Wan Suleiman FJ:

This is an action for damages filed on behalf of the dependants of Abdul Rahman bin Ismail who was killed in an accident on 24 March 1968 at the 16'bd milestone on the main trunk road between Gemas and Tampin. The plaintiffs alleged that the first defendant's negligent and dangerous driving had caused this fatal accident. It is part of the agreed facts that at the time of the accident the deceased was travelling along the road towards Gemas as was the car bearing registration No. SN 2593.

The defendants in their defence pleaded that the accident had been caused solely, or at least substantially contributed to by negligence on the part of the deceased Abdul Rahman bin Ismail, giving particulars of such negligence. In the alternative, the defendants averred that the front near side tyre of the car had suddenly burst as a result of which the first defendant had knocked down the deceased cyclist, who had suddenly and without any warning shot out into the path of the motor car.

Thus whilst still maintaining that the deceased was solely or partly responsible for the accident, the defendants were also raising the plea of inevitable accident in the alternative.

However in the course of their testimony it became obvious that the defendants were no longer pursuing that line of defence alleging negligence or contributory negligence on the part of the deceased, so that all that was left was the defence of inevitable accident.

The plaintiffs called an eyewitness, Ahmad bin Alim whose house was close to the scene of the accident. On the day of that event, he happened to be standing on the verandah of his house when he saw a cyclist who he later recognised to be the deceased, go by in the direction of Gemas. He then saw a car coming up from behind at a speed which he estimated to be about 50 mph. It hit the cyclist from behind. Simultaneous with the collision he heard an explosion which sounded as if a car tyre had blown out. The cyclist was then thrown off the road.

There was then a screeching sound as the car skidded and turned around to face the direction in which it had come i.e. the direction of Tampin town.

It is worthy of note that this witness claimed to own and to drive a car so that it cannot be said that he is not conversant with the ways of motor vehicles.

The witness added that he thought the car was going at more than 50 mph along that straight stretch of road.

The first defendant said that he had left Kuala Lumpur that day and was bound for Singapore, and had picked up two Malay men bound for Johore Bahru, at Cheras. At about 10.30 a.m. he arrived at the Gemencheh Road, where there was a straight stretch of about half a mile. Presumably this refers to the same stretch of road later described as the 16'bd mile Gemas/Tampin road.

There he saw a cyclist going in the same direction, on his near side. There was no other traffic or pedestrian on the road. When he was very close to the cyclist his near side front tyre burst and he jammed on his brakes. He then lost control of his car which skidded and knocked into the cyclist. The car then proceeded for some distance, turned about facing Tampin before coming to a stop.

The car was a 1966 model Mercedes Benz and all five tyres including the spare were of the brand known as Michelin X, which apparently is long lasting.

The defendant said that he serviced his car monthly, and he averaged 600 miles a month. The car was registered in the name of the second defendant, and there is no evidence to show what the latter's monthly mileage was. In any case first defendant claimed to have purchased the tyres in January 1967, presumably new, and had travelled a distance of about 20,000 miles on it. Since the nominal mileage expected of these tyres according to him, was 40,000 miles one could say that only 50% of their threads had been worn out. First defendant said that it was his practice to inspect his tyres before starting off on a long journey, and before l