JUDGMENT

Hashim Yeop Sani FJ:

The claim before the trial Judge was for damages arising from an accident between two motorcycles occurring near a junction at the 18th milestone Kuala Lumpur/Rawang main road. The two motorcycles were travelling in the same direction, that is, from Kuala Lumpur towards Rawang, the respondent travelling behind the appellant.

As stated in the opening remarks of the judgment of the trial Judge, only two issues were to be decided by the Judge namely (1) liability and (2) quantum on general damages since the parties had agreed to special damages at RM10,918 and future loss of earnings assessed at RM59,800.

As regards liability the learned Judge held that the plaintiff there (appellant now) was wholly to blame for the accident and absolved the respondent from any blame whatsoever and accordingly dismissed the action with costs.

What transpired before the learned Judge was that after hearing the evidence of both the plaintiff and the defendant she found that they gave conflicting versions of the accident, whereupon she proceeded to seek assistance from the other silent evidence itemised in her judgment as the pleadings, sketch plan, damages to the vehicles and the police photographs to decide which of the two versions could be accepted as probably the true version.

It would appear that the trial Judge rejected the version of the appellant primarily because she found the damages to the appellant's motorcycle more consistent with the respondent's version of the accident and that the police photographs of the damages of the appellant's motorcycle did not substantiate his evidence that the respondent's motorcycle "knocked his motorcycle from the rear".

In our opinion apart from the fact that the use of the words "from the rear" or "from behind" appearing both in the evidence of the appellant (p. 15) as well as in the police report (p. 38) ("dari belakang") is only a manner of expression since both motorcycles were proceeding along the same direction with the respondent's motorcycle following behind, the learned Judge would seem to have overlooked the more pertinent and salient features of the evidence all of which incidentally appear at p. 20 of the appeal record. Firstly it was not disputed that the respondent knew that there was a junction just at the point of collision. In his evidence he said he could see 100 feet ahead of him and that when he first saw the plaintiff he was about 50 feet away from the junction. Secondly in his own evidence the respondent said that he had been following the appellant for half a mile consistently at a safe distance, that is 100 feet behind the appellant travelling at a speed of 35 m.p.h. But nearing the junction the respondent's motorcycle came closer to the appellant's motorcycle which meant that the appellant had slowed down. It was here that the respondent admitted to overtake the appellant when he was about 5 feet away from the junction. Thirdly immediately before overtaking the respondent gave two signals of his intention to overtake.

It was the respondent's case in the Court below that the appellant suddenly swerved to the right and the trial Judge found that the appellant had suddenly cut across the path of the respondent and that the respondent had not acted recklessly in attempting to overtake the appellant near the junction.

As can be seen the trial Judge preferred the version of the respondent purporting to rely on the silent evidence but failed however to draw the proper inferences from the evidence available. The finding of a trial Judge on which of the two conflicting versions of an accident is to be believed would normally be unassailable unless the appellate Court on reviewing the evidence forms the opinion that the Judge was clearly wrong. The approach to the exercise of the power available to an appellate Court is as stated by Lord Denning MR in Kerry v. Carter [1969] 1 WLR 1372, 1376 where he said:

I think that the attitude of this Court was correctly stated in t