The issue is simply this, who is liable if a driver hits a cow on toll highway?
The answer to this question fell to be decided in the case of Parimala Muthusamy v Project Lebuhraya Utara Selatan, the issue was on all fours. The High Court in its decision found the toll concessionaires liable. We have also been made to understand that the said case was reversed on appeal by consent of parties.
In Parimala’s case, the following facts were established:
1. The accident area was a wild animal prone area and PLUS had knowledge of the previous accident but did nothing to alleviate the problem of animals straying onto the expressway.
2. The fences were constantly damaged by the villagers to use the expressways as a shortcut and this was within the knowledge of PLUS.
3. Vandalism was rampant.
4. There was no monitoring system by PLUS at all at that time.
5. The vandalized fences were not repaired.
In another case, Project Lebuhraya Utara Selatan Berhad v HMD Rais Hussin A Mohamed Arif, the High Court concluded that the toll concessionaires are not liable for stray animals which encroach onto the highway, as a result of which damaged is caused to motor vehicles.
The evidence in HMD Rais Hussin’s case revealed the following facts:
1. The stretch of the expressway where the accident occurred is not a wild or stray animal prone area. As such the Appellant could not have foreseen the respondent’s accident.
2. The Appellant do not have a record to show that the fence at the place of the accident was damaged. Furthermore the wild boar has a peculiar natural habitat of digging or bore its way under the fence or concrete wall.
3. The Appellant had erected fences along the expressway to ensure that the wild boar and /or stray animals do not enter the expressway. Since the accident spot is not identified as wild animal prone area, the fencing erected is sufficient.
4. DW3 testified that the fences would be inspected thoroughly every week and a simple inspection everyday. If there is any damage to the fences, it would be repaired immediately by the Appellant.
5. The carcass of the wild boar was not left on the expressway for a very long period of time so as to endanger the other road users.
The cumulative effect of all these evidence show the Appellant had taken reasonable steps to ensure no wild animal run across onto the expressway. Evidence of damaged fences at the area of the accident was not established.
6. The law only imposed liability for a danger that could reasonably be foreseen.
We find there is no straight forward answer to this issue because the latter case deals with stray animals whilst the former may deal with animal bread by someone. Ultimately, the fact which needs to be decided by the Courts is whether the danger i.e. animals crossing, could have been reasonably foreseeable by the Highway Concessionaire. If yes, then the Highway Concessionaire would be liable.
The difficulty lies because the former case the appeal was allowed by consent, which begs another legal question what is the effect of a decision on appeal by the Court of Appeal that was reversed by consent without hearing arguments? Does the same bind all future cases ?
In the upshot the question remains open and would be an issue of fact to be decided by the Courts on each given facts.
Perhaps another legal challenge should be mounted to resolve the above 2 differing High Court cases.
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