PLEADINGS

I.

Ramland Jazz was driving in a dangerous manner as he was overtaking each and

every car from the left lane, which is clearly a violation towards the traffic law.

A. The actions by Ramland Jazz overtaking each and every car from the left lane is
consider as driving in dangerous manner.
The meaning of driving in a manner which is dangerous to the public is defined by
Choor Singh J in the case of Lim Chin Poh v. Public Prosecutor. It indicates some dangerous act
or maneuver on the part of the driver of a vehicle, e.g. overtaking a vehicle on the wrong side of
it, or overtaking when unable to see oncoming traffic, or crossing a junction against traffic light,
and so on. There must be some positive act on the part of the driver which is dangerous having
regard to all the circumstances. As a road user, Ramland Jazz has a right to use a highway
regulated mainly by the duty of care owed to other used of the highway.1
1. Overtaking is the act of one vehicle going past another slower moving vehicle, travelling
in the same direction, on a road. Overtaking driver should not change from one lane to
another unless he has made certain that, it is safe to do so and has given the appropriate
signal.
In order to overtake other cars, Ramland Jazz has to give signal in proper time. However
after gave a honk to Ika Lufya, later he gave signal and overtook her from the left lane. The
actions taken by Ramland Jazz shall be considered as positive acts which are dangerous to other
users of road especially against Ika Lufya.
2. An action of switching on the right trafficator light signal when the rider was just over
one chain away and not earlier is not consider this as a sufficient warning or warning in
time if the rider 20 to 30 feet behind.
In the case of Lai Yew Seong v. Chan Kim Sang, Seah SCJ in his opinion did not think
that a conventional signal of trafficator light signal would be sufficient and an acting of
1 Halsburys laws of England fourth edition. 40 Road Traffic

merely switching on the trafficator light signal was not enough in order to avoid confusion to
other driver. Thus, Ramland Jazz was fast approaching the motorcycle that was ridden by Ika
Lufya and the possibility of Ramland Jazz to give a signal at a sufficient time is doubtful.

B. Ramland Jazz is a taxi driver and he is considered as the owner of public service
vehicle.
Public service vehicle means a motor vehicle used for carrying passengers for hire or reward or
for any other valuable consideration2.
1. As a taxi driver, Ramland Jazz shall not drive continuously in the extremely right lane or
on any road or highway except for the purpose of overtaking any vehicle in front of him.3
As a taxi driver and road user, Ramland Jazz has a duty towards other road users. He
needs to exercise reasonable care. However, by driving at remarkably high speed and driving
in a dangerous manner, it is clearly shows that he is failed to exercise his reasonable care
towards other road users, especially when it causing the death of Ika Lufya. A good driver
adjusts his speed to road conditions. Ramland Jazz should reduce speed to suit road
conditions so that he can stop in any emergency without skidding or losing control 4. However
due to his reckless driving and driving at remarkably high speed he cannot stop when his taxi
collided with Ika Lufyas motorcycle subsequently causing Ika Lufyas death.
C. Ramland Jazz was driving his taxi on a road recklessly at a speed which is
dangerous to the public can caused death to Ika Lufya.5

2 Section 2 of Commercial Vehicle s Licensing Board 1987

3 Section 4A of Road Traffic Rules (AMENDMENT) 2004
4

Section 20 of Road Transport Rules (Highway Code)

5 Section 41 of Road Transport Act 1987

Ramland Jazz being an adult, licensed to drive, had presumably acquired a knowledge not only
of the Highway Code but also of the ordinary precautions to be taken by him for his own safety
as well as for the safety of others, and if he then obtruded himself on to the main road in
circumstances which made it impossible for traffic coming behind him to avoid a collision, then
he was entirely responsible for the accident.6
1. Excessive speed was not the sole decider of reckless driving but there must also be a
finding of the manner and other aspects of the defendant's driving which constituted
recklessness, by having regard to the prevailing circumstances at the material time of the
accident, including the nature, condition, and size of the road, and the amount of traffic
which was or might be expected on the road.
a. The above principles is taken from the case of PP v Zulkifli bin Omar7, where it
was held that in an offence under the Road Transport Act 1987 s 41(1), The risk
created by the manner in which the vehicle was driven must be both obvious and
serious, and the court had to be satisfied that the essential or core ingredients of
recklessness had been proved beyond reasonable doubt.
b. Referring to Gunasegaran a/l Singaravelu v PP8, where it was held that where the
charge was not one of causing death, but of driving dangerously or recklessly, the
whole situation leading to the accident must be viewed objectively to determine
whether it could be considered reckless or dangerous driving.
According to the Hamids Road Traffic Offences, dangerous or reckless
falls into category of those in which the accused has driven in a manner which has
shown a selfish disregard for the safety of other road users or of his passenger.9
Here, the court shall consider the interest and the safety of the public on the road
6 See Kek Kee Leng v Teresa Bong Nguk Chin [1978] 1 MLJ 61
7 [1998] 6 MLJ 65
8 [2009] 7 MLJ 761
9 Hamids Road Traffic Offences

