JUDGMENT

Nixon Kennedy Kumbong, SJ:

The Accident

[1] On 11 April 2004 at or about 7.45 am. at km 40 Jalan Sri Aman/Sarikei, a collision occurred between a motorcycle (QB 7257) ridden by Sambang ak Ungkok ("Sambang") and a motorvan (QK 829) driven by the first defendant, Chai Ngiu Ngee. Riding pillion with Sambang was his grand daughter, Jennifer Rinie ak Johny ("Jennifer"). The motorvan belonged to one Chai Yong Seng (second defendant).

Injuries Sustained

[2] As a result of the collision, Sambang has sustained:

(i) open Grade I segmental fracture of the left tibia (1 cm x 1 cm wound just proximal to left tibial tuberosity);

(ii) closed fracture distal 1/3 of the left tibia;

(iii) closed intra-articular fracture distal end of left radius;

(iv) closed fracture of left ulna styloid;

(v) open fracture of left middle finger distal phalanx (laceration wound to left middle finger); and

(vi) 2 cm x 3 cm wound over the left patella.

[3] As for Jennifer, she has multiple abrasion wounds over the upper arms bilaterally, the left knee and the left foot which required no stitches.

The Damage

[4] The motorcycle suffered damage on the front part. The motorcycle front lamp was shattered. The rear light of the motorvan on the right side was broken.

The Claim

[5] In a summons dated 12 August 2005 both Sambang and Jennifer claimed against both the Chais for, inter alia, special and general damages for losses sustained as a result of the said accident which they said were caused solely by the negligence of Mr Chai Ngui Ngee in driving the motorvan on the said day.

[6] In their defence to the claim, the defendants alleged that the accident was solely or alternatively contributed to by the negligence of the first and second plaintiffs in riding, management or control of the said motorcycle at the material time.

The Trial

[7] At the trial, the plaintiffs called 4 witnesses, namely:

(a) PW1, ex-Sergeant Machan ak Ambau who was the investigating officer;

(b) PW2, Sergeant Jeffrey Unjie who was the officer in charge of Engkilili police station;

(c) PW3, Jennifer Rinie ak Johnny, who is the second plaintiff; and

(d) PW4, Sambang ak Ungkok, who is the first plaintiff.

[8] Whereas the defendant himself had testified (first defendant) at the defence stage. In respect of liability the evidence adduced at the trial were as follows.

Liability

[9] In the instant case, it was not disputed that the first defendant was the driver of the motorvan No QK 829 which belonged to Mr Chai Yong Seng and the accident happened on 11 April 2004 at or about 7.45 am.

[10] It was adduced in the evidence of PW3 the pillion rider that at the time of the accident, she together with her grandfather, PW4 were on a motorcycle from Samueh, Engkelili in the direction of SMK Engkelili. It was a bright day and the road surface was dry. Her grandfather was riding the motorcycle at a speed of 40-50 km per/hr.

[11] She testified that at Km 40, the motorvan which was driven by the first defendant overtook PW4's motorcycle without giving any signal and immediately stopped in front of them without giving any signal light. As a result of that, the motorcycle ridden by PW4 and PW3 as the pillion rider, knocked the rear part of the motorvan and both of them fell down.

[12] Her evidence was supported by the evidence of her grandfather, PW4 himself when PW4 said that the motorvan overtook his motorcycle from behind without giving any signal and suddenly stopped in front of him. PW4 testified that he tried to swerve his motorcycle to avoid the collision but the motorvan was too close for him to avoid and/or to swerve and as a result of it, PW4 knocked the right signal light of the rear of the motorvan. PW4 also confirmed that the point of impact was marked as "H" as stated in the neat sketch plan (exh P7).

[13] The neat sketch plan showed that the accident had occurred on a straight road and both PW3 and PW4 confirmed that the road was flat and levelled and the grass verge was at the side of the road.

[14] The first defendant, in