Suffian FJ:

Mr. KR Daniel, the first defendant, was an officer in charge of the PWD Workshop at Batu Pahat. He wanted to buy a car from Wong It Yong, the second defendant, a lady who helped her father, a motor spare parts dealer, in his business. They agreed on the price of car No BR 9663. But before completing the deal the first defendant anted to test the car by using it for one or two days. The second defendant agreed to let him do so.

On 16 June 1959 at about 11 p.m. the first defendant drove the car towards Kluang. At 1 3/4; milestone he collided with an oncoming vehicle. The learned trial Judge held that he had been negligent and awarded damages in favour of the driver and passenger of the on coming vehicle.

The learned trial Judge also held the second defendant vicariously liable for the first defendant's negligence.

The second defendant appealed. The only question for decision in this appeal is - is the owner of the car liable on these facts for the first defendant's negligence?

The law applicable was stated by Mac-Konnon LJ in Hewitt v. Bonvin & Anor. [1940] 1 KB 188, 191 as follows:

If A suffers damage by the wrongful act of B, and seeks to say that C is liable for that damage, he must establish that in doing the act B acted as the agent or servant of C. If he says that B was C's agent, he must further show that C authorised the act."

The facts in that case were that a son obtained from his mother, who had authority to grant, it permission to drive his father's motor car. The son wanted the car for his own purposes in order to drive two girl friends home from London to Wisbech. Neither the father nor the mother knew the girls and it was no concern of either of them that the girls should be driven to Wisbech. On the way back, through the negligent driving of the son, the car was upset and a friend who had accompanied the party to Wisbech, was killed. The trial Judge held the father liable for the son's negligence, but the Court of Appeal held otherwise. MacKinnon LJ held that the father could not be liable because:-

He [the son] was not employed to drive [the car] as his father's servant, and when the accident happened he was not doing any work of his father's. He was driving his own friend, for his own purpose, and the father had absolutely no interest or concern in what he was doing" (p. 193).

Lord Du Parcq LJ agreed that the father could not be held liable because the car was being used by the son for his own purposes. He said at p. 196:-

....If the girls concerned had been guests of the [father], or if it had been established that [the mother] had allowed her son to take the car because she felt that she and her husband were under some social or moral duty to convey them to their home, I should have thought that the finding of the learned Judge ought not to be disturbed. In fact, .....neither [the father nor the mother] was responsible for the welfare of the girls, and I am not satisfied that [the mother] even approved of the journey, much less that she regarded its performance as a duty to be delegated to her son. The plaintiff has failed to show more than a bailment of the car by [the father] to the person responsible for driving it negligently."

It is to be noted that the father was held not liable because the car had not been used for his purposes.

Thirteen years later in Ormrod's case [1953] 2 All ER 753 the owner of a motor car was going to attend the Monte Carlo Motot car Rally. He arranged for a friend to drive his (the owner's) car from Birken head to Monte Carlo. He was to carry a suitcase belonging to the owner of the car, was to make the journey in his own time and manner, was to visit friends in Bayeux (for which purposes he left Birkenhead earlier than he otherwise need have done), and was to arrive in Monte Carlo before the end of the rally. Thereafter he and the owner of the car were to go on holiday with the car in Switzerland. While on the direct route from Birkenhead to t