Ong Hock Thye CJ (Malaya) (delivering the judgment of the Court):

The appellants were the rider and pillion passenger on a motor-cycle when a taxi driven by the respondent ran into it from behind. In the High Court at Seremban the learned Judge found as a fact that the drivers of both vehicles were equally blameworthy. He awarded damages in the sum of $1,550 to the first appellant and $5,560 to the second appellant, whose main injury resulted in a one-inch permanent shortening of the right leg and wasting of the muscles.

This appeal raises a number of grounds, all of which were against the findings of fact.

The accident occurred at about 1 p.m. on 5 July 1963 at the 4 1/4; mile, Mantin Pass, after a left-hand bend of the road. The engine of the motorcycle had failed. While remaining seated on the saddle the rider was trying to restart the machine while it was in motion. His passenger was, at the same time, from his pillion seat, using his legs to propel the motorcycle forward. The learned Judge, on the whole of the evidence, came to the conclusion that the joint efforts of the appellants most probably resulted in their failure to maintain proper balance, so that the machine, being in motion, must have followed an unsteady course. The accident, in his opinion, could not have happened had they stopped by the roadside to restart the engine. In our opinion the inferences drawn by the learned Judge were eminently reasonable and probable. We, too, would have come to the same conclusion. As regards the relative credibility of the witnesses the Judge had seen and heard them and we are in no position to substitute our opinion for his.

As regards the apportionment of blame, we would follow the principle enunciated by the Court of Appeal in England in Brown v. Thompson, [1968] 2 All ER 708, 711 affirming, among others, du Parcq LJ in Ingram v. United Automobile Service Ltd., [1943] 1 KB 612, 614 who said:-

It would seem to follow from the decision of the House of Lords in The Macgregor [1943] AC 197 that this Court should not interfere with the apportionment of liability made by the Judge at the trial unless there is some error of law or of fact in his judgment. I come to that conclusion particularly in view of the observations of Lord Wright in that case. In the present case the matter is perhaps one of academic interest because I should not have been prepared to differ from the Judge in the apportionment that he has made, although, if I had tried the case, I should not necessarily have apportioned the damages in exactly the same way. This Court has never taken the view that it should alter an apportionment unless there was something seriously wrong with it."

We would dismiss this appeal with costs.

Appeal dismissed.