Arulanandom J:

In this case the plaintiff sues the defendant for damages for loss of vision and injuries suffered by him as a result of an accident caused by the negligent driving by the defendant of motor taxi No. PE 3789 on 28th day of March, 1973 at about 12.30 a.m. along Telaga Ayer Road, Butterworth, together with interest and costs.

According to the plaintiff, on 28 March 1973, at about 12.30am he was riding his motor cycle, PN 1234, and was proceeding along Telaga Ayer Road towards Bukit Mertajam with one Shahidi bin Yahya as his pillion rider. As he was proceeding along the road the defendant drove his motor taxi No PE 3789 along the same road in the same direction and that somewhere near the junction of Telaga Ayer Road and Jalan Chempah the defendant overtook the plaintiff without any warning and immediately stopped in front of him and thereby caused an accident. He alleged he tried to avoid the defendant's car by swerving right but could not do so because there was neither sufficient time nor space to do so. He therefore collided into the rear of the defendant's taxi. He alleged that he was riding the motor cycle at about 20-25 mph. He further suggested that the reason for the defendant overtaking and cutting in front of him and stopping suddenly was that some ladies were standing on the left hand side of the road and the defendant most probably wanted to pick them up as passengers. His pillion rider Shahidi bin Yahya supported his story as far as the manner and cause of the accident were concerned. The defendant in his defence states that he did overtake some vehicles but after overtaking he had travelled a distance of four lamp-posts without overtaking any vehicle when a dog ran across his path from the right to the left and he jammed on his emergency brakes. He denied that there were any ladies standing by the side of the road or that he was intending to pick up any passengers when he stopped. He said that he had driven to Kuala Lumpur and back and he was on his way home at that time.

The question before the court is therefore whether the defendant cut across the path and stopped suddenly or whether he was driving straight along the road with the plaintiff following and jammed his brakes during an emergency. If the former is the case, then, the defendant is guilty of negligence. If the latter is the case, then, he need not necessarily be guilty of any negligence.

In considering whether the plaintiff's version is the correct version, one has to take into consideration a few factors. The pillion rider Shahidi bin Yahya made a report immediately after the accident and in that report there was no mention of any car cutting across the path of the plaintiff and stopping. All he says in his report is: "When we arrived at Simpang Chempa Lane, my friend collided into the rear of a motor taxi. I fell." In the report of the plaintiff which was made about one month after the accident the plaintiff says:

When I arrived near Mengkuang Road, a motor taxi came from my rear and overtook my motor cycle and suddenly stopped in front of me. I applied my brakes but collided into the rear of the taxi and I fell down unconscious.

In his evidence in court he said the reference to Mengkuang Road was wrong and it was Jalan Chempah he was referring to.

From the sketch-plan it is to be observed that the road was 46'9" wide which would mean it is quite a wide road. The front wheel of the motor cycle is lying about 1' from the centre white line while the rear wheel of the motor cycle is lying about 2' from the centre white line. The glass fragments from the motor cycle are somewhere between the front wheel and the back wheel. Considering the width of the road it would mean that the motor cycle collided into the rear of the taxi about 21-22' from the left hand side of the road as one approaches Permatang Pauh. If the taxi had overtaken the motor cycle and stopped suddenly to pick up passengers it is dffficult to imagine the taxi