JUDGMENT

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, that is, on the motor bus' side, was clear.

The road at that particular stretch was straight. As one faces Ipoh the left grass side table measured 11 ft 9 ins with tall grass and trees immediately after it; the right side table measured 14 ft until it reached the high bank of a rubber estate belonging to the third party.

The motor bus was carrying passengers. The motor lorry was carrying goods. Both the drivers of the two vehicles were killed on the spot. Several passengers in the motor bus were killed and/or injured. Neither the bus conductor nor the lorry attendant could assist the Court as to how the accident occurred.

On the version of the silent evidence which the learned Judge accepted, it appears that the collision took place as a result of the lorry travelling on its incorrect side of the road in an attempt to proceed past the fallen tree in complete disregard of the presence of the bus which was consistently on its correct side of the road. But he held that the motor bus ought to have stopped on seeing that the lorry had begun to encroach into his path, and that if it had done so, the head-on collision would have been avoided. In those circumstances he concluded that the lorry driver's negligence was the substantial but not the sole cause of the accident, and that the bus driver had also been negligent, although to a lesser extent. He was of the view that the bus driver had failed to exercise a very "high" degree of care when driving a very large vehicle as the bus in question in not keeping a proper look out. He seem to have in mind the proposition that those first in time have priority on the road no matter whether they are to blame or not.

According to the evidence the bus had stopped some 200 yards before the spot of the collision to alight passengers. It then proceeded on its way and it is here that the evidence of Encik Mahinder Singh, an advocate and solicitor, assumes much importance and this has not been missed by the learned Judge. He said he was following the bus and wanted to overtake it at the 25th milestone but could not do so as he was unable to see in front of him on his offside. He noticed the bus was moving towards the left grass verge and its nearside tyres were near the grass verge. He then noticed rays of light coming from the front and through something that was on the road. He stopped his car on the right side of the road, i.e., his incorrect side. The bus was still moving slowly. The next thing there was an explosion and the lorry landed and overturned about 35-40 yards in front of him on his left. At the time of the explosion he was about 100-200 ft away from the bus. He said the tree covered about two-thirds of the road, and the branches extended beyond the centre white line. In crossexamination he said he was tr