FA Chua J:

This is an appeal from a judgment of the High Court dismissing the claim of the plaintiffs in an action in which the appellants were the plaintiffs and the respondents the defendants. The action arose out of an accident between a cyclist Tan Peng Seak and a bus driven by a servant of the defendants in which Tan Peng Seak was killed.

The main question for determination in this appeal is whether the learned trial Judge erred in rejecting the evidence of Lim Ah Huat (PW3), the only witness called by the plaintiffs, who claimed to be present when the accident happened.

The evidence of Lim Ah Huat was shortly this. He was riding his motor cycle at a distance of four feet from the left hand edge of the road when he saw a cyclist riding a bicycle about three feet from the edge of the road in the same direction as himself about one hundred feet in front of him. He saw a motor bus overtaking him at a distance of three feet to his right. After overtaking him the bus pulled in to its near side and the bus obstructed his view of the cyclist. He then heard the screeching of brakes when the bus was thirty feet ahead of him and the bus came to a stop. He overtook the bus and he saw in front of the bus the cyclist who had been knocked down and a bicycle lying on its near side four feet in front of the bus and six inches from the edge of the road. He did not see the impact. He found that the cyclist was Tan Peng Seak.

The bus driver did not give evidence as he died before the hearing of the case but he made a report soon after the accident in which he gave his version of the accident. By agreement of the parties this report was admitted.

The defendant called the bus conductor but he did not see how the accident happened. All he could say was that there was an accident and that he saw a person lying in front of the bus and that a bicycle was lying across the road.

The learned Judge expressed his views on the evidence of Lim Ah Huat in these terms:

In this case I regret that I am unable to find any negligence on the part of the driver of the defendant firm since I have decided that no reliance can be placed on the evidence of Lim Ah Huat (PW3) who claims to have been an eye witness of what occurred. He did not inspire any confidence in me as he saw nothing of the actual impact although from his version I think that, if it is true, he should have seen more of it than he describes. On the whole, I think that he arrived at the scene after the accident, though probably shortly afterwards.

The learned Judge gave his reasons for not accepting the evidence of Lim Ah Huat. With all due respect to the learned Judge, it is my view that his reasons are plainly unsound.

First, the learned Judge said:

His vision could have been obscured by the bus only if the bus had hit the bicycle in the rear.

The italics is mine. The learned Judge was clearly wrong here. The vision of this witness would be obscured when the bus pulled in to its near side after overtaking him. It must be remembered that this witness was travelling four feet from the edge of the road and the cyclist was travelling three feet from the edge of the road and in between them you have this big bus which was travelling, if one looks at the police sketch plan, two feet ten inches from the side of the road.

Secondly, the learned Judge said:

Mr Murphy suggested that the bus could have caught the cyclist himself in the back or on the right side of his body without leaving any tell-tale marks on the bus and that this could explain why the bus showed no evidence of damage. If the near side front of the bus had caught the body of the deceased on his right then this witness should certainly have had a grandstand view of the whole collision as his view of the impact would not have been obscured.

Here again the learned Judge was clearly wrong. The view of this witness could have been obscured in the way that I have described above.

Thirdly, the learned Judge said:

The bus