Motorcyclist’s damages raised to RM1.17mil after court puts full blame on driver

 Shah Alam High Court overturns 70-30 liability split after ‘silent evidence’ shows car swerved into rider’s path.

The Shah Alam High Court ruled that damage to the vehicles, together with a witness account and other evidence, showed that driver Norba’idah Abd Majid had swerved into motorcyclist S Thenesh’s path.

SHAH ALAM:

A motorcyclist left permanently disabled in a 2018 highway crash was awarded about RM1.17 million in damages after the High Court here found the car driver fully liable for the accident.

Judicial Commissioner Shoba Dorai Rajah overturned the sessions court’s 70-30 apportionment of liability, which had left S Thenesh bearing 70% of the blame.

Based on the sessions court’s assessment, Thenesh was awarded RM400,000 in damages.

Shoba said the damage to the vehicles, together with a witness account and other evidence, showed that the driver, Norba’idah Abd Majid, had swerved into Thenesh’s path.

“The physical ‘silent evidence’ of damage is very decisive,” she said in her written judgment.

The judge noted that Norba’idah’s car was damaged only at the rear-left bumper, while Thenesh’s motorcycle suffered damage to its right front fork.

She said this was inconsistent with the defendants’ claim that Thenesh had crashed into the rear of the car.

“The forensic signature matches the plaintiff’s version of events where the first defendant swerved left to access the slip road,” she said.

Shoba also accepted the evidence of witness S Jayachitra, which the sessions court had rejected.

She said Jayachitra’s account was corroborated by the vehicle damage, road layout and Norba’idah’s admission that she was heading towards Taman Kota Cheras through a left-side slip road when the incident took place on Dec 31, 2018.

She said the sessions court had also erred by relying on an unpleaded assumption that Norba’idah might have braked suddenly, when Thenesh’s pleaded case was that she had failed to brake.

Shoba rejected the argument that Thenesh’s retrograde amnesia prevented him from proving his case, saying liability could be established through independent witnesses, admissions, as well as physical and documentary evidence.

The court also considered Norba’idah’s RM300 traffic compound for improper lane changing. Although it was not conclusive proof of liability, Shoba said, it was a highly probative admission of inconsiderate driving.

Thenesh suffered severe traumatic brain injury, multiple facial fractures, and near-total hearing loss in his right ear, leaving him permanently disabled and unemployable.

The High Court allowed his appeal on liability, dismissed the defendants’ appeal, and ordered RM10,000 in costs for each appeal.

Jagjit Singh and Premjit Singh appeared for Thenesh, while C Manimaran and S Nirmala represented Norba’idah and Hazlishahmi Mohamad, the registered owner of the car.

Both sides have filed appeals to the Court of Appeal. - FMT