JUDGMENTBY: MAHADEV SHANKAR

The crucial issue in this appeal is whether in a dependency claim, the plaintiffs are entitled to effect total recovery of their damages from a defendant tortfeasor regardless of the extent to which the deceased was found contributorily negligent for his death.

A motorcyclist, Basia bin Bahari (the deceased), died in a head-on collision with a motorcar. Rubaidah bte Dirin (the widow) filed an action for damages. The indorsement on the summons reads:

The plaintiff brings this action under s 7 of the Civil Law Act 1956

for her own benefit and also for the benefit of her four children as

dependants of Basia bin Bahari, deceased, caused by the negligence of

the defendant in the driving, use or management of motor vehicle No WP

2349 on 2 November 1985 at or near the 16th milestone, Kuala

Lumpur/Kuala Selangor and for interest and costs of this action.

The statement of claim set out the usual details of a running down action and particulars pursuant to s 7 of the Civil Law Act 1956 (the Act).

The defence was a denial of negligence and coupled with a positive averment that the accident was caused solely or contributed to substantially by the negligence of the deceased in overtaking an unidentified motorcar and colliding with the defendant who was then on his correct side of the road.

At the trial in December 1992, the widows solicitors called the investigating officer who produced the sketch plan and key, and said the car was severely damaged on the front off-side -- headlamp smashed, mudguard dented, tyre punctured, drivers door so dented it could not be opened, wind-screen smashed, etc. The damage to the deceased motorcycle was also very extensive. There were no glass fragments found on the road, because all the fragments were inside the car. No eye witness was located. The second and third witnesses gave evidence of the deceaseds employment and earnings. The fourth witness was the widow who gave evidence of dependency. The defendant then gave evidence. He produced his police report made on 19 November 1985, ie 17 days after the accident. In it, he claimed the deceased had emerged at great speed from behind the on-coming vehicle. The defendant did not brake but swerved left. The collision nevertheless took place.

There were no scratch marks on the road. There was a blood spot 30cm or about two feet eight inches inside the defendants part of the road. The severed right hand of the deceased was found on the defendants left verge about 20 meters behind the defendants car. The deceaseds body was on his verge about 33 meters beyond the blood spot and his motorcycle even further away. The post-mortem report showed fatal fractures to the deceaseds skull. The only possible inference from all this was that the collision had taken place when both vehicles were going fast with the motorcyclist at least 80cm into the defendants side of the road when he collided head-on into the front off-side of the defendants car, broke his head and died very shortly thereafter.

The widows counsel submitted that the accident occurred by reason of the substantial negligence of the defendant. In the alternative, he relied on Veronica Joseph (f), An Infant & Anor v Tu Kon Lin & Anor [1987] 1 CLJ 81 ( Veronica) and prayed for 100% liability against the defendant in any event. The defendants counsel submitted that the deceased was the sole or substantial author of his own misfortune, and asked for apportionment based on Lim Chai Oon & Anor v Normah bte Ismail & Anor [1994] 2 MLJ 488( Lim Chai Oon).

In a reserved judgment, the sessions judge said the defendant was 100% liable for the accident. He gave no reasons, and awarded RM75,000 damages. Subsequently, at the request of the plaintiff, he awarded a further RM10,000 for bereavement and RM1,500 for expenses incurred for burial expenses.

The defendant appealed. The sessions judge gave an undated written judgment in which he said that in the abs

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