Bundle Of Authorities

BUNDLE OF AUTHORITIES FEDERAL COURT PUTRAJAYA EMMA V JOHARI COUNSELS FOR RESPONDENT SENIOR COUNSEL: MOHD YUSRI BIN MOHD YUSOFF (071596) JUNIOR COUNSEL: MOHD HANIF BIN MOKHTAR

(071434)

TABLE OF CONTENTS • THE BRIEF FACTS • OUTLINE OF SUBMISSION • PRAYER • STATUTES • CASES •

TREATISES

THE BRIEF FACTS IN THE COURT OF APPEAL PUTRAJAYA EMMA V. JOHARI Emma, then aged 19 years old was walking side with her friends, along Jalan Gombak with the intention of boarding a bus on the other side of the road. Suddenly she was collided into from the rear by Johari who was riding a Vespa motor scooter. This resulted in a severe head and back injury for Emma. An action was brought by Emma against Johari for negligence. Compensation was claimed for the personal injuries that she had suffered. Johari argued that he was proceeding along the road in a normal manner at a reasonable speed when he noticed three girls standing on the grass verge to his right about four electric poles away. He had slowed down whilst approaching a bend and was about 6ft from them, when one of the girls dashed across the road into his path with her arms out-stretched and flapping in the air like the wings of a bird leaving him no opportunity of avoiding a collision. As a result, Emma fell on her on her back with her head coming to rest near the central white line. Johari too fell and his scooter came to a rest on his right-hand side of the road. At first instance, the claim was dismissed. Hamid J, after weighing the evidence and credibility of both parties accepted Johari’s testimony and believed that the plaintiff was actually to be blamed for the accident. An appeal to the Court of Appeal was dismissed although Emma was granted leave to appeal to the Federal Court on the following grounds:

1. The question of contributory negligence on the part of Johari should be considered. If he was driving vigilantly and keep a proper look out, he would not have been taken by surprise and be able to avoid the collision. 2. A partial amount of the compensation is to be paid by Johari by reason of contributory negligence.

OUTLINE OF SUBMISSION SENIOR COUNSEL:

Argument 1 Issue It was not necessary for the appellant to plead contributory negligence on the part of the respondent in statement of claim as there is no law governing it. Basis 1. The usage of contributory negligence is only for a shield, not as a weapon. 2. It is only for a party who been sued to use contributory negligence on the part of a party who sued, merely as a defence, not as a claim. Statutes 1. Civil Law Act 1956 (Act 67) Cases 1. Hamizan bin Abd Hamid v Wong Kok Keong & Anor [1994] 3 MLJ 2. Fookes v Slaytor [1979] 1 All ER 137 Treaties

1. The Malayan Law Journal Articles, 1997, volume 2, LexisNexis Asia 2. Nathan on Negligence by Justice Dato’ RK Nathan Judge High Court of Malaya; Malayan Law Journal Sdn Bhd 1998

JUNIOR COUNSEL:

Argument 2 Issue Compensation should not be paid at all as there are no questions of contributory negligence on the part of the respondent. Basis The elements of contributory negligence are not proven: (a) The respondent has performed duty of care upon himself by acting reasonably so as to avoid damage to himself. (b) The respondent has not breach his duty of care by behaving reasonably. (c) The cause of the injury is not a type that can be reasonably foreseeable from the respondent’s act or omission. Statutes Civil Law Act 1956 (Act 67) Cases Mohamed Hashim v Lim Ah Too & Anor [1969] 2 MLJ 205 Treaties

1. Law of Torts in Malaysia 2nd Edition by Norchaya Talib; Sweet n Maxwell Asia 2003 2. The Malayan Law Journal Articles, 1997, volume 2, LexisNexis Asia

PRAYER We, on behalf of the respondent would like to seek from the court:-

1. The appellant’s plead for contributory negligence should not be succeed in law because of:

I. Contributory negligence cannot be pleaded in statement of claim. II. Contributory negligence is merely operates as a defence.

2. Compensation should not be paid at all as the questions of contributory negligence play no part on the respondent’s act:

I. The duty of care on the part of the respondent has been performed. II. There is no breach of duty. III. The cause of the injury is a type that cannot be reasonably foreseeable.

Thereby, we pray from this honorable court to quash the appellant’s appeal, the appeal should be dismissed.

STATUTES

CASES

TREATI ES