JUDGMENTBY: THOMSON CJ, RIGBY J, NEAL J

THOMSON CJ (delivering oral judgment): This action arose out of the death of a woman Chan Yoon Moi which occurred on 2nd September, 1956. The plaintiff is her surviving husband and the administrator of her estate and he sues under the provisions of the Civil Law Ordinance, 1956.

At this stage it can be said that it is abundantly clear that the dead woman met her death as a result of injuries which she sustained in a collision between a bicycle which she was riding and a motor-car belonging to the first defendant and at the material time being driven by the second defendant. In the event the action was dismissed against both defendants and as regards the first defendant that was the end of the matter. As regards the second defendant, however, (that is the driver) the plaintiff has appealed.

Now, the case was an unsatisfactory one and a difficult one for a number of reasons. One of these was that on the evidence there were only two eye-witnesses of what occurred -- one of whom was the dead woman, who for obvious reasons could not be called as a witness, and the other was the driver of the car, who for reasons which are, to put it mildly, less obvious, was not in fact called. The only material that was put before the Court that was relevant to the question of whether the collision occurred in consequence of the second defendants negligent driving of the car consisted of an admission by himself that he had killed a woman and the evidence of a Police Inspector who examined the scene of the incident an hour or so after it occurred and who by way of assisting his memory and illuminating what he had to say had prepared a plan of what he found and had taken a number of photographs, all of which were produced in evidence.

On that material it is not by any means clear what was the behaviour, so to speak, of the bicycle immediately before the collision. It is, however, very clear to my mind what was the behaviour of the motor-car. There were skid marks and the balance of probability was very much in favour of their having been caused by the car. There were scratches on the road way which appear to be made by some metallic object. There were pieces of broken glass. There was a damaged bicycle lying on the side of the road and some distance away there was the motor-car driven by the second defendant on its wrong side of the road and having broken through a very substantial wooden fence.

My own view is, considering these things, looking at the dispositions on the plan, looking at the photographs taken afterwards of the bicycle and of the motor-car and remembering the second defendants admission that he had killed woman, that in the absence of anything to the contrary, in the absence of anything further, any prudent man on a consideration of all these things would come to the conclusion that the accident, and of course the death, was the direct result of the motor-car being driven negligently by the second defendant.

I say in the absence of anything to the contrary and the truth is that there was nothing to the contrary. The defendant could have gone into the witness box and given his account of what happened. He might have been able to give an account which was truthful and which was believed and which established some other explanation -- some legally speaking innocent explanation -- of what occurred. The Court, however, had to decide the matter on such material as the parties saw fit to put before it and in my view that material as it stood pointed, in the absence of any explanation, in one direction and one direction only. For myself then I would allow the appeal with costs.

That brings me to that question of the damages. These, of course, were not dealt with at the trial, and my own view is that they will have to be dealt with on evidence. I would, then, make an order sending the case back to the trial Judge for the assessment of damages.

RIGBY J (delivering oral judgment): I am of the same

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