“Should a motorist be held liable or partly liable for an accident only on account of he/she not having a valid motorcycle licence?”

AHMAD ZULFENDI ANUAR v. MOHD SHAHRIL ABDUL RAHMAN [2022] 1 LNS 1732

• An accident occurred on 15 December 2017 between Ahmad Zulfendi’s motorcycle and the car driven by Mohd Shahril in Teluk Intan, Perak.

• In the said accident, Ahmad Zulfendi suffered injuries.

• At the Sessions Court, liability was apportioned between the parties at 70% against Mohd Shahril for being responsible for the collision and 30% against Ahmad Zulfendi, for contributory negligence.

• Both parties appealed to the High Court.

• At the High Court, the Court decided to impose an additional 30% contributory negligence on Ahmad Zulfendi, on account of the him riding without a valid driving licence, road tax and insurance at the material time.

• Which now meant the liability for the accident had changed from 70;30 in favour of Ahmad Zulfendi to 40;60 in favour of Mohd Shahril.

• Ahmad Zulfendi then appealed to the Court of Appeal against this apportionment of liability.

• The significant issue before the Court of Appeal was whether the additional liability of 30% should be imposed on account of absence of licence, road tax and insurance.

• The Court of Appeal held that the negligence of the driver is to be evaluated and determined upon by the facts existing at the time of the accident, and not upon whether or not he has a driving licence, road tax and insurance policy.

• The Court further held that the fault for a collision is dependent on which party failed to act responsibly and in a safe manner.

• The lack of driving license, road tax or insurance coverage did not make the motorcyclist more negligent and should not be factored into increasing the motorcyclist’s liability.

• However, the Court of Appeal emphasized that such decision does not mean that the Court is condoning the blatant breach of road traffic laws.

• The Court of Appeal held that if there had been any breach of the Road Transport Act 1987 (RTA), then the penalties under RTA could be enforced in which it shall be the duty of the public prosecutor to prosecute such a breach and the relevant court to impose the necessary punishment.

• The Court held that the breach of the RTA cannot be deemed as a reason to increase the liability for a road user’s negligence in a motor vehicle accident claim.