as Ramland Jazz is in fact at times is a reckless driver especially when he is tired

driving the taxi in and around Kuala Lumpur. In R v Guilfoyle10, Lord Lawton
held that for those who have shown a selfish disregard for the safety of other road
users or of their passengers or a degree of recklessness, a custodial sentence with
a long period of disqualification may well be appropriate, and if the driver has a
bad driving record the period of disqualification should be such as will relieve the
public of a potential danger for a very long time. In the instant case, Ramland Jazz
not only causing a trouble to Ika Lufya but also might causes a danger to other
road users as referred to his driving record thus the higher liability shall be
imposed to him.
2. In Section 22 of the Road Transport Rules (Highway Code), the following distance is
defined as when a driver collide with a rear of vehicle in front of him, it is his own fault
and means that he have followed too closely.
A driver should allow at least one cars length between his car and the car in front
for every 10 miles an hour of his speed.11 He is said to driving in dangerous manner when
he fast approaching Ika Lufyas motorcycle. She was in normal and considerable speed
but he failed to maintain his following speed when he fast approaching Ika Lufyas
motorcycle and later he overtook Ika Lufya subsequently causing her death.

D. Ramland Jazz did violates the traffic law by overtaking each and every car from
the left lane, at a remarkably high speed.
The general rule is to overtake on the right of the vehicle front. Ramland Jazz may,
however, overtake a vehicle on the left if the driver has signaled his intention to turn to the right
and moved close to the centre of the road for that purpose. It is clearly shows that he put other
road users at risk with his style of driving when he overtaking each and every car from left and at

10 [1973] All E.R. 844

11 Section 22 of Road Transport Rules (Highway Code)

remarkably high speed. This is not considered overtaking in the strict sense of the word. 12 In
contrast Ramland did overtake from left lane; however his intention was to overtaking each and
every car. It is contravene with what is stated in the Section 20 of Road Transport Rules
(Highway Code).

II. Ramland Jazz was negligent in maneuvering the taxi that he was driving, and this led to
the death of Ika Lufya.
A. Ramland Jazz was negligent in handling his taxi.
Negligence as a tort is a breach of a legal duty to take care, which results in damage, undesired
by the defendant, to plaintiff. According to Alderson B in the case of Blyth v Birmingham
Waterworks Co13,the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do; or doing
something which a prudent and reasonable man would not do.
Negligence is established when three elements are fulfilled, which are duty of care owed by
defendants towards the claimant. Secondly, this duty is breached by the defendant and thirdly, the
claimant suffered damage as a result of that breach.
1. Duty of care concerns about the relationship between the defendant and the claimant, which
must be such that there is an obligation upon the defendant to take proper care to avoid
causing injury to the claimant in all circumstances.
(a) Donoghue v Stevenson14 laid down the test determining duty of care where
duty of care principle was established. Lord Atkin J comes up with
Neighbour Principle where neighbour can be defined as person who is closely
affected by the act of the defendant. According to the Neighbour Principle,
12 Section 20 of Road Transport Rules (Highway Code)
13 (1856) 11 Ex Ch 781
14 [1932] AC 562

