JUDGMENT

Abdul Malek Ahmad JCA:

Just after midnight on 11 September 1990, the first respondent was driving the second respondent's bus from Happy Garden towards the city when, at the 4275 milestone Jalan Klang Lama, he had knocked into a pedestrian crossing the road hereinafter ('the deceased').

The only evidence from the appellant, who is the widow of the deceased, was that the scene of the accident was a dual carriageway with a divider along the middle with a fence about three or four feet high with an opening through which pedestrians could pass through, quite often used since there was no sign to forbid them to do so. There were shops and a market on the left side of the road as one faces the city. The appellant was the sole witness but, apart from describing the scene of the tragedy, could not tell how the accident occurred.

The first respondent testified that he was driving in the inner lane between 40 to 50 kilometres per hour because there were vehicles parked in the outer lane. He saw two people running fast, one in front of the other, from the right hand side of the carriageway. He did not expect them, who appeared to be quarrelling, to cross the divider into his path but the person in front did so when the bus was 30 feet away whereupon he braked thereby reducing his speed to 25 kilometres per hour.

Thereafter, he had accelerated and when the bus was passing the opening at the divider, the second person had jumped over the fence on the divider and was knocked down by the bus. In cross examination, he clarified that he did not see the person jump over the fence but was certain that the person had fallen in front of the bus.

Learned Counsel for the appellant suggested through cross examination that after missing the first person who crossed, the first respondent had swerved his bus to the right and had run into the deceased who was standing on the divider. It must be emphasised here that there was no evidence to that effect and the first respondent's police report had actually supported his testimony.

In these circumstances, the learned trial Judge had dismissed the appellant's claim. Despite that, he had in his judgment discussed the quantum of damages the appellant should get if he was said to have erred on appeal but we see no necessity to deliberate on the quantum because we were in full agreement with him on the liability point and in fact, after hearing learned Counsel for the appellant, did not require a reply from learned Counsel for the respondent.

In Neo Chan Eng V. Koh Yong Hoe [1960] it was held:

The onus of proving negligence on the part of the defendant is on the plaintiff.

Where he fails to discharge it either by his own evidence or by crossexamination of the defendant or by admission made by the defendant his claim fails.

In Siti Aisha binti Ibrahim v. Goh Cheng Hwai [1982] 2 MLJ 124 the Federal Court ruled that:

The question for determination by the learned President in this case was essentially one of fact.

The finding of the trial Court should not have been disturbed as there was no valid reason to show that the trial Judge had not taken advantage of his having seen and heard the witnesses.

Apart from these two cases, there are numerous other authorities, too many to mention, which categorically state that an appellate tribunal should be slow in interfering with a finding of fact of the trial Court which had observed the demeanour and heard the witnesses before coming to its conclusion. In this particular appeal, the appellant in the Court below could not even tell how the accident took place and no police evidence was called. The respondent, on the other hand, had given evidence similar to the contents of his police report which did not at all indicate any negligence on his part. We could not, therefore, say that the trial Judge had acted in error here.

In consequence, we had dismissed the appeal with costs, affirmed the order of the learned trial Judge and ordered that the deposit is