JUDGMENTBY: THOMSON CJ, RIGBY J, HEPWORTH J

THOMSON CJ The appellant in this appeal was involved in a road accident in Ashby Road, Ipoh, on the evening of 5th February, 1956, and suffered personal injury for damages for which he sued the respondents.

The appellants case was that on the evening in question he was driving a small open motor-car along Ashby Road on his correct side and at a reasonable speed. His right elbow was resting on the sill of his off-side window and was protruding 11/2 to 2 inches beyond the side of the car. A lorry coming in the opposite direction was being driven at high speed and as it approached him swerved to its off-side to overtake two cyclists and a trishaw forcing him (the appellant) to drive on to the grass verge. In spite of this avoiding action the lorry struck his right elbow and caused him very considerable injury.

The appellant alleged that the first respondent was the owner of the lorry and at the time of the accident the second respondent who was the first respondents employee was driving it with the permission of the first respondent, in the course of his employment and was driving negligently. It was in consequence of this negligent driving that the appellant sustained his injuries.

Negligent driving was denied on the pleadings but it was also alleged that it was not the first respondents lorry, driven by the second respondent but some other vehicle driven by a person unknown which caused the appellants injuries. It was also said that the appellant had sustained his injuries solely by reason of his own negligence which consisted in his driving his car with his right elbow resting on the offside window sill.

At the trial the appellant himself gave evidence of the two British soldiers who said they had seen the accident and whose evidence had been taken on commission some fourteen months prior to the trial because they were then about to be returned to the United Kingdom. Both respondents also gave evidence.

After the evidence had been heard both counsel agreed that the Judge should in the first instance decide the question of whether it was the first respondents lorry, that was involved in the accident because clearly if the answer to that question was in the negative the questions of negligence, contributory negligence and quantum of damages would not, arise and in the event, the Judge decided that the answer to that question was in the negative.

Judgment was accordingly entered for the respondents and it is against that judgment that the appellant has now appealed.

The evidence on the question of whether the first respondents lorry was the lorry in the case is about to be discussed by Rigby J. and Hepworth J., in judgments which I have had the benefit of reading and with which I am in entire agreement. I agree that the trial Judges finding on this question cannot be supported on the evidence and that for the reasons stated by my brothers it is one with which this Court, ought to interfere. To take the matter any further myself would be a waste of time for if I did so I should only be repeating in my own probably less felicitous words what is about to be said.

Having thus come to the conclusion that it was the first respondents lorry that was the lorry in the case there remains to be decided the question of what course this Court should follow in the circumstances. It is not a case where a preliminary point of law has been taken. In such a case where there is an appeal and the judgment of the Court of Appeal does not finally dispose of the action then that judgment is in effect of a declaratory nature and the case in the Court below proceeds to trial subject to this Courts decision on the point of law. The present case, however, is one where the trial has been had and concluded by a final judgment in favour of one of the parties.

For myself I have searched the authorities with some care and have come to the conclusion that there are only two courses open to us. One is to or

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