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1995 MarsdenLR 1838
HIGH COURT MALAYA IPOH
CHIN FOOK YEN, JC
PERAGANATHAN KARPAYA – Appellant
Versus
CHOONG YUK SANG & ANOR – Respondent
[Civil Suit No: 25-56-87]
JUDGMENT
[1] On 29 January 1985, an accident occurred between a motor cycle ridden by the plaintiff and a motor lorry owned by the 1st defendant and driven by the 2nd defendant.
[2] There were two totally opposite versions of the manner in which the accident took place.
[3] According to the plaintiff, he was riding the motorcycle on his correct side of the road from the direction of Kampar to the direction of Teluk Intan, there were no vehicles travelling in the same direction ahead of him, but there was a car travelling from the opposite direction behind which car was the 2nd defendant's motorlorry. The plaintiff said that the defendant's lorry overtook the car and encroached onto his side of the road and knocked into him. When the accident occurred the said lorry cut back into its lane after overtaking the car. The front rim of the plaintiff s motorcycle buckled in.
[4] On the other hand, the 2nd defendant said that when his motorlorry and an on-coming lorry were about to reach each other, suddenly the plaintiff s motor cycle emerged from behind the on-coming lorry and attempted to overtake the said on-coming lorry. The 2nd defendant braked and swerved to the left in trying to avoid the plaintiff motorcycle. The damage to the 2nd defendant's motorlorry was at the off-side rear tyre.
[5] In the case of Noorianti bt Zainol Abidin v. Tang Lei Nge, [1990] 2 MLJ 242 it was said "that a trial Judge should not approach the case upon the basis of deciding which of the two conflicting stories he should believe but rather on the basis of considering which version is inherently probable or improbable."
[6] There were no visible damages or marks on the vehicles, other than the front rim of the motorcycle and the off-side rear tyre of the motorlorry, as said earlier. It would appear that that was the point of impact between the two vehicles. The rim being buckled in, would appear to have hit, not grazed, against, the off-side rear tyre of the motorlorry at some angle. This would be consistent with both the contentions of the manner in which the accident occurred. If the 2nd defendant's motorlorry was overtaking the motor car in front of it, the motorlorry would have swung out the rear portion, as it was cutting back into its correct lane (as was the version of the plaintiff). The position of the motorlorry would be at an angle across and not parallel to the road, resulting in the off-side rear portion offending the plaintiff s path. This would have caused the damage to the rim, when the motorcycle hit the tyre. On the other hand, if the plaintiff swerved to the right in order to overtake the motorlorry in front of him (as was the version of the 2nd defendant) the same damage would have been caused to the rim.
[7] The sketch plan and the keys thereto could not offer any clue which would provide some objective evidence one way or the other. The point of impact in relation to the road indicated by the 2nd defendant to the police and the place where the plaintiff s motorcycle was found, both of them appeared on their respective correct sides of the road. There were no other marks such as brake marks, fragments of broken glass, blood stains, anything at all to throw a clue or two of where, in relation to the road, was the point of impact.
[8] I cannot find any evidence as to the respective positions of the two vehicles on the road immediately before or how they collided into each other. Counsel for the defendants submitted that, bearing in mind the two conflicting versions, and in the absence of any objective evidence liability should be apportioned equally.
[9] In the case of Baker v. Market Harborough Industrial Co-operative Society [1953] 1 WLR 1472 the principle is stated in the head-note which reads as follows:
Where the evidence established that a collision between two motor vehicles proceeding in opposite directions occurred in the centre of a straight road during the hours of darkness when both drivers were killed, the infere
