(delivering the Judgment of the Court): We dismissed the appeal on January 21, 1985 and now give our reasons.

The following facts were admitted in the court below. On March 15, 1979 the respondent, Muniandy s/o Appasamy who was an employee of the appellant, hitched a ride in a JKR lorry no. WL 6677 driven by one Tan Loke, a JKR driver and also an employee of the appellant. The lorry was travelling from Taiping to Kampar. The lorry belongs to the appellant.

The respondent was at the material time working in Taiping and was going home to Kampar to hand over his pay to his wife. On the way the lorry met with an accident and the respondent was injured. Tan Loke, the driver, admitted liability. Tan Loke also admitted that he did not object to the respondent taking a lift on the lorry and he did not tell the respondent that he could not ride on the lorry. Tan Loke was on duty at the material time and was driving the lorry in the course of his employment.

From the record it would seem clear that the only issue before the trial judge was whether the appellant was vicariously liable.

Twine v Bean's Express Ltd [1946] 1 All ER 202 lays down the rule that the duty of a driver's employers to take care was only to persons who might reasonably be anticipated by them as likely to be injured by the negligent driving of the vehicle by their employee. In that case it was agreed that the employers accepted no responsibility for injury sustained by persons riding in the vehicle who were not in their employment. There was also an expressed instruction issued to their drivers that no one should be allowed to travel on their vehicles. In the circumstances of that case the court held that T was a trespasser in the vehicle and that the employers owed no duty to him because they could not reasonably anticipate that he would be a passenger in the vehicle at the time of the accident. Twine v. Bean's Express Ltd. was considered and affirmed by the Court of Appeal in Conway v George Wimpey & Co Ltd [1951] 1 All ER 363.

In Conway v. George Wimpey & Co. Ltd. not only was the driver of the vehicle given clear oral instructions not to take any passengers but in the cab of each lorry was a notice indicating that the driver was under strict orders not to carry passengers other than employees of the company and anyone driving on the vehicle did so at his own risk. In that case too the passenger injured was held to be a trespasser and that the driver's employers were not under any duty of care to him.

In Rose v Plenty & Anor [1976] 1 All ER 97 the Court of Appeal again had the opportunity of considering Twine v. Bean's Express Ltd. and Conway v. George Wimpey & Co. Ltd. (supra). Scarman L.J. (as he was then) in the course of his judgment dealt with the question of vicarious liability clearly at page 103 where he said:

"I think it important to realise that the principle of vicarious liability is one of public policy. It is not a principle which derives from a critical or refined consideration of other concepts in the common law, e.g. the concept of trespass or indeed the concept of agency. No doubt in particular cases it may be relevant to consider whether a particular plaintiff was or was not a trespasser. …

But basically, as I understand it, the employer is made vicariously liable for the tort of his employee not because the plaintiff is an invitee, nor because of the authority possessed by the servant, but because it is a case in which the employer, having put matters into motion, should be liable if the motion that he has originated leads to damage to another."

In the instant case the trial Judge correctly distinguished Samin bin Hassan v Government of Malaysia [1976] 2 MLJ 211 in that the driver in that case was at the material time not driving as a servant or agent of the government but was driving for his own purpose.

Purporting to rely on Twine and Conway the appellant in their statement of defence averred that the respondent was on t