​KembaraXtra- Case Law - KR Taxi Service Ltd v. Zaharah & Ors

• Court: Federal Court, Kuala Lumpur
• Judges: Ong Hock Thye, Suffian and McIntyre FJJ
• Date: October 15, 1968
• Nature of Case: Appeal against High Court decision on damages for negligence in a fatal accident.

II. Facts of the Case

• Accident: Collision between a taxi (owned by KR Taxi Service Ltd, driven by the 3rd Respondent) and a car (driven by the 1st Defendant).
• Location: Junction of Maran-Chenor Road.
• Victim: Passenger in the taxi, Mohamed Noor bin Sulaiman, died.
• High Court Decision: Found the car driver primarily negligent but assessed the taxi driver with 25% liability for contributory negligence.
  • Car Driver's Negligence: Turning across oncoming traffic.
  • Taxi Driver's Negligence: Failure to anticipate the common "folly" of drivers crossing traffic.
  • Damages Awarded: $26,000 under Section 7 (loss of support) and $3,500 under Section 8 (bereavement) of the Civil Law Ordinance, 1956 (merged with Section 7).

III. Issues

• Negligence: Duty of a driver on the highway.
• Damages: Deductibility of "gratuity" given by the government to the deceased's family.

IV. Holding

1. Driver's Duty: A driver's duty is to exercise reasonable care, not to be a perfectionist capable of anticipating other drivers' negligence. No strict liability.
2. Taxi Driver's Liability: No evidence to show that the taxi driver failed to exercise ordinary care and skill. Not to blame for the accident.

V. Reasoning

• Taxi Driver's Actions: The Federal Court found the High Court's principle too far-reaching.
  • Relied on Brophy v Shaw and Edwards v Nobbs: The standard of care is that of a driver using ordinary care and skill, not a perfect driver.
• Essential Findings Lacking: The High Court failed to establish:
  • The taxi's speed.
  • The time and space available to avoid the accident.
  • Visibility when the taxi reached the brow of the hill.
  • The car driver's indication of intention to cross.
• Application of Law: Applied London Passenger Transport Board v Upson with caution, emphasizing context. Drivers are not bound to anticipate all forms of folly but should consider common follies based on experience.

VI. Judgment

• Appeal allowed regarding the 2nd Appellant's (taxi driver) liability.
• Judgment affirmed against the 3rd Respondent (car driver), who is wholly liable.

VII. Key Principles

• Reasonable Care: Drivers must exercise reasonable care, not perfection.
• Foreseeability: Duty to anticipate the actions of other drivers depends on surrounding circumstances; no general rule applies.
• Gratuity: Direct payments of money by third parties to dependants as a measure of assistance are not deductible from damages. (Per Raja Azlan Shah J. in the court below).

VIII. Cases Referred To

• Brophy v Shaw (unreported)
• Edwards v Nobbs (unreported)
• London Passenger Transport Board v Upson [1949] AC 155 173

KembaraXtra- Case Law- Kanagasabapathy v Narsingam [1979]
Case Overview

• Court: High Court, Kuala Lumpur
• Judges: Vohrah J
• Facts: Employee (toddy tapper) fell from coconut tree due to slippery steps, sustaining injuries. Sued employer for negligence.
• Issues:
  • Negligence: Did employer fail to provide a safe system of work?
  • Volenti non fit injuria: Did the employee voluntarily assume the risk?

II. Key Legal Principles

• Negligence (Employer's Duty of Care):
  • Employers have a duty to provide a reasonably safe system of work for their employees.
  • Failure to ensure safe working conditions constitutes negligence.
• Volenti non fit injuria (Consent to Risk):
  • Defense: Employer argues employee willingly accepted known risks.
  • Not simply "scienti non fit injuria" (knowledge of risk is not enough).
  • Requires proof employee consented to the risk and waived their right to legal redress for resulting injuries.
  • Cited: Smith v Baker [1891] AC 325 - Mere continuance in service with knowledge of risk doesn't automatically preclude recovery.
• System of Work:
  • Condemning a system of work requires evidence that another and safer system is reasonably practicable and would have prevented the accident.
  • Cited: General Cleaning Contractors Ltd v Christmas [1953] AC 180

III. Court's Reasoning and Holding

• Negligence:
  • Affirmed the Sessions Court's finding of negligence. Employer failed to provide a reasonably safe system of work by not ensuring steps were properly cleaned.
  • No Contributory Negligence on employee's side.
• Volenti non fit injuria:
  • Rejected the defense.
  • Employee's awareness of the risk did not equate to voluntary acceptance of the risk and waiver of legal rights.
• Customary Practice:
  • Court didn't make a finding that the customary practice of toddy tapping has to incorporate new safety regulations.
  • It stated that evidence should be available to support this change.
• Damages:
  • Upheld the award of general damages (slightly generous, but not enough to warrant interference).

IV. Cases Referred To

• Drummond v British Building Cleaners Ltd [1954] 3 All ER 507
• General Cleaning Contractors Ltd v Christmas [1953] AC 180
• Monaghan v WH Rhodes & Son [1920] 1 KB 487
• Smith v Baker [1891] AC 325

V. Outcome

• Appeal dismissed. Employer held liable for negligence.

