Ong CJ:

At about 1.30pm on 4 March 1968 a five-ton Bedford military truck driven by L/Cpl. Tek Bahadur along the Tampin-Seremban Road collided almost head-on with a Mercedes taxi belonging to the Sepang Omnibus Co. and overturned. In doing so it fell upon a Volkswagen motor-car, which was following the taxi, crushing its driver to death. Three persons in the taxi, including its driver, also died of their in juries. In an action for damages brought by the widow and dependants of Lo Ki Nang, driver of the Volkswagen, the learned trial Judge of the High Court in Seremban held the drivers of the military truck and the taxi blameworthy in the proportion of 25% and 75% respectively and awarded damages accordingly. Another defendant, Mohamed Shariff, as sued as contributing by his own act to the accident, but he was exonerated from blame. The owners of the taxi now appeal against the said decision. They contend that on the evidence the learned Judge should have held, either that L/Cpl. Tek Bahadur's negligence was the sole cause of the accident, or that he and Mohamed Shariff were jointly at fault. There is no dispute as to the quantum of the award.

Four vehicles were in fact involved in the accident. Two of them were proceeding towards Seremban and the other two in the opposite direction. For more than a mile before the collision the truck had been following Mohamed Shariff northwards in his Morris 1100. At the 20 'bd milestone Mohamed Shariff stopped to set down Zainab, a schoolgirl passenger, opposite the gates of her house, situated on his left. The road appeared clear of oncoming traffic. The truck was a considerable distance behind but visible. By the time Mohamed Shariff set his car in motion again the truck had come up very close behind him. He then saw two cars approaching - they had just appeared over the brow of the hill. The taxi was ahead of the Volkswagen - how far ahead he did not say - and "close to the centre white line". The Volkswagen was "close to the edge of the road". When it was almost alongside of Mohamed Shariff - in his own words "about to pass me" - he heard a bang and, viewing the scene on his rear mirror, he saw the truck toppling over on top of the Volkswagen. He stopped, but did not get down and after a few moments continued on his journey towards Seremban. According to him the collision occurred, not in front of Zainab's house, but about 100 yards past it. On this salient fact he is corroborated by inspector Ahmad Nasri, the investigating officer. No measurements had been taken of the actual distance, but from Zainab's evidence, it was probably less than 100 yards.

The lance-corporal and sergeant Sher Bahadur Gurung, his front-seat passenger, told an identical story (but different from that of Mohamed Shariff) which was itself inconsistent with the evidence given by them at inquest proceedings held on 7 January 1969 by the Magistrate at Rembau. In the High Court, L/Cpl. Tek Bahadur said he had been following Mohamed Shariff's car at a constant moderate speed for more than a mile, maintaining a distance of 25 to 40 yards between their respective vehicles. At the 20'bd milestone he "saw two vehicles coming over the brow of the hill. They were approximately over 50 yards away and they were level with each other" when he saw them. At that moment, he alleged, Mohamed Shariff who was ahead of him suddenly halted his car "in the middle of the carriage-way", compelling him to pull up two or three feet behind the Morris. In that position he claimed that his truck had come to rest in a straight line behind the other vehicle, and there was still a space of about two feet between his truck and the white line marking the middle of the road, when the taxi crashed into his truck at a speed of 60 to 70 mph. The impact tore off his offside front wheel, lifted the front of the truck and caused it to move across the road before it crashed upon the Volkswagen.

At the inquest nine months earlier, however, L/Cpl