VT Singham J:

[1] This is an appeal by the defendants against the decision of the learned Sessions Court Judge Ipoh who had found the driver of m/bas, No. ACC 8966, the first defendant 100% liable on 27 September 2002 for the death of the passenger in m/van No. ABS 8472 arising out of a motor accident on 11 May 1993 involving the m/bas driven by the first defendant and the m/van in which the deceased was travelling as a passenger.

[2] By the statement of claim and under the particulars of negligence, the plaintiffs have alleged that on 11 May 1993 at/about 6.10pm while the deceased was travelling in m/van No. ABS 8472 at/near the 10th kilometre Manong - Kuala Kangsar road (Kg. Lempor) Manong, Perak, the m/bus which was driven by the first defendant negligently overtook and/or attempted to overtake the said m/van and suddenly collided into the said m/van. It is also inter alia alleged that the first defendant had negligently and suddenly stopped the m/bus and caused an obstruction to the said m/van.

[3] On the other hand, the first defendant who was the driver of the m/bus, has testified in Court that he had stopped at the place of the accident for about two minutes to allow students who were passengers in the m/bus to alight. After he had waited for about two minutes he heard a sound from the rear of the m/bas and when he got down he found the m/van had got stuck to his m/bus. He denied overtaking any vehicle or the m/van or that the accident occurred after he overtook m/van, or he had entered back into his lane and had stopped as alleged.

[4] The main issue in the instant appeal is, whether the learned Sessions Court judge was correct in holding that the first defendant was 100% liable for the accident. In this judgement, the appellants and respondents will be referred to as the defendants and plaintiffs respectively. In other words, have the plaintiffs discharged the onus of establishing negligence against the first defendant on a balance of probabilities even if the first defendant's version of how the accident occurred is disbelieved.

[5] At the outset of this appeal, it is important to state that by consent, the police report No. 196/93 (Manong) lodged by the driver of m/van No. ABS 8472 on 14 June 1993 is excluded from the record of appeal and disregarded for the purpose of this appeal as being not part of the evidence at the trial in the Sessions Court. (See Jaafar Shaari & Anor v. Tan Lip Eng & Anor, [1997] 3 MLJ 693).

[6] This Court has reminded itself that though the principles on which this Court in its appellate jurisdiction will be slow to review the findings of fact of a trial Court which are well settled, the application or non-application may not be satisfactory in all cases as each appeal is considered on its own set of facts, the reasoning and the decision of the trial Court. However, if the learned Sessions Court judge is found to be wrong, this Court in its appellate jurisdiction and on well established principles cannot just abrogate its function but has to review and if necessary interfere with the finding where in the instant appeal, the first defendant has been found to be 100% liable for the accident. In Chia Han Kiat v. Rex [1937] MLJ 248, Terrell Ag. CJ said:

This is admittedly an appeal against findings of fact, and I fully indorse the principle that an appellate Court should but rarely interfere with conclusion arrived at by the Judge or Magistrate who has had the advantage of hearing the witnesses and obtaining an impression of their veracity from their demeanour. But it is the duty of an Appellate Court to be Judge of fact as well as of law, and it would be abrogating its function if it made a hard and fast rule never to interfere with findings of fact, and felt bound to support a judgement which, on a review of all the evidence, it considered to be clearly wrong". (See Development and Commercial Bank v. Num Tjuan Sdn Bhd, [1989] 1 MLJ 475 at p 476-477), Sivalingam Periasamy v. Periasamy & Ano