Syed Othman J:

[1] The plaintiffs' claim is for damages for injuries caused by the negligence of the defendant's servant or agent in driving his car.

[2] In the course of the hearing Counsel for the defence admits that the defendant was the owner of the car.

[3] The only point to be determined is liability.

[4] The plaintiffs are father and son. Their case is as follows. The second plaintiff, the son, was riding his motorcycle with the father at the pillion from Sedenak along Ayer Hitam - Johore Bahru road. Between 8 and 9 pm. he came to the junction leading to Pontian at 10'bc milestone. He gave signals indicating that he was turning right into the junction. He was then about half a chain away from the junction and was in the centre of the road. There was no oncoming vehicle, but he could see the beam of lights of vehicles from the rear. As he was making the turn, a car came from the rear and knocked his motorcycle on its right side. Both he and the father fell and were injured.

[5] The defence does not call any evidence but relies on submission.

[6] The sketch plan which forms part of the agreed bundle of documents shows the motorcycle lying at rest on the grass verge on the left hand side of the road towards Johore Bahru and directly opposite the junction. The width of the road near the junction is given at 27 feet four inches. There is a blood spot four feet two inches from the left side of the road. In the absence of evidence to the contrary, the conclusion to be drawn is that this must be the spot where one of the plaintiffs must have fallen from the motorcycle. The indications are that the motorcycle must have been somewhere near the centre of the road when the car hit it. The damage on the motorcycle was on the right side from the starter to the rear mudguard. On the evidence that has been adduced, I am satisfied that the accident must have happened in the manner the second plaintiff has described it. The force from the car must have caused the motorcycle to be thrown to the side and one of the plaintiffs to fall on the road where the blood spot is shown in the sketch plan. I find the driver of the car wholly to blame for the accident.

[7] Counsel for the defendant in his submission argues in effect that the defendant cannot be held to be liable even if the Court accepts the plaintiffs' evidence fully as there is no evidence to show who was the driver of the car, any connection between him and the defendant and that the driver was the servant or agent of the defendant, the car owner. He further argues that although it is stated in the statement of claim that the servant or agent of the defendant was one Neo Yong Yam, the averment of the defence is to put the plaintiffs to proof of all the allegations; the onus of proof should therefore be on the plaintiffs. For these arguments Counsel relies on Hewitt v. Bovin [1940] 1 KB 188 approved in Rambarran v. Gurrucharran [1970] 1 All ER 749 a decision of the Privy Council.

[8] Counsel for the plaintiffs argues in effect that as in the indorsement the name of the driver is given, the onus is on the defendant, as owner of the car, to prove that the driver was not his servant or agent or that the car was driven by a person without his permission.