Syed Othman FJ:

We allowed this appeal which is against the decision of the High Court at Johor Bahru dismissing the appellant's claim for damages for personal injuries sustained in a road accident which occurred on 8 January 1976 at about 7.30 p.m. between a timber lorry driver by the first respondent and a motorcyclist, the appellant, along Jalan Ah Fook, Johor Bahru.

After hearing the arguments, we found the first respondent wholly liable for the accident. We now give our reasons.

Both vehicles were travelling in the same direction, the road being one-way towards the roundabout (as it was then) which branched out to the roads to the north, the east and back to town.

The appellant's case was that there was a traffic jam on the road. He was travelling about 2ft. from the edge of the road on the right side. In overtaking his motorcycle the rear off tyre of the lorry grazed the motorcycle. He fell and could not get up. He was admitted to the General Hospital, Johor Bahru and discharged on 16 March 1976. He suffered severe injuries mainly on his left foot.

The first respondent's version was that at the time a bus stopped on the left side of the road. Seeing no vehicle from behind him he swerved to the right to overtake the bus. He gave his signal. After overtaking the bus a motorcycle came from behind and collided with the right side of the lorry. Later, he said that when overtaking the bus there was no motorcycle in front or on the right edge of the road, but he saw the motorcycle behind in the rear view mirror.

The initial finding of the learned trial Judge can be put thus: The lorry had overtaken the bus and was reverting to its side of the road when the motorcycle coming from behind knocked into the right side of the lorry; this was confirmed by the appellant who said that the lorry overtook him on his left while he was travelling about 2ft. from the right edge of the road.

From the record we cannot find any evidence to show that the first respondent, after overtaking the bus, was reverting the lorry to his side (left) of the road. If, indeed, the lorry had been reverting to the left side of the road after overtaking the bus, the lorry would have been moving to the left side of the road. The sketch plan shows that the lorry was on the extreme right lane. What the lorry driver said was that when the bus stopped on the left side of the road and seeing no vehicle behind him he swerved his lorry to the right to overtake the bus. He gave no indication when giving this piece of evidence whether or not the right side was clear at the time. It was only later that he said there was no motorcycle in front or on the right hand side of the road. Apparently this was an afterthought, most probably as a result of a prodding question by counsel.

In examination-in-chief at first he said he saw no vehicle from behind, but at the close of the examination he said he saw the motorcycle in the rear view mirror, and then in cross-examination he said he did not see the motorcycle in the rear view mirror. The appellant cannot be said to be confirming the first respondent's evidence in that he knocked into the right side of the lorry when he said that the lorry was overtaking the motorcycle on his left while he was about 2ft. from the right edge of the road. The clear indication is that it was the lorry which came to the motorcycle's lane. Further, there was a clear subsequent finding that the motorcycle was already on the road when the lorry was overtaking the bus, and it is said that the evidence of the first respondent on this point coincided with the appellant's evidence that at the time he first realised the lorry was overtaking him, half of its body had already passed him. However, the learned trial Judge then made the following assessment:

My assessment of this evidence is that, the lorry had already overtaken the stationary bus when the plaintiff came to the road. He said that there was a taxi station on his right side of the road an