Peh Swee Chin J:

As usually happens in running-down cases, there were 2 totally irreconcilable versions of the manner in which the accident in question took place and the Court was obliged to separate the chaff from the grain.

According to the plaintiff, riding a motor cycle in front of the Police Station in Gopeng town on his correct side of the road, from the direction of Kuala Lumpur to the direction of Ipoh, he met with an accident. He said he saw a car, and in almost the same breath, he said he saw 2 on-coming cars. The car behind the other car tried to overtake the car in front and came towards his motor cycle at an angle and knocked into the right side of the motor cycle, and his right leg was badly injured, in addition to other injuries. He denied that he had come out to the road or the scene of accident from a side road (which led to a Chinese New Village).

The defendant, the driver of the motor car involved in the same accident said he was travelling at 50 kph and not more than 50 kph, about 2 feet from his left edge of the road. He said that the motor cycle had come out from a side road without stopping to the main road (i.e., the scene of accident) and at that time he was travelling about 20 to 25 feet from the motor cycle. The motor cycle came to the main road and turned towards its right. He applied brakes but his car hit the motor cycle on the latter's middle right section in the middle of the road. He explained that the absence of brake mark on the sketch plan was because it was still drizzling. He was 20 feet away when the motor cycle came out at the speed of between 10 to 15 kph. He changed his mind and said that on seeing the motor cycle coming out, he reduced his speed to between 30 to 40 kph. He became excited.

The defendant disagreed further that according to his own evidence the accident would have occurred on his left side of the road, (please see my comments on the sketch plan in this connection). He then said that he applied emergency brakes after swerving to his right and that he travelled for about 10 feet before he swerved to his right. He was shown a photo of the scene (Exhibit P2C) and agreed he could see some sort of the mark (made by some other vehicle). He said though the rain had stopped, it was still drizzling.

The sketch plan showed both vehicles to be on the plaintiff's correct side of the road with the car protruding somewhat into the grass verge at almost a right angle to the left edge of the road of the plaintiff, and the motor cycle lying on its left side body, also facing the same grass verge at a rather pronounced angle to its left.

The medical evidence showed he had a fracture of right femur, 3 fractures of the right fibula, a fracture of the right tibia, and a fracture of the right clavicle.

I accepted the evidence of the defendant rather than the evidence of the plaintiff who did not impress me as a witness of truth, and this impression was fortified by the sketch plan. If he was travelling two feet from his left edge of the road, and was 20 feet away from the plaintiff when he first saw the plaintiff, the accident could have in all probability occurred on the defendant's left half of the road, and both vehicles would have landed on the defendant's left half of the road, possibly near the middle of the road, more probably in less than one second, the collision would have occurred immediately. The Court considered also that according to the table of braking distances, at 20 mph, the car would have covered 40 feet and at 30 mph (about 50 kph), 75 feet, and the distances given by the defendant who was an engineer, would have to be taken rather seriously. The injuries which were concentrated on the right side of the plaintiff, and relied on heavily by the defendant's Counsel, were equally consistent, if not more so, with the story of the plaintiff. The absence of any brake mark, I found could not be satisfactorily explained as being due to the drizzling as stated by the defen