JUDGMENT

James Foong J:

The plaintiff's claim against the defendants is for damages suffered by him as a result of a motor accident. The plaintiff alleged that on 10 May 1992 at about 2 a.m., he was riding his motorcycle bearing registration No. ABA 9959 along the Federal Highway from the direction of Kuala Lumpur towards Kelang. He exited from his motorcycle lane onto the bridge leading to the flyover which crosses over to Sungei Way town. At the top of this bridge which accommodated 3 traffic lanes was a traffic light which at that material time indicated red. The plaintiff then proceeded towards the farthest most traffic lane with the intention of making a U-turn after the traffic light. While he was on the farthest most lane, the 2nd defendant's car driven by the 1st defendant cut into his path thereby causing him to collide into the far right side of the defendants' car. The impact of this collision flung the plaintiff forward sending him crashing into the rear windscreen of a front car.

Due to this accident, the plaintiff sustained severe injuries which I shall refer to later.

The defendants were absent throughout the trial but, their Counsel were present and participated in crossexamination and submissions.

One of the issues submitted by the defence is that from the evidence adduced by the plaintiff there are elements of contributory negligence on the part of the plaintiff and, as the plaintiff has not specifically pleaded contributory negligence in his pleadings, his case must fail.

To support this contention, Mr. R.K. Nathan leading Counsel for the defendants submitted the following authorities; Lee Ewe Teik v. Ariffin bin Hussain [1990] 2 CLJ 191, Ch'ng Chong Shong v. Lok Chan Chong & Anor. [1991] 1 CLJ 515 and Rosita bte Baharom (an infant) v. Sabedin b. Salleh [1993] 2 CLJ 300 .

Apparently, of late, it has become fashionable for the defence to allege that a failure to plead contributory negligence by the plaintiff is fatal to the plaintiff's case in the event the plaintiff is found to have contributed to the negligence himself.

In short, if this principle is accepted, it would change the law of negligence where contributory negligence, once a defence has now become a cause of action.

Before the existence of the English Law Reform (Contributory Negligence) Act 1945, s. 1(1) of which is pari materia to s. 12(1) of our Civil Law Act 1956 , common law provided a complete defence if contributory negligence was proved against the claimant. However, with the coming into force of the said Acts, such a claim is no longer defeated except the claimant's damages will be reduced proportionately to his share of

the liability.

Though the common law position is somewhat altered, the principle of contributory negligence as a defence does not seem to have changed. It is still required to be pleaded by the defendant and, failure to do so is fatal to the defence even though, contributory negligence on the part of the plaintiff is found to exist. The decision of Fookes v. Slayton [1978] 1 WLR 1293 supports this principle. In this case, the English Court of Appeal held that the trial Judge had erred in awarding damages based on contributory negligence of the claimant when, the defendant did not even file his defence or appear in Court.

The award was reversed by the Court of Appeal and altered to a 100% liability against the defendant.

Fookes v. Slayton has been accepted in our Courts for sometime and, in fact it was reiterated by Mr. Justice K.C. Vohrah in the case of Anuar bin Mat Amin v. Abdullah bin Mohd Zain [1989] 3 MLJ 313.

However, what gives the impression to the defence that the claimant must plead contributory negligence in order to succeed in the apportionment of damages in the event that, contributory negligence is found on his part is the case of Lee Ewe Teik where, Mr. Justice Edgar Joseph J. (as he then was) stated as follows:

In the light of these findings, and the failure of the plaintiff to plead or argue