Yong J:

This action for damages arose out of a motor accident in which the defendant was alleged to have driven his motor car so negligently that it ran into and killed a cyclist from behind. Particulars of his negligence given in the statement of claim were that the defendant was driving at excessive speed, without keeping any proper look-out, had failed to stop or slow down in time to avoid the accident, and had failed to exercise proper management and control of his car.

In his defence, the defendant admitted that at the time when his car knocked down the deceased, the deceased was cycling on his proper side of the road. The defendant however denied that he was negligent and claimed that it was an inevitable accident. He alleged that while his car was travelling along Jalan Ampang "the windscreen of his car shattered without warning and completely obscured the view of the defendant. Before the defendant could bring the car to a halt, he had collided with the plaintiff whom he could not see".

The accident took place at the 3'bc mile Jalan Ampang, a busy highway, on the night of 30 March 1967 at about 10.30 p.m.

Since defence has pleaded inevitable accident it is relevant to ask what is in law the meaning of inevitable accident and what has to be proved to establish it?

In The Virgil [1843], 2 W Rob 201; 166 ER 730, 731 inevitable accident was defined as "that which the party charged with the offence could not possibly prevent by the exercise of ordinary care, caution and maritime skill." This definition was followed by Sir James Calvile in The Marpesia LR 4 PC 212, 220 and approved by Fry LJ in the important case of The Merchant Prince [1892] P 79, 190, 189, 187. To my mind the sum total of all these decisions including that of The Europa [1850], Jur 627, 628 is that an accident is termed inevitable if it could not have been obviated by the exercise of ordinary care, caution and skill.

To establish a defence of inevitable accident Fry LJ in the add Merchant Prince case said at p. 189:

The burden rests on the defendants to shew inevitable accident. To sustain that, the defendants must do one or other of two things. They must either shew what was the cause of the accident, and shew that the result of that cause was inevitable; or they must shew all the possible causes, one or other of which produced the effect, and must further shew with regard to every one of these possible causes that the result could not have been avoided. Unless they do one or other of these two things, it does not appear to me that they have shewn inevitable accident." Esher MR put it more succinctly at p. 178 as follows:

He can only get rid of that proof against him by shewing inevitable accident, that is by shewing that the cause of the collision was a cause not produced by him, but a cause the result of which he could not avoid.

The principles laid down in The Merchant Prince have been repeatedly applied by the Courts notably in The Saint Angus [1938] P 225, 229 The Dageid [1947], 80 LlLR 517, 520 and The Carrick Coast [1948], 81 LlLR 447, 449. In The Southport Corp. v. Esso Petroleum Co. Ltd. [1954] 2 QB 182, 200. Lord Denning at p. 200, said:

I do not think we should admit of any doubt upon a rule which is at once so just and so convenient. It applies not only to a ship at sea, but also to a lorry or a horse and cart which gets out of control and runs off the road into a house.

The decision of the Court of Appeal in this case was however reversed by the House of Lords on a different point.

In the present case the defendant John Flower sought to escape from the charge of negligence by alleging that the windscreen of his car had suddenly shattered and that he could not see anything through it. He however gave no explanation and made no attempt to give any as to the cause of the shattering. He left the Court in the dark to guess whether the windscreen which might have already been defective was shattered by excessive vibrations of th