JUDGMENT

The Magistrate who made the decision which is the subject matter of appeal did not hear the evidence but made the decision based on Notes of Evidence recorded by the previous Magistrate and written submissions filed.

In this situation the general rule whereby an Appellate Court would normally be slow to interfere with the findings of fact arrived at by a trial Judge by reason of having had the advantage of hearing the evidence, observing the demeanor of the witnesses, does not accordingly apply. This Court, in exercising its appellate jurisdiction in this appeal is accordingly in the same position as the Magistrate who made the decision on the facts in issue in this case.

First, some preliminary issues. At the outset of the hearing of this appeal I rejected the Appellant Counsel's oral application that the arguments in this appeal not be confined to liability by reason of the fact that the Memorandum of Appeal filed by the Appellant includes the issue of quantum. I also dismissed the Appellant Counsel's oral application for extension of time of 4 years 1 month and 18 days from 23.12.98 to appeal on quantum and the oral application for leave to amend the Notice of Appeal to include quantum. To do so at this late stage in my view would be prejudicial to the Respondent and the delay in this case being inordinate.

Thus, the arguments in this appeal was confined and proceeded on the issue of liability only.

Next, I would like to deal with the contention on the part of the Respondent Counsel in his submission that the Appellant had failed to plead contributory negligence and that it was not open for this Court to consider apportioning liability. Upon perusal of the pleadings I find this contention to be baseless. The pleadings shows that the Appellant had raised the issue of contributory negligence in paragraph 4 of the Statement of Defence and had also particularized the same in the "Particulars of Negligence".

It is common ground that the accident in this case occurred on 23.9.92 at about 6.30 a.m. at a road junction governed by traffic lights. The Appellant was at the material time driving motor car No. WBP 359 from the direction of Klang to Kuala Lumpur whilst the Respondent was in the course of crossing the road heading towards a bus stop situated on the opposite side of the road.

The Magistrate's Decision

The Magistrate's reasoning in finding the Appellant 100% liable is in the Grounds of Decision at pages 9-10 of the Appeal Record. The Magistrate relied on the sketch plan and key to sketch plan at pages 69-70 of the Appeal Record. He took into consideration the fact that the Defendant had been summoned and paid the compound in respect of the traffic offence preferred against him. The Magistrate then arrived at the following findings of fact ie, that:-

(a) the accident occurred whilst the Respondent was crossing the road at a road junction governed by traffic lights;

(b) the accident occurred on the right lane immediately after the traffic light at the road junction;

(c) the Appellant who was proceeding from Klang towards the direction of Kuala Lumpur should have been driving on the left lane but had instead used the right lane which was for traffic turning right into Taman Dato' Haron;

(d) the Respondent had taken steps to ensure that the traffic from the direction of Taman Dato Haron towards Kuala Lumpur was clear before she started crossing the road;

(e) the traffic light at the material point of time was red against the Appellant and the Appellant should have stopped his car at the said junction and that he had failed to do so;

(f) that the Appellant was accordingly negligent in knocking into the Respondent who was in the course of crossing the road in the believe that the road was clear.

The Appellant Counsel's Submission

The Appellant Counsel's arguments were as follows: Firstly, she contended that the Magistrate had erred in relying on a sketch plan and key to a sketch plan which was never produced. The sketch plan in this cas