Denys Roberts CJ:

Preliminary

This claim arises from an unfortunate accident which occurred at about 9.30 am on 28 January 1990, between a red car No. KE 2681 driven by the plaintiff along Jalan Baru Anduki in the direction of Bandar Sri Begawan and a garbage truck, No. KE 2867. The truck, which had been to a garbage dump along Kawasan Simpang 4, was driven by Mulkah Raj, who died some months later in circumstances not connected with this accident.

In the collision which occurred, apart from damages which are claimed by the plaintiff in his personal capacity, the main sufferer was the plaintiff's son, a boy aged 10, who sustained injuries in the collision as a result of which he died soon afterwards in Panaga Hospital.

Letters of administration were granted on 19 June 1990, to the plaintiff by the probate officer over the estate of the deceased boy, Muhammad Asrin bin Md Yusof.

It is not disputed that an accident took place at the time and place alleged in the statement of claim and that, as the result of the accident, the boy suffered injuries from which he later died.

There is however, a serious dispute between the parties as to the liability for this accident. It could be said, in summary that the plaintiff's case is that he had the right of way, that the lorry driven by the defendant should have ensured that the main road was clear before entering it, and that the truck driver failed to do so and ran into him.

The defence is that the main road on which the plaintiff was driving was not open to public, that the plaintiff was going very fast, that the road was blocked by drums which forced the plaintiff to move from the inside lane into the outside lane, that the collision between the truck and the car occurred in the outside lane and that the plaintiff failed to keep a proper lookout.

Speed

The plaintiff (PW1) gave evidence that there was a speed limit of 80 kph (50 mph) along the main road from Kuala Belait/Seria toward Tutong. This was confirmed by Abdul Khahur bin Hj Tamit (PW3).

The plaintiff said that he was travelling at about 50 mph before he reached the junction and that at the moment of collision he was going at about 45 mph. He slowed his car before the collision and looked ahead. He did not agree that at the moment of the collision he was driving much faster than 45, though he could have been going a bit more, say at 50.

If he was travelling at about 50 at the time of the accident and had slowed his car to avoid the collision, which he had admitted he did, he must have been exceeding the speed limit when driving along the main road and when he reached the junction. This factor would, in my view, contribute towards the accident, though it was not the main reason for it.

Drums

The plaintiff (PW1) testified that the road was not obstructed by the drums. This evidence was corroborated by his wife (PW2). A police officer, Sgt 825 (PW4) drew a sketch plan of the site of the accident at about 10.07 a.m on 28 January 1990, that is to say a little over half an hour after it occurred. According to him, there were three drums upright at the side of the road which he showed in his sketch plan. The fair copy of his rough sketch was produced in evidence. It also shows the drums as upright on the side of the main road.

However, Md Khalid bin Ahmad (DW1) gave different evidence. According to him, the photographs which he took of the site of the collision about 7.30 a.m. on the following morning, 29 January, show that the drums and a `No Entry' sign were scattered about the main road, mainly in the route taken by the plaintiff. According to the latter, and to the police officer (PW4), the drums were not there on the morning of 28 January.

Md Farruquzzaman Sarder (DW2) seemed to have difficulty in understanding the sketch plan of the area and the photographs of it. I make allowances for this in considering the evidence which he gave. In examination in chief he said that he saw no drums on the road at A to C (which is the