JUDGMENT

Abdul Hamid Omar FJ:

In an appeal by the respondent/defendant against the finding of the President Sessions Court, Penang that the respondent was negligent and the appellant/plaintiff was guilty of contributory negligence, Arulanandom J allowed the appeal and ordered that the appellant's claim be dismissed with costs. This appeal is against that decision of the learned Judge. We allowed the appeal and now give our reasons.

The main contention of the appellant is that the learned Judge erred in law when he interfered with the finding of fact made by the learned President.

On the other hand, counsel for the respondent argued that on the pleadings it was the appellant's case that at the time of the collision she was "lawfully walking along the proper side of the road" whereas in her evidence she said she was walking across the road. It is the respondent's contention that the failure to abide by her pleadings was fatal and the appellant's claim must therefore be dismissed. The case of Menah binti Sulong @ Minah binti Sulong @ Aminah binti Sulong v. Lim Soo & Anor.(Federal Court Civil Appeal No. 36 of 1970) is relied upon as authority that a decision should be in strict accordance with the pleadings. This is reflected in that part of the speech by Lord Radcliffe in Esso Petroleum Co. Ltd. v. Southport Corporation[1956] 2 WLR 81, 91 (HL) when he said -

If an appellate Court is to treat reliance as pedantry or mere formalism I do not see what part they have to play in our trial system.

The case of Esso Petroleum Co. Ltd. v. Southport Corporationcan clearly be distinguished from the present case and similarly the case of Menah binti Sulong. The former was a claim based on trespass, nuisance and negligence and it was necessary to determine first the essential issue the trial turned upon. In that case the plaintiffs conducted their case and confined their evidence upon certain further and better particulars. It was held at p. 82 that "since every allegation in the statement of claim was rightly decided by the trial Judge in a sense adverse to the foreshore owners, who had made no allegation of unseaworthiness, the ship-owners could not be held responsible because they did not negative a possible case which was not alleged against them in the pleadings nor made against them in the course of trial."(Emphasis is ours).

The latter case may also be distinguished from the instant case and this is clear from the judgment of Ong CJ delivering the judgment of the Court that both in the plaintiff's statement of claim and "repeatedly in her evidence she stated that she had alighted from the bicycle and was standing on the grass verge when the car knocked her down, being on its wrong side of the road whilst the defendants alleged that bicycle came out without stopping at the junction."

The case under consideration is simple and straightforward. Although the appellant pleaded on her statement of claim that she was "lawfully walking along the proper side of the road", in her evidence she clearly said that she was walking across the road. Moreover in her police report included in the agreed bundle of documents (Ex. P1) at the trial she stated that she was crossing the road. Indeed the defendant in his defence and his evidence stated that the plaintiff was crossing the road from left to right.

It is clear therefore that the defendant was not misled, prejudiced, embarrassed or in any way taken by surprise, or led astray by the plaintiff's pleading because from the very outset it was the contention of and the case for the defendant, that the plaintiff was walking across the road and not along the road.

On appeal the learned Judge allowed the appeal but for different reasons. He appreciated that the plaintiff's evidence was contrary to her pleadings, but in view of other findings he did not think it necessary to lay too much emphasis on technicalities.

This Court in the case of K.E.P. Mohamed Ali v. KEP. Mohamed Ismail[1981] 2 MLJ 10, the learned