JUDGMENT

Rhodzariah Bujang, SJ:

[1] In the mid morning of 5 February 2005, Jescika ak Patrick (first plaintiff) travelled in her Kancil car with her mother seated beside her in the front passenger seat and another family member, Teresa ak Keliang (second plaintiff) seated behind her. They were travelling from Simunjan to Kuching. At Km 59, her car was involved in an accident with a lorry driven by Lai Foo San, who at that material time was in the employment of the firm of San Swee Fatt as a lorry driver. Jescika suffered serious injuries in particular to her face and her left leg (femur) which was fractured. Teresa fractured her right leg (tibia) whilst Jescika's mother escaped unscathed. Both Jescika and Teresa brought this action against Lai Foo San and his employer for negligence and compensation for the injuries suffered.

Liability

[2] The two drivers gave differing versions of how the accident happened.

[3] Jescika said the lorry which was travelling from the opposite direction was overtaking a car when it encroached her lane and hit her car. Lai Foo San said he shifted his lorry to the right in order to avoid two kids who were riding on one bicycle falling on his path of travel and when he shifted back the lorry to his lane, the collision occurred. In his police report made on the same day just about three hours after the accident he mentioned that he was trying to avoid three kids who were riding bicycles and said that the accident occurred when he moved back to his own lane.

[4] Jescika in her report said, the lorry was overtaking a car and had encroached onto her lane. She turned her car to the right and the lorry went back to its own lane. That's when the accident happened. In her cross-examination, she said when she made the report she was not fully recovered and was still confused and clarified that the lorry only went back to it's own lane after the collision. Her version of how the accident happened as told to the court was supported by the evidence of PW3, the investigating officer of the case who produced the sketch plan. He also testified that the two vehicles were sent to Puspakom for examination. The Puspakom report for the lorry was exhibited at p 82 of exh P1 (bundle of documents agreed as to authenticity and content). None was produced for the Kancil but the investigating officer said the damage was to the front part of the car. The lorry suffered damage to its front right bumper, its right headlight and its signal light was broken, it's right door dented and the right stepboard was also broken.

The Sketch Plan

[5] It showed the Kancil lying diagonally on its own lane and the lorry on the grass verge of its lane. A long tyre mark starting from point F on the Kancil's right of way was drawn right to the left back part of the lorry. From very near that point F was shown scratch marks. That was 8.60 metres long. The tyre marks from that middle part of the road to the lorry measured 16.30 metres. Shattered glass were also drawn in the Kancil's right of way and more towards the middle part of the road, near the dividing line of the two lanes but still, as stated earlier, on the lane of the Kancil.

[6] It is already trite law in personal injury cases involving road traffic accidents that where the two parties give differing versions of how the accident happened, the best guide for the court would be the independent evidence of the sketch plan and the damage to the car. (See for instance, Lee Ewe Teik v. Ariffin Hussain, [1990] 2 CLJ 332 and Lee Hock Lai v. Yeoh Wah Pein; [1999] 5 MLJ 172.

[7] It cannot be denied that the details in the sketch plan in this case supported the plaintiffs case totally. Not just the fact that her car was shown to be in her own lane after the accident but the shattered glass were also on her lane and more tellingly, the tyre marks of the lorry which begun from near point F which was on her lane. The defendant tried to refute the existence of this tyre mark but I have absolutely no reason to d