5 MAY 1982

Hashim Yeop A Sani J

This was an appeal against a finding of 100% liability made by the learned Magistrate in an accident case where apparently both the rider of a motor cycle and the pillion rider were killed. The plaintiff before the Magistrate was the administrator of the estate of the deceased pillion rider. The appellant was the driver of the motor car involved in the accident.

At the trial before the Magistrate the plaintiff brought two witnesses neither of whom saw the collision. PW2 was riding another motor cycle behind the deceased along Jalan Banting when he saw his friend (the deceased) "fall at Simpang Morib". PW2 stopped his motor cycle and found that his friend had died. He then lodged a Police Report No. 979/75 Telok Datok. In the report PW2 stated that he was then travelling behind the deceased at a distance of about one mile.

The appellant was the sole witness for the defence. According to his evidence he was on the correct side of the road when he saw two persons fall from a motor cycle and they were thrown towards his car. According to him the motor cycle knocked his car and he lodged a Police Report No. 982/75. In his report he stated that as he arrived at the 24th milestone Jalan Banting/Sepang, one motor cycle coming from the direction of Jalan Morib suddenly skidded and was thrown towards his car.

In the statement of defence paragraph 3, thereof stated that the motor cycle concerned skidded and both the rider and the pillion rider "flew towards" the motor car. In the statement of agreed facts paragraph 3 thereof stated that a collision occurred on the day in question between the deceased riding pillion on the motor cycle and the motor car driven by the defendant.

It seems quite obvious that on the pleadings as well as the evidence all that was established was that there was an accident and a collision occurred between the deceased and the defendant's motor car.

The grounds of judgment of the learned Magistrate are with respect in most parts incomprehensible. There is an apparent confusion of the law and insufficient appreciation of the facts. There are many instances in the grounds of judgment which show that the Magistrate misdirected himself on the law and applied the wrong tests and that he imposed on the defendant the onus of proving that he was not negligent.

In an action for negligence the onus of proving the allegation of negligence rests on the person who makes it unless there are disclosed facts which raise a presumption in favour of the plaintiff. The plaintiff must show affirmatively that there hasbeen a breach of a specific or general duty by the defendant and this resulted in the damage to the plaintiff. If he fails to prove this the action must fail.

It was contended by counsel for the respondent that the appellant should have pleaded inevitable accident if he maintained that the motor cycle skidded and knocked into his car. But the law on this is clear. When an accidental harm is done it is not for the doer to excuse himself by proving that the accident was inevitable and that there was no negligence on his part. It is for the person who suffers the harm to prove affirmatively that the accidental harm was due to the negligence of the other person.

Applying the law to the facts of this case, the Magistrate's finding that the appellant was 100% liable against the deceased pillion rider cannot be sustained.

The appeal was accordingly allowed. Costs to respondent.

Appeal allowed.

Solicitors: Richard Talalla; RK Nathan & Co.