Ong CJ (Malaya):

[1] This is an appeal against the decision of Pawan Ahmad J given in the High Court at Ipoh holding the appellant solely responsible for a collision between a Fiat motor-car driven by him and a Honda 90 motorcycle driven by the respondent, who consequently was awarded heavy damages.

[2] The accident occurred on a straight stretch of road between Jelapang and lpoh during a heavy drizzle at about 8.40pm on 18 March 1966. The road was 17 feet nine inches wide, lighted by street lamps, and the vehicles were travelling in opposite directions. The respondent, plaintiff in the action, stated that he was riding about three feet from the left edge of the road before the collision and was the same distance from the roadside when he was knocked down. He alleged that the accident was due to the Fiat crossing over to its wrong side while overtaking two cyclists who were riding abreast behind another pair. The appellant, however, denied that there were any cyclists or other vehicles on the road. He said he dipped his headlights several times on seeing the motorcycle some 250 yards away because it was coming towards him along the crown of the road. On approaching close to each other he was dazzled by the motor-cycle headlight and so he kept about two feet from his side of the road but did not pull up for fear of a skid on the wet surface. The motorcycle then ran into his car.

[3] From the evidence of the parties themselves as to their respective positions on the road, it is manifest that, if both were to be believed, no collision could possibly have occurred on a road of that width. Hence one or the other was not telling the truth, if not both. The plaintiffs evidence, however, was supported by an independent witness, Gangatharan, who said he was one of the cyclists being overtaken by the Fiat when the accident took place. The learned Judge accordingly came to the following conclusion:

"In my opinion the plaintiff was telling the truth because his version was consistent with the positions of the vehicles found i after the collision as seen in the sketch plan and in the photographs in exh 'A'. From the sketch plan and the photographs it was very clear that the motor car was on the wrong side of the road and the motor cycle was on the correct side of the road after the accident. From these circumstances I drew the inference that the collision was caused solely by the negligence of the defendant because he negligently overtook the cyclists ahead of him and thereby got on to the wrong side of the road when there was an on-coming motor cycle and by reason of his sole negligence there was a collision between his motor car and the oncoming motor cycle. I therefore found as a fact that the collision was solely due to the negligence of the defendant."

[5] In the circumstances the learned Judge should have considered the evidence of the in