There was an accident involving two motor cycles travelling in the same direction. The judge of the sessions court, Alor Setar, gave judgment to the plaintiff. And she held that the plaintiff was contributorily negligent to the extent of 70%. But the defendant had never pleaded contributorily negligence on the part of the plaintiff. Nor did the defendant bring up that issue during the course of the trial. The plaintiff was dissatisfied with the learned judge's decision principally on her finding that the plaintiff was contributorily negligent. The plaintiff appealed.

In her grounds of decision the learned judge conceded that since contributory negligence was not pleaded she was wrong in attributing partial liability on the plaintiff. She probably had in mind the case of Fookes v Slaytor [1979] 1 All ER 137 . Towards the end of her grounds of decision, however, she said that since the accident was substantially caused by the plaintiff she should have dismissed the plaintiff's claim.

Before me counsel for the defendant, respondent in this appeal, echoed the view of the judge that since the plaintiff was substantially to blame for the accident the claim of the plaintiff should have been dismissed and that therefore I should dismiss the appeal of the plaintiff. I, however, allowed the appeal of the plaintiff. In my view since contributory negligence was not pleaded by the defendant nor brought up as an issue during the course of the trial the learned judge should not have taken into account the contributory negligence of the plaintiff. Once it was shown that there was negligence on the part of the defendant the learned judge had to disregard any fault on the part of the plaintiff. I now give my reasons for my decision.

In the court below the plaintiff's case was that while he was in the process of overtaking the defendant (who was riding a motor cycle) after he (the plaintiff) had sounded his horn, the defendant for some unknown reason swerved right causing the right handle of his motor cycle to graze against the left handle of the plaintiff's motor cycle. The plaintiff lost control of his motor cycle and went across the road in the path of an oncoming car. There was a collision between the plaintiff's motor cycle and the car and the plaintiff suffered extensive injuries. The defendant agreed that the handles of his and the plaintiff's motor cycle grazed each other. He, however, denied that he swerved to the right at any time.

The learned judge found as a fact that the defendants rode in the middle of the left side of the road. Although the defendant claimed he did so because of the presence of cyclists there the learned judge found that there were no cyclists at the scene. She also found that the plaintiff's claim that he sounded his horn before overtaking the defendant and that the defendant swerved to his right was not proved. Towards the end of the grounds of her decision she concluded:

I apportioned liability to the defendant only because he was oblivious to the approach of the defendant from the rear and did not ride closer to the left edge of the road than he did. However as the plaintiff was overtaking him, the plaintiff should have left enough room between them for him to overtake safely. On the facts it was more probable than not the plaintiff had grazed into the handle of the defendant's motor cycle by overtaking too close to him and the collision was substantially caused by the plaintiff.

As stated earlier, the learned judge conceded that she was wrong to have considered the issue of contributory negligence when it was not pleaded. In which case she should have given judgment to the plaintiff but instead she said in the last paragraph of her grounds of decision, 'In the circumstances I should have dismissed the claim.'

The plaintiff appealed against her decision listing nine grounds. But during the appeal before me the plaintiff abandoned all except three grounds which are to the effect:

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