Raja Azlan Shah FJ:

This appeal arises out of a motor car accident in which respondent No. 1 was injured and the only passenger was killed. Respondent No. 1 was driving the motor car. He had borrowed it from his brother, respondent No. 2, in order to see a cinema show together with his friend, the deceased, at Seremban. The appellants who are the administrators of the estate of the deceased passenger brought an action for damages in respect of his death against the respondents.

The following facts are not in dispute. After the show they were returning to Tanjong Sepat, Selangor. It was about 11pm on 20 November 1966. They took the Sepang/Tanjong Sepat straight stretch of open road, which was 14' 6" wide. There were no street lights; it was drizzling. Some distance before they reached Tanjong Sepat the car ended up diagonally against the cement culvert on the opposite side of the road with the substantial part of the vehicle on the road. The car was a total wreck. The deceased died on the spot. Respondent No. 1 was severely injured. He was unconscious and regained consciousness at Klang Hospital. He lodged a police report four days later.

The appellants pleaded res ipsa l