Ong CJ:

This appeal illustrates the difficulties which all too frequently confront the person injured in a road accident when the defendant has left the country or his whereabouts are unknown. In this case, fortunately for the plaintiff, the solicitors instructed by him have shown commendable industry and tenacity, with the result that, should he succeed in the action, he would not be balked of the compensation due to him.

The plaintiff was a passenger in a motor-car on 16 May 1965 when another vehicle owned and driven by the defendant, an Austrian engineer on a temporary assignment in Perak, ran into it from behind, causing the plaintiff serious bodily injury. Some twelve months later, when the plaintiff's solicitors were instructed to issue writ in the action, it was discovered that the defendant had left Malaya on 24 August 1965 with no intention of returning, He had left with his former employers an address at Steiermark in Austria where they believed he was residing. On 20 July 1966 the senior assistant Registrar of the High Court made an order giving the plaintiff leave to serve notice of the writ on the defendant at the designated address "or elsewhere in Austria". On 23 December 1966 the documents were returned by the Principal Registry at Kuala Lumpur with a note to the solicitors that, according to the Austrian Embassy in Bangkok, service could not be effected on the defendant at the address given as he had left without revealing where he could be found. The next step then taken on behalf of the plaintiff was to apply for the notice of issue of the writ to be served by substituted service. The writ, which was due to expire on 5 August 1967, was renewed for a further six months and on 23 August 1967 an order for substituted service was made for the required notice to be published in the Wiener Zeitungand posting thereof both in the Town Hall at Steiermark and on the notice-board of the High Court at Ipoh, as well as publication in the Straits Times. It was learnt subsequently from a legal practitioner in Vienna, whose assistance was sought by the plaintiff's solicitors, that posting on the official notice-board in the Austrian city was not possible as directed by the order of Court dated 23 August 1967. An amendment of the said order was accordingly applied for and obtained on 23 March 1968. Proof of service in terms of the said order having bee n given in due course and the defendant having failed to enter an appearance thereto, interlocutory judgment was signed on 18 April 1968 against the defendant for damages to be assessed. On 21 May 1968 the plaintiff applied for such assessment on a date to be fixed by the Court.

It was only at this late stage that the National Insurance Co. Ltd, the insurers of the defendant's vehicle, intervened. They applied on 20 July 1968 by summons in chambers for the order of substituted service and all subsequent proceedings to be set aside, on a variety of technical grounds, of which the principal one was that there was no possibility of the notice being brought to the defendant's attention. The Judge did not agree and dismissed the application with costs. Against that order the insurers appealed.

At the hearing before this Court Counsel for the insurers admitted that they were given notice of the plaintiffs claim, pursuant to the provisions of s. 80 (2) of the Road Traffic Ordinance. In fairness to Counsel we should add that he was not advising the company to sit on their hands, as they did, presumably in the hope that the plaintiff would abandon his claim in the face of seemingly insuperable difficulties. Counsel conceded that, in the circumstances, the insurers should have taken appropriate steps earlier to ensure that the claim would be heard on its merits, instead of succeeding by default. In view of this the question raised in this appeal presented no problem and, on the Court's suggestion, Counsel on both sides readily agreed to an order, by consent, that the interlo