In negligence claims, the burden of proof lies with the plaintiff, and improper management of hazardous conditions may negate any liability of the defendant.

[1] This is a running down case. On August 25, 2004, at about 0540 hrs, the plaintiff was riding a motorlorry No KBE 8480, from Alor Setar to Kuala Lumpur. It is the plaintiff's contention that at KM 264.9 of the North-South Highway (South) (Ipoh), a motorlorry No KAJ 638, driven by the first defendant that was in front of the plaintiff's motorlorry, had turn into the plaintiff's lane and caused an accident to ensue. It is also the plaintiff's contention that the said defendant's lorry did not have its rear lights on.

[2] The defendants in their statement of defence denied total liability and in alternate, pleaded contributory negligence.

On Liability

[3] The IO for this, Sjn Mohd Fazik bin Man ("SP1") confirmed that both vehicles were travelling on the same direction, ie from the bottom to the top of sketch plan (see exh P2). He had arrived at the accident scene at about 0645 hrs. Both vehicles were still there. (See exh P3a-n.) There are several important features in this case:

i. the traffic at that material times was not busy, as it was still early in the morning;

ii. the highway was quite misty and dark. There is no street light;

iii. the place where the accident happened was quite down the hill (I referred these as "hazardous situations"); and

iv. before the accident occurred, plaintiff was driving behind the defendants' motorlorry.

All of these facts have also been confirmed by the plaintiff in his witness statement (see exh P8).

[4] SP1 confirmed that the rear of the defendants' motorlorry was covered with "tarpar dan gelap" (see exh P3E). Based on his investigation, SP1 concluded that based on both vehicles' position it is possible that: J: selepas kemalangan di kawasan "K1" "G" motorlori No KBE 8480 tersangkut bersama pemandunya di belakang motorlori No KAJ 638 dan selepas itu motorlori No KAJ 638 mengheret motorlori No KBE 8480 ke tepi kiri iaitu di kedudukan "E" dan "F" di rajah kasar dan terdapat juga pecahan kaca "K" di situ berdekatan kedua-dua motorlori berhenti.

[5] SP1 also confirmed that summons has been issued against the plaintiff under r 10, though he is yet to settle it. Now, all of these evidence are important, all of this evidence can be used either in favour of not in favour the plaintiff's case.

[6] The plaintiff ("SP2") in his witness statement has described the following events that led to the accident: 7. J - Saya boleh melihat jauh lebih kurang 10 hingga 15 kaki sahaja di hadapan dengan adanya cahaya dari lampu besar motolori saya kerana keadaan jalan berkabus dan gela p 8. J - Pada ketika itu, apabila saya sampai di KM 264.9 tersebut, tiba-tiba saya hanya ternampak motorlori No KAJ 638 di hadapan saya dalam jarak yang amat dekat kerana motorlori tersebut tidak memasang lampu belakang. 11. J - Saya pun brek motorlori saya dan elak ke kiri tetapi terlanggar juga bahagian belakang sebelah kiri motorlori No KAJ 638.

[7] It is to be noted here that, despite the harzadous condition ie dark and misty with a limited front view, plaintiff was driving between 80 to 90 kmph. That explained the impact on the plaintiffs motorlorry whereby it was stuck at the defendants' rear. Plaintiff was adamant that he could not see the lorry in front of him as the defendant's rear light did not work and its was covered with "kain tarpar".

[8] At this stage, I think this case can be dispose off, even without the defendants' presence. During the submission, the learned plaintiff's counsel has submitted that since the defendants did not turn up for the hearing, the plaintiff's version should be taken as inherently probable and judgment should be entered against the defendant. With respect, I do not agree with this submission.

[9] In