Richard Malanjum J

This is an action by the infant plaintiff (hereinafter referred to as 'the infant plaintiff') suing by his next friend, Wong Chin Yong, who is his father, against the first and second defendants. The claims are jointly and severally for damages (both general and special), interest and costs pertaining to the head injury sustained by the infant plaintiff as a result of him being knocked down by a car no KN 2021 (hereinafter referred to as 'the said car') owned by the second defendant and driven by the first defendant on 17 September 1987 at about 5.45pm along Muara Tuang Road, Kuching.

The undisputed facts

It was not in dispute that at the time when the infant plaintiff was knocked down, he was just short of three days to his third birthday, having been born on 20 September 1984.

The other undisputed facts are as follows:

(i) that the infant plaintiff was on his way home together with his two elder brothers when he was knocked down by the said car;

(ii) that the infant plaintiff was crossing the Muara Tuang Road and was about a meter to the other side of the road which he was heading for when he was knocked down;

(iii) that there were grass fringes on both sides of the road;

(iv) that the weather was fine;

(v) that the road was straight and visibility unobstructed for about 250m before the point of impact;

(vi) that it was the first defendant who provided the information to the police, thereby resulting in a sketch plan being drawn up; and

(vii) that before the infant plaintiff was knocked down, the first defendant did not sound the horn or flash the headlights of the said car.

The contentions on liability

Due to the head injury sustained by the infant plaintiff, he could not testify in this trial. But even if he could, his tender age at the time of the collision would have caused some difficulties for him to recall it. Anyway, it was contended for the infant plaintiff that he was knocked down by the first defendant due to her negligent driving. The first and second defendants are disputing this allegation. Thus, it is incumbent on me to consider first the issue of liability of the defendants.

In para 3 of the statement of claim, seven particulars were given as the basis for the averment of negligence on the part of the first defendant. The particulars are as follows:

(a) driving too fast in the circumstances;

(b) failing to keep any or any proper lookout or to observe or heed the presence of the said William Wong Li Fatt;

(c) failing to keep her motor car no KN 2021 under proper control and/or to exercise reasonable care and skill in the driving of the said motor car no KN 2021;

(d) failing to see the said William Wong Li Fatt in sufficient time to avoid knocking against the said William Wong Li Fatt or at all;

(e) failing to apply her brake in time or at all or to steer or swerve or to slow down her motor car no KN 2021 or take any reasonable step so as to avoid the said accident;

(f) failing to exercise reasonable prudence and skill in the circumstances; and

(g) so far as may be necessary the plaintiff will rely on the doctrine of res ipsa loquitur and the Road Traffic Ordinance and the Highway Code applicable to drivers of motor vehicles.

(1) paragraph 3, particulars (a), (c), (e), (f) and (g) of the statement of claim

I will consider particulars (a), (c), (e), (f) and (g) together as they are interrelated to a great extent.

It was not disputed by the defence that the vicinity where the infant plaintiff was knocked down was not entirely without any inhabitants. Indeed there was a factory nearby and houses along that particular stretch of the Muara Tuang Road. However no evidence was adduced on the presence of speed limit in the area. But one matter was clear. The first defendant used that road daily as she was then living in Kota Samarahan while pursuing a typing course in Kuching. Thus, it can be safely inferred that she must be familiar with the area. After all she admitted that she was familia