When driving his car home in Georgetown, Ryan called and talked with his wife through his mobile phone without the use of hands-free device. While talking, he lost control over his car and eventually hit a walking pedestrian.
Ryan is liable under civil law as this is a dispute between two individuals and the accident could either be an accidental or a negligent one. He would however be liable under criminal law if the pedestrian dies in the accident. I was having a tete-a-tete with my friend who is studying law in the UK, and he was telling me that his class had a discussion about criminalizing driving while talking on the cellphone. Many were against the idea of categorizing it as a criminal offense, arguing that it is merely an act of distraction. Eating and drinking(sans alcohol) is an act of distraction, but it's illogical to hold the offender liable under criminal law for that, no? I was then reminded of an episode of Mr Bean where he had been late and had to get ready in his green Mini Minor. Imagine the number of offenses he would have committed if that law was passed.
The pedestrian could sue Ryan under tort of negligence. He should hire a lawyer to handle the legal negotiations and compensation amount for the injuries caused by Ryan. The pedestrian could settle it out of court if Ryan agrees to pay the desired compensation. If he does not then the pedestrian's lawyer will file for a civil suit. Ryan could be sued under Law of Malaysia Act - Road Transport Act 1987: Section 43 - Careless & Inconsiderate Driving. It is stated that
(1) A person who drives a motor vehicle on a road without due care and attention or without reasonable consideration for other persons using the road shall be guilty of an offence and shall on conviction be liable to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding six months.
(2) The court shall, (unless for any special reason it thinks fit to order otherwise), order particulars of any conviction under this section to be endorsed on any driving licence held by the person convicted.
(3) On a second or subsequent conviction under this section, the court shall exercise the power conferred by this Part ordering that the offender shall be disqualified from holding or obtaining a driving licence unless the court having regard to the lapse of time since the date of the previous or last previous conviction or for any other reason (which reason shall be stated in the order), thinks fit to order otherwise, but this provision shall not be construed as affecting the right of the court to exercise the power aforesaid on a first conviction.
Ryan will have rights to legal presentation. He can hire a lawyer to defend him if the accident was purely accidental, whereby he did not mean to hit down the pedestrian. If the court rules it as an accidental case, Ryan would not be fully liable for the pedestrian's injuries. If he was found to be negligent, he would then be fully responsible for the accident and is 100% liable. However, the pedestrian could be contributorily negligent, ie. jaywalking, then the court will the degree of the pedestrian's responsibility in causing the accident and reduce the quantum accordingly.
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