MALAYSIA IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING CIVIL APPEAL NO.12A-5-2010-II
ASEN ANAK TAPENG (m) (WNKP No.41050-13-5229)
Vs
JAMES ANAK BAENG (m)
HEADMASTER
THE GOVERNMENT OF MALAYSIA
BEFORE THE HONOURABLE JUDICIAL COMMISSIONER Y.A. PUAN RHODZARIAH BT. BUJANG
JUDGMENT
Mr. Jusong ak Asen was a teacher at SK Kuala Bok, Baram. He was originally from Kampung Sebobok, Bau. Mr. Jusong ak Asen 25 met with a fatal self-accident on 23.12.2005 at a place called Pijiru, somewhere between Bau town and his home. At that material time, Mr. Jusong ak Asen was riding his motorcycle with his own brother riding pillion, on the way back from Kuching town after collecting an order of T-shirts from a shop there, World Sport. These T-shirts were 30 meant for the students and teachers of his school and he had earlier in a school meeting volunteered to place the order and collect the T- shirts from the said shop as he would be going home for the year end
school break.
AND
Now, his father, Mr. Asen ak Tapeng as the administrator of his estate has sued the owner of the motorcycle as the 1st defendant and the Headmaster of the school and the Government of Malaysia as the 2nd and 3rd defendants, respectively. His action against the 1st
defendant was based on the fact that the owner, knowing about the defects in the motorcycle had failed to inform the deceased of the same. As against the 2nd and 3rd defendants, it was premised on the fact that the accident happened in the course of his employment as he was returning from fetching the T-shirts and the weight of the
same had caused him to lose control of his motorcycle. The 2nd defendant, alleged Mr. Asen ak Tapeng was vicariously liable for the negligence of the 1st defendant. Only the 2nd and 3rd defendants filed their defence to the action and after a full trial, the learned Sessions Court Judge dismissed the said claim. The appeal against the
dismissal of the said claim is the subject matter of this judgment.
The judgment of the learned Sessions Court Judge In summary, the learned Sessions Court Judge rejected the claim because the accident did not happen during the course of Mr. 20 Jusong ak Asen’s employment and that the principle of volenti non fit injuria applies in that the purchase and carrying of the T-shirts that day was volunteered by Mr. Jusong ak Asen and it was on a vehicle which was not authorized by the 2nd and 3rd defendants. On the non- authorized used of the vehicle, he relied on the case authority of 25 Mary Colete John v South-East Asia Insurance Bhd [2004] 7 CLJ 314.
In his judgment he also mentioned the chemist evidence, adduced by the 2nd and 3rd defendants who confirmed that Mr. Jusong ak Asen had alcohol in his blood but the chemist was not able to confirm if that level of alcohol had affected his ability to ride. The
learned Sessions Court Judge, however did not appear to consider this evidence as one of the grounds for dismissing the claim.In the appeal before me, counsel for Mr. Asen ak Tapeng, Mr. Patrick Anek Uren did submit on this evidence as showing that the 10 deceased consumption of alcohol prior to his death was not the cause of the accident.
Whilst I am in agreement with him that there is no direct evidence to say that the deceased’s intoxication was the cause of the 15 accident, but, in my view, such a conclusion is irresistible because the deceased was driving with an alcohol level way above the prescribed limit under the Road Transport Act 1987 (“the RTA 1987”). That limit was 80 milligrammes per 100 millilitres of blood whereas that of the deceased’s blood was 227 milligrammes – almost three 20 times the permissible level. The law has a reason for setting that limit and in its wisdom knows how much alcohol a driver should consume to make him a safe driver. That prescribed limit could not have been set by legislature without any scientific basis. At thrice the amount deemed safe by the law, the probable inference that the court is 25 entitled to make is that the deceased was intoxicated when the accident occurred and it being a self-accident, one could only
conclude that his own inebriety had caused the same.
Mr. Patrick Anek Uren has attempted in his submission to persuade me not to accept the chemist’s evidence because he said she analysed the deceased blood sample five (5) days after it was taken and there was no preservative added to it to prevent its
5 denegeneration. With respect, I am unable to agree with him because she has explained in her evidence very clearly on the reliability of the sample given to her and gave three reasons which appear at page 74 of the notes of proceedings why this was so. This was what she said:
On Mr. Patrick Anek Uren’s contention that the 2nd and 3rd defendants are liable because the accident happened in the course of the deceased’s employment, I am of the view that such a contention is misplaced in the facts of this case because firstly, the fact that an accident happened in the course of an employment is only pertinent
The blood specimen was in good condition at the time I received. There was no sign that it has started to decompose. The blood specimens were in fact sent to laboratory for analysis, if I not mistaken just 4 days after it was taken.
The reported alcohol content is so much higher than the prescribed limits. This indicated the actual alcohol content would still be above the prescribed limits even if preservative has been added.” (emphasis added)
in a claim for workman compensation and it per se does not find a liability under the tort of negligence. Secondly, the fact of employment is only relevant when vicarious liability is pleaded against the employer but that is in a situation where the employee of such an employer is found to have been negligent against the
plaintiff. Thus, if the doctrine of vicarious liability is to be applied in this case against the 3rd defendant, it must be shown that the 2nd defendant had in some ways breached his duty of care towards the deceased which led to his death or was contributory towards it. That is the very foundation of an act upon which a tort of negligence is based as established in Donoghue v Stevenson (1932) AC 562. Very clearly no such duty had been breached in this case because at the time of the accident, the Head Master had done absolutely nothing to cause or contribute to the accident.
The case of Mary Colete John (supra) submitted by Mr. Patrick Anek Uren is distinguishable on both the facts and the law. In that case whether the plaintiff was injured in the course of her employment is a relevant consideration because she was suing the insurance company of her alleged employer to enforce the judgment she had obtained against the said employer under section 96 of the 15 RTA 1987. It was an issue before the court because of section 91 of the RTA 1987 which provides in the proviso thereof that the insurance policy under Part IV of the Act is not required to cover liability in respect of death or bodily injury sustained by a person
20
‘arising out of and in the course of his employment’.
Thus, Mr. Patrick Anek Uren’s reliance on Mary Colete John’s case (supra) is plainly wrong and the learned Sessions Court Judge, by allowing himself to be dragged into the issue of whether the deceased was travelling in the course of his employment, had
25 needlessly entangled himself in the same error. He was right however when he concluded that the defence of volenti non fit injuria applied to the deceased because when the accident happened he
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was doing something which he had volunteered to do in the first place. It was of course unfortunate that such a terrible tragedy had befallen this young man who had just been teaching for a year after graduating from a teaching institute and no one would, but praised,
5 his readiness to assist in the purchase of the T-shirts for his colleagues and the students of this school. It cannot be denied that the T-shirts would have cost so much cheaper here in Kuching than in that rather remote and rural part of Sarawak where the school is located and for his noble intention and on humanitarian grounds,
10 though I dismiss the appeal, I would not order cost against the appellant.
Sgd.
15 (Y.A. PUAN RHODZARIAH BT. BUJANG) Judicial Commissioner
