Alauddin Mohd Sheriff J:

The appellant/plaintiff in this case brought an action against the respondent/ defendant for damages (personal injuries and consequential loss and expense) sustained by her and alleged to have been caused by the negligence of the defendant in driving his motorcar bearing registration No. PAL 2782 along the Sungai Petani/Alor Setar trunk road on 21 November 1984 at about 4.30pm.

The plaintiff, at that material time, was a passenger in a motorcar driven by her husband (PW3) who was proceeding from Tokai towards Jalan Kangkong. The accident had occurred at the junction of the trunk road and the Kangkong/ Tokai road.

This case was heard by the learned Sessions Judge at Alor Setar. The plaintiff had called two witnesses to prove her case whilst the defendant did not give any evidence as he was absent. At the close of the hearing the learned Sessions Judge held that on the evidence adduced the plaintiff had failed to prove negligence on the part of the defendant and dismissed her action with costs. Against this decision the plaintiff has now appealed to this court.

It was not disputed that the plaintiff and her husband (PW3) were travelling along Jalan Tokai and had emerged from the said road with the intention of cutting across the trunk road into Jalan Kangkong and had collided into the defendant's car which was proceeding straight along the trunk road towards the north ie, in the direction of Alor Setar. It was also not disputed that the accident occurred on the defendant's right of way. As a result of the accident the plaintiff suffered the following injuries:

(i) fracture of the lower limb of the left hip.

(ii) fracture dislocations of the left hip.

(iii) shortening of lower limb.

(iv) cerebral concussion.

The burden lies on the plaintiff to prove that there was some negligence on the part of the defendant or that the collision was caused or contributed by the defendant.

In order to prove negligence on the defendant's part the plaintiff had relied heavily on her husband's (PW3) evidence. PW 3's evidence was that when he approached the said junction he stopped for about 20 seconds. Just then he saw the defendant's car coming from the left some 240 feet away (the distance of four lamp posts). Having ascertained that it was safe for him to cross he proceeded on to the trunk road moving towards Jalan Kangkong. It was at this moment that he saw a motorcyclist darting out of Jalan Kangkong proceeding towards Sungai Petani. Upon seeing the motorcyclist he applied the emergency brake to avoid a collision. As a result his car stalled. It was then that the defendant's car which was travelling north collided into his car. PW3 claimed that as a result of the impact his car was thrown some 21 feet away into the drain.

Although the defendant had not adduced any evidence he had nevertheless filed his statement of defence denying any liability whatsoever for the said accident.

In the absence of the defendant's evidence is the court compelled to accept in toto the plaintiff's version?

It is trite law that the onus of proving negligence lies on the plaintiff. In Wong Thin Yit V. Mohamed Ali [1971] Ong CJ (as he then was) held:

In a negligence action the onus of proof rests wholly on the plaintiff, whether or not the defendant gives evidence.

The plaintiff cannot succeed without proof of defendant's negligence.

Hashim Yeop A. Sani J (as he then was) addressing the same issue in Ng Chui Sia v. Maimon bt. Ali [1983] 1 MLJ 110 had this to say at p. 111:

When an accidental harm is done it is not for the doer to excuse himself by proving that the accident was inevitable and that there was no negligence on his part.

It is for the person who suffers the harm to prove affirmatively that the accidental harm was due to the negligence of the other person.

In the present case, the learned Sessions Judge on the evidence presented before her had come to the conclusion that there was no credible evidence of ne