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1987 MarsdenLR 669
HIGH COURT MALAYA ALOR SETAR
DEWARAMAH ELLAPIN – Appellant
Versus
IBRAHIM ABDUL HAMID & ANOR – Respondent
[Civil Suit No: 197 Of 1979]
[1] On 5 October 1976 at about 7.25 am an accident occurred along the Alor Setar/Sg Patani highway involving a motorcycle and a lorry driven by the first defendant, Ibrahim bin Abdul Hamid. As a result of the accident, the rider of the motorcycle, Subramaniam a/1 Kaliappan was killed. Hence, the widow of the deceased brought this action to claim damages for the benefits of the estate of the deceased, and also for loss of support of the dependants of the deceased comprising of the plaintiff herself, the widow, and 3 children whose ages ranged from 7 years to 3 years at the time of the accident.
[2] The plaintiff alleged that the accident was caused solely by the negligence of the first defendant, and she gave particulars of the negligence at p 2 of the statement of claim (see p 5 of the bundle of pleadings). Although there are nine items given in the particulars of negligence, they can briefly be paraphrased as follows. It was said that the first defendant had failed to look to his rear to ascertain whether any vehicle was in the process of overtaking him, and also that he had failed to keep any or any proper lookout for the approach of the deceased from the rear. The more serious allegation was that the first defendant made a sudden turn to his right without giving any warning of his intention to overtake the lorry. Turning to the statement of defence, the defendants denied negligence, and averred that the accident was caused wholly by the negligence of the deceased himself. They had also particularised the negligence committed by the deceased (see p 7 of the bundle of pleadings). However that may be, the crux of their defence was that the deceased was riding his motorcycle too close to the said lorry, and he had failed to take heed of the signal given by the first defendant which was indicative of his intention to turn to the right. They further averred that the deceased rode his motorcycle in a careless and negligent manner, and, that the deceased had failed to keep any or any proper lookout for other road users, particularly the lorry driven by the first defendant.
[3] It is most unfortunate that the plaintiff was not able to locate any person who happened to witness the accident. Hence, she was not able to call any witness to testify on behalf of the case for the plaintiff. As she herself did not witness the accident, naturally her evidence was entirely confined to the losses suffered by her in terms of loss of support and loss of future earnings for the benefit of the estate to which she is a beneficiary. However, she did say in her evidence that the deceased used to travel to Alor Setar every morning at 7 am to teach in a school in the Alor Setar town, and that the deceased was a careful person and was quite used to the road. The second witness called by the plaintiff, was one P Pushpanathan who was and still is attached to the State Education Officer as a State Supervisor of Schools. This witness also merely testified about the earnings which the deceased would have received in the future but for his premature death. It is obvious that as the evidence of the 2 witnesses was aimed at proving the damages suffered by the plaintiff and the other dependants of the deceased. I cannot proceed to assess the same considering whether or not it was due to the first defendant that led to the accident culminating in the death of the deceased.
[4] At the close of the case for the plaintiff, the defendants first of all called the driver of the lorry, the first defendant to testify. This witness said that he had been driving JKR Lorry since 1952, and on that day in question at about 7 am he left the JKR Barracks I to proceed to JKR Barracks II to collect a chain saw machine. Although the day was somewhat foggy, nevertheless the visibility was good. However, he took the precaution of switching on his small tail light while he was driving along the Alor Setar/Sungei Patani highway ("the highway") at the speed of 25
