JUDGMENT

Rhodzariah Bujang, SJ:

The Accident

[1] The plaintiffs are husband and wife who had a daughter studying at Sekolah Kebangsaan Agama Matang. On May 5, 202 at 4.40 pm. while they were on their way to visit her, the van in which they were travelling was involved in an accident with a bus driven by the first defendant but owned by the second defendant. As a result of the accident the van driver sustained some serious injuries, fracture of 3 of his ribs and a closed fracture of his left fibula. His wife wasn't so lucky. She was pinned to the wreckage of the van. Her injuries were nothing short of horrific. She injured her head which left her paralysed from the neck down, dislocated her left hip, fractured her left ankle, her left first toe, her left second rib with contusion of the lung and multiple laceration wounds over her face and ankle. They both brought this action for general and special damages suffered arising out of the accident.

Liability

[2] In deciding this issue I am, firstly, guided by the evidence of the parties, secondly, by the investigation of the investigating officer and thirdly, by my own visit to the scene. Needless to say the last 2 factors provided a more independent and objective assessment of the evidence pertaining to this issue, the evidence of the parties being the more self serving one.

[3] In resolving this issue on liability I think it is best that I repeat the observations I made at the scene. It is this.

Observations At The Scene Of Accident

[4] Where the accident occurred was a narrow road which is a dual carriageway. One lane is just sufficient for a big vehicle such as a bus to pass through. To add to the gravity of the situation, the spot where the collision happened was at an "S" bend with the lane in the direction of Kuching going downhill and the one in the direction of Sg Cina, uphill. Therefore the path of travel for the van was uphill and the bus downhill. Since it was an "S" bend with trees on both sides of the road, it is not improbable, given the steepness of the slope that when the van negotiated the bend, it's view of a vehicle coming down the slope would be partially blocked.

[5] I move now to state briefly the drivers' evidence.

The Driver's Evidence

[6] Each said the other encroached onto it's lane. The van driver said when he saw the bus encroached onto his lane, he braked, swerved to the right but still collided with the bus on its driver's side. The impact saw his wife being pinned to the wreckage of the van and the bus had to be used to help free her. This was done when a cable or rope was tied to the front of the van and the bus reversed a few times before they could free her.

[7] The bus driver's evidence was that the van was travelling fast, braked and swerved onto his lane and collided with his bus. He tried to avoid the collision by swerving his bus to the left but failed to avoid the collision. The bus was used he said to pull the door of the van and his bus reversed about a meter although the van did not move when this was done.

[8] Both drivers said it was raining at the material time and the road was slippery.

[9] Given the conflicting nature of the evidence given by the parties to the accident, case law has determined that I should look to the sketch plan for guidance as well as the photographs and damage to the vehicles. (See Lee Ewe Teik v. Arifin Hussain, [1990] 2 CLJ 332 and Lee Hock Lai v. Yeoh Wah Pein; [1999] 5 MLJ 172) I do not have any photographs or damage inspection reports to assist me in this case. Only the sketch plan drawn by the investigating officer (PW1) and his evidence and that of the 2 drivers that the front part of the driver's side of the bus was damaged whilst the van was damaged at the passenger's side.

[10] I will now examine the sketch plan.

The Sketch Plan

[11] First it must be stated that the investigating officer came to the scene at 5.30 pm., some 50 minutes after the accident happened. It is not disputed that when he drew the sketch plan, th