean that the Court is condoning the blatant breach of road traffic laws, but since the offence of not having a valid driving license is governed under a specific law namely Road Transport Act 1987 (Act 333), it shall be the duty of the Public Prosecutor to prosecute such breach and for the Court to impose the necessary punishment in accordance to the Act 333.

3.      In other words, the breach of Act 333 for not having a valid driving license cannot be deemed as a reason to increase the liability of the road user’s negligence in a motor vehicle accident claim.

4.      Therefore, it is important to note that the case of accident falls under torts in which the Court will held which party is liable for negligence by assessing how the collision took place and how the parties’ conduct and manner while riding/driving on the road would cause danger to themselves or the other law-abiding users of the road no matter whether they are holding a valid license or not.