JUDGMENT

PENGHAKIMAN

The appellant/plaintiff appeals against this Court's decision given on 26.08.1992 (lampiran 2) dismissing the appellant's appeal against the learned Sessions Court Judge's decision on the 01.10.1991 dismissing the plaintiff's claim, holding the plaintiff to be wholly liable.

The issue before me is only on the question of liability, the parties having agreed that special damages to be $700/- and general damages to be $12,000/-.

The claim arose out of an accident between [2] the plaintiff and a motor-car on the 27.12.1986. The admitted fact was the plaintiff was crossing the road immediately before the said accident.

It was raining. The plaintiff crossed and stopped in the centre of the road. In the centre he looked left and he started to cross further. Before he completed crossing the road, the accident occurred. At the date of the accident the plaintiff was 7 years old.

The appellant's first ground of appeal was the learned Sessions Court Judge erred in law in dismissing the plaintiff's claim totally. He cited the case of Tan Guan Cheng & Anor. v. Kuala Lumpur, Klang & Port Swettenham Omnibus Co. Ltd. [1971] 1 M.L.J. 49 and Jones v. Lawrence [1969] 3 All E.R. 267, which decided that the conduct of a child of tender age of seven years could not amount to contributory negligence.

The issue before the Court was, was it the case the plaintiff being knocked by the vehicle or the plaintiff knocking himself into the vehicle.

At page 36 of the Record of Appeal the learned Sessions Court Judge found as a fact that the plaintiff was a small child of 7 years old, of small [3] built, had an umbrella while crossing the road. He could not accept that the child stopped in the centre of the road before crossing and the collision occurred before he could complete crossing the road. Assuming the story was true as told, the car would have run into him and he would surely suffer greater injuries that involved his left foot. If so, he would have suffered fractures with the wheels of the car rolling over him or his legs.

The story of the defendant was that it was the child who collided against his right hand side near the driver's door. The learned Sessions Court Judge found that this was consistent with the injuries received by the plaintiff. The learned President noted that the defendant was not cross-examined when he said it was the plaintiff who collided into the right side of his car near the driver's door. It was, he found, not the defendant who collided into the plaintiff.

I find that the learned President is entitled to make that finding and the appellant has not been able to show me that finding was against the weight of the evidence or not supported by it. I find his finding that the plaintiff was wholly to be blamed for [4] the accident reasonable and probable and I duly dismissed the appeal with costs. The appellant appeals.