LC Vohrah J:

[1] This is a claim for damages arising out of a motor accident on 31 May 1989 along the Johore Bahru/Air Hitam trunk road. Some time after noon on that day the plaintiff was driving a tanker No BBH 6816 carrying palm oil along this road in the direction of Johore Bahru. Behind his tanker heading in the same direction was another tanker No JAE 6520 also carrying palm oil driven by PW2. Both tankers were travelling at about 60 kilometres per hour and when they reached the 27 milestone a Honda car No WBM 503 coming from the opposite direction overtook a lorry in front of it and collided into the plaintiff's tanker and then into PW2's tanker resulting in both the tankers being overturned as shown in the photographs at ABD11- 12.

[2] According to the plaintiff just before the accident he saw two lorries, one smaller than the other, approaching him from the opposite direction. The smaller lorry which was behind the larger lorry overtook it and re-entered its correct side of the road. When he saw this overtaking he had applied his brakes but at that point of time the car shot out from behind the larger lorry and attempted to overtake it. He showed by means of toy models that whilst the car was attempting to pass the lorry on its correct side of the road it collided into the front portion of his tanker when the tanker was wholly on its correct side of the road. He had decreased his speed from 60 kilometres per hour to 55 kilometres when he saw the smaller lorry approaching the larger one in front of it but he still had no way of avoiding the collision with the car. After the collision his tanker was overturned and he was thrown out of the cabin and he lost consciousness.

[3] PW2's story corroborated the version given by the plaintiff as to how the accident occurred. He stated that the collision occurred on a straight, level stretch of road and he saw the accident clearly as he had been following the plaintiff's tanker for about 10 miles at a distance of about 60 feet just before the event. The car whilst overtaking the lorry collided into the plaintiffs tanker which overturned and then collided into the offside front of his tanker thereby deflating the offside tyre and breaking a spring attached to the axle in front. He applied his brakes but still to no avail. When he first saw the car overtaking the lorry, the car was 110 to 120 feet in front of his tanker.

[4] The defence called no witnesses and Counsel for the defendants conceded that the driver of the car was negligent but contended that the plaintiff was guilty of contributory negligence by failing to swerve to his left to the side-table and that the plaintiff must have been travelling at great speed endangering his own safety. He cited the case of Goh Beng Seng v. Dol Dolah, [1970] 2 MLJ 95 wherein Sharma J had this to say (at p 97):

There can be no territorial or geometrical division of the road. The center line remains a guide and a reminder only. One's duty is to ensure safety for oneself and for others. The attitude of mind that because the driver coming from the opposite direction is encroaching a few inches of my side of the road, I can treat him as a trespasser and proceed on my half of the road as if it was my exclusive domain and that I am totally immune from liability if I drive within the exact limits of that "realm" even though I know that an accident may thereby happen on my side of the road, is the attitude of an irresponsible and an irrational being. I owe a duty to others on the road just as others owe a duty to me.

[5] There is no evidence that the plaintiff deliberately hogged his side of the road in the face of oncoming danger. It is clear from the sketch-plan P1 tendered by the investigating officer PW1 that the collision took place on the plaintiff's correct side of the road where all the glass pieces were found very near the center white line. It is also clear that on each side of this trunk road there was a side-table 9 feet wide. Had the