Balia Yusof Wahi J:

Facts

[1] The appellant (plaintiff) sued the defendant in her own capacity and as Executrix of the estate of her husband Bernard Alfred Harper deceased. Her claim against the defendant arises out of an accident which occurred on 19 February 2008 at about 1.20pm at Jalan Batu Ferringhi, Penang within the proximity of the Golden Sands Hotel. The accident involved a collision between the respondent who was riding a motorcycle and the plaintiff's husband, a pedestrian. As a result of the accident Mr. Bernard Alfred Harper suffered serious injuries to his brain and succumbed to his injuries on 9 November 1998.

[2] At the time of the accident both the appellant and her husband were tourists and staying at the Golden Sands Hotel, Batu Ferringhi Penang. The accident occurred while Mr. Harper was crossing the road and the respondent was riding his motorcycle towards Georgetown.

[3] The appellant contends that the accident was caused wholly by the respondent's negligence in riding his motorcycle at excessive speed and in pure disregard of other road users in the vicinity, including Mr. Harper. In her evidence at the George Town Sessions Court, the appellant testified that just before the accident, she and Mr. Harper were at a mini market opposite the Golden Sands Hotel buying same bananas for lunch. As they left the mini market, whilst the appellant had stopped to glance at some postcards at the stall outside the said mini market, Mr. Harper had proceeded to cross the road first. While the appellant was about to cross the road after glancing at the post cards, she noticed that Mr. Harper was already three quarter way across the road and she heard the revving of an engine coming from her left but could not see anything. She then saw Mr. Harper suddenly jumping towards the pavement and upon looking to her left, she saw the respondent negotiating the bend at a speed of approximately 70-80 km/hour. The respondent then collided into Mr. Harper without swerving or braking about two feet from the pavement of the road on the side of the Golden Sands Hotel. The scene of the accident was at a sharp corner.

[4] The respondent in his evidence stated that while he was negotiating the corner, a pedestrian suddenly appeared crossing the road and was right in the middle of the road. Being too close, he panicked and lost control of his motorcycle and collided with the deceased. He was riding at about 50 km/hour and further testified that the scene of the accident is at a sharp corner and by the time he saw the deceased, he was about 1 meter from the deceased and unable to take any evasive action.

[5] The deceased suffered severe head and brain injuries and was hospitalized for nine months at the Gleneagles Hospital, Penang and was subsequently transferred to Southampton Hospital and St. Richard's Hospital in the United Kingdom. Other injuries suffered by the deceased according to the Consultant Surgeon at the Gleneagles Medical Centre, Penang are:

(i) Left frontoparietal acute subdural hematoma

(ii) Left temporal intra cerebral hematoma.

(iii) Contusion of both frontal lobes and left temporoparietal lobes.

(iv) Comminuted fracture of the shaft of the left fibula.

(v) Fracture outer third of shaft of the left clavicle.

[6] At the time of death, the deceased was 68 years old and was bedridden for nine months from the date of accident until his death.

[7] The learned Sessions Court judge had on 29 July 2005 found that the respondent was 100% liable for the accident and had awarded the appellant damages for pain and suffering in the sum of RM150,000, damages for nervous shock in the sum of RM10,000 and agreed special damages in the sum of RM37,365.

[8] In her findings, the learned Sessions Judge made the following findings of fact:

(i) The respondent was wholly negligent in causing the accident.

(ii) The respondent was certainly careless and did not give proper due care and attention while riding the motorcycle.

(iii) The respon