KembaraXtra-Case Law- Goh Beng Seng v Dol Bin Dolah [1970] 2 MLJ 95b
​Case Overview

• Court: OCJ Malacca
• Judge: Sharma J
• Date: 26 June 1969
• Nature of the case: Road accident claim involving negligence and damages for personal injuries.

II. Key Issues

• Negligence: Determining the degree of negligence of both plaintiff and defendant in a road accident.
• Damages:
  • Assessment of damages for personal injuries.
  • Refusal of a second operation and its impact on damages.
  • Lump sum vs. itemized awards for general damages.
• Evidence: Admissibility of statements made to the police under the Criminal Procedure Code and Evidence Ordinance.
• Road Traffic: Duty of care of drivers on public roads.

III. Facts of the Case

• Accident: 1.30 a.m., April 19, 1966, at 13½ milestone Machap Baru/Durian Tunggal Road.
• Parties: Plaintiff (car driver) and Defendant (lorry driver).
• Conditions: Bend in the road, no dividing white line.
• Damage: Slight, on the offside of both vehicles.
• Plaintiff's actions: Driving with right arm resting on the door window, elbow sticking out.
• Medical: Plaintiff refused a second operation.

IV. Court's Findings (Held)

1. Speeding: Both plaintiff and defendant were driving faster than expected for a sharp bend.
2. Plaintiff's Negligence: Plaintiff's injuries were directly attributable to his own negligence (arm placement).
3. Refusal of Operation: Plaintiff was not acting unreasonably in refusing a second operation.
4. Lump Sum Damages: A lump sum award is more desirable for general damages to avoid inflation.
5. General Damages Scope: General damages are compensatory, not restitutionary, and include loss of earnings, injury to health, pain, suffering, and inability to return to normal occupation.
6. Inadmissible Evidence: The court has a duty to disallow inadmissible evidence, even without objection.
7. Statements to Police: Use of statements to the police is limited by Section 124 of the Criminal Procedure Code and cannot be circumvented by claiming relevance under the Evidence Ordinance.
   • Such statement cannot be used as evidence for any other purpose.

V. Sharma J's Observations

• Roads are not territorially or geometrically divided.
• The center line is a guide and reminder only.
• Drivers have a duty to ensure safety for themselves and others.
• An accident may occur even on 'one's own side of the road', imposing liability.

VI. Cases Referred To

• Watson v Powles [1967] 3 WLR 1364
• Ward v James [1966] 1 QB 273
• Rowley v London & North Western Railway Co (1873) LR 8 Exch 221
• Wong Kong v Yee Hup Transport Co & Ors [1966] 2 MLJ 234
• British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Rail Co of London Ltd [1912] AC 673
• Jones v Watney Comb Reid & Co Ltd (1912) 28 TLR 399
• Tutton v Majestic Owners [1909] 2 KB 54

VII. Significance

• Illustrates the importance of driver responsibility and awareness on public roads.
• Highlights the limitations on admissibility of police statements in civil proceedings.
• Provides guidance on the assessment of damages in personal injury cases, particularly the debate between lump sum and itemized awards.
• Clarifies the duty to mitigate damages and the consideration of a plaintiff's refusal of medical treatment.

KembaraXtra- Case Law - Collins (1973) CA
Facts of the Case

• Defendant (D): Collins
• Victim (P): (Unnamed, female)
• Action: D observed P asleep and naked through a bedroom window.
• Trespass: D climbed a ladder and looked into P's window. He later climbed onto the window sill.
• Deception: P, mistaking D for her boyfriend, invited him into the room.
• Act: D and P had sexual intercourse.
• Discovery: P realized D was not her boyfriend.
• Charge: D was convicted of burglary.

II. Legal Issue

• What constitutes "entry as a trespasser" for the purposes of a burglary conviction?

III. Holding (Court's Decision)

• To be convicted of burglary, the defendant must make a substantial and effective entry as a trespasser before consent is given.
• The defendant was not a trespasser at the time of entry because he was invited in.

​KembaraXtra-Case Law- Brown (1985) CA

​Effective Entry for Burglary

 Case Facts:

• D: Found with top half of body inside a shop window (broken by D), rummaging around. Feet remained outside.
• Charge: Burglary.
• Conviction: D was convicted of burglary.

II. Legal Issue:

• Interpretation of the word "enter" in Section 9 of the Theft Act 1968, specifically what constitutes sufficient "entry" for burglary.

III. Court Holding:

• "Enter" means "effective" entry.
• Key Point: Entry does not need to be complete or even substantial.
• Criterion: Entry only needs to be effective for D to carry out the ulterior offence (the intended crime inside).

IV. Significance:

• Clarified the threshold for "entry" in burglary cases.
• Established a lower standard: It is enough that part of the person inside the structure enables or would enable an unlawful act.
• Broadened the scope of "entry" beyond a complete bodily penetration.

