[Part 1/2-Innocent passenger and apportionment. Part 2 is here.]

Imagine this tragic scene:

A car climbs a hill in the rain. Inside are a man, his wife, and four children, the eldest five, the youngest one. The right front tyre is bald. On a wet road, that is a quiet sentence of death.

Some 170 to 260 feet ahead, a bus comes down the hill. It is going too fast. The car loses its grip, skids, and crosses into the bus’s lane. The bus driver sees the danger. He does nothing useful. He keeps no proper lookout and takes no evasive step.

The impact throws the car sixty feet. Everyone in it dies but one: a child of three. The bus driver walks away unhurt.

The court later divides the blame. The bus driver, ten per cent. The father, ninety. The surviving child now sues twice over. She sues as a dependant, for the support she has lost. And she sues in her own name, as a passenger who did nothing wrong.

Four mechanisms meet at this collision, and lawyers run them together, to their clients’ cost and the court’s confusion. This essay holds them apart: (a) contributory negligence, (b) contribution between joint tortfeasors, (c) the pleading points that carry a contribution claim, and (d) the court’s apportionment of liability.

Two errors recur. The first mislabels the pleading. The second reads the 90:10 apportionment as a cap on the child’s recovery. Either one short-changes an innocent passenger.

Two appellate authorities anchor the analysis: Malaysia National Insurance Sdn Bhd v Lim Tiok [1997] (Supreme Court) and Muhamad Jafri Jantan & Ors v Zainal Md Rais [2005] (Court of Appeal).¹Muhamad Jafri Jantan & Ors v Zainal Md Rais [2005] 1 CLJ 694; [2005] 2 MLJ 318, Court of Appeal. In Jafri Jantan a pillion rider was held an innocent passenger. She recovered the whole of her damages, though the rider of her own machine was half to blame. The Court drew on the old King’s Bench decision in Oliver v Birmingham & Midland Motor Omnibus Co Ltd [1933] 1 KB 35,²Oliver v Birmingham & Midland Motor Omnibus Co Ltd [1933] 1 KB 35. The foundational rule: a passenger’s claim is not reduced by the negligence of the driver carrying her. and the rule has been applied ever since.

I. THE FRAMEWORK IN BRIEF

The Civil Law Act 1956 supplies the statutory furniture. Section 7 gives the dependency claim, with its capped multiplier of sixteen years’ purchase for the young.³Civil Law Act 1956 (Act 67), s 7. The dependency claim for loss of support; the method for computing damages is in s 7(3). Section 12(1) reduces a claimant’s own damages by the claimant’s own fault.⁴Civil Law Act 1956, s 12(1), modelled on the UK Law Reform (Contributory Negligence) Act 1945. “Fault” is defined in s 12(6). Section 10(1)(c) lets one wrongdoer recover a contribution from another.⁵Civil Law Act 1956, s 10(1)(c).

Where two wrongdoers cause one indivisible loss, each is liable for the whole.⁶Civil Law Act 1956, s 10 — joint and several liability among concurrent tortfeasors. In the motor context the insurer stands behind the nominal defendant: see Johannes Koplan v Aw Chen [1970] 1 MLJ 220 (Federal Court), where compulsory insurance was held to make insurers directly liable to satisfy judgments against the insured, under what is now section 96(1) of the Road Transport Act 1987. That is joint and several liability. The claimant may collect the lot from any one of them, and let that one go looking for the rest. The motor insurer is the paying party — and must pay the victim in full.

The Rules of Court 2012 carry the recovery between wrongdoers. The names matter. A counterclaim, under Order 15, is a defendant’s claim against the plaintiff. A third-party notice, under Order 16, brings in someone who is not yet a party to the suit. These differences matter.

II. CONTRIBUTORY NEGLIGENCE: THE CLAIMANT’S OWN AXIS

Contributory negligence is a different device. It works on one axis only: claimant against defendant. It trims the claimant’s recovery by the claimant’s own carelessness.⁷Civil Law Act 1956, s 12(1). The defendant carries the burden of proving it, and the inquiry is into the claimant’s own conduct in the accident. It says nothing about how two defendants divide the bill between themselves. That is a different question, and a later one.

