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 loquitur. The respondents denied negligence. They averred that the accident was caused or contributed to by the negligence of the driver of an oncoming lorry which encroached into their path with the headlights blinding the driver (respondent 1) and therefore the accident could not have been avoided by the exercise of reasonable care on their part.

In the light of the pleadings it fell upon the respondents to give a reasonable explanation of the accident and show this explanation was consistent with no lack of care on their part. See Colvilles Ltd. v. Devine [1969] 2 All E R 53, 57. They only called the driver, respondent 1 and the owner of the car, respondent 2. The investigating officer who went to the scene the same night and drew the sketch plan was not called as witness.

The case for the respondents was to the effect that as the two vehicles were about to pass each other, respondent one's eyes were blinded by the headlights of the oncoming lorry which was encroaching on his wrong side of the road with the result that respondent one had to swerve his car onto the left grass verge in order to avoid a head-on collision. Oral evidence was also adduced that respondent one drove the car for some distance on the grass verge and when he saw his car was heading towards the left cement culvert ten feet away he swerved it to the right where it finally landed against the cement culvert on the opposite side of the road. Respondent one could not avoid the accident by applying his brakes because, as stated by him, if the car was brought to a standstill on the road there would have been a head-on collision with the oncoming lorry.

The evidence thus led found favour with the learned trial judge, who felt inclined to believe that the evidence was consistent with the statement respondent 1 made at the inquest that he "swerved to the right in order to avoid a culvert on the grass on my left". The learned Judge went on to say that even if it were true that he had not swerved to the left, he was of the opinion that he would still be excused for crashing into the culvert on the right as it was an accident caused by the encroachment of the lorry and its dazzling lights.

He relied on the police report as corroboration of the encroachment.

He also held that respondent 1 was driving the car between 30 to 40 miles per hour. Here are his words:

It was submitted that since the car was a 'total wreck' after the accident, this shows exceedingly high speed of the car. Although there is evidence to the effect that the car was extensively damaged and could not be used after the accident, there is no evidence of how old the car was. An old car may be extensively damaged when involved in collision even if driven at a moderate speed. I accept the first defendant's evidence that