The plaintiff's claim is for damages and loss in respect of personal injuries sustained in a motor accident occurring due to the alleged negligence of the second defendant who was the servant of the first defendant. It was common ground that on January 11, 1975 about 3.35 p.m. the plaintiff was a passenger in a motor lorry No. NC 6527 owned by the first defendants and driven by the second defendant, the servant of the first defendants. At 3¾ milestone Jalan Cha'ah-Bekok, Johor, the lorry overturned.

The first defendants contended that the plaintiff had been warned by the second defendant that he travelled in the motor lorry at his own risk and that the plaintiff's attention was directed to a label "Riding. At Your Own Risk" affixed near the passenger's seat by the side of the driver's seat. It seems to me that the defence raised by the defendants was a defence of "volenti non fit injuria". It was noted that the first defendants did not raise a defence that the second defendant had allowed the plaintiff to travel in the motor lorry in breach of the prohibition to do so by the first defendants.

In evidence I found the plaintiff had successfully proved that on the material date the plaintiff asked the second defendant for a lift to accompany the oil palm fruits which were to be delivered to a factory at Kluang. It was to the plaintiff's interest to know the weight of the oil palm fruits delivered to the factory as he was paid according to the tonnage harvested. On the way to Kluang due to the negligence of the second defendant in driving the lorry, the lorry overturned and the plaintiff sustained injuries as a result thereof. The second defendant denied that he was negligent in driving the said motor lorry.

Before I deal with the other aspects of the case, it is desirable to determine whether or not the accident was due to the negligence of the second defendant. The plaintiff deposed in evidence that the lorry was fully loaded with a large amount of oil palm fruits. While it was travelling on its way to the factory about 3.45 p.m. on January 11, 1975 the second defendant suddenly swerved the lorry to the left and travelled on the side-table which was lower than the level of the metal surface of the road. When the second defendant swerved back the lorry onto the metal part of the road, the lorry overturned.

The second defendant's version of the accident was: On that material day it was raining heavily. About 3¾ milestone Jalan Cha'ah/Bekok while the lorry was travelling downhill, the second defendant saw a lorry approaching from the opposite direction. As the on-coming lorry came nearer, the second defendant noticed that the on-coming lorry encroached on his path and so he swerved to the left onto the sidetable. According to the second defendant there was a drain in front of him. He had to swerve to the right to avoid landing into the drain. When he did so the lorry overturned.

In cross-examination the second defendant said that the on-coming lorry was a small lorry and when it came close to second defendant's lorry, it had gone back to its correct side of the road though earlier it had encroached onto his path. Thus it was not true that had the second defendant kept to his side of the road there would be a head-on collision as he deposed in the examination in chief. The second defendant was not aware whether or not the lorry was overloaded.

Now, from the sketch plan there was no drain by the side of the road shown therein. If there was, the officer preparing the sketch plan would have drawn it. There was nothing to infer that there was a bend. The tyre marks show that only the near side tyres of the lorry went onto the side-table while the off-side tyres were still on the metal part of the road. When the second defendant lodged a report at Bekok Police Station he said that he swerved to the left while an on-coming lorry passed him. No mention was made of the on-coming lorry encroaching onto his path.

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