JUDGMENT

Abdul Malek Ahmad J:

[1] The plaintiff had claimed from the defendants special and general damages for the injuries sustained by him as a result of the accident between his motorcycle AT 2562 and the second defendant's motor van AAM 6236 driven by the first defendant on 8 August 1981 at about 4 pm at the 4½ milestone Ipoh-Kuala Kangsar road. Special damages agreed to at the outset were made up of RM40 for the medical report, RM400 for the specialist report and X-rays, RM22 for the police documents, RM10 for the RIMV report and RM300 for the travelling expenses to the General Hospital Ipoh and the General Hospital Kuala Lumpur for treatment. Only one item of special damages, which was for loss of income at RM1,000 per month for sixteen months and continuing, had not been agreed to. Similarly, liability and general damages were also disputed.

[2] Before the hearing began, learned Counsel for the plaintiff had told the Court that the first defendant's police report at p 1 of the agreed bundle was subject to cross-examination and that the sketch plan and key at pp 2 and 3 of that agreed bundle were not agreed to. Learned Counsel for the defendants expectedly objected to this statement and the Court agreed with him considering the date of the accident (8 August 1981), the date of filing of the writ (11 December 1982), the date of filing of the agreed bundle (4 June 1983) and the numerous postponements. It was too late in the day in the circumstances for the plaintiff to now withdraw his agreement to the first defendant's police report and the police sketch plan and key as this would have entailed further adjournments to get the relevant witnesses to appear.

[3] The plaintiff had given evidence that he was riding his motorcycle at 30 miles per hour, four feet from both the left edge and centre white line of the road from Ipoh to Kuala Kangsar, which was a straight road, with PW2 as pillion rider when a van from the opposite direction had overtaken a bus, which had stopped, and had collided into his motorcycle despite the plaintiff having braked to swerve left to avoid the collision. The plaintiff had lost consciousness at the scene and had subsequently found himself at the General Hospital Ipoh.

[4] When he was told that his right hand had to be amputated, the plaintiff had chosen to discharge himself. He told the Court that his right hand was now totally useless and because of the injury to his right leg, he could only walk with a limp. Before the accident, he was a grinding contractor for a marble factory with four workers under him and his income was RM1,000 a month. After the accident, he was not able to get employment at all except for a one-year stint as watchman at Dato Samy Vellu's house at RM300 per month which he got out of sympathy. Because of financial difficulties, he had withdrawn his Employees Provident Fund, had taken a loan from his wife's life insurance policy and had borrowed from friends to cover the cost of operations and living expenses. His evidence as regards the accident and earnings was corroborated by PW2. As regards the sketch plan, the plaintiff testified that he did not agree with it while PW2 had stated that it was wrong as regards the position of the motorcycle after the accident. In answer to the Court, PW2 had admitted that he did not actually see the collision but had only heard the sound of the impact.

[5] The first defendant's version was that the accident had happened on his side of the road when the plaintiff's motorcycle from the opposite direction had overtaken a van in the same direction and had encroached into his path. The first defendant said he applied his emergency brakes and swerved left on seeing the motorcycle 30 feet away but the van which he was driving at 30 miles per hour went forward resulting in the head-on collision. After the impact, the plaintiff's motorcycle was in the centre of the road and his van went about 20 feet off the road. The first defendant denied overtaking a