JUDGMENT

Chin Fook Yen JC:

[1] In this motor vehicle accident case, there were two different versions as to the manner in which the accident occurred.

[2] According to the plaintiff, he was alone driving from Tapah to Kampar. There was a row of cars travelling in the same direction ahead of him. Just before entering Kampar town he had to stop, about 2-5 ft. from the side table of the road, because the vehicle in front had stopped. (He was travelling about 50 kph before he stopped). He said he was hit from behind by a bus about 5-10 seconds after he had stopped. As a result of the impact his car was pushed forward and collided into the rear of the car in front and in turn the latter car hit another car in front of it. He denied he overtook the bus and swerved into its path.

[3] According to the 1st defendant, the driver of the express bas (bus) belonging to the 2nd defendant, he said that the plaintiff overtook his bus and after the overtaking it braked suddenly in front of him. He saw the brake lights. Then the car was 10 feet in front of him. Later he changed the distance from 10 to 30 feet. He tried to avoid by swerving to the right but he lost control. The bus skidded, hit and landed in the drain on the road. He was travelling at 30 mph.

[4] It is indisputed the accident took place within the town limits of Kampar.

[5] When the oral evidence adduced from the witnesses opposed each other, it is necessary to seek assistance from the sketch plan of the scene of accident to ascertain the positions of the vehicles involved in the accident in relation to the road, photographs of the portions of the vehicle damaged and all the mute evidence to determine which version of the manner in which the accident occurred is inherently probable or improbable.

[6] From the sketch plan and the photograph A (both in the agreed bundle of documents) the portion of road concerned was straight and the plaintiffs' motor car BAL4723 (BAL) was in the middle of his lane running parallel to the white divider (white-line). BAL was not in a position diagonally or at an angle to the white line as suggested by the 1st defendant that BAL wedged in between the bus and the vehicle in front.

[7] Photo D indicated that the damage caused to BAL was at the rear off-side, whereas photo F showed that the front rear-side head-lamp of the bus was broken. It is my finding that that was the point of impact between the two vehicles. This was supported by the testimony of the 1st defendant when he said that he "tried to avoid by swerving (the bus) to the right".

[8] Furthermore the brake marks beginning from M ending at N caused by the bus stretching from left to right confirmed that the bus swerved to the right.

[9] Observing from the point of impact between the two vehicles, it was not possible, let alone probable, that BAL had swerved into the path of the bus, because had that been so, BAL would be at an angle with the rear near-side portion offending the bus and the damage to BAL would be to the rear near-side and not rear off-side, as it was the case. Similarly the damage to the bus would not be to the front rear-side-lamp.

[10] The brake marks M-N measured 72 ft long. According to the table of braking distance, 72 ft would have been at the speed of 30 mph. Under good and favourable conditions, driving at 30 mph within a built-up area, would be the act of a prudent driver. However, in the present case "there was slight drizzle" and the 1st defendant had been careless driving a heavy vehicle. It is trite law that the plaintiff must prove that the defendant is negligent.

[11] For reasons aforesaid, I find as of fact that the plaintiff did not overtake the bus and swerve his car into its path. On the basis of probability I hold the 1st defendant was negligent in driving the bus at an excessive speed in the circumstances of the case. I find the 1st defendant wholly to blame for the accident.

[12] I now proceed to assess the damages.

[13] The plaintiff as a result of the accident suffe