Neal J:

The plaintiff sued both the defendants claiming general and special damages in respect of an accident between motor car No AA 5026 owned by the first defendant and driven by the second defendant and a motor cycle ridden by the plaintiff. In his statement of claim the plaintiff, in addition to allegations of negligence on the part of the second defendant and that such negligence was the cause of the accident and the Plaintiff's injuries, alleged that the second defendant was the servant or agent of the first defendant.

In his statement of defence the first defendant denied negligence and, in regard to the allegation that the second defendant was his servant or agent, stated:-

(a) admits that the defendant secondly above named is attached to the Customs Department, Perak, Ipoh;

(b) denies that the defendant secondly abovenamed was at the material time he servant or agent;

(c) has no knowledge and does not admit that the defendant secondly abovenamed was at the material time in possession and/or control of motor car AA 5026 and calls for strict proof thereof.

(In view of his own evidence (c) was an obvious mistake).

In his statement of defence the second defendant denied negligence, alleged that he hired the motor car from the first defendant, and alleged contributory negligence on the part of the plaintiff, details of which he set out.

The plaintiff in his reply, in addition to joining issue with the defendants, stated:

3. "The plaintiff contends that the second defendant was it all material times using the motor car No AA 5026 on the road without there being in force in relation to the said user a policy of insurance or other security in respect of third party risks. The first defendant was at all material times causing or permitting such user as aforesaid contrary to reg. 3 of the Motor Vehicles Third Parti Risks Regulations.

4. "At all material times the first defendant was not insured against accidents and is not possessed of any means with which to pay any sum in respect of the damages claimed by the plaintiff.

At the commencement of the hearing Counsel for the first defendant applied to have para. 3 of the reply deleted on the ground that it raised a fresh cause of action not pleaded in the statement of claim. As the plaintiff could have had no knowledge of the facts alleged until the statement of defence of the first and second defendants was served upon him and the evidential presumption that the driver of a car is in default of evidence the servant or agent of the owner, I allowed the plaintiff to amend his statement of claim to add as para. 4(a) the allegations contained in paras. 3 and 4 of the reply. This then became an alternative cause of action to that alleged in the statement of claim.

On the question of whether or not the second defendant's negligence had caused the accident and as to whether the plaintiff had been guilty of negligence contributing to the accident, I had little doubt on the evidence before me, but, in view of the submissions of the second defendant and my knowledge of the apparent conflict in the authorities in the English Court of Appeal, I reserved my judgment. I stated at the time that I believed that some light on the English Court of Appeal decisions was likely to come out of an appeal to the Court of Appeal from a decision of mine at the Previous Assizes in Muar. I refer to Muar Civil SuitNo. 3 of 1958 (FM Civil AppealNo. 48/59). On reconsideration, however, and reading again the record of the evidence in that case it seems to me that because of the facts in that particular case a reconciliation of the English authorities is not likely to be attempted. In the previous case, namely Muar Civil SuitNo. 3/58, there was clear evidence by the owner of the vehicle that a claim by the owner of a parked vehicle damaged by his car during the accident had been met by his insurance company.

It is clear from the authorities that after a tort has been committed the owner of