Syed Agil Barakbah J:

This is a claim for damages by the plaintiff, a private attached to the 8th Royal Malay Regiment, Terendak Camp, Melaka for damages due to injuries sustained by him as a result of a motor accident at or near the 40th milestone, Sungai Patani/Butterworth road on April 1, 1973 at about 9.30 pm He was riding a motor-cycle BJ 7275 from the direction of Sg Patani towards Tikam Batu. The 1st defendant was driving a Mercedes-190 taxi as servant or agent of the 2nd defendant, from the opposite direction proceeding towards Sg Patani. An accident took place between the two vehicles somewhere near a left hand bend as one travels in the same direction as the plaintiff. At the time of the accident, the area was dark, there being no street lights, the weather was fine and the road was dry. The plaintiff alleges the accident occurred due to the negligent driving of the 1st defendant. Particulars of the alleged negligence are provided at paragraph 4 of the Statement of Claim.

The defendants, on the other hand, deny such negligence and aver that it was caused entirely and/or contributed to by the negligence of the plaintiff.

Mr. Baldev Singh appeared for the plaintiff and Mr. Peh Swee Chin, for both defendants. The Agreed and Further Agreed Bundles of Documents are produced and marked Exh. A, A1 and A2 and the Agreed Statement of Fact is marked Exh. B.

At the commencement of the proceeding, both counsel agreed to the claim for special damages in the sum of $1,300, subject to proof of liability. During the proceeding, it was conceded that near the scene of the accident there is a double bend and the actual scene is the first bend nearer to Tikam Batu side as shown in the sketch plan (page 5 of Exh. A).

According to the plaintiff, he was riding his motor-cycle on his way home from Sg Patani to Tikam Batu, travelling about one foot or so from his left side of the road at about 20 mph The headlight of his motor-cycle was on. While nearing the bend from about 30 yards or so in front, he saw the lights of an oncoming motor-car. After negotiating the bend, the car came towards his direction. He immediately swerved to his left to avoid the oncoming vehicle, but the front off-side of the car knocked against the centre part of the offside of his motor-cycle. As a result, he was thrown off to the left side-table and the motor-cycle fell near him on the same side. The collision, according to the plaintiff, took place on his side of the road, about one foot or so away from the left edge of the metalled part. He noticed the defendant's car stop about one telephone post away, but subsequently proceeded on. A passing vehicle took him to the District Hospital, Sg Patani, where he was admitted. Later he was transferred to the General Hospital, Alor Star.

In his evidence, the 1st defendant stated he was driving his motor taxi on his correct side of the road with the headlights on and was going at about 30 mph. When the accident took place, his taxi was still on the left side of the road. He did not see any lights from the oncoming motor-cycle. Then the front offside mud-guard of his taxi collided with the motor-cycle. The accident took place at the centre of the road when both vehicles were passing each other. He was, however, not sure of the exact place of the accident. At first he said the accident between the two vehicles took place at a bend, but subsequently changed his version and said it took place after passing the bend on a straight stretch of road. He also admitted that because the bend was a right hand bend,the lights of the car shone straight on to the left side of the road and he could not see the motor-cycle coming from the right front side. In cross-examination, he agreed only after hearing a bang he realised his car had collided with something. That is the same version he has given in his Police Report (pages 1 & 2 of Exhibit A). He also agreed as the place was dark, with neither street lights nor moon light, t