Lord Edmund-Davies (delivering the judgment of the Board):

This is an appeal from the judgment of the Federal Court of Malaysia allowing the appeal of the first and second defendants and dismissing the fourth defendants' cross-appeal from a judgment of the High Court in Malaya. The proceedings arose out of a road accident which occurred when a lorry owned by the fourth defendants and driven by the third defendant, their employee, crashed into the rear of a stationary lorry owned by the second defendants which was in the charge of their employee, the first defendant. The plaintiff was a passenger in the fourth defendants' lorry, being employed by them as an attendant. He sustained serious injuries as a result of the collision and sued the owners of both vehicles and their respective drivers.

Suffian FJ, who awarded the plaintiff $47,125 damages, held that both drivers were to blame, and apportioned the liability of the first and second defendants at 75%, and that of the third and fourth defendants at 25%. On appeal to the Federal Court by the first and second defendants and a cross-appeal by the fourth defendants, the majority exculpated the first and second defendants and held the fourth defendants solely liable. But Ong CJ, arrived at the completely opposite conclusion, holding that the first and second defendants were 100% responsible for the accident and the fourth defendants free from all blame. The fourth defendants now appeal from the majority finding and submit that, in accordance with the dissenting judgment of Ong CJ, their driver should be absolved from liability for the accident or, alteratively, that the 75:25 apportionment of blame made by the learned trial Judge should be restored.

The accident in which the plaintiff received his injuries occurred at about 3 a.m. on the morning of 4 February 1969 on the Bentong/Kuala Lumpur road in the State of Pahang. The road was a winding one and there was mist which somewhat reduced visibility. The learned trial Judge found that, after rounding what was described as "a blind left-hand hend", the first defendant stopped his lorry as his mate wanted to urinate. He parked it on its correct side and with its lights on, including the offside rear flasher. The road was 26'8" wide and there was ample room for an overtaking vehicle to have passed it in safety. Yet the fourth defendants' empty lorry (carrying proper lights) crashed into its rear and pushed forward a distance of 18 feet the stationary lorry with its load of 100 bags of cement.

The plaintiff alleged against the first defendant (inter alia) that he placed "his motor lorry in such a position as to disallow other traffic to pass him safely;" and against the third defendant that he failed to keep a proper look out and drove at an excessive speed.

The third defendant was charged in the Magistrate's Court at Bentong with dangerous driving and on 12 January 1970, he pleaded guilty to that charge. But during the long interval between the accident of February 1969 and the trial before Suffian FJ on 17 June 1972 both he and the attendant of the stationary lorry had sought employment elsewhere and could not be traced. In the event, the only eye-witnesses called were the plaintiff and the first defendant. Two of the main issues were (a) the speed at which the third defendant was driving, and (b) where in relation to the sharp bend the first defendant had stopped his vehicle. As to (a), the trial Judge said:

There was mist around and yet ... the absent third defendant drove round a blind corner at 35 mph. I am of the opinion that was a bit fast in the circumstances; probably he drove at that speed as his lorry was empty and he thought that it would have been safe to do so in view of the little traffic on the road at that time of the night.

Issue (b) was more strongly contested. Whereas the first defendant contended that he stopped his lorry on straight stretch of the road "four or five chains from bend", the plaintiff