​KembaraXtra- Case Law- Ryan (1996)

​Burglary & Entry

Facts of the Case:

• Defendant (D): Found stuck in a downstairs window of an occupied house in the early morning.
• D's Position: Head and arm inside the window; the rest of his body outside. Window resting on his neck, trapping him.
• D's Claim: Trying to retrieve his baseball bat, which a friend had put through the window.
• Conviction: Initially convicted of burglary.
• Appeal: Appealed on the basis that his action did not constitute an "entry" under s 9 of the Theft Act 1968.

II. Legal Issue:

• Did D's partial intrusion into the house through the window constitute an "entry" for the purposes of burglary under s 9 of the Theft Act 1968, even though he was physically trapped?

III. Held (Court's Decision):

• Entry Established: It was possible to enter a building under s 9, even when only part of the body was inside, citing Brown as precedent.
• Irrelevant Incapacity: It was irrelevant that D was incapable of stealing anything because he was trapped. The act of entering with the intent to commit theft (or other relevant offense) is sufficient.

​KembaraXtra- Case Law- Walkington (1979)

Burglary & Implied ExclusionI. Case Summary:

• Defendant (D): Entered behind a shop counter and opened an empty till. Convicted of burglary.
• D's Defense: He did not realize he was trespassing, believing he was allowed behind the counter.

II. Legal Issue:

• Whether the area behind the counter constitutes a "part of a building" from which the general public is excluded, for the purposes of burglary.
  • Key Phrase: "part of a building"
  • Key Phrase: "from which the general public are excluded"

III. Court Holding:

• Jury's Role: It is up to the jury to determine whether the area behind the counter, physically marked, is a "part of a building" with implied restrictions.
• In this case: The court found that it was clear the public was impliedly prohibited from the counter area.
  • Key Phrase: "impliedly prohibited"
• D's Knowledge: The court also found that the D knew of this prohibition.
  • Key Phrase: "D knew of this prohibition"

IV. Significance:

• Illustrates that a physical barrier (like a counter) can create an implied boundary defining a restricted area within a building.
• Highlights the importance of the defendant's awareness of the restriction in determining trespass.

​KembaraXtra- Case Law- Jones and Smith (1976)
​Case: Jones and Smith (1976)
Area of Law: Burglary; Trespass
Facts:

• Defendant (D) stole a television set from his father's house.
• D had general permission to enter the house.
• D was convicted of burglary.

Issue:

• Was D a trespasser, despite having general permission to enter the property?

Held:

• D was a trespasser if he entered the premises:
  • Knowing he was entering in excess of the permission given, OR
  • Being reckless as to whether he was entering in excess of the permission given.

Key Principles:

• Trespass can occur even with general permission to enter.
• Excess of Permission: The crucial element is whether the entry exceeded the scope of the permission granted.
• Mens Rea: The defendant's knowledge or recklessness regarding exceeding permission is central to establishing trespass.

​KembaraXtra-Case Law- Coffey (1987)
Obtaining Property by DeceptionCase Facts:

• Accused (D): Convicted of obtaining property by deception.
• Means: Used a worthless cheque to obtain machinery.
• Victim (V): In dispute with D; refused to negotiate.
• Motivation: D exerted pressure on V to negotiate by obtaining and keeping the machinery.

Legal Issue:

• What constitutes an intent to permanently deprive in cases of temporary possession obtained through deception?

Held (Ruling):

• Jury Instruction: If the jury believed that D might have intended to return the goods (regardless of V's actions), they should not convict.
• Exception: Unless the detention period was so long as to amount to an outright taking.
• Key Principle: Creating a situation where V only gets the property back by complying with D's demands may constitute treating the property as D's own to dispose of, regardless of V's rights. This is a key indicator of intent to permanently deprive.

Key Phrases & Concepts:

• Obtaining property by deception: The core crime.
• Worthless cheque: The means of deception.
• Intent to permanently deprive: Crucial element for conviction; challenged by potential return.
• Detention period: Length is crucial - excessive detention can equal outright taking.
• Treating property as one's own to dispose of: Acting as if one owns the property, despite the actual owner's rights. Strong evidence of intent to permanently deprive.

​KembaraXtra-Case Law - Lavender (1993)
Theft & Intention to Treat as Own
I. Case Overview
Defendant (D): Accused of stealing two doors.
Act: Took doors from a council property undergoing repair.
Use: Used the doors to replace damaged doors at another council property.
Defense: Claimed lack of intent to permanently deprive the council of the doors.
II. Legal Issue
Interpretation of "to dispose of" within the context of theft, specifically whether it's limited to selling or getting rid of property.
Determination of whether the defendant intended to treat the property (doors) as his own.
III. Held (Court's Decision)
Interpretation of "to dispose of": The court held that the phrase "to dispose of" should not be defined too literally. It isn't limited to merely selling or discarding property.
Key Question: The crucial question is whether the defendant intended to treat the property as his own, regardless of the owner's (council's) rights.
Application to Facts: By removing the doors, the defendant clearly intended to treat them as his own.
IV. Key Takeaways
Intention to Treat as Own: Demonstrates mens rea even if there is no intent to permanently deprive.
Definition of Mens Rea: An individual has the mental state in order to commit an illegal act, in this case theft.
Relevance of Rights: Disregarding the owner's rights is a strong indicator of intent to treat the property as one's own.