Su Geok Yiam JC:

This is an appeal against the decision of the Sessions Court at Teluk Intan. The Sessions Court at Teluk Intan had allowed the respondent's claim for damages for personal injuries sustained in a road accident. The accident occurred on 23 June 1998 at about 10 or 11am along Jalan Teluk Intan/Parit. It was between a motorcar driven by the appellant and a motorcyclist, the respondent.

On 6 July 2001, after hearing arguments I found the appellant who was the defendant in the court below wholly not liable for the accident and for the injuries and disabilities suffered by the respondent who was the plaintiff in the court below. I reversed the order dated 2 October 2000 of the learned Sessions Court judge, Teluk Intan. I also made no order as to costs in the High Court. I further confirmed the order of costs in the Sessions Court. I said I would give my reasons later. I now do so.

It is not disputed that both vehicles were traveling in the same direction, namely, from Kg. Gajah towards Teluk Intan. However, there are two conflicting versions as to how the collision occurred.

Confronted with the two conflicting versions the learned trial judge chose to believe the respondent's version without considering which of the two conflicting versions was inherently probable or improbable in the light of the physical evidence. In doing so he had misdirected himself on a principle of law.

In Yeoh Cheng Han v. Official Administrator, Malaya[1972] 2 MLJ 7 the Federal Court, in allowing the plaintiff's appeal, held that there was no inherent improbability in the evidence of the plaintiff and he was entitled to succeed in his claim.

In Noorianti bte Zainol Abidin & Ors v. Tang Lei Nge[1990] 1 CLJ 943; [1990] 2 CLJ (Rep) 545 Lim Beng Choon J (as he then was) had this advice to give regarding the correct approach to be adopted by the trial judge when considering two conflicting stories (at p. 946; p. 549):

It is useful to pause here for a moment to say a few words regarding the approach which a trial judge should adopt in evaluating the evidence adduced at a trial. It has been stated in numerous cases that the fact that the evidence given by the witnesses of one party was unshaken or unbroken is not per sean all sufficient acid test of credibility and that the inherent probability or improbability of the fact in issue must be the prime consideration - see for instance Muniandy & Ors v. PP, Dato Mokhtar bin Hashim v. PPat p. 247 and PP v. Neoh Wan Keeat p. 372. It has also been said that a trial judge should not approach the case upon the basis of deciding which of the two conflicting stories he should believe but rather on the basis of considering which version is inherently probable or improbable - see for instance Koay Teik Choo & Ors v. R.

Coming back to the evidence in the instant case, the appellant's version is that after the respondent had overtaken his car, the respondent attempted to overtake another motorcar in front of the appellant's car. While the respondent was in the initial process of overtaking this other car, the respondent collided into the front right side of an on-coming lorry which was travelling in the opposite direction. As a result of the collision, the respondent fell off his motorcycle on to the road while his motorcycle fell on the grass verge on the left side of the road.

On seeing this the appellant panicked, applied his brakes and swerved his motorcar to the left in order to avoid colliding into the respondent. In doing so he collided into the respondent's motorcycle which was on the grass verge. He did not collide into the respondent. He said that the underside of his motorcar had knocked into the engine portion of the motorcycle while it lay on its side on the grass verge.

The respondent's version is that he was riding his motorcycle from Kg. Gajah in the direction of Teluk Intan when he was hit from the rear by a motorcar. He did not know the registration number of the motorcar. After the col