Common law – Negligence

An accident was occurred by the car driven by Azhar with the disabled lorry which has been stalled by Ah Chan. Two of these persons have made their own fault as what happened on case Ramachandran a/l Mayandy v. Abdul Rahman bin Ambok. First of all, Azhar has derived his vehicle along a state road at slightly above the speed limit and his vehicle was equipped with a seatbelt but Azhar was not wearing it at the time of the collision.

In addition, the impact of the collision caused serious injury to Azhar and knocked him unconscious. At the same time, Ah Chan apparently did not have such markers with him at the time, nor did he take any precaution to warn approaching drivers of the obstacle facing them. According to Malaysian road safety regulations require the operator of disabled or stalled vehicles to place certain markers on the roadway to warn approaching drivers of the danger.

Besides that, Ah Chan also suffers from panic attacks whenever he hear loud noises and also mental distress due to concern of his teenage son’s safety whom he had left sleeping in the passenger seat of the lorry as happened in Zainab Ismail v. Marimuthu. However it turns out that his son escaped unhurt from the collision. According to Contributory Negligence rule, where the plaintiff failed to take reasonable care of himself which contributes to his injury along with the defendant’s negligence. Contributory negligence is a partial defense – it is the defendant who must plead contributory negligence.

According to this case, on section 12 (1) of the Civil Law Act 1956, where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, 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 for the damage.

The damages will be apportioned or reduced depending upon the extent of the plaintiff share in the cause of injury as what happened in Jones v Livox Quarries case. This law will be available for Azhar because he was derived his car slightly above the speed limit and he also did not wear safety belt when the accident was happened. According to Res Ipsa Loquitor rule, When the plaintiff raises the maxim, he is asserting that based on the evidence given, he has proven, prima facie, that the defendant is negligent.

The main purpose is to prevent injustice as otherwise the plaintiff would be required to prove details of the cause of the incident, which he may not know as what happened in Gee v. Metropolitan Railway, Cassidy v. Ministry of Health. The maxim is not applicable when all the facts relevant to the cause of the accident are known. Nevertheless – the accident wouldn’t have happened if not for some negligence on the defendant’s part which was originated from the rule in Byrne V. Boadle.

This rule will be available for Ah Chan because he apparently did not have such markers with him at the accident time, nor did he take any precaution to warn approaching drivers of the obstacle facing them. In addition, this case also can available for Psychiatric Illness or Nervous Shock rule because, in this case Azhar was injured physically and Ah Chan was mentally disturbed. According to this rule, A positive psychiatric illness or physical damage as a result of physiological trauma experienced by the plaintiff due to the defendant’s negligent act.

For the purpose of recovery of damages – not necessary that the plaintiff shows direct impact or fear of immediate personal injury. Claimant may recover damages arising from nervous shock resulting from injury to near relatives or fear for such injury. The case of Alcock & Ors v. Chief Constable of South Yorkshire Police laid down the requirements that need to be proven to succeed in a claim for nervous shock.

As a conclusion, it seems clear that in the car driven by Azhar is slightly above the limited speed was colliding with the lorry which was stalled by Ah Chan without any certain markers on the roadway to warn approaching drivers of the danger. According to this case, two of them also have done their own fault. From the arguments stated, these are the action available to Azhar and Ah Chan, and the defenses that will likely be asserted according to the rules and laws.