JUDGMENT

SIVANANTHAN V JAGANATHAN V. TEH YEE FUN & ANOR

HIGH COURT MALAYA, PENANG

RK NATHAN J

[CIVIL APPEAL NO: 11-48-2003]

7 MAY 2003

RK Nathan J:

This short but interesting point of law arises out of a running-down action. In his statement of claim the plaintiff pleaded that on 15 November 2000 whilst he was riding his motorcycle at about 8.40 in the morning along Jalari Tanjung Tokong from the direction of Tanjung Tokong towards his place of work in the city, he was involved in an accident with a motorcar driven by the 1st defendant as the servant or agent of the 2nd defendant who owned the said motorcar and which said motorcar was proceeding from the opposite direction. The plaintiff further pleaded that suddenly and without warning the 1st defendant swerved to the right and across the plaintiff's path. The plaintiff attempted to swerve and to brake but was unsuccessful, and thus collided into the said car and sustained injuries. The plaintiff set out eighteen particulars of negligence attributed to the 1st defendant.

In their defence the defendants admitted para. 2 and 3 of the statement of claim which averred that at all material times the 1st defendant was the driver and the 2nd defendant the registered owner of the said motorcar respectively.

By para. 3 of the defence, the defendants admitted that at about the time, date and place referred to in para. 4 of the statement of claim a collision occurred between the motorcycle ridden by the plaintiff and the motorcar driven by the 1st defendant. However the defendants denied that the collision had occurred as pleaded by the plaintiff. The defendants attributed the collision solely to the negligence of the plaintiff or that the collision was contributed to by the negligence of the plaintiff. The defendants then went on to plead twenty one particulars of negligence as against the plaintiff. The defendants prayed for the action to be dismissed with costs. This defence was filed on 4 September 2001.

The Application To Amend The Defence

On 7 March 2003, after the trial had commenced, the defendants' solicitors filed an application to amend the defence. The proposed amended defence was annexed to the affidavit in support of the application to amend. By the said amendment the defendants denied the said collision. They attributed the injuries caused to the plaintiff as having occurred when the plaintiff lost control of his motorcycle and fell on his own. Alternatively, the amendment sought was that if the court found that the said motorcar was involved in the accident then the defendants sought contribution from the plaintiff and again relied on the same twenty one particulars of negligence earlier pleaded against the plaintiff.

The application to amend was supported by an affidavit affirmed by one Dasaratharaj who described himself as an advocate and solicitor having the conduct of the case. He also averred that all the facts he had deposed to were within his personal knowledge and also acquired from documents within his possession. He also averred in para. 3 of the said affidavit that he had been informed by the defendant (and I presume from the 1st defendant) that he, the defendant was not involved in the said accident.

Mr. Baljit Singh for the plaintiff objected to this amendment. However the learned Magistrate allowed the amendment. By consent parties stayed further proceedings and brought this appeal.

Findings Of The Court

This appeal from the decision of the learned Magistrate is no doubt brought pursuant to O. 49 r. 6(1) of the Subordinate Court Rules 1980which reads as follows:

Appeal to Judge in Chambers (O. 49 r. 6)

(1) Notwithstanding anything contained in this Order, an appeal shall lie to a Judge in Chambers from any decision made by the Court other than a decision made after trial.

In Sitrac Corp Sdn Bhd v. Lim Siew Eng[2002] 4 CLJ 463Abdul Aziz J (as he then was) held that a ruling made in the course of the hearing of an application must be a ruling on some point o