Abdul Malik Ishak J:

Introduction

The learned sessions court judge in the person of Madam Komathy Suppiah ("trial court") gave judgment to the plaintiff and held that the first defendant as the servant or agent of the second defendant wholly liable for the motor vehicle accident that took place on 22 November 1994 at about 12.00 midnight at Jalan Stulang Laut, Johor Bahru, Johore. The trial court ordered the defendants to pay the plaintiff the judgment sum of RM101,993.00 together with interest and costs. The breakdown of the judgment sum of RM101,993.00 as ordered by the trial court was in this manner:

(a) damages for pain and suffering together with loss of amenities were computed at RM70,000;

(b) loss of earnings at RM21,236 which was made up of:

(i) an agreed part time earnings at RM8,000 as reflected at p. 19 of the additional record of appeal in encl. 10; and

(ii) plaintiff's loss of earnings as a car salesman at RM13,236.

(c) agreed special damages at RM10,757.

At the material time, the plaintiff was driving a motor car bearing registration number JCY 8733 from Johor Bahru towards Jalan Pasir Pelangi whereas the first defendant was driving a motor car bearing registration number NY 315 in the opposite direction. It was a frontal collision and the collision was on the plaintiff's right of way. The statement of claim averred that there was an encroachment by the first defendant into the plaintiff's right of way and that must have been the cause of the accident.

Aggrieved by the decision of the trial court, the defendants appealed. The appeal was focussed on the issues of liability and quantum.

Liability

This was a motor vehicle accident that happened at 12.00 midnight. It was a straight road and that road was quite peculiar. According to sergeant Abdul Rahim (PW1) - the investigating officer, that road had three lanes as reflected in the sketch plan at p. 12 of the appeal record. One lane was marked as "A" to "B" that was heading towards Johor Bahru which was the direction which the first defendant was taking when he drove motor car NY 315. Then there were two other lanes "B" to "C" and "C" to "D" heading in the direction of Pasir Pelangi which direction was taken by the plaintiff that night when he drove motor car JCY 8733. A continuous white lane divided lane "A" to "B" with that of lane "B" to "C"; whereas lanes "B" to "C" and "C" to "D" were divided by broken white lines. Sergeant Abdul Rahim (PW1) explained that at point "F" as shown in the sketch plan was the glass fragments and its location was on the plaintiff's right of way. Glass fragments on the road would show either one of two things. Firstly, the point of impact of both vehicles at the time of the accident or, secondly, the resting place of the vehicles after the impact. In Ng Aik Kian & Anor v. Sia Loh Sia[1997] 2 CLJ Supp 218at p. 224, I had occasion to say something about the value of glass fragments found on the road after a motor vehicle accident and this was what I had to say:

It is now well known that the position of broken pieces of glass would show the point of impact or the ultimate resting place of the vehicle after impact. Past decisions have shown that if broken pieces of glass from the headlamp of a vehicle are found scattered at a spot then that point would be the point of impact for the simple reason that broken pieces of glass from the headlamp would normally fall at the point of impact. Abdoolcader J (as he then was) in Yahaya bin Mat & Anor v. Abdul Rahman bin Abu[1982] 1 MLJ 202 said, in the same vein, to the following effect:

The learned judge also laid great stress on the matter of the broken glass splinters that were found scattered on the first appellant's side of the road but in doing so he was referring to broken glass from the screen. The windshield of the taxi however was not broken but only its offside headlamp was and this would make some considerable difference to the conclusion he reached on the importance of the posi