Augustine Paul J:

On 22 March 1995 one Mohd Nazari bin Ab Majit was riding motor cycle No MAD 3580 along Jalan Bacang, Melaka when he was involved in an accident with motor lorry No JCS 6379 driven by the first defendant and owned by the second defendant. He suffered severe brain damage in the accident and was paralysed. This claim for damages was brought by his father and next friend Ab Majit bin Kadir against the two defendants. At the trial of the action before the Sessions Court the plaintiff was not able to give evidence due to his medical condition. The plaintiff's case was closed after six witnesses had given evidence. Two of them, PW1 and PW5, gave evidence on the medical condition of the plaintiff. Two police personnel, PW2 and PW3, tendered in evidence the sketch plan and key and photographs of the two vehicles involved in the accident. PW2 said that when he arrived at the scene there were no vehicles on the road. He found glass fragments closer to the centre white line of the road as one faces Bacang. The road was straight. He also said that there were no signs of any brake marks at the scene. The front part of the motor cycle was damaged while the damage to the lorry was at the front right side. Ab Majid bin Kadir was only able to say that on the day in question he had asked his son to buy a paint brush at about 6pm. At about 6.30pm he received a telephone call informing him of the accident. He went straight to the hospital where he found his son in a coma. His son is unable to talk and move till today. At the close of the plaintiff's case the defendants closed their case without calling any evidence.

In her grounds of judgment the learned Sessions Court judge said that the plaintiff has failed to show that it was the negligence of the defendants that caused the accident. She said that there was no independent evidence to show how the accident happened. The evidence of the investigation officer also did not assist the court. He came to the scene after the accident when the vehicles involved had been removed. He only found glass fragments at the centre of the road. The plaintiff's father did not know how the accident happened. There was no evidence before the court to show the direction in which the vehicles were travelling. Accordingly, she dismissed the plaintiff's claim with costs. This appeal is by the plaintiff against that order.

The argument before me of both counsels centred on the admissibility of a police report in the agreed bundle of documents. The report was recorded by lance corporal 96794 based on what the first defendant told him. The outcome of the plaintiff's claim depends on this report in the absence of any other evidence to establish negligence on the part of the defendants. The material parts of the report read as follow:

Pada 22.03.95 jam lebihkurang 0645 petang setelah saya parking lori saya di kiri jalan di Batu 2 Jalan Tun Perak Bacang, Melaka. Dan apabila saya hendak keluar dengan memandu lori saya hendak balik ke Johor di masa itu saya lihat tiada kenderaan yang datang dari arah belakang dan terus keluar, apabila lori yang saya pandu keluar dan naik ke atas jalan tiba-tiba sebuah motosikal yang datang dari arah belakang telah melanggar terus melanggar di bahagian tengah lori saya dan tangki minyak kemek lain kerosakan tak tahu lagi. Dan saya bawa mangsa ke Hospital Melaka. Butir-butir lori yang saya pandu jenis Toyota JSC 6379 saya mempunyai lesen memandu kelas B2, D, E2 N. siri 1645524 dan C 752125 tarikh tamat 04.12.99. PSV lesen no. 803394 N. Lencana 693588 tarikh tamat 10.10.95. Dikeluarkan oleh JPJ Kuala Lumpur. Dan lencana PSV saya telah tercicir semasa membawa mangsa tersebut ke Hospital Melaka.

At the first hearing of the appeal before me both parties agreed that the police report was included in Part B of the agreed bundle of documents with formal proof of it being dispensed with subject to cross-examination. Learned counsel for the respondent also agreed that it was