Hashim Yeop A Sani J

This was an appeal in a running down case on liability as well as quantum. The learned Magistrate had dismissed the claim ofthe appellant and purporting to rely on the principle in Abdul Mokhti bin Haji Ahmad v Idris bin Ibrahim [1977] 2 MLJ 85 and De Cotta v Tan Hock Lee [1972] 2 MLJ 173 held that the driver of the motor-cycle (PW2) was wholly liable for the accident.

First, on liability. As regards the appeal on liability the version of how the accident happened as described in the testimony of PW2 in cold print would seem more probable than the version of the defendant. The problem posed here would therefore seem to be identical to that found in Samar bt Mansor v Mustafa Kamarul Ariffin [1974] 2 MLJ 71. In that case the appellant had been knocked down by a motor-cycle driven by the respondent when she was crossing the road from behind a bus. The learned trial judge dismissed her claim for damages and she appealed to the Federal Court. On appeal Suffian L.P. posed the problem as follows:

"The learned trial judge was concerned to determine who was telling the truth, but we sitting in an Appellate Court are concerned to determine not so much the truth as whether there had been error on the part of the trial judge. The issue is a simple one — was the learned trial judge in error in concluding that the defendant was not negligent?"

In the instant case the version of PW2 is that he was driving his motor-cycle (with the plaintiff riding pillion) following a car which was travelling behind the defendant's car, all travelling in the same direction. At the TPCA junction the defendant stopped her car for other traffic and the second car then swerved to the left and overtook defendant's car and went away. The defendant then suddenly reversed her car and the collision happened. According to this version therefore since the car immediately in front of PW2 had already swerved to the left and had overtaken the defendant's car, the collision should not have happened between PW2's motor-cycle and the defendant's car at that point unless as PW2 testified the defendant reversed her car suddenly and without warning to give way to some other vehicle. But this version was rejected by the magistrate. In his grounds of judgment the magistrate explained his rejection of PW2's version of the accident by applying the speed table calculations. There is no argument that the magistrate was entitled to reject the evidence of a witness after he has considered the evidence as a whole and after observing the demeanour of the witness. But it is not correct for the magistrate to reject the evidence of a witness based purely on mathematical calculations. Here the learned Magistrate rejected outright the evidence of PW2 and accepted in toto the defendant's evidence which was that she stopped her car after giving the necessary signal and then heard a collision between PW2's motor-cycle and the rear portion of her vehicle.

The learned Magistrate here placed the entire blame for the accident on PW2 purporting to rely on the principle in the De Cotta case but in De Cotta the facts are distinguishable because there was no dispute there that the van stopped suddenly and it was also found as a fact that the motorcyclist was driving at an excessive speed and too close behind the van. Here all these factors are not present. PW2 was not driving fast nor too close behind defendant's car as there was another car in between them shortly before the accident.

In short, the record as it stands shows two conflicting versions of the accident. Both the vehicles were travelling on a main thoroughfare and both PW2 and the defendant had a duty of care to themselves, to one another as well as to other users of the road. If the magistrate had not rejected outright the evidence of PW2 but had considered it in the light of all the evidence adduced before him, a finding of 50/50 liability would be justified under the circumstances. Appeal was therefore allowed and lia