Buttrose J (delivering oral judgment):

These proceedings arose out of an accident which occurred in Havelock Road on 20 May 1964 at about 6.30 p.m. between the plaintiff, a boy of eight years old, and the defendant who was driving his motor car.

The plaintiff's case was that he and his ten year old brother had left their house at about half past six to go and play in a playground. In order to do this they had to cross Havelock Road. On reaching Havelock Road, the plaintiff stood on the side of the road waiting to cross. His evidence was that he saw a car approaching on his right in what he described as a zig-zag manner which hit him as he stood there and knocked him down.

His ten year old brother also said that the plaintiff was standing still at the edge of the road and was knocked down by a car coming in what he too described as a zig-zag manner.

A third witness, Yacob bin Abdullah, who said he was at the scene and saw the plaintiff standing on a plank across the drain by the side of the road. He too said that he saw this car coming in a zig-zag manner which hit the plaintiff who was flung off the road. The remarkable thing regarding his evidence was that he said he saw these two boys for a quarter of an hour waiting by the side of the road; that he then saw this motor car approaching he said in a zigzag manner for some three minutes and in the very next breath he said he saw it coming in a zig-zag manner for some 50 to 60 feet. He did not appear to me to be a witness on whose evidence any real reliance could be placed.

The defendant's case was that he was travelling at some 20 to 25 miles per hour along Havelock Road when the plaintiff infant suddenly ran out from behind a parked vehicle right across the path of his car when it was almost on him. He immediately applied his brakes and swerved the car to the right but was unable to avoid hitting the plaintiff. In the result, the learned trial Judge found that the accident was caused solely by the negligence of the defendant and gave judgment for the plaintiff for $2,000 being the agreed damages and costs. From that decision the defendant now appeals.

With respect to the learned trial Judge he has, in my view, in arriving at his decision, drawn inferences and assumed facts not justified by the evidence. There was in my own opinion insufficient evidence, or no satisfactory evidence, to support the plaintiff's contention that the defendant's car was on a zig-zag course. The learned trial Judge found as a fact that the plaintiff did not look to the right before stepping on to the road and therefore never saw the car at all; consequently he could not have seen it coming in a zig-zag manner as he swore he did. His brother never mentioned a word about the car approaching on a zig-zag course when he ran back to his house immediately after the accident to tell his father what had happened. In my view, that is one thing that he must surely have done if it was so.

The father's report to the police was that his son, Pandian, had told him that the plaintiff had been knocked down when he was crossing the road from the left to the right hand side of Havelock Road; not, be it noted, while he was standing still by the side of the road. Yacob's evidence on this subject of zigzagging is, in my view, unworthy of belief.

The reasons given by the learned trial Judge for finding it difficult to accept the defendant's version are so, it seems to me, not justified by the evidence. His finding that the defendant was not telling the truth was based, in my judgment, on erroneous inferences and an incorrect appreciation of the facts.

There was no evidence to support the learned trial judge's finding that the plaintiff was knocked down as soon as he attempted to cross the road, that is as soon as he stepped forward. The reasons he gave, namely that the only injury was to the lower part of the plaintiff's right leg cannot possibly, so it seems to me, have any bearing as to where on the roa