Neal J:

The plaintiff by her amended Statement stated that on 12 January 1957, at about 5 p.m. she was on her way from her home to the shophouse opposite her house, that she had reached the grass verge on the other side of Jalan Scudai when a motor lorry, owned and driven by the defendant, suddenly and without warning hit and knocked her down, and that the lorry was being driven negligently and recklessly by the defendant. She proceeded to give particulars of the negligence. She claimed that as a result of being knocked down and as a result of the negligence of the defendant she suffered damages. At this stage I find it unnecessary to refer to the details of the damages she suffered.

The defendant denied all these allegations and stated that the accident was solely caused, or contributed to, by the negligence of the plaintiff, and he proceeded to give details of such alleged negligence.

The plaintiff in her evidence-in-chief, when asked by her own Counsel to give in detail what happened, contented herself with the following terse statement "When I was on the other side a lorry came along and knocked me down and my leg was fractured. When knocked down I became unconscious". In her cross-examination she was pressed for details, and she placed the point of impact on what I think on the evidence could be adequately described as the grass verge on the left hand side of the road, very close to the point pointed out by the defendant as the spot where after the accident she had lain.

The defendant in his evidence said that 'he was proceeding between 25 and 28 miles per hour in his estimation, but at any rate under 30 miles per hour - the speed limit for the area. Shortly after two lorries had passed him, a girl ran out from behind the last one and ran across the road in front of him. He swerved to the left, being unable to swerve to the right because of a vehicle coming from the opposite direction. (in his statement to the police he stated he swerved to the right). At that time his lorry was laden with five tons of flour. He braked and the vehicle finished up (although he does not in terms say this, it must be inferred from his evidence and the fact that he did not contradict the evidence of the police officer) at the spot where it was found when the police arrived. This evidence and the police investigation summarise the whole of the evidence before me on the question of negligence.

In addition to the fact that the plaintiff's evidence was unsatisfactory in that in her examination-in-chief she said she saw no traffic when she looked before crossing, in her cross-examination she said she saw a vehicle which she estimated to be away from the witness box to the centre of the causeway. Again her evidence as to her income and how it was made up in detail was quite unbelievable, and I was unable to accept her evidence as to what happened because of the evidence of the police investigating officer that there were no marks on the road or grass verge other than the ones he marked on the plan. In my opinion a lorry laden with five tons of flour would leave marks on the grass verge in the circumstances and the absence of any such marks establishes the incorrectness Of the plaintiff's version of the accident, and there is nothing in the evidence of the defendant to which I could point as evidence of negligence.

On the other hand I cannot accept, in the light of the medical evidence, the defendant's version without the assistance of some medical evidence in respect of the actual type of the fracture. Unfortunately this evidence was not forthcoming. Although in my own mind I could make a very very close guess as to what actually did happen, there can be no doubt that I am not entitled to do so. If any authority be required for this proposition as a statement of law, it can be found in the unreported (so far as I know) decisions of the Court of Appeal in Low Say Thoot v. Sivasamy FM Civil AppealNo. 8 of 1957, unreported and Loo Soo Kw