Jeffrey Tan J:

On 4 May 1998, after full trial of the above running down action, the Muar Sessions Court held that the appellants had not proved negligence on the part of the respondents for the collision between the motorcycle (JBC 1152) ridden by the 1st appellant and the motor-lorry (JD 5731) driven by the 2nd respondent, and dismissed the whole of the appellants' claims. This is the appellants' appeal against that decision.

It is not in dispute, that at the material time of the collision (23 February 1995 at about 2pm), the 1st appellant riding the said motorcycle was travelling along Jalan Tanjong Olak towards Tanjong Olak, whilst the 2nd respondent driving the said lorry was travelling on the same road from the opposite direction and towards Pekan Bukit Pasir, Muar, and, the said collision occurred at a sharp bend of the road. However, it is in serious dispute as to how the collision occurred.

In the court below, the 1st appellant testified that the lorry at speed had encroached onto her road, and that she had no time to avoid the lorry. "Lori itu memasuki separuh jalan saya." She was returning home from school. She denied that she had encroached onto the 2nd respondent's road. She maintained that the collision occurred on her side of the road. Her pillion rider (SP2) as well testified that the collision occurred on the 1st appellant's side of the road.

The opposing version, that the 2nd respondent testified, was that the 1st appellant's motorcycle had encroached onto his road and then collided with his lorry's right side tyre. "Apabila saya sampai di selekoh tajam di Kampong Tanjong Olak, tiba-tiba datang sebuah motosikal dari hadapan saya dan masuk ke hak laluan saya dan terlanggar ke tayar lori saya disebelah kanan" (see p. 23 of the Appeal Record).

The 1st appellant, SP2 and 2nd respondent were the only eye-witnesses, and the 2nd respondent was the only witness called by the defence.

With commendable alacrity, the trial court held, at the close of submissions, that the appellants, "gagal membuktikan kecuaian defendant pertama dan defendan kedua atas imbangan kebarangkalian dan dengan itu tuntutannya ditolak dengan kos", and recorded the following reasons (see p. 24 of the Appeal Record):

(i) keterangan pegawai penyiasat (SP4) ... mengatakan lori tidak menunjukkan apa-apa kerosakan ... Ini menunjukkan bahawa tidak ada 'physical contact' diantara bahagian tengah lori tersebut dan motosikal ... Tidak ada sebarang objek atau calar ditemui di tempat kejadian khususnya di laluan plaintif pertama. Defendan kedua dalam laporan polisnya ... mengatakan bahawa plaintiff pertama ... memasuki laluannya dan terus terlanggar tayar kanan di sebelah belakang lorinya ... Sebaliknya dalam repot polisnya, plaintiff pertama menyebut bahawa bahagian tengah lori defendan terkena motosikalnya.

Keterangan SP4 tidak menyokong dakwaannya.

(ii) rajah kasar (P4) tidak menyokong versi plaintiff pertama.

(iii) keterangan SP2 diambilkira tetapi Mahkamah memberi valuenya yang

tidak sepenuhnya - soal interested witness dan partisan witness.

(iv) kerosakan motosikal iaitu rim di hadapannya bengkok adalah konsisten dengan versi defendan kedua.

Later, in its grounds of judgment (see p. 26 to 31 of the Appeal Record), the trial court elaborated on the reasons for its decision. According to the trial court, (i) SP2 was a friend of the 1st appellant and so was an "interested witness" (see p. 28 of the Appeal Record), (ii) judicial notice must be taken that any vehicle travelling at speed towards Tanjong Olak and negotiating the said sharp bend would be "pulled" (tank) towards the other side of the road (see p. 28 (reverse) of the Appeal Record), (iii) the lorry was an old vehicle carrying timber and so it could not have been travelling fast, or else the timber would have fallen off the lorry onto the road, and, (iv) a vehicle travelling towards Pekan Bukit Pasir from Tanjong Olak (as was the 2nd respondent) and negotiating a right hand bend would