Abdul Malik Ishak JC

The respondent, a young agile boy of four years of age, ran across a red laterite kampong road and was knocked down by a motor cycle ridden by the first appellant, a postman. The boy sustained the following injuries:

(1) abrasion wound on the medial aspect of the left ankle; and

(2) fractured midshaft at the left tibia/fibula,

and he sued by his father and next friend, Ahmad bin Yusof.

The Sessions Court, Sungai Siput, Perak gave judgment to the respondent and held the appellants to be solely blameworthy. The appellants appealed against that decision.

The learned judge of the sessions court brushed aside the question of contributory negligence on the part of the respondent and, on the facts before him, found the appellants solely liable. The learned counsel for the appellants made a concerted attack and criticized the judgment of the sessions judge.

It is not disputed that the first appellant had completed his rounds for the day and was travelling along that stretch of red laterite kampong road to proceed to the main road. A witness, one Abdul Aziz bin Nordin, stated that as the boy darted across the road to his grandfather's house (incidentally the boy is his nephew), the handle of the motor cycle came into contact with the boy; the motorcyclist lost control and fell onto the road. As the motorcyclist fell, the motor cycle landed on the boy. It was in evidence that that boy used to frequent the road in order to go to his grandfather's house. Though Abdul Aziz bin Nordin is related to the respondent, his evidence is not tainted and is reliable. He was at the scene and gave a running commentary of what had transpired. There was no evidence that his evidence was tainted in the sense propounded by Liow Siow Long v PP. 1

It would be interesting to note that the first appellant in his evidence admitted that he did not see the boy at all on that fateful day. That would certainly have resolved the question of liability in favour of the boy. The learned counsel advanced a novel point that that boy, though an infant, should be held partially liable. In short, there should be contributory negligence on the boy's part.

The case of Jag Singh v Toong Fong Omnibus Co Ltd 2 was cited for the proposition that 'a child who had sufficient discretion to travel to and from school should have sufficient discretion to appreciate that it is a dangerous thing to get in the way of a moving omnibus'. The child in Jag Singh's case2 was about seven years of age at the time of the accident.

In Tan Guan Cheng & Anor v Kuala Lumpur, Klang & Port Swettenham Omnibus Co Ltd, 3 it was held, inter alia, that the court should take into account the age of the boy in considering whether he was liable for contributory negligence. Abdul Hamid J (as his Lordship then was, now the Lord President) concluded [at p 50 col 1G–H] that:

In the circumstances of this particular case, I am of the opinion that in view of his tender age, he cannot be held liable for negligence. I therefore hold that there was no contributory negligence on the part of PW2. For these reasons, I find the defendants liable for the negligence of their servants.

It is pertinent to point out that the boy in Tan Guan Cheng's case3 was eight years of age at the material time.

In Abraham v Choo Jit Fung & Anor, 4 the first respondent, a schoolgirl aged seven years ten months, was knocked down by a car driven by the appellant while she was crossing a road with three other girls on their way to school. It was held by the Federal Court that a child of the respondent's age in the circumstances of that collision (there was nothing irregular or unsatisfactory in the manner in which she crossed the road) should not be held in any degree or in any way to blame for the accident.

To water down the negligence of the first appellant, it was submitted that the first appellant was 'perplexed or agitated when exposed to danger' — to borrow the words of Raja Azlan Shah J (as His Majesty then