Abdul Malik Ishak JC:

This was an appeal by the appellants against the finding of the Judge, Sessions Court, Taiping, Perak wherein the appellants were held solely negligent and that the appellants' claim be dismissed with costs.

It was common ground that, on 29 August 1990, at about 5.00 p.m., the first appellant was riding motorcycle bearing registration number PS 1666 along the Jalan Ijok/Taiping with his wife, the second appellant as pillion rider. Another pillion was the first appellant's young daughter by the name of Norsalwa, who was at the material time, 3 months old and sandwiched between the first and second appellants on the said motorcycle. A land rover bearing registration number BAY 8700 was parked by the second respondent, who was the servant or agent of the first respondent, near the left side of the road in the direction of Jalan Ijok/ Taiping. At the time and place in question, a collision took place, ironically, between the right knee of the second appellant that hit the left front bumper of the land rover when the first appellant overtook the stationary land rover on its left. As a result of this accident, the second appellant sustained injuries. The stretch of road where the accident took place was a kampong road, straight, metalled and measured 12 feet in width. It was raining at the time of the collision.

It was in evidence that the first appellant first saw the stationary land rover some 100 feet away. It was raining and to protect their 3 month old daughter from the rain, both appellants huddled closer to one another with their legs spread widely thereby giving some protective measure to their daughter who sat in the centre. The first appellant also stated that he decided to overtake the stationary land rover on the left side of the road as he thought that it would be dangerous to overtake on the right side of the road. Though it was a kampong road, there was ample space for a car to overtake the stationary land rover on its right side. The space on the left side of the land rover was barely 1 feet 1 inch to the edge of the grass verge but the grass path was 6 feet wide (see the sketch plan and the key) - an ample space for the first appellant to manoeuvre, if done cautiously. Unfortunately, by a stroke of misfortune, a misjudgment on the first appellant's part, the second appellant's right knee came into contact with the left bumper of the stationary land rover. The second appellant and their daughter were thrown off the motorcycle. The second appellant sustained the following injuries:

(a) compound comminuted fracture upper third of right tibia and fibula.

(b) fracture to the right medial malleolus.

After sometime, the following healed scars were noted on the second appellant:

(a) 18cm transverse keloid scar over the right upper tibia.

(b) 20cm longitudinal keloid scar over the right tibia.

(c) 17cm transverse keloid scar over the posterior aspect of the right ankle.

The case of Chop Seng Heng V. Thevannasan & Ors, [1975] 2 MLJ 3 was cited for the proposition that reckless parking would pose a danger to other road users and must constitute negligence. But the