JUDGMENT

Raja Azlan Shah J:

This is a claim for damages in respect of personal injuries sustained by both the plaintiffs in a road accident. At the material time, the first plaintiff was the rider of a motor-cycle which was involved in the accident with a car driven by the defendant. The second plaintiff was a pillion rider on the motor-cycle.

With regard to the second plaintiff, general damages were agreed at $27,000 and special damages at $3,295. This plaintiff is 23 years old and earned $180 as a salesman in a drug store. He suffered a fracture of the shaft of the right femur and three inches shortening. He was admitted to hospital for about three months and continued as an outpatient for about one year. He now walks with a limp. The main limitation is in the external rotation. He cannot squat fully because of the injury to his femur eight inches above the knee joint.

With regard to the first plaintiff, special damages were agreed at $70. The substantial question for determination is whether negligence had been established, and if so, whether there was contributory negligence on the part of the plaintiffs.

The plaintiffs' case is that on 7 December 1963, between 8.00 and 8.30 P.M. they were riding a motor-cycle along Ampang Road in the direction of Kuala Lumpur. They were travelling at about 27 to 28 miles per hour on their correct side of the road and between three to four feet from their left grass verge. The road is 21 feet wide and has a speed limit of So miles per hour. The only traffic ahead of them was a motor-cycle which was about 60 yards away. There was a row of on-coming cars. As soon as the first car had passed them, the first plaintiff said that he saw the defendant's car, which was then about 15 yards from him, swerving into his path. The plaintiff also swerved to his right to avoid the accident. He said that he could not swerve more to the right because there was more oncoming traffic. The motor-cycle crashed into the left near-side of the car. In cross-examination, the first plaintiff said that when he saw the defendant's car swerving about 15 yards away from him he tried to apply brakes but he could not remember if he tried to apply them hard enough. He also said that at the time of impact he was nervous and did not know what to do. He further continued that as the row of cars approached him he did not slow down his speed.

The defendant's version is as follows. At the material time he was driving a Simca station-waggon, the overall length of which is 15 feet 1 inch and overall width is five feet eight inches. He was returning from the golf club and was travelling along Ampang Road in order to visit a friend whose house lay on his right-hand side of the road. He said that before he came to a side lane leading to the house he stopped about 29 feet away, leaving sufficient room for vehicles to pass on his left. On his right there was a fairly heavy stream of on-coming traffic. He said he had his trafficator on, indicating he was turning to the right. While he was stationary, a vehicle passed him on his left. He then concentrated on the on-coming traffic. When the road appeared to be clear, he put his car in gear and proceeded to turn into the lane leading to the house. When the greater part of his vehicle had cleared the bitumen part of the road, leaving about four to five feet which was at an angle on the road, his rear near-side was knocked. He came out of his car and saw a motor-cycle lying on its aide and the plaintiffs lying on the road. He rang for the ambulance and later directed traffic. It was a fairly straight stretch of road and was well lighted. In cross-examination he said that he did not see the motor-cycle at all and gave no explanation as to why he did not see the motor-cycle in question. He also said that he was stationary for not less than 30 seconds and not more than a minute.

Section 59 sub-section (4) of the Road Traffic Ordinance, 1958, enacts:

Failure on the part of any person to o