JUDGMENTBY: CHANG MIN TAT FJ, SEAH J

CHANG MIN TAT FJ (read by Lee Hun Hoe C.J. (Borneo)): I agree that the appeal should be allowed to the extent indicated in the judgment of Seah J.

I would only add that in the finding of the learned trial judge that the motorist turned from a side road, which is the exit road from the new General Hospital in Kuching, into the main Jalan Tun Haji Openg along which the motor-scooterist was approaching when the latter was only 60 feet from the junction, there could be no circumstances in which the scooterist could be held to be blamed, even partially, for the accident. The distance was too short for the scooterist to stop, if he was travelling at a speed of 30 m.p.h. The learned judge found somewhat imprecisely that his speed was more than 25 m.p.h. which the scooterist said he was making against the testimony of the motorist that he was travelling fast. Though he tried to swerve to the right (there could be no denial that he did so, since he ended on the other side of the road), he could not be blamed if he did not avoid the accident. He was also blamed for not sounding his horn, but in the circumstances, sounding the horn was an exercise in futility, when the motorist had committed himself to a course which constituted an inevitable obstacle in his path.

It would appear that the scooterist was partially blamed because he did not anticipate from the presence of the motorist on the side road that the latter would turn into the main road. The expectation one needs to expect from another present on the road must be related to the age and understanding of the other. If he was a child, then perhaps, the scooterist should remember that "the same amount of caution is not to be expected ... as is expected of an older person, nor the same knowledge of the danger of doing things": Cass v Edinburgh Tramways [1909] AC 1068 and also the dictum of Lord Sumner in Glasgow Corporation v Taylor [1922] 1 AC 44 at page 67 that

"Where a question as to the care to be used arises between persons

using as of right the place where they respectively act, infancy is ...

but a measure of care appropriate to the inability or disability of

those who are immature or feeble in mind or body ... due from others

who know or ought to anticipate the presence of such persons within the

scope and hazard of their own operations."

But the case under appeal is not a case concerning an infant or a person under disability. He is an adult, licensed to drive and therefore presumably he has acquired a knowledge not only of the Highway Code but also of the ordinary precautions to be taken by him for his own safety as well as for the safety of others. If he obtrudes himself on to the main road in circumstances which make it impossible for traffic coming behind him to avoid a collision, then I do not, with respect, think there can be any doubt as to his entire responsibility for the accident.

SEAH J This is an appeal by the plaintiff from a judgment of Charles Ho J. in which the learned judge held both the rider of motor scooter No. KA9648, the plaintiff, and the driver of motor-car No. KA222, the 2nd defendant blameworthy for the accident in the proportions of one-third to the plaintiff and two-thirds to the 2nd defendant respectively and awarded damages accordingly. At the same time, the learned judge dismissed the action against the 1st defendant, the registered owner of the motor-car on the ground that the 2nd defendant was not driving it as her agent at the material time.

As this is an appeal against apportionment of liability for contributory negligence, I think it is useful to remember the principles to be applied. This has been succinctly stated by Lord Denning M.R. in Kerry v Carter [1969] 1 WLR 1372, 1376, [1969] 3 All ER 723 at p 726 at page 1376:

"We have been referred to cases on this subject, particularly in the

recent case of Brown v Thompson [1968] 1 WLR 1003. Since t

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