Mahadev Shankar JCA:

The crucial issue in this appeal is whether in a dependency claim the plaintiffs are entitled to effect total recovery of their damages from a defendant tortfeasor regardless of the extent to which the deceased was found contributorily negligent for his death.

A motorcyclist Basia bin Bahari (the deceased) died in a head-on collision with a motorcar. Rubaidah bte Dirin (the widow) filed an action for damages. The endorsement on the summons reads:

The plaintiff brings this action under s. 7 of the Civil Law Act 1956 , for her own benefit and also for the benefit of her four children as dependents of Basia bin Bahari, deceased caused by the negligence of the defendant in the driving, use or management of motor vehicle No. WP 2349 on 2 November 1985 at/or near

the 16th milestone, Kuala Lumpur/Kuala Selangor and for interest and costs of this action.

The statement of claim set out the usual details of a running down action and "Particulars pursuant to s. 7 of the Civil Law Act 1956 " ('the Act').

The defence was a denial of negligence and coupled with a positive averment that the accident was caused solely or contributed to substantially by the negli