JUDGMENTBY: SYED AGIL BARAKBAH SCJ

(delivering the judgment of the Court). This is an appeal by the two appellants (defendants in the action) and a cross-appeal by the first respondent (first plaintiff in the court below) from the judgment of the learned judge of the High Court, Kuala Lumpur, over a case arising out of a road accident. The learned judge found the first appellant who was the driver of motor lorry WM 2093 and the first respondent the driver of motorcar BBG 7988 equally liable for negligence in having been involved in a collision between the said car and the rear of the said stationary lorry while the former was travelling along Jalan Sekinchang/Sungai Besar road towards Kuala Selangor. The appeal was against liability and quantum of damages and the cross-appeal was against liability and the apportionment thereof.

In the proceeding in the Court below, it was not disputed that the first plaintiff was the driver of the motorcar at the time of the accident and the second plaintiff was a passenger occupying the rear seat directly behind him. The other passenger who sat in the front seat next to the driver was one Chia King Chong, a 24-year old male Chinese, a butcher by profession, who was killed as a result of the accident. The third to the eighth plaintiffs who were his widow, three children and parents respectively claimed damages for loss of dependency under section 7 of the Civil Law Ordinance, 1956.

According to the facts accepted by the learned judge, the first respondent with the two passengers drove the car leaving Kelang at about 1.00 p.m. on June 29, 1982 on their way home to Sungai Besar. The first appellant at almost the same time left Sekinchang for Sungai Besar driving the lorry which was fully laden with padi. The attendant sat next to him in the drivers cabin. On arrival at Sg. Simpang Lima along a straight stretch of road the lights of the lorry suddenly went off and its engine stalled thereby compelling the first appellant to park the lorry right in the middle of his side of the road with the near-side front and rear tyres about 8 inches away from the left edge of the road and the off-side front and rear tyres about 6 inches from the centre white line. It was about that juncture that the first respondent arrived at the scene in the car which crashed into the rear of the stationary lorry resulting in the death of the front-seat passenger and injuries to both the first and second respondents. They alleged that the accident occurred solely because of the negligence of the first appellant who was at the material time the driver of the said lorry and an agent or servant of the second appellant. That the first appellant by leaving the said lorry parked in such a manner as to almost completely block the passage on its side of the dark road without any rear lights and without giving due warning to approaching traffic of the presence of the lorry on the road caused it to become a danger to persons lawfully using the said road and was thereby solely liable for negligence or alternatively committed a nuisance on the highway. The alternative allegation was also dealt with by the learned Judge, but is not the subject of this appeal.

Liability

It is appropriate in our view to consider the question of liability which formed the subject-matter of the main dispute between the parties. The appellants alleged that the trial judge erred in law and in fact in holding that they were 50% liable while the respondents maintained that the appellants were either wholly to be blamed for the accident or alternatively be held liable to a greater extent of liability than 50% as found by the learned Judge.

The learned Judge applied the correct test in considering a case of this nature by quoting the proposition given by Denning L.J. (as he then was) in Hill-Venning v Beszant [1950] 2 All ER 1151. Indeed, it is a rule of common sense that any unlighted obstacle on a highway at night time is a danger to traffic. The presence of

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