Abdul Malek J

The accident between the plaintiff's motorcycle AAA 5491 and the defendant's motorcar AAE 7691 had taken place on 7 May 1985 at about 8.30pm (not am as in the statement of claim) along Jalan Sungai Pari, Ipoh. The plaintiff was travelling from Jalan Connolly towards Buntong whereas the defendant was from the opposite direction. As is usual in collision cases between vehicles from opposite directions, each party had insisted that it was the other who had encroached onto his path causing the accident.

According to the plaintiff, the defendant's car had encroached onto his path while overtaking a motorcycle in front of it. His evidence on this point had been corroborated by the rider of that motorcycle (PW2) who had seen how the collision took place. Both maintained that there were double lines in the centre of the road. The defendant in his testimony denied the existence of a centre white line as the road had just been resurfaced and the investigating officer (PW4) was not questioned on this. Neither was this fact recorded on the sketch plan. The defendant had alleged that the plaintiff had encroached onto his path to avoid a manhole and he also admitted that he was travelling in the middle of the road.

As regards the presence of the centre lines, I was more inclined to accept the version of the defendant as he was supported by the neutral evidence of the sketch plan and also because he had admitted travelling in the middle of the road which was probably due to the non-existence of the centre lines. However, as for where the impact took place, I was more inclined to accept the version of the plaintiff as, apart from the fact of PW2's supporting evidence, the glass pieces in the sketch plan were found on his side of the road preceding the diagonally slanting tyre mark 25 ft long if one is travelling in the plaintiff's direction. This could only denote the probability of the truth of the plaintiff's version as compared to that of the defendant's. Even the defendant's witness (DW3), who had investigated into the matter, was of the opinion that the defendant was to be blamed for the accident. As for the manholes on the road, they are further away in terms of the plaintiff's direction, and it is highly unlikely that he would have begun to avoid them, as alleged by the defendant, from such a long distance.

In the event, I found that the defendant was liable for the accident. However, as the plaintiff had stated that he only saw the car the first time 30 ft away despite the fairly straight road, I would hold that he was liable to a certain extent in not seeing the oncoming car earlier and in not being able to avoid the accident as he had not seen it earlier then when he did. On these facts, I held that the defendant was 80% liable and the plaintiff 20% liable.

On quantum, items 1 to 7 under special damages amounting to $1,005 had been agreed to while the plaintiff was giving evidence. In addition, both counsel had also at that stage agreed to the medical report from Lopez Orthopaedic Clinic dated 21 October 1988 for $300 (new item 12) and the three receipts from Medan Polyclinic and Surgery dated 10 November 1987 for $20, 11 December 1987 for $8 and 21 August 1988 for $15 totalling $43 (new item 13). As for items 9, 10 and the new item 11 under special damages, from the records items 9 and 11 had been agreed to and I had made the awards of $2,000 for item 9 and $2,143.48 as in the relevant receipt, and not $2,243.48 as mentioned by counsel for the plaintiff, for item 11. As for item 10, I was of the view that no award could be made as there has been no formal documentary proof of the said item.

For item 8, the plaintiff (PW 1) had stated that he was earning $25 to $30 a day for working every day of the month loading and unloading flour bags and he was amply corroborated on this fact by his ex-employer PW3. PW3, however, could not produce the relevant documents as they have been burnt in a factory fire but in the absence o