Haji Abdul Malik bin Haji Ishak JC:

This is an appeal from the decision of the Judge, Sessions Court, Kuala Kangsar ("the trial Court"). The claim before the trial Court was for damages arising from an accident between a motorcycle and a motorbus occuring at the 28275 milestone, Kuala Kangsar/Ipoh main road. The two vehicles were travelling in the same direction, that is, from Kuala Kangsar towards Ipoh; the second appellant/defendant travelling behind the first respondent/plaintiff who was carrying the second respondent/plaintiff as pillion.

As regards liability, the trial Court held that the first respondent/plaintiff was wholly to blame for the accident but ironically held the appellants/defendants to be wholly liable to the second respondent/plaintiff.

What transpired before the trial Court was that after hearing the evidence of both parties, he found that they gave conflicting versions of the accident, whereupon he proceeded to seek assistance from the other silent evidence itemised in his decision as the pleadings, sketch plan and the police photographs to decide which of the two versions could be accepted as probably the true version.

It would appear that the trial Court rejected the version of the respondents/plaintiffs primarily because he found the damages to the first respondent/plaintiffs motorcycle more consistent with the second appellant/defendant's version of the accident and that the police photographs of the damages of the first respondent/plaintiff's motorcycle did not substantiate the statement of claim of the respondents/plaintiffs that the second appellant/defendant's motorbus knocked his motorcycle from the rear.

At the hearing before the trial Court, the first respondent/plaintiff gave his version of the accident as to how it occurred. In his evidence, he stated that on the day in question, he was riding his motorcycle with his daughter as pillion intending to go to his in-laws' house which is 200 yards from the main road. He further stated that before turning into the main road he did not notice any vehicles on the main road and that as he proceeded along the main road he indicated by light signal to, turn right and stopped at the centre broken white line. At that stage, he stated that he did not see any vehicles from the front nor at the back. In cross-examination, he said he was on his third gear and that he did not hear engine noise from any vehicles or any vehicles honking and that his speed was 15 to 20 kilometres per hour. He also denied in cross-examination that he cut across without any warning. The evidence of the first respondent/plaintiff was not corroborated or supported by the pillion rider (the second respondent/plaintiff) who in her evidence merely asserted that she did not know how the accident had happened.

The second appellant/defendant on the other hand stated that he was driving the motorbus from Kuala Kangsar towards Ipoh and his speed at the material time was 60 to 65 kilometres per hour and on approaching Kota Lama Kiri, he noticed a motorcycle crossing the main road when the motorcycle was about 20 feet in front of his motorbus. The second appellant/defendant honked and swerved to his right but due to close proximity, the accident occurred.

The trial Court would seem to have overlooked the more pertinent and salient features of the evidence. Firstly, it was not disputed that the main road (the Kuala Kangsar/Ipoh stretch) was a straight road and that visibility was good. The second appellant/defendant was driving a motorbus, having a higher perspective of the road and he had a duty to keep a good look out while driving. He can be said to be in charge of a huge vehicle capable of doing great damage, and he is usually able to observe motorcyclists on the road and to warn them if they appear to be unaware of his approach. As was observed by Lord Uthwatt in London Passenger Transport Board v. Upson [1949] AC 155:

A driver is not, of course, bound to anticipate folly in all its forms,