An accident took place along the Alor Setar-Pokok Sena road on 8.5.1980 at about 7 p.m.. It involved a PWD lorry BF 8679 and a car BAG 6044 travelling in opposite directions and also a bus KE 4448 which was parked on the same side of the road the car was travelling along towards Alor Setar.

In the accident, 5 occupants of the car including the driver of the car died. The surviving occupant, the 5th plaintiff, suing personally, and the 1st up to the 4th plaintiffs, suing as administrators of the estates of 4 dead persons, have claimed against the driver and the owner of the lorry (the 1st and 2nd defendants respectively), the estate of the deceased driver of the car represented by his administrator, the 3rd defendant, the 4th defendant (the owner of the car), the 5th and 6th defendants, the driver and owner of the bus respectively, for damages as a result of the negligence of the driver of the lorry, the [2] driver of the car or the driver of the bus or, alternatively, as a result of their joint negligence.

The 1st to 4th plaintiffs sue under ss 7 and 8 of the Civil Law Act 1956 while the 5th plaintiff sues for personal injuries, loss and damages.

At the close of the plaintiffs' case counsel for the 5th and 6th defendants submitted that there was no case to answer and elected not to call evidence. I rejected the submission. I ruled that the 5th and 6th defendants were precluded from calling evidence and I also ruled that I had to hear the evidence of the other defendants and their witnesses and the full addresses (including that of the 5th and 6th defendants) before determining whether the plaintiffs had made out a case against any of the defendants (see Ng Neoh Ha & Others v Maniam & Others [1994] 2 CLJ 412; [1994] 1 MLJ 435). [3] The 5th plaintiff who was sitting beside the driver of the car at the time of the accident said he had his 6 year old sister sitting on his lap and that he was playing with her. The road was a straight road and it was almost dark. He could see a bus in front of him and he also saw a dim light approaching and it was "zizzagging". He showed to the court what he meant by the word "zizzagging" through the movement of his hand weaving in and out. He said he did not pay attention to the centre white line. According to him as soon as he saw the light, the accident took place and at that time the front portion of the car had passed the bus and the "overtaking" was almost over.

Although at the beginning he was not sure, later, under cross-examination by counsel for the 3rd and 4th defendants, he said the lorry that was "zizzagging" came over to his side of the road and the actual accident took place on his side of the road.

In regard to the bus (which was on the same side of the road the car was travelling along), he testified that part of the bus was [4] on the grass sidetable. He said that he could see it clearly when he first saw it 40 feet away.

The evidence of the driver of the lorry the 1st defendant, Maniam s/o Suppiah (DW3), under examination-in-chief, was that he was driving the PWD motor lorry with its small sidelights switched on towards Pokok Sena and he had a passenger, Osman (DW5), with him. He said that he saw a stationary bus about 1 1/2 chains away and that "when I passed the bus one small car came out from the rear side of the bus. The small car collided into my lorry and my lorry overturned". He explained he was at the centre (point) of the bus when he saw the car and he was travelling at 25 mph and that the collision took place on his side of the road. He said he tried to swerve to the left side and that he also braked.

He contradicted himself on several matters during the course of examination-in-chief and under cross-examination and he also admitted he did not know how the accident took [5] place. He said he could remember he applied his brakes and that after that he could not remember what had happened and he admitted he was giddy before the accident.

The evidence of the passen