QUOTE(bani_prime @ Apr 15 2022, 09:29 PM)
The presence of the boys on the road is also wrong. But does it change anything if we replace the boys with ordinarly motorcycle, ordinary pedestrian, or romobongan orang? or TNB replace bulp There is no law saying that these people cant be presence on the road or the corner of highway. So a responsible driver must always able to anticipate dangerous location n do what is necessary , whatever preventive measure to prevent accident. This is in my personal opinion, the basis of the judge reasoning on the case (or course tambah dengan statement inconsistentcies like tiba2 ada new version of another car hit the kid)
Threads like this need to stop lmao. The correct word is "foreseeability" instead of "anticipation" btw.
The key element here is "recklessness" or "gross negligence", as per s. 41(1) of the RTA 1987.
To satisfy this, the driver would have to have acted in a way that showed that he/she does not care about the danger or the effect his/her behaviour will have on other road users.
To expect a driver to foresee something impossible like the presence of another road user who doesn't use any lighting at 3AM is simply illogical.
Reasonable man test: Would a reasonable person have anticipated that there would a group of people doing illegal racing on 3AM without lighting and therefore would have acted more carefully?
If your answer is no, then it means that you couldn't even prove the case on the balance of probabilities, much less beyond reasonable doubt.
"In the context of road traffic accidents, this principle may be taken to mean that the user of the road is not bound to guard against every conceivable eventuality, but only against such eventualities that a reasonable man ought to foresee as being within the ordinary range of human experiences." (Fardon v Harcourt-Rivington (1932) 146 LT 391 at 392).
And to be fair, she would have definitely reacted in a better way had it been any other vehicle that had sufficient lighting. This includes TNB personnel who would have definitely provided sufficient warning cones with lighting.
Again it's "recklessness" we are talking about. While contributory negligence isn't applicable to criminal cases in Malaysia, to satisfy the element of "recklessness", you would usually have to prove that it's 99% the fault of the accused.
This post has been edited by Cyberbullies: Apr 15 2022, 11:07 PM