MacIntyre FJ:

This is an appeal against the judgement of Ismail Khan J, in a running down case in which the plaintiff, an infant, aged 20, was knocked down and injured on 19 March 1964 while crossing Jalan Bunga Raya, Malacca, by a motor car driven by the appellant. The plaintiff sustained a fracture of the cervical vertebra, resulting in permanent paralysis of both forearms, hands, trunk muscles and muscles of the lower limbs with complete loss of control over bladder and rectum. According to the medical expert who gave evidence at the trial on 12 August 1965 the plaintiff's life expectancy had, in consequence of the injuries sustained, been reduced from 66 years to between 40 and 45 years with every prospect of an earlier death through infection of bladder and kidney or from pneumonia.

The plaintiff, however, succumbed to infection on 27 October 1965 that is to say, five days after the delivery of judgment awarding him damages in the sum of $113,845, of which $110,000 was for general damages and $3,845 for special damages.

The appellant then moved the Court to recall its judgment delivered on 22 October in order to alter, vary or modify the amount awarded as general damages. Upon the hearing of the application on 15 November 1965 the learned trial Judge made an order by consent recalling his judgment with liberty to the parties to address him. Then about a year later, on 5 November 1966 the present respondents, who had in the meantime obtained letters of administration and an order adding themselves as parties to the suit in place of the deceased plaintiff, successfully moved the Court to set aside the order recalling the judgment on the ground that the former Counsel who had consented to the order had no authority to do so. However, the appellant also moved the Court on the same day to recall the restored judgment and the Court obliged by recalling it once again with liberty to the parties to address later.

The motion came up for final disposal on 15 July 1967 when an order was made by consent restoring the judgment unconditionally. It then became necessary to draft two orders, one in respect of the order restoring the judgment and the other in respect of the judgment itself which as yet had not been drawn and perfected. The parties soon found themselves in disagreement in regard to the terms agreed upon in respect of the consent order made restoring the judgment and the matter was referred to the Judge in chambers on 22 August 1967 to settle the terms. After hearing the admissions of the respective Counsel, he ordered that the original judgment should be dated 15 July 1967 notwithstanding the fact that it had been pronounced in open Court on 22 October 1965 and directed that the names of the respondents should also appear in the title as the plaintiffs. The order were accordingly drawn up and perfected.

The appellant then filed the notice in respect of the present appeal on 12 August 1967 appealing against the whole of the judgment. He also gave notice of his intention to apply for leave to adduce fresh evidence regarding the date of the death of the deceased plaintiff. The respondents, thereupon, filed a notice of cross-appeal dated 2 October 1967.

The appeal and cross-appeal came up for hearing before us on 19 June when the respondents admitted that the deceased plaintiff died on 27 October 1965. However, each party, objected to the hearing of the appeal brought by the other, on the ground that the respective notices of appeal had been filed out of time. The time prescribed by the provisions of r. 13 of the Federal Court (Transitional) Rules, 1963 is one month from the date of the pronouncement of the order or judgment appealed against. After hearing the submission of Counsel, we decided to postpone our decision in regard to the objection taken by the respondents until after hearing the appeal on its merits, but decided to sustain the objection in respect of the so called cross-appeal which is in our opinio