JUDGMENT

Syed Agil Barakbah SCJ:

This is an appeal against the decision of High Court Judge sitting in Ipoh, in the State of Perak. The appellant was the driver of motor lorry AX 3516 which was involved in an accident with motorcycle AAF 7095 ridden by the respondent at the 24th milestone Kuala Kangsar/ Ipoh main road on 10 September 1982 at about 11.50 a.m. The learned Judge found both parties equally to blame for the accident and accordingly assessed the damages at fifty per cent in favour of the respondent/plaintiff. The appellant being dissatisfied appealed against the decision on liability only but not against the decision on the quantum of damages.

The undisputed facts as accepted by the trial Judge were that the two vehicles were negotiating a sharp corner along the road approaching each other from the opposite directions. The motorcycle was proceeding from Kuala Kangsar towards Ipoh and the lorry was travelling from Ipoh towards Kuala Kangsar. The respondent was negotiating a left-hand bend and the appellant a right-hand bend when the accident occurred. Immediately after the collision, the lorry came to a stop over the left edge of its side of the road facing towards Kuala Kangsar. The motorcycle was lying in the middle of the road facing towards Kuala Kangsar. The motorcycle was lying in the middle of the road across the centre white line. Its front wheel and part of its body occupied its side of the road while the other half occupied the lorry's side of the road.

The parties gave conflicting versions of the manner in which the accident occurred as noted by the trial Judge. According to the respondent, he was riding his motorcycle about two feet from the left edge of the road and while negotiating the bend he collided against the rear off-side wheel of the oncoming lorry. After that, he could not remember anything else. On the other hand, the appellant testified when approaching the bend he saw the respondent coming straight at his lorry. He tried to swerve to the left to avoid a collision but the respondent's motorcycle collided against the front of the rear off-side tyre of the lorry. In the light of the contradictory versions, the learned Judge took into consideration the other available evidence, viz. the sketch plan and photographs of the scene showing the positions of the two vehicles after the accident and the police reports lodged by both parties to assist him in making his finding. In our view, he has applied the correct test.

It is common ground that the front part of the motorcycle collided with the rear off-side tyre of the motor lorry when the two vehicles were negotiating the sharp bend. The learned Judge also accepted the appellant's evidence that as a result the motorcycle bounced back and fell on the road.

The crucial issue was the point of impact between the two vehicles. The appellant's contention was that it happened on his side of the road somewhere at point `D' on the sketch plan. The respondent claimed the collision occurred on his side of the road. The learned Judge however was of the view that the point of impact was somewhere near the centre of the road and not far from the place where the motorcycle was found lying on the road. He stated in his grounds:

The lorry was therefore somewhere near the centre of the road when the collision occurred. It could not be near the edge of the road as stated by the defendant. In my view having regards to the position of the lorry it is probable that the defendant was cutting across the corner as he took the right-hand bend. The collision occurred when his lorry was at an angle to the centre of the road and the front was facing diagonally to the left. The rear of the lorry was still at the centre of the road when the collision occurred.

It was submitted by the learned Counsel for the appellant that the learned Judge erred in arriving at that conclusion on the ground that he had embarked upon a course of speculation as to how the collision occurred an