Siti Athirah bt Mohd Sapuan v Razanatul Ain Bt Hassan & Anor [2015] 4 MLJ 359

Case Review: Siti Athirah bt Mohd Sapuan v Razanatul Ain Bt Hassan & Anor [2015] 4 MLJ 359

Court: Court of Appeal (Putrajaya)

Judges: Mohd Hishamuddin, Linton Libert, Tengku Maimum JJCA

Date of Judgement: 22 June 2015

Topic: Contributory Negligence

Facts 1.     The Appellant was riding a motorcycle along a road when a car driven by the First Respondent coming from the opposite direction suddenly cut across the Appellant’s path to turn into a junction at her left.

2.     A collision between the vehicles of Appellant and the First Respondent took place because the Appellant could not avoid the said car.

3.     The Appellant since then suffered extensive injuries including fractures to her right leg, thereby sued the Respondents for negligence arising out of road accident.

4.     The Respondents pleaded contributory negligence on the part of the Appellant, however they did not appear at trial nor present evidence to support their argument.

5.     The Sessions Court decided that because of the images and the First Respondent’s police report indicating extensive damage to the car, it could be deduced that the Appellant was speeding at the time of the collision, in which both the Appellant and the First Respondent are equally culpable for the accident.

6.     The Appellant appealed to the High Court against the decision that she was contributorily negligent.  The High Court however dismissed the appeal and Respondents’ cross appeal and agreed with the findings of the Sessions Court that the Appellant was speeding at that material time.

7.     Both parties then appealed to the Court of Appeal as they were against the respective decision of the High Court.

Issue 1.     Whether the Appellant was liable for contributory negligence based on the allegation that the Appellant was speeding?


1.     First and foremost, the appropriate approach that was adopted by Court of Appeal is to scrutinize the legal duty of care owed by the First Respondent towards the Appellant and the issue that comes after is whether or not the duty of care was breached.

2.     Once the breach is proven, only then contributory negligence can be established on the part of the alleged wrongdoer.

3.     In this regard, the Court of Appeal made a reference to the case of Lee Hock Lai v Yeoh Wah Pein [1995] 5 MLJ 172 where the legal reasoning process was explained as follows:

“…a normal road accident case essentially concerns the tort of negligence.  The proper manner of approaching the case was for the court to evaluate the whole evidence and to make a finding of mixed law and fact (after applying the principles governing the law of negligence to the facts of the case – among which was whether there was a breach of a legal duty to take care by the defendant) as to whether or not the defendant was liable in negligence.  If the court were to find that the defendant was not guilty of negligence, then it must dismiss the plaintiff’s claim.

…if on the other hand, she were to come to a finding that the defendant was liable in negligence, then since in the present case the defendant, in his pleading, had pleaded contributory negligence, she must also consider and make a finding of mixed law and fact whether or not the plaintiff was guilty of contributory negligence.”   [Emphasis Added]

4.     Section 12 of the Civil Law Act 1956 was also referred by the Court of Appeal to shed some light to the apportionment of liability in case of contributory negligence as follows:

“Where any person suffers damage as a result partly of his own 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 of the damage:

Provided that-

(a)  this subsection shall not operate to defeat any defence arising under a contract; and

(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 exceed the minimum limit so applicable.”    [Emphasis added]

5.     The Court of Appeal also referred to the judgment of the Federal Court in the case of Kek Kee Leng v Teresa Bong Nguk Chin & Anor [1978] 1 MLJ 61 in which the meaning of contributory negligence was further explained-

Contributory negligence is an expression meaning ‘negligence materially contributing to the injury’, the word ‘contributory’ being regarded ‘as expressing something which is a direct cause of the accident’.  However, the word ‘negligence’ is not used in its usual meaning.  Negligence ordinarily means breach of a legal duty to take care, but as used in the expression ‘contributory negligence’ it does not mean breach of duty. It means the failure by a person to use reasonable care for the safety of himself or his property so that he becomes the author of his own wrong.”   [Emphasis added]

6.     The Court of Appeal also made a mutual agreement nodding to the decision of the Privy Council in the case of Nance v Columbia Electric Ry [1951] AC 601 which it stated as follows:

When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by his want of care, to his own injury.  For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim, the principle is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.”   [Emphasis added]

7.     Having correctly referred to the law of tort and the referred cases above, the Court of Appeal concluded that the decision by the learned Sessions Court judge gave the wrong impression that both the Plaintiff (Appellant) and the First Defendant (Respondent) were co-tortfeasors and equally culpable (50:50) of negligence.

8.     In actuality, there was only one tortfeasor who was negligent; the First Respondent, who was entirely accountable (that is, 100%) for the accident.  The Appellant was only a victim and was not held guilty for contributory negligence.

9.     In reaching its decision, the Court of Appeal refused to believe that the Appellant should be blamed for her misfortune since there was no evidence that she was speeding at the relevant time.

10.  The Court of Appeal made a thorough finding that the evidence of the Appellant herself was riding her motorcycle at only 50km/h when the collision occurred, connoting that the Appellant was in-fact not speeding.

11.  Pursuant to that, the Court of Appeal disagreed with the trial court’s finding of speeding on the Appellant’s part merely based on the extent of the damage to the First Respondent’s car as seen in the photographs.

Decision 1.     The Appellant was not liable for contributory negligence based on the allegation that the Appellant was speeding at the time of the collision.
Key Take Away 1.      Negligence is a breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from the Civil Law Act, gives rise to the defence of contributory negligence.

2.     Contributory negligence, however is not the tort of negligence. Liability for the tort of negligence and liability for contributory negligence are two different issue.

3.     In ratio decidendi, contributory negligence does not mean breach of duty but rather a failure by a person to use reasonable care for his safety or property in which he becomes the author of his own wrong.

4.     In the event a contributory negligence is set up as defence against the Appellant’s claim, the principle is that the Appellant cannot claim the compensation in full against the Respondent if it is proven that she also contributed to her own injury.

5.     In short, the issue in this case depends entirely on whether or not the Appellant could reasonably have avoided the consequences of the First Respondent’s negligence.


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