JUDGMENT

Wan Suleiman FJ:

On 12 August 1969 two motor cycles Nos. KA 3048 and KA 8645 collided at the 40th mile Serian-Simanggang Road, Kuching. The plaintiff, respondent before us, was riding pillion on the first motor cycle, and the defendant, appellant before us, was the rider of the second motor cycle.

The plaintiff sued the defendant for damages for personal injuries suffered by him. He did not sue the driver of the motor cycle on which he rode pillion.

The defendant however brought in that rider as a third party, claiming an indemnity and contribution in respect of the claim by the plaintiff. The defendant said that the third party was himself to blame for the accident. The third party did not appear and the defendant on 4 October 1971 obtained an order against him for indemnity and contribution in respect of the whole of the claim by the plaintiff against the defendant.

The learned Judge had before him two conflicting versions given by witnesses for the plaintiff on the one hand and by witnesses for the defendant on the other.

The learned Judge found that the stretch of road where the accident occurred was tarred only in the middle, that the tarred part was eight feet wide, enough to accommodate only one motor car or two motor cycles, that the accident occurred in the middle of the tarred section and applying the test in Baker v. Market Harborough Industrial Co-operative Society Ltd. [1953] 1 WLR 1472 held that both motor cyclists were equally to blame.

I am of the opinion that the appeal against the Judge's finding that both motor cyclists were to blame should be dismissed. The evidence in support of each party's version was purely oral. It cannot be tested by independent evidence such as to be found in a police sketch plan (which by the time of the trial had been destroyed). The learned trial Judge preferred the plaintiff's version to that of the defendant's, and in these circumstances, it would be wrong of us who have not seen or heard the witnesses, to substitute our own finding for that of the learned trial Judge.

I now turn to the appeal against damages.

At the time of the accident the plaintiff aged 40 was an officer in the Agriculture Department. Sarawak, on secondment to the Trivoh Land Development Scheme as Scheme Manager. He joined the department in 1961 and has been working in several land development schemes before being appointed Scheme Manager. His salary was $800 plus $60 charge allowance per month. He continued to receive this salary and allowance up to 8 March 1971 when he was boarded out of the service on a monthly pension of $187.86.

Within a few hours of the accident he was admitted to the General Hospital, Kuching suffering from multiple small abrasions and a fissure fracture of the left side of the vault of the skull.

On the following day Dr Ting performed two operations to remove blood clot on the left side of the brain to save the plaintiff's life. The plaintiff remained in a semi-comatose state for some days and only on 20 September 1969 did he seem to be reasonably clear and alert mentally. On 18 October 1969 lie was finally discharged but continued to have monthly check-ups. He was sent to the Neurosurgical Hospital, Kuala Lumpur for some time. On his return from Kuala Lumpur he was admitted to the Lau King Howe Hospital, Sibu. After that he continued to have monthly check-ups at the Bintulu Hospital. The monthly check-ups continued until 1972. The last medical examination on the plaintiff was made on 9 September 1975 (the trial of this suit began on 24 September 1975) by Dr. Ting Ing Kiet.

The doctor's report said:

Generally he appears quite well but is slightly slow in answering questions. Many of his symptoms remain. He sleeps poorly (three to four hours). He still complains of feeling giddy particularly on getting up, accompanied by headache and backache. His memory is poor and he cannot concentrate too well - e.g. can only read for about ten minutes. He has double vision with