Learner Driver? Better Learn Quickly!
So, what should a learner driver do when they have harmed another road user? Are they liable? Can you sue them for compensation?
Well, its sad to say, Yes! they are liable and you, as the victim can sue them for compensation.
This calls for a discussion on the laws of negligence in Malaysia.
So, what is Negligence? Negligence is doing or failing to do something that a reasonable person would, or would not, do in a certain situation and which causes another person damage, injury or loss as a result.
Generally, negligence law stems from the law of tort. To bring a negligence action, certain essential ingredients must be present, where firstly, duty of care should exists where there must be a wrongful and unauthorized act or omission by the Defendant. Secondly, the act/omission should have affected the interest, safety or rights of others. Lastly, the said act/omission should have caused the injured party or victim to have a right to damages.
Let us dive deeper into the elements.
Duty of Care
The principal test to determine the existence of the duty of care is to apply the objective test of the ‘Neighbourhood Principle’, where we should consider asking this question, “would a reasonable man who is in the same circumstances as the Defendant foresee that his act will affect the Plaintiff?” If the answer is Yes, then the Plaintiff owes a duty of care to the Defendant.
Breach of Duty of care
The next step would be to determine whether the Defendant has breached the said duty of care. A breach is committed if the Defendant does something that falls below the minimum standard of care required of him/her. The minimum standard of care here is one of a reasonable man. Therefore, the question to ask would be, “whether a reasonable man faced with the same circumstances of the Defendant would have acted the same way as the defendant?”. If the answer is No, then the Defendant has breached the duty of care.
Damages
In determining the damages, the court would enquire as to the chain of causation. Here, there should be a causal link between the breach and the damages suffered by the Plaintiff. In determining this, the but-for test is applicable, where a the causes involved in the said negligent act and whether the Plaintiff had contributed to the said breach of duty of care.
Under section 101 of the Malaysia Evidence Act 1950, the burden of proof for negligence on the Plaintiff, i.e the Plaintiff has to the duty to prove the elements of negligence and the standard of proof is on balance of probability i.e. that it was more probable than not that the Defendant was negligent.
Hence, a learner driver who takes control of a car for the very first time is still expected to meet this same standard a competent driver. If they cause an accident, even if it was through their inexperience, they will be held just as liable for their conduct as someone who had been driving for ten years.
