JUDGMENT

Peh Swee Chin FCJ:

This appeal involves a fatal accident to a pedestrian together with a motor cyclist; the latter did not give evidence in the trial court, who according to his counsel, was abroad at that time while there was no other living eyewitness to the accident apart from the motor cyclist. The somewhat unusual situation has given rise also to certain controversial questions which have to be decided.

The plaintiffs are the administrators of the deceased pedestrian while the first defendant was the motorcyclist and the second defendant, the registered owner of the motorcyle driven by the first defendant. The result in the Sessions Court, the trial court, was that the claims of the plaintiffs were dismissed with costs but the Sessions Court further correctly proceeded to assess damages on the assumed basis of total liability as follows in the event of an appeal:

(a) Agreed special damages RM1,500

(b) Damages for lost years RM10,635

(c) Damages for loss of expectation of life RM6,000

(d) Damages for loss of services to the children of the deceased RM5,117

(e) Damages for loss of consortium to the husband RM1,500

(f) Interest in the usual terms and costs Unspecified

The plaintiffs appealed to the High Court against the dismissal of their claims; such appeal was dismissed with costs, hence the further appeal before us now.

The memorandum of appeal is brief and the relevant part of which is set out below:

1) The learned High Court Judge erred in law when he rejected and failed to consider the contents of the police reports of both the deceased and the defendants and in doing so misapplied s. 32 of the Evidence Act 1950 and failed to apply s. 73A of the said Act .

2) The learned High Court Judge erred in law when he agreed with the learned Trial Judge that the doctrine of res ipsa loquitur did not apply to this case.

3) The appellant therefore pray that this appeal be allowed and or such order be made as justice of the case may require.

It is to be borne in mind that the damages as assessed by the trial court, were not disputed by both parties subject of course to proof of liability.

Save that the defendants admitted that there was a collision between the motor cycle KQ 7364 driven by the first defendant and owned by the second defendant and a pedestrian on 25 March 1984 at about 10.15 am along Alor Star/Sg. Petani Road, every allegation of negligence or of loss caused by the defendants was denied in the statement of defence.

The first plaintiff gave evidence to the effect that he was the husband of one Shofiah bt Ahmad who was killed in the above-mentioned accident. A postmortem report on her was produced. This aspect of the evidence was not challenged in cross-examination.

Circumstantial evidence of and about the accident, came from Ag Sgt Baharom b Hashim (PW4) who said he investigated the accident involving Shofiah bte Ahmad (the deceased) and motorcyclist Tan Lip Eng, (the first defendant). He went to the scene and saw the motor cycle KQ 7634 lying beside the centre white line. He drew a sketch plan and prepared a key thereto which were put in evidence. A report was lodged by the first defendant, his police report being No. 424/84. A few observations have to be made by me about this report. It appears to be a report written in all probability by the first defendant who described himself as a student aged 18. It does not appear to have been recorded by Sgt Baharom or any other policeman from the first defendant. It was signed by the first defendant, and the police personnel before whom he had so signed, if he did sign before any such person, was not named thereon. More probably, nobody in the police station had watched him write or sign the report. One PC Razali (84151), had merely signed it on copies of the report 424/84 as the person who made copies for supplying the same to the counsel in this case while Cpl LC Lai (30726) had signed it as the person who had checked (semak) the said report. Sgt