Wan Suleiman FJ:

The plaintiff Lau Piang Ngong was on his way to Batu Pahat travelling on a motor cycle. At the 25th milestone Johore Bahru/Ayer Hitam road he followed a motor lorry-cum-trailer No. JM 4870 driven by the defendant Ang Koon Kau. At a bend Ang's lorry-cum-trailer was involved in an accident with an oncoming motor lorry JJ 1058, the driver of which was killed in the accident. In the Statement of Agreed Facts it appeared that the road surface was dry, the weather condition was fine and visibility was good.

A few hours after the accident Ang lodged a police report in which he said that at the time of the accident his trailer detached itself from the lorry. He then stopped and saw his trailer some 400 yards behind. On looking closer he found blood on the left side of the road and also discovered that his trailer was damaged. He gave no explanation in the report as to how the trailer had become detached.

Lau sustained serious injuries from that accident and made a police report just over two months thereafter. In it he said that at the scene of the accident he was about 50 feet behind Ang's lorry when the trailer came off and then collided with the motor lorry coming from the opposite direction. He then stopped his motor cycle and went to the side of the road but the oncoming lorry which had already collided with the trailer hit him and oil palm fruits from the lorry fell over him.

On 26 November 1979 a Statement of Claim was filed by his solicitors. In view of the issues raised in this appeal para. 3, 4 and 5 therein are set out in full hereunder:

3. On the 13 June 1977 at about 4 p.m. the plaintiff the rider of m/cycle No. JQ 6792 was travelling from the direction of Kulai towards that of Parit Suloh, following the first defendant the driver of m/lorry JM 4870 when on reaching at the 25th milestone Johore Bahru/Air Hitam Road, the trailer of m/lorry JM 4870 disconnected from the m/lorry and collided into the plaintiff's m/cycle and another m/lorry JJ 1058 travelling in the opposite direction.

4. The said collision was caused solely by the negligence of the first defendant in the driving, management and/or control of m/lorry JM 4870; who was driving the said m/lorry as the servant or agent of the second defendant or in the matter in which the second defendant was interested or concerned.

PARTICULARS OF NEGLIGENCE OF THE FIRST DEFENDANT

a. Failing to keep any or any proper look-out;

b. Driving at an excessive speed in the circumstances;

c. Overloading the said m/lorry with iron-ore;

d. Failing to inspect the said m/lorry and the trailer of their road-worthy conditions;

e. Failing to observe in time that the trailer of the said m/lorry had disconnected;

f. Failing to manage and/or control the said m/lorry to the trailer effectively;

g. Failing to secure properly and effectively the said trailer to the lorry; and/or

h. Failing to inspect or ensure whether the said trailer is effectively secured to the m/lorry.

5. By reason of the aforesaid negligence the plaintiff has endured pain, suffered severe injuries and has been put to loss and expense.

In his evidence-in-chief Lau confirmed the account given in his police report. In particular he repeated that the trailer had snapped off before the collision between the trailer and the oncoming lorry.

It should be noted that in para. 3 of the Statement of Claim the respondent/plaintiff had alleged that the trailer of Ang's lorry had become disconnected and then collided with his motor cycle and the other lorry. In other words it had been the trailer and not the other lorry which had collided with him, a plea contrary to what he had narrated in his police report.

Ang, the first appellant, testified that the other lorry and his own came into collision and that the trailer got disconnected only after the accident. He denied that it was the trailer which had collided with the motor cycle or with the lorry.

The learned trial Judge noted that no attempt whatsoever was made b