Raja Azlan Shah J:

The first defendant while driving a motor-van belonging to the second defendant collided with an oncoming omnibus on the wrong side of the road and as a result the deceased who was a passenger in the said motor-van was killed. The plaintiff (mother of the deceased) brings this action as administratrix of his estate and on her own behalf under ss. 7 and 8 of the Civil Law Ordinance, 1956. She alleges that her son's death was caused solely by the negligence of the first defendant, the servant or agent of the second defendant, thus making the latter vicariously liable for his negligence.

The defence as pleaded is two-fold: (1) a denial of negligence on the part of the first defendant and (2) the deceased caused and or induced the said negligence by compelling the first defendant to drive fast and in the circumstances the deceased knew or ought to have known that there would be a risk of injury to him and by so compelling the first defendant he impliedly consented to the said risk. The latter defence is refuted by the first defendant himself. In his evidence he testified that the deceased did not compel him to drive fast. Therefore that defence does no longer fall for consideration.

Ordinarily, both the first defendant and the deceased were employees of the second defendant who runs a plumbing business. The day in question was not a working day. They were assisting their employer with his brother's wedding arrangements. The ceremony was to be held at his house in Klang. The first defendant who was authorised to use the motor-van for purposes of the wedding drove it to Port Swettenham in order to borrow a tarpaulin. The deceased who was also authorised to travel in it went with the first defendant. According to the first defendant the deceased wanted to see a friend in Port Swettenham. When they left it was raining heavily.

The first defendant's story is this: He says that he was following a lorry on that straight stretch of road between Klang and Port Swettenham at an even distance of 30 feet when it stopped at the third mile to drop a passenger. It was drizzling and the road surface was wet. He says he was then travelling at a speed of 25 mph. Visibility according to him was poor. He could only see a distance of 33 yards. He intended to overtake the lorry, so he swerved his vehicle out and when he did that he saw in front of him an oncoming omnibus travelling at a high speed. The distance between his vehicle and the oncoming bus he says was about 20-30 feet. He applied his brakes a little bit and his van skidded. He lost control of his vehicle which collided with the bus on his wrong side of the road.

Four days later he made a statement to the police. He did not mention that he was following a lorry but a motor-car. He was subsequently charged with an offence under s. 304A of the Penal Code but at the end of the prosecution case the charge was amended to one of driving without due care and attention under s. 36(1) of the Road Traffic Ordinance, 1958. He pleaded guilty and was fined $150.

The version of the driver of the omnibus is different. There was no oncoming lorry. It was drizzling and the visibility was good. When the said motor-van was about 20 feet from his bus it encroached into his path. He sounded his horn and as he had no alternative to avoid the accident he drove his bus into the ditch on his left side. The van skidded and hit his bus. It was then travelling between 20-25 mph although at the hearing before the Magistrate he did say he was travelling at about 30 mph. I do not think that would affect his credibility because it is common knowledge that in traffic accidents drivers of motor vehicles try to exaggerate their speeds.

Between the two versions I would prefer the evidence of the omnibus driver. I take it as a fact that there was no lorry at the material time and place. The statement to the police which was made some four days afterwards was made when there was a i lis mota and