Ramland Jazz owed a duty of care towards Ika Lufya because his act of
dangerous manner in maneuvering his taxi had directly affected Ika Lufya
while it is actually foreseeable by Ramland that his act will cause injury
towards Ika Lufya, who is only riding on a motorcycle. Thus, he has an
obligation to take extra care to avoid causing injury to her. Ramland is in the
position where any reasonable man would realise that if he does not drive
carefully, he may cause injury to someone.
(b) In Jangi Kor & Anor, the court held that the duty of care owed by the driver of
a motor vehicle if far more onerous than that of a cyclist.
2. There is a breach of duty of care on the part of Ramland Jazz as he had not come up to the
standard of care required by law. The test for deciding this is the test of a reasonable mans
conduct in a particular situation.
a) In Blyth v Birmingham Waterworks Co,15 the court stated that the standard of care
required is not that of the defendant himself, but of this reasonable man. When the
circumstances of the act indicate that certain consequences might ensue, the reasonable
person must be held to have foreseen the consequences, or at least, ought to have
foreseen them. The duty of care owed by the driver of a motor vehicle is far more
onerous than of a cyclist 16. Ramlan Jazz owed a legal duty of care towards Ika Lufya and
he had breached that duty on the ground that he had acted below the minimum standard
of care required of him which is measured through the standard of a reasonable man.
b) Through the reasonable man test, reasonableness does not mean perfection. The usual
norms and activities in a particular society will be considered in determining the
reasonableness of the defendants conduct. Therefore in determining the reasonableness
of Ramland Jazzs act, he was not required to be perfect but to take extra care towards
other road users by avoiding causing harm to them. The way he drove fell below the
required standard of care which in this case had lead to the collision between him and Ika
Lufya.
15 (1856) 11 Ex 781, 784
16 Jangi Kor & Anor. v Palanisamy [1968] 2 MLJ 81

c) There was a damage caused by Ramland Jazzs breach of duty.

Two issues need to be addressed in determining whether the damage suffered by the
plaintiff is the consequence of the defendants breach of duty. The first issue is causation
in fact and secondly, causation in law. In causation of fact, the question arises is whether
the defendants conduct has in fact caused the damage suffered by the plaintiff. Applying
the but-for test which is laid down Barnett v Chelsea & Kensington Hospital
Management Committee,17 a plaintiff would not have suffered the damage if it is not for
the dangerous act committed by the defendant. Similarly, if it is not for Ramlans
negligence in manoeuvring his taxi, it would not have led to the death of Ika Lufya. Ika
Lufya suffered serious injuries and died following to the collision occurred between her
and Ramlan.
i.

Causation in law. A defendant will only be liable if it is reasonably foreseeable

that his conduct will result in some damage to the plaintiff.

i) 1st test : reasonable foresight test

The Wagon Mound (No. 1) principle is the accepted test in Malaysia,
approved in the case of Government of Malaysia v. Jumat Bin Mahmud &
Ors.18 What must be foreseeable is the type of damage and not necessarily
the exact nature of the damage.
The reasonable foresight test involves two principles which are damage
must be foreseeable as a consequence of the defendants conduct, and the
type of damage must be foreseeable. It follows that if the damage that
occurs is of a different nature than what is foreseeable, the defendant will
not be liable. The test is based on compensation principle in that liability
is only extended to reasonably foreseeable damage.
ii) 2nd test : direct consequence test
Direct consequence test involves two stages; firstly whether damage is
foreseeable as a consequence of the defendants conduct. If the answer is
17 [1969] 1 QB 428
18 [1977] 2 MLJ 103

in affirmative, the second stage will come into effect- that the defendant
will be liable for all the direct consequences of his conduct, even though
the type of damage is unforeseeable.

B. The death of Ika Lufya was a result of Ramland Jazzs negligent act.
The damage caused by Ramland Jazz is not too remote as it is unforeseeable by a reasonable
person. He shall be liable as he could reasonably foreseeable that his conduct will result in some
damage to other traffic user. His taxi was quite damage at the left side. Thus the collision
occurred during the overtaking which had caused the side of the taxi damaged and caused Ika
Lufya suffered serious injuries later died on the way to the hospital.
Therefore, Ika Lufya had actually has the intention to change to the next lane as the
collision occurred exactly when Ramland was besides her, which means that the difference of
time was only a few seconds. This means that Ramland should have foreseen that a road user in
front of him may want to change to the next lane. He had driving negligently in reckless and
dangerous manner and caused the death of Ika Lufya 19. Hence, the signal given by him was not
sufficient and cannot be seen by Ika Lufya since Ramland Jazz was moving and approaching her
instead of slowly following behind her.

PRAYER OF RELIEF
19 Section 41 of Road Transport Act 1987

For the foregoing reasons, the Applicant respectfully requests this Honourable Court to reverse
the decision and allowed the appeal that:
1) Ramland Jazz was driving in dangerous manner.
2) He had violated the traffic law.
3) He was negligent in maneuvering the taxi that he was driving.
4) He was responsible to the death of Ika Lufya
Respectfully Submitted on behalf of the Applicant,
Amin Rocks counsels.