(Lord Morris of Borth-y-Gest, Lord Morris of Borth-y-Gest delivering the judgment of the Board):

On 28th January 1962 a collision occurred between two motor cars which were being driven in opposite directions along the Johore Bahru-Scudai Road. One of the cars (a Chevrolet car) was a taxi which belonged to the respondent. It was being driven by her servant or agent. The driver of the other car was killed as also was a passenger in the car: another passenger was injured. Three separate actions claiming damages were brought in the High Court against the respondent. The three actions were later consolidated. The appellants failed in their claims and judgment was given on 16th June 1965 in favour of the respondent. There was an appeal to the Federal Court of Malaysia and judgment dismissing the appeal was given on 13th February 1966. From that judgment appeal is now brought.

One of the circumstances of the occurrence that was established and was accepted by the learned judge was that the taxi went over to its wrong side of the road. As a result and as a consequence the collision occurred. No fault lay with the driver of the other car. Unless an acceptable explanation was forthcoming it would seem to follow that the claims should succeed. It was however established that the reason why the taxi veered across the road was that a fracture occurred of the connection between the steering mechanism and the nearside front wheel. The fracture, occurring as the taxi was being driven along the road, caused a complete failure of the steering and braking systems with the result that the taxi became out of control. On the basis of that finding questions arose as to whether the respondent had been negligent in using or permitting or causing the taxi to be used on the road in a condition which either was known or ought to have been known by her or her servant or agent to be a danger or likely to cause danger to persons on the road. In this connection further findings of fact become of relevance. The respondent did not have personal knowledge of the mechanism of the taxi. It had been first registered (as a private car) on 21st February 1959. She had bought it (in November 1960) as an investment. It was to be looked after by her servant or agent - the driver. It had originally had a petrol engine but shortly before the respondent bought it the petrol engine had been replaced by a diesel engine. The learned judge stated in his judgment that the change to a diesel engine was approved by the Registrar and Inspector of Motor Vehicles, Johore. A diesel engine is heavier than a petrol engine. The extra weight would be too heavy for the front suspension coil springs. What had been done after the diesel engine was installed was explained by a witness who was an experienced motor engineer and whose evidence was accepted by the learned judge. That witness took the relevant assembly to pieces. He found that in order to increase the height of the spring the original spring had been lengthened by inserting a steel ring (which was called a shim) between the lower end of the spring and its seating. The shim was of smaller diameter than the spring: after its insertion the spring would no longer be securely anchored: previously it would have been. As a result there were greater loads on the top ball joints than they were intended to take. In consequence the near-side top ball joint failed and that allowed the near-side front stub axle, complete with hub and wheel, to fall away from its anchorage: that caused the severing of the brake pipe. When that happened the driver would find himself completely out of control through the loss of his steering and through having no brakes.

Though it was established and was held that the accident was caused by this sudden failure, thus described, the evidence showed that the taxi had been run for some 14 months after the diesel engine had been installed, that in that period the taxi had covered about 60,000 miles and tha