Abdul Hamid J:

In the Court below the following judgement was delivered on 4 April 1977: The plaintiffs claim is for personal injuries suffered by him on 1 June 1972. It is founded upon negligence, alternatively nuisance of the defendant and in so far as it is necessary in the doctrine of res ipsa loquitur At all material times, the plaintiff was the rider of motor cycle BG 8432 and the defendant was a contractor under contract with the Selangor State Government for laying 32 inch pipes along Jalan Sungai Besi/Kuala Lumpur and was at all material times in charge of storing and laying the said pipes.

There were 32 inch pipes stored along the side of Jalan Sungai Besi on the material date.

It is the plaintiff's case that on 1 June 1972 at about 1.30 pm he was riding his motor cycle along Jalan Sungai Besi from Kuala Lumpur to Sungai Besi. After passing the junction of Jalan Kuchai Lama for a distance of about three lamp posts, (approximately 200 feet), a boy crossed the road from left to right about 10 feet away. The plaintiff applied the brake and swerved to the left to avoid the boy. In so doing he knocked into the pipes lying on the road side. The plaintiff indicated that he came from the direction of the stationary Motor car shown in photo 3 in the NonAgreed Bundle. The pipes are also shown that photograph and in photos 1 and 2. The left side of the motor cycle and the plaintiff's left leg hit the pipes.

The plaintiff agreed that he used the road daily and he knew the pipes were lying by the side of the road for one or two years. He maintained that there was no warning sign (Counsel for the defendant conceded that there was none around the place where those pipes were lying). The plaintiff disagreed that there was a warning sign at the beginning of Jalan Sungai Besi. He also disagreed that the pipes were lying three to four feet from the side of the road. He did not dispute that the area was a builtup area and there were cyclists and pedestrians.

The defendant stated in evidence that he was laying the pipes along Jalan Sungai Besi and these pipes were lying along the side of the road. He maintained that there was a warning sign stating that there was construction work and laying of pipes along the road. Work around the place of accident had not yet started. According to the defendant the pipes were placed four to six feet away from the side of the road and at the place of accident they were placed four feet away a there was a slope. However, he maintained that there was room for pedestrians to walk and there was no obstruction to traffic.

Under cross-examination, the defendant stated that he could not remember the last time he visited the scene. It is revealed that he left the matter entirely in the hands of the kepala. The defendant was unable to say when he placed the pipes along the road. He agreed that the pipes were left there on or two years prior to the date of the accident.

Raman Nair, the defendant's foreman for the pipe laying operation, testified that there was a sign at the beginning of Jalan Sungai Besi to warn the public that there were pipes along the side of the road and there were signs at the place where the pipes were being laid. It is revealed from Raman Nair's testimony that the pipes were placed between three to six feet away from the edge of the road depending on the area available.

On the facts before me it is not disputed that the pipes had been lying there for at least two years The outer edges of the pipes seemed to have worn out exposing sharp steel rims. These pipes are shown from the photograph to be lying very close to the edge of the road. There was no warning sign around the place of accident.

It is the defendant's contention that the plaintiff was travelling daily along this road and he knew of the existence of those pipes as they were clearly visible.

Mr. Krishnan's Counsel for the defendant drew the Court's attention to p. 285 of Bingham's

Motor Claims Cases 7th edition