Raja Azlan Shah J:

On 13 May 1961 at about 2.40 p.m. the plaintiff was travelling as a passenger in the first defendant's motor-bus M 6398 driven by the second defendant from Masjid Tanah to Lubok China. He was seated immediately behind the driver's cabin and next to the off-side wall of the bus. At the 27'bc milestone, about 100 yards before entering Lubok China, the said bus met with an accident with an on-coming lorry NA 3219 owned by the third defendant and driven by the fourth defendant.

As a result of the accident plaintiff sustained personal injuries. He now claims damages against all four defendants. He averred that due to the negligence of the second and fourth defendants or of either of them, the two vehicles came into violent collision. At the time of the accident the plaintiff was 11 years of age and was attending Masjid Tanah Chinese Primary School. He now sues through his next friend, his father.

The first and second defendants admitted that the accident did happen at the time and place in question but denied liability and averred that the accident was caused solely by the negligence of the fourth defendant as the servant or agent of the third defendant. The third and fourth defendants also admitted the accident but denied liability and cast the blame on the second defendant who they averred caused or contributed to the accident.

The first and second defendants' story is as follows. The second defendant has held a valid driving license for some 36 years. At the time of accident it was drizzling. The road which was metalled was wet and the surface was slightly slippery. He was on his correct side of the road. When he negotiated a slight right-hand bend he saw the on-coming lorry. When both vehicles tried to cross each other the lorry grazed the off-side of the bus. He said that the lorry came to his side of the road; that was the cause of the accident. If each vehicle was on its correct side of the road he said the accident would not have happened. He said he first saw the lorry some 60 feet away. The speed of the bus was more than 20 mph. He said the lorry was approaching in a perfectly normal way. He further said that before the accident he noticed on the lorry's near side of the road a heap of gravel and sand measuring one foot in height and spreading on to the roadway for about one foot while the rest was on the grass verge. Evidence was brought to show that the fourth defendant had pleaded guilty to driving without due care and attention in respect of the accident. Although this was not conclusive evidence of the fourth defendant's negligence, it is an admissible admission which supports the plaintiff's case and which weighs against the fourth defendant: see Noor Mohamed v. Palanivelu [1956] MLJ 114. Mr. Joseph has criticised this aspect of the evidence, saying that not only were the facts not put to his client but they were not admitted by him. This, he says, is a serious defect which affects its weight. That is an ingenious way of reasoning, but I think it is too late in the day to attack the record. I take the record as I find it.

The third and fourth defendants' story is as follows. The fourth defendant has been a lorry driver for more than ten years. On the day and time in question he was driving the said lorry from Kuala Lumpur to Masjid Tanah; the lorry was loaded with tiles. When he came to the 27'bc milestone Lubok China he was then doing not more than 30 mph. On the left hand side of the road, about 400 feet in front of him, he saw a heap of gravel, the same one which the second defendant had mentioned earlier in his evidence. He intended to by-pass the heap of gravel by going towards the crown of the road. At about this time he saw the on-coming bus some 60 feet in front of him doing about 30 mph and which was on its correct side of the road. He then applied his brakes and at the same time swerved his lorry slightly to the left. When he applied his brakes, the heap of gravel was about