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 accorda