LC Vohrah J:

[1] This is an appeal from the judgment of Edgar Joseph Jr J (as he then was) dismissing the claim of the plaintiff. The action is one of negligence and arose out of an accident along the Sungai Acheh/Tanjong Berembang road in Penang on 28 April 1977 in which the plaintiff, then aged 10 years, suffered rather severe injuries.

[2] The case for the plaintiff was that as she was walking side by side with her sister (PW2), then apparently aged 6 years, close to her left edge of the road 16 feet wide in the direction of Tanjong Berembang with the intention of boarding a bus at a point on the other side of the road on their way to school, she was collided into from the rear by the defendant riding a Vespa motor scooter. The case for the defendant, on the other hand, was that he was proceeding along the road in a normal manner at a reasonable speed in the same direction when the plaintiff without any warning suddenly darted across the road from his right to his left leaving him no opportunity to avoid the collision.

[3] The plaintiff herself did not testify at the trial and the evidence on her behalf as to how the accident occurred was furnished by a family friend (PW1) who happened to be at the scene at the time of the accident and by PW2.

[4] PW1, who was a neighbour of the plaintiff and was aged 14 years at the time, testified that he witnessed the collision at about 7.15 am when he was waiting for a bus on the left-hand side of the road as one faced Tanjong Berembang whilst the plaintiff was walking on the same side of the road in his direction on the metalled surface of the road about 3 feet from the edge of the road with PW2 walking abreast of her on her left along the side-table. He then saw a scooter coming from behind the plaintiff and colliding into her as a result of which she fell on to the ground and lost consciousness. PW2 also stated that she was walking abreast of the plaintiff who was then about 3 feet from the edge of the road when the scooter, which came from behind, knocked into the plaintiff.

[5] The evidence for the defence was given by the defendant alone. He, on the other hand, testified that at the material time he was riding his scooter at about 30 kph about 3 to 4 feet from his left edge of the road on his way to work in the direction of Tanjong Berembang when he noticed 3 girls standing on the grass verge to his right about 4 electric poles away. When he had slowed down whilst approaching a bend and was about 6 feet from them one of the girls dashed across the road into his path with her arms out-stretched and flapping in the air like the wings of a bird leaving him no opportunity of avoiding a collision as a result of which the plaintiff fell on her back with her head coming to rest near the central white line. He too fell and his scooter came to a rest on his right-hand side of the road. After carefully scrutinising the totality of the evidence oral and otherwise, and after keenly weighing the credibility of the witnesses, the learned Judge believed the defendant and found his version of the circumstances relating to the collision to be correct. We have reviewed the whole of the evidence and find ourselves in full agreement with the learned Judge's finding as a fact "that at the material time the plaintiff was crossing the road from the right to the left when she was knocked down by the defendant who was proceeding along his right of way" and that the plaintiff was actually to blame for the accident. That really should dispose of this appeal but learned counsel for the plaintiff in his arguments before us has invited us to reverse the finding of the learned Judge on the ground that he had failed to consider the question of contributory negligence on the part of the defendant. He argued that even if the version of the defence was believed wholly by the learned Judge the defendant should, on the basis of his own version, have been found to have been partly responsible for the accident. The