JUDGMENT

Nixon Kennedy Kumbong, SJ, SJ:

[1] This is a running down case which happened along Km 60 Jalan Sri Aman/Kuching involving the plaintiff (a pedestrian who was walking at the side of the road), the first defendant (the driver of van No QKF 8253 - van A), the second defendant (the owner of van A) and the third party (the driver of van No BEA 2664 - van B).

Brief Facts Of The Case

[2] On 26 October 2003 at about 8:00 am. the plaintiff ("PW2") was walking at the side of the road along Km 60 Jalan Sri Aman/Kuching to her daughter's house after having alighted from van B (parked at the road side) driven by the third party ("PW5").

[3] The plaintiff was collided into by van A (which had earlier collided into van B) which was coming from the direction of Sri Aman driven by the first defendant ("DW1").

Witnesses Called During Trial

[4] At the trial, the plaintiff called five witnesses, namely

(a) PW1 - Ex-Sergeant Engkasan Chunggot (AIO);

(b) PW2 - Kedaya Jantong;

(c) PW3 - Norhafiza Abdullah;

(d) PW4 - Enggong Rigeh;

(e) PW5 - Edmund Bangga.

[5] The defendant called two witnesses, namely:

(a) DW1 - Chung Lang Hiong,

(b) DW2 - Voon Yun Chee @ Voon Jun Chee.

Liability

[6] In the instant case, I am of the view that this is a rather straightforward case. The place of collision is a kampung (Kpg Sungai Tenggang) area as there were was some longhouses and scattered houses nearby and this fact was never challenged by the defendant during cross-examination.

[7] In the case of Noor Azahar Habin v. Rajaswari Sithampara Pillai & Anor, [1991] 3 CLJ 339, it was held that: There is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to acceptance of the witness testimony;

[8] The evidence showed that van A driven by DW1 was coming down a slope and there was a slight bend at the place of collision. This was admitted by PW5 and DW1 wherein they said that it was a left bend.

[9] At the place of the accident ie Km 60 from PW1's experience if one is coming down from Sri Aman (ie "the slope") one would be able to see the traffic in front clearly. This fact was also never challenged by the defendant.

[10] As per the sketch plan (exh P1) the centre of the road was divided by a white line. This was admitted by DW1.

[11] DW1 further testified that the meaning of a single white line on the road means "cannot overtake vehicles". From the sketch plan (exh P1) there were no brake marks on the road.

[12] According to DW2 (DW1's passenger who was sitting in front by DW1's side in van A, DW1) was trying to overtake van B and upon seeing an oncoming vehicle he swerved to the left, thus colliding into van B and PW2.

[13] Even from the evidence of DW1 himself, it clearly showed that DW1 had seen van B from a distance of 30 meters or 100 feet away. DW1 also confirmed that he had seen the said van stop at that distance and saw the first defendant from 30 meters or 100 feet.

[14] The evidence can be seen as follows:

30. When coming from the direction of Sri Aman how far were you when you first saw van BEA 2664?

- 100 feet.

31. Was that van BEA 2664 already stationery at that time?

- It was moving and then it stopped.

32. 100 feet about 30 metres right?

- Yes.

[15] DW1 also agreed in the cross-examination when he said as follows:

5. When you saw the passenger alight from the van BEA 2664, you were about 30 meters away, agree?

- Yes.

6. Agree/ You confirm with me from 30 m you have already seen the van stopped and you knew the passenger was coming down from the van.

- Yes.

[16] Upon seeing the above situation, the first defendant tried to overtake van B. In so doing, he went into the opposing lane, but as there was an oncoming vehicle, the first defendant tried to avoid the said oncoming vehicle by swerving back to the left, thereby colliding into the rear of van B.

[17] Though the first defendant denied that he was in the process of overtaking van B, the compelling evidence has shown otherwise of which I shall narrate them here.

[18] DW1 admitted that he w