JUDGMENTBY: SURIYADI J

The first plaintiff, the wife of Sellapans a/l Ramasamy (the deceased) and the second, third, fourth and fifth plaintiffs were passengers in a motorcar No BCC 2412, driven by the deceased on 6 November 1991 at about 8pm. The car had entered the highway through the Pagoh toll gate and was travelling through the north bound lane towards Ayer Keroh at the time of the accident. The deceased died on the spot after hitting a cow which had strayed on to the north bound North-South Highway at km 138.5. The second and the third plaintiffs are minors and are suing through their mother, the first plaintiff. The fifth plaintiff is also a minor, and is suing through his father, the sixth plaintiff. The fourth plaintiff is the mother of the first plaintiff. The defendant is the highway authority responsible for the construction, maintenance, management and safety of the North-South Highway.

The suit originally included the Menteri Pengangkutan Malaysia, Kementerian Pengangkutan Malaysia and Kerajaan Malaysia as the second and third defendants respectively. Midway through the trial, the plaintiffs dropped the claims against the two defendants on the basis that by virtue of a Novation Agreement and Concession Agreement between the first defendant and the other two defendants, all duties and liabilities both under common law and statute had devolved upon the former (see ID 32 and 33).

Perusing the statement of claim especially from paras 9 onwards, the plaintiffs claim is for a breach of duty of care on the part of the defendant as against the plaintiffs who were users of the highway. Four sub-heads can be construed from the statement of claim namely that of a breach of contract and/or warranty and/or licence, nuisance, common law negligence and a breach of statutory duty as the basis of the plaintiffs claims.

The cause of death

Before broaching the legal issues, I propose to come to a finding of facts as to how that unfortunate incident happened. It is therefore encumbent and necessary for me to sieve and scrutinize the evidence thoroughly as parties have found it very difficult to come to any agreement on the facts and on the issue of liability. The available evidence adduced by the police are themselves not exactly of the highest quality and are at times confusing. The plaintiffs called four witnesses namely PW1, a Chief Inspector of Police who acted as the investigating officer on the night of the incident, PW2 the wife of the deceased who sat on the front left passenger seat, PW3 the mother of the first plaintiff who sat at the rear right hand side of the car and PW4 a press photographer, who contributed photographs of the scene on that fateful night. The defendant called DW1, an employee of PLUS since 1988 who was present at the scene of the accident that night, DW2 an employee of PROPEL who was also at the scene, and lastly DW3 who used to work with PLUS.

DW1 during the early part of the examination-in-chief made the statement that the fence could be breached as the people who stayed on the adjoining land had previously committed vandalism on the fence. The breach was used as an access point for them. He admitted during the trial that cows and buffaloes do pose a danger to users with many accidents involving cows in 1991 and 1992. DW2 during the cross-examination admitted that he did not know how the dead cow made its way to the road. DW3 similarly did not investigate as to how it succeeded in straying on to the highway. In fact, he neither returned to the relevant scene again nor made any repairs of any breaches in the fencing system.

At the onset, I must say that PW1, the investigating officer of the accident who had carried out his duties very unconvincingly, aside from producing a bad sketch plan of the area, had also obtained photographs of poor quality. Regardless of the wanting quality of those neutral evidence, he did convince me that the shattered glass came from the deceaseds car. He confi