Apply it to the child. As a passenger, she contributed nothing to any wrongdoing. She did not choose the tyre. She did not set the speed. At three years old she could supervise nobody. Her personal claim therefore, suffers no reduction at all. Lim Tiok and Jafri Jantan settle the point, with Oliver, Damai Cheras Sdn Bhd v Poothapillai Krishnamoorthy [1999] 5 CLJ 576, Samsuri bin Saad v Chew Kit Toh [1996] 2 CLJ 109, Wong Fook & Anor v Abdul Shukur Abdul Hakim [1990] 2 CLJ 382, and Oli Mohamed v Keith Murphy & Anor [1969] 2 MLJ 244 standing in the same line.⁸Oliver, Damai Cheras, Samsuri, Wong Fook and Oli Mohamed were all cited and followed in Muhamad Jafri Jantan & Ors v Zainal Md Rais [2005] 1 CLJ 694 (CA). The line is unbroken.

The dependency claim is a different animal altogether, and here the essays of others tend to slip. A dependency claim is derivative. It rests on the wrong done to the deceased. So where the deceased was himself at fault, section 12(4) reduces the dependants’ damages to a proportionate extent.⁹Civil Law Act 1956, s 12(4); Rubaidah bte Dirin v Ahmad bin Ariffin [1997] 1 AMR 900 (CA), applied in Murugasan Kuppusamy & Anor v Chiew Eng Chai [2000] 1 CLJ 42 (HC). Where a dependency claim arises from a death and the deceased was contributorily negligent, the damages recoverable in that claim are reduced in proportion to the deceased’s share of fault. The child’s dependency on her father, ninety per cent to blame, is cut to reflect his fault. Her dependency on her innocent mother is not. The two heads must be pleaded and computed apart.

Can you see the difference?

This is the first lesson. The innocent passenger’s personal claim and the dependency claim, like two parallel railway tracks, travel on different tracks. Confuse them, and the arithmetic goes wrong.

III. CONTRIBUTION: THE DEFENDANTS’ OWN AXIS

Contribution lives on the other axis: defendant against defendant. It decides, after the claimant has been paid, how the loss is shared among those who caused it.

The insurer of the bus pays the child in full. It then turns to the father’s estate and recovers ninety per cent under section 10(1)(c).¹⁰Civil Law Act 1956, s 10(1)(c) and (2). The contribution is such as the Court finds “just and equitable having regard to the extent of [the tortfeasor’s] responsibility for the damage.” The 90:10 apportionment supplies the ratio. The apportionment of 90:10 gives the ratio for that exercise. It does nothing to the sum the child receives.

The Court of Appeal made this plain in Fadzil Harun v Mohd Azrul Md Ariffin & Anor [2015].¹¹Fadzil Harun v Mohd Azrul Md Ariffin & Anor [2015] 2 CLJ 525 (CA). The car driver, thirty per cent liable, was held entitled to pursue contribution of up to seventy per cent from the motorcyclist, a co-plaintiff and joint tortfeasor. The claim was for contribution, not for a reduction of the passenger’s award. A defendant found thirty per cent to blame was entitled to claim seventy per cent in contribution from the joint tortfeasor. That was a contribution claim, said the Court, not a device for cutting down the injured passenger’s award. The Supreme Court had said as much in Malaysia National Insurance Sdn Bhd v Lim Tiok [1997]: a tortfeasor called on to pay in full pays in full, and his insurer is left to recover its due proportion afterwards.¹²Malaysia National Insurance Sdn Bhd v Lim Tiok [1997] 2 CLJ 351; [1997] 2 MLJ 165 (Supreme Court), as cited in Fadzil Harun. The insurer pays the claimant in full and is subrogated to the right of contribution, bearing ultimately only its due share.

The error to watch is the sequencing error. If the insurer says, “The father is ninety per cent to blame, so we need only pay ten,” that is wrong.

The obligation to the innocent claimant is the whole. The recovery from the estate comes after, and behind the curtain.

IV. THE PROCEDURAL VEHICLES

Here lies a trap, and not the one usually advertised. Whether a contribution claim belongs in a counterclaim or a third-party notice depends on who the joint tortfeasor is.

