No Licence Road Tax Not Reason To Reduce Damages For Biker Rules Court

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The Court of Appeal says road users without licences or road tax may be charged under the traffic laws, but this cannot be a reason to increase liability for negligence in accident cases. (Reuters pic)PUTRAJAYA: Not having a driving licence and riding a motorcycle without road tax or insurance coverage cannot be considered when calculating damages in negligence suits, the Court of Appeal has ruled.
In a landmark decision, the Court of Appeal has overturned an Ipoh High Court ruling that added the liability percentage of a motorcyclist on the grounds that he had no riding licence, road tax or insurance coverage at the time of the incident.
The Court of Appeal ruled that the liability in tort must be decided based on how the collision took place.
The three-member bench, chaired by Justice Lee Swee Seng, said the lack of a licence, road tax or insurance did not “in the circumstances of the case, make the appellant more negligent”.
“We are of the considered view that it should not be factored into increasing the liability of the said road user, especially in the facts of this case where his contribution towards his negligence has been assessed by the sessions court judge to be 30% liable,” Lee said during a Zoom proceeding on Tuesday.
In December 2019, the Teluk Intan sessions court had ruled that the appellant, motorcyclist Ahmad Zulfendi Anuar, was 30% liable and the 41-year-old respondent, car driver Shahril Abdul Rahman, was 70% accountable for the crash that occurred at a junction at Km30 Jalan Langkap-Kampar, near Tapah Road, Perak, at 2am on July 5, 2018.
However, last year, judicial commissioner Su Tiang Joo set aside the sessions court decision and increased the liability to 60% against Zulfendi by concluding that he was not entitled to relief as he had no riding licence or road tax and, in particular, no insurance policy against third-party risks.
The Court of Appeal reinstated the sessions court’s assessment of liabilities.
“We see no good reason to interfere with the sessions court judge’s finding and apportionment of liability. To increase the apportionment of liability by another 30% or any part thereof for that matter would be to take into account an irrelevant consideration which does not, in the circumstances of this case, affect the way the accident happened,” Lee said.
The other judges were Che Mohd Ruzima Ghazali and Mohd Nazlan Mohd Ghazali.
On the quantum of award for the loss of earning capacity, the Court of Appeal awarded Zulfendi RM50,000, based on 100% liability and interest.
In total, the 31-year-old motorcyclist, who had been riding without a licence for at least eight years at the time of the crash, is set to receive RM195,300, which includes special and general damages awarded by the sessions court.
However, the Court of Appeal held that it did not mean that the court condoned the blatant breach of road traffic laws.
Lee said that if there was any breach of the Road Transport Act (RTA) 1987, then the penalties under the Act could be enforced.
“It is the duty of the public prosecutor to prosecute such a breach but it cannot be a reason to increase the liability for negligence,” he said.
“Where punishment is concerned, that is left to the public prosecutor under RTA to prosecute and the relevant court to impose the necessary punishment.”
Manoharan Tevadasin, Nik Syafiq Nik Nilmi and Wafi Abdullah appeared for the appellant while Kenneth George William, Selvanayagam Kailasam and Nuramni Fatira Mohd Nizam were counsels for the respondent. - FMT

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