KC Vohrah J

There was an accident involving two motor cycles travelling in the same direction. The judge of the sessions court, Alor Setar, gave judgment to the plaintiff. And she held that the plaintiff was contributorily negligent to the extent of 70%. But the defendant had never pleaded contributorily negligence on the part of the plaintiff. Nor did the defendant bring up that issue during the course of the trial. The plaintiff was dissatisfied with the learned judge's decision principally on her finding that the plaintiff was contributorily negligent. The plaintiff appealed.

In her grounds of decision the learned judge conceded that since contributory negligence was not pleaded she was wrong in attributing partial liability on the plaintiff. She probably had in mind the case of Fookes v Slaytor [1979] 1 All ER 137 . Towards the end of her grounds of decision, however, she said that since the accident was substantially caused by the plaintiff she should have dismissed the plaintiff's claim.

Before me counsel for the defendant, respondent in this appeal, echoed the view of the judge that since the plaintiff was substantially to blame for the accident the claim of the plaintiff sh