If the father’s estate is already a party, suing alongside the child, the right vehicle is a counterclaim against that co-plaintiff for contribution. The Federal Court said so in Chan Kit Hong & Anor v Jayakumar [1984].¹³Chan Kit Hong & Anor v Jayakumar [1984] 2 MLJ 271 (Federal Court). Where a defendant claims contribution from one co-plaintiff in respect of damages claimed by another, he should file a counterclaim against that co-plaintiff. If the estate is not yet a party, the vehicle is an Order 16 third-party notice, served promptly so the estate is bound before limitation runs. Or, under Order 15 rule 3 RC 2012, a defendant who counterclaims against the plaintiff may join a non-party joint tortfeasor to that counterclaim, add that person’s name to the title of the action, and serve the amended pleadings on them.¹⁴Rules of Court 2012, Order 15 rule 3 — counterclaim against additional parties.

What is never permitted is the move that insurers nonetheless try: a counterclaim or set-off aimed at the innocent child, to recover the father’s ninety per cent from her.

She is not a tortfeasor.

She owes nobody any contribution.

Inheriting from her father, if anything survives, does not inherit his fault.

The point disposes of itself: she did not cause the accident.

V. APPORTIONMENT BY THE COURT: WHAT IT FIXES, AND WHAT IT DOES NOT

Apportionment is the court’s allocation of fault by percentage. Bus driver ten per cent, father ninety. It does three honest things. It measures the father’s contributory negligence in any claim of his own. It sets the ratio for contribution between the wrongdoers. It may inform the dependency figure.

It does one thing it is constantly asked to do, and must refuse. It does not cap an innocent passenger’s recovery against an insured defendant at that defendant’s percentage.

The ten per cent against the bus fixes a contribution ratio. It is not a licence to pay the child a tenth of her loss. To argue otherwise is to confuse the two axes, and to hope the bench is not watching.

VI. THE COMMON LAW AGREES

The point is not parochial.

England’s Law Reform (Contributory Negligence) Act 1945 and Civil Liability (Contribution) Act 1978 run on the same two axes, and English courts have never let an apportionment between drivers shrink a passenger’s claim.¹⁵Law Reform (Contributory Negligence) Act 1945 (UK); Civil Liability (Contribution) Act 1978 (UK), s 1. The direct ancestors of the Malaysian provisions. The Road Traffic Act 1988 goes further than ours: it makes passenger cover compulsory.¹⁶Road Traffic Act 1988 (UK), Part VI, s 143 onwards. Compulsory third-party insurance extends to passengers, a protection Malaysia leaves optional.

Australia, through its compulsory third-party schemes, pays the innocent victim in full, and leaves insurers to settle contribution among themselves.

India calls this ‘composite negligence’. In September 2024 its Supreme Court, in Sushma v Nitin Ganapati Rangole, put it beyond doubt: the contributory negligence of a driver cannot be vicariously attached to passengers so as to reduce their compensation, or that of their heirs.¹⁷Sushma v Nitin Ganapati Rangole (2024) INSC 706; Civil Appeal No 10648 of 2024, judgment dated 19 September 2024, para 19. https://api.sci.gov.in/supremecourt/2021/30014/30014_2021_14_1501_55860_Judgement_19-Sep-2024.pdf Four jurisdictions, one answer. The insurer who argues the contrary argues alone.

VII. PRACTICAL NOTES

For the claimant’s side: plead the personal claim and the dependency claim separately, and keep their particulars apart. Check at once whether the bus carries passenger cover, and whether the child sues as a third party or a passenger. Refuse any settlement built on the apportionment figure. Deploy Lim Tiok, Jafri Jantan, Fadzil Harun and their line as one block.

For the defence and insurers: accept the full payout to the innocent passenger once any negligence is found against the insured, at any percentage. Preserve the section 10(1)(c) right early, by the proper vehicle. Do not plead vicarious negligence against a child; it is unarguable, and it draws costs.

For the bench: two sentences in the judgment save a generation of bad arguments.

The first: the apportionment is between the defendants.

The second: it does not reduce what the innocent passenger recovers.

Establish negligence, find the passenger innocent, award in full against each insured defendant, then fix contribution and leave it to be worked out apart.

The child did not choose the tyres. She was not at the wheel.

The law has known that since 1933.

It would be a pity to forget it now.

[Part-2 is here].

∞§∞

This article is written for a general readership and does not constitute technical or legal advice. Readers with legal questions are encouraged to seek independent legal advice.

The author thanks KN Geetha, TP Vaani, JN Lheela, and Lydia Jaynthi at GK Legal. Our gratitude to Getty Images of Unsplash for the image.

Claude, Anthropic’s AI, smoothed the drafting; Perplexity Pro checked the facts. The argument, the views, and the errors remain the author’s.

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