JUDGMENTBY: ABDOOLCADER J

(delivering the judgment of the Court): This appeal involves a claim by the respondent for personal injuries sustained in an accident when a taxi No. AF 2318 driven by the first appellant as the servant or agent of the second appellant on October 25, 1974 collided with the bicycle he was riding in Pulau Langkawi. The respondent was an infant at the material time and when the writ in these proceedings was taken out but has since come of age. It is not necessary to set out the facts of the matter as they appear in the judgment of the learned trial judge who apportioned liability for the accident on the basis of 30% and 70% against the respondent and the appellants respectively and awarded general damages on the basis of 100% liability in the sum of$ 18,000 being $ 16,000 for pain and suffering and loss of amenities and $ 2,000 for loss of future earnings. Special damages had been agreed at $ 376 and in the result on the basis of this apportionment the respondent was awarded$ 12,600 as general damages with interest at 6% per annum except in respect of the loss of future earnings and $ 253 special damages with interest at 3% per annum and costs.

The appellants appealed to this court on the apportionment of liability and assessment of damages and the respondent as a protective measure, we should think, cross-appealed. We upheld the appellants appeal on the question of liability and held the appellants one-third and the respondent two-thirds to blame, increased the quantum for loss of earning capacity on the basis of 100% liability to $ 5,000 and in the event awarded the respondent$ 7,000 as general damages. The appellants appeal was accordingly allowed with costs to this extent and the cross-appeal by the respondent dismissed with costs. The respondent then applied to this court for conditional leave to appeal against our decision to His Majesty the Yang di-Pertuan Agong and so did the appellants but counsel for the latter indicated that this was only done as a precautionary measure to protect the interests of the appellants in the event the respondent obtained leave and pursued his appeal. Both applications for leave were refused. The respondent has now applied to the Privy Council for leave to appeal as a pauper and the Judicial Committee has indicated that it requires the judgment of this court for the purposes of considering this application by the respondent. The only question therefore that is material for the purposes of any appeal by the respondent is the question of apportionment of liability for the accident in relation whereto we varied the learned judges order.

We did so as we were of the view that the learned judge erred in apportioning liability for the accident as he did having regard to his findings that the respondent lost control of the bicycle after negotiating the bend due to heavy rain and strong winds which probably blew the open umbrella he was carrying in his right hand sideways, thus blocking his front view and causing him to proceed more to the centre of the road, that had he controlled his bicycle properly and ridden it nearer to his side of the road instead of near the centre, the accident could have been avoided, he ought to have seen the taxi and heard the warning horn, the fact that he had therefore taken the risk in riding while holding an open umbrella in such bad weather clearly indicated that he did not care for his own safety and that he had sufficient intelligence to have appreciated the danger of riding recklessly in such bad weather on the open road. The respondent who admitted his vision was blurred because of the heavy rain and that he had no time to avoid the oncoming taxi was clearly in breach of the provisions of Rules 56, 59 and 60 of the Highway Code and these are matters which should be taken into consideration and can be relied on for the purpose of establishing liability under the provisions of section 59(4) of the Road Traffic Ordinance, 1958, but t