James Foong JCA (delivering dissenting judgment):

INTRODUCTION

We heard this appeal on 30 July 2007. By a majority decision, we allowed it with costs with me dissenting. I now give my reasons for doing so.

FACTS

As this case originated from the sessions court which went on appeal to the High Court and finally to us in the Court of Appeal, it is best that I described the parties in their original capacities to avoid confusion as to their status.

In the statement of claim, the plaintiff alleged that he was collided into by a motor lorry (‘said motor lorry’) bearing registration No ZA 2596 while he was riding his motorcycle along Jalan Timur