Raja Azlan Shah Ag (Malaya) CJ:

This is a consolidated appeal against the decision of the learned Judge sitting at Kuala Lumpur to the effect that the appellants were partly to blame for the nasty head-on collision between their motor bus and the respondents' motor lorry at the 25th milestone Kuala Lumpur/Ipoh main highway and that the third party was exonerated from blame because one of its rubber trees standing on its estate adjoining the highway fell on the said highway.

The appellants brought this action against the respondents and recovered judgment for $45,000 for damages and other consequential loss suffered by them. The learned trial Judge held that the respondents were 75% to blame and that the appellants were 25% to blame. They now say that the respondents were wholly to blame for the accident and that they should recover judgment for the full amount of $60,000 the quantum agreed on a 100% ability.

The accident occurred at about 10.40 p.m. The road had no street light. At the time of the collision a rubber tree adjoining the highway and belonging to the third party had fallen and was lying across the motor lorry's side of the road. The other half of the road, t