JUDGMENT

RK Nathan J:

Plaintiff's Case

The deceased was riding motorcycle No. PBP 1042 on 3 October 1996 at about 11am along Lebuh Raya Utara Selatan and proceeding from the direction of Nibong Tebal towards Butterworth, when a collision occurred between the deceased motorcycle and motorcar BEH 4883 driven by the defendant. It was the deceased's case as pleaded that the defendant who was proceeding ahead suddenly and without warning stopped his motorcar along the emerging lane, causing the deceased to collide into the rear of the said car. The deceased's mother brought this action for damages for loss of support.

Case For The Defendant

In his defence the defendant admitted the collision and also admitted that he had stopped by the side of the emergency lane. In his particulars of negligence para. (b) the defendant pleaded that the deceased collided into the rear of his car that was stationary by the side of the emergency lane.

Findings Of The Sessions Court

The learned sessions judge found the defendant 80% liable and the deceased 20% and awarded a multiplier of seven years for the 69 year old mother with a multiplicand of RM400pm amounting to RM33,600 and a further sum of RM2,000 as funeral expenses. Dissatisfied with the said decision the defendant appealed only on liability.

Evidence Led At Trial

The 1st witness for the plaintiff was the investigating officer who testified that no vehicle could be parked on the emergency lane unless when an emergency had occurred. He also testified that the motorcycle was damaged at the front whilst all the damages to the defendant's motorcar were to the rear including the rear window which was broken. Under cross-examination he confirmed that there was no special lane for motorcycles along that stretch of the road. He testified that motorcycles ought not to be ridden on the emergency lane. To a question from the court he admitted that he had not checked to see if the said car had actually broken down. He further testified that if the driver of the car had stopped at the emergency lane to look for his workers that would not constitute an emergency.

The defendant testified that at the material time he was a sub-contractor for Tenaga National Berhad laying electric cables along the said highway. When he reached the scene of the accident he stopped at the emergency lane. He then instructed one of his workers to control the traffic since the vehicle that was transporting the sign board to be fixed, had not arrived. He then alighted from his car and descended to a place beside the highway to check the work in progress. About ten minutes later he heard the sound of a collision. He then climbed up the embankment and saw that a motorcyclist had collided into the rear of his car.

Under cross-examination he confirmed that the contents of his police report contained the truth. He also admitted that before he had alighted he did not give his hazard signal nor did he put up the triangular warning sign some distance behind his car. He also confirmed that on that day he actually had not faced any emergency although he knew he ought not to stop at the emergency lane and only stopped there to look for his workers down the slope. He also admitted that had he not stopped at that lane there would have been no such collision. He was honest enough to even admit that he failed to comply with the traffic regulations and that he had caused an obstruction to the deceased motorcyclist.

Findings Of The Court

Mr Dasaratharaj for the appellant urged me to allow his appeal and to dismiss this claim. I was actually taken aback by such an audacious submission. I then asked counsel to explain the difference in the evidence of his client as stated in the police report and in his evidence given in court.

In court the defendant had said that after he had stopped for 5 - 10 minutes the deceased collided into his motorcycle. However in the police report he had said that as he stopped and alighted, suddenly the motorcycle collided into his mot