A. Introduction

This is a claim for damages arising from injuries sustained by the Plaintiff in a road collision which occurred on the 17/12/1988 at Mile 18, Labuk Road, Sandakan, Sabah.

The Plaintiff is a child and suing by his next friend. There are four Defendants. However,the4th Defendant has been [2]wound up and there was no response from the Official Receiver inspite of being informed. As such, there is no good reason to proceed against the 4th Defendant. Incidentally, it was not denied that the 4th Defendant was the employer of the 3rd Defendant and also the registered owner of a lorry bearing registration No. ST3049A.

At the commencement of the hearing learned counsel for the Defendants agreed that the question of liability should be confined amongst the Defendants and that the Plaintiff should only be required to address on the issue of quantum of damages. Hence, shall therefore proceed first to consider the liability issue as between the Defendants and thereafter the quantum.

B. Issue Of Liability

As between the Defendants, it is a question of who is liable or how liability should be apportioned. The 1st and 2nd Defendants did not call any witness. The 3rd Defendant gave evidence.

In his testimony, the 3rd Defendant said that in the morning 17/12/1988 at about 11.45 a.m. he was asked by his employer to bring 2 mechanics to Mile 30, Labuk Road, Sandakan. He did so, driving a lorry bearing registration No. ST 3049. I pause here to note that the 3rd Defendant did not mention the alphabet "A" at the end of the number. But he did mention the registration number with a caution that he could be mistaken. Anyway, I do not think [3]that is crucial as in the Joint Statement of Defence of the 3rd and 4th Defendants it was admitted that the registration number of the lorry was ST 3049A and was registered in the name of the 4th Defendant.

On arrival at Mile 18, Labuk Road, he said that a vehicle appeared suddenly on his lane, travelling in the opposite irection. It was an Isuzu Trooper. It was overtaking a bus and another vehicle in front of the bus at that time. The 3rd Defendant testified that when he first saw the Isuzu Trooper it was only about 30 feet away from his lorry. He could not do much to avoid colliding with that vehicle. According to him, the collision happened although he tried to brake and swerve his lorry. He could only manage to get it partly on the grass verge which was about 2 feet in width. It was the evidence of the 3rd Defendant that prior to the collision he was on his lane at all times, travelling at about 30-40 kilometers per hour. The 3rd Defendant said that the collision happened on a road curve with two white lines in the middle. At that time the road was wet as it was drizzling.

In answer to questions from the Court, the 3rd Defendant replied that the collision occurred whilst the Isuzu Trooper was in the midst of overtaking the bus. When the collision happened the Isuzu Trooper had only reached the middle portion of the body of the bus. The 3rd Defendant could not remember if the signal light of the Isuzu Trooper was on at that time.

[4]In opening his submissions, learned counsel for the 1st and 2nd Defendants began by saying that in failing to call any witness the 1st Defendant admitted liability. But he proceeded to pause a question on whether the 3rd Defendant should be equally liable for the collision. Meanwhile, he did not dispute that the collision happened as a result of the 1st Defendant, who was driving the Isuzu Trooper, coming into the lane of the 3rd Defendant.

The thrust of the contention of the learned counsel for the 1st and 2nd Defendants was that since the collision was between two vehicles travelling in the opposite direction, in the absence of special circumstances, there would be a prima facie presumption that both drivers were negligent and the onus would be on each of them to show that the other driver rather than himself, was negligent. The case of Ong Yam Chong & A