JUDGMENT

Edgar Joseph Jr. SCJ:

The undisputed facts underlying this appeal by the plaintiff motorcyclist in a running down case, involving him and a motor-car driven by the defendant driver, proceeding in opposite directions, have been sufficiently set out in the dissenting judgment of our learned brother Mohamed Dzaiddin SCJ, which we have had the advantage of reading in draft, and, so, it would be tedious and unnecessary to recapitulate them at any length. Suffice it to say, that what we propose to do is to indicate, with great respect, why we are unable to agree with his evaluation of those undisputed facts and his conclusion that the appeal should be dismissed, thus resulting in the affirmation of the judgment of the trial Judge (Abdul Hamid bin Haji Mohamed, J.).

Now, the trial Judge had held that although the plaintiff had sustained injuries, to his head and right leg, only the latter injury had been caused as a direct result of the collision involving the plaintiff and the defendant driver's car; the former, that is to say, the far more serious head injury, having been caused as a direct result of a prior collision involving the plaintiff's motorcycle and another motor-cycle, the rider of which, we must point out, was never cited as a party or even called as a witness.

In embarking upon a consideration of this appeal, therefore, some degree of repetition as to the course which the proceedings took in the Court below and to the undisputed facts, will be inevitable.

Clearly, the judgment of the trial Judge is based on the assumption that causation was in issue notwithstanding the oral agreement of Counsel before the commencement of the trial that general damages be agreed at RM150,000 (hereinafter referred to as "the agreement aforesaid" unless the context otherwise requires).

If, therefore, it could be demonstrated that by reason of the agreement aforesaid, causation was no longer in issue; the only issue remaining being negligence, in the sense of blameworthiness or fault of the defendant driver and/or the plaintiff, which the trial Judge had decided in favour of the plaintiff on a 100% basis, then, in our view, as a matter of logic, there could be no foundation for that assumption and so the judgment of the trial Judge would become vulnerable.

In his judgment, the trial Judge never so much as even mentioned the agreement aforesaid, much less considered and decided its effect. But on appeal, this became a key issue.

The principal task for us, therefore, regarding this part of the case, is one of construction, that is to say, to determine the meaning and effect of the agreement aforesaid. This in turn calls for a determination of the common intention of Counsel for the parties. We venture to suggest that there is a conclusive way of testing the rival contentions of Counsel before us on this key issue and it is this:

If Counsel for the defendants is correct in his contention before us that causation remained a live issue at the trial despite the agreement aforesaid, why then did not both Counsel at the trial agree on the apportionment of general damages, more particularly, so much for general damages for the head injury and so much general damages for the leg injury? Instead, they had agreed general damages at RM150,000 and this, obviously, was not just for the injury to the leg but for all injuries, including the head injury, thereby indicating that causation ceased to be an issue, the only issue remaining being negligence in the sense of blameworthiness or fault of the defendant driver and/or, of the plaintiff.

The subsequent conduct of the litigation by Counsel for the defendants at the trial, in agreeing to the medical reports on the plaintiff "as to maker and contents", which covered all injuries, including the head injury, confirms that Counsel for the defendants was representing to the Court and to his opponent, that causation with regard to the head injury, was no longer in issue.

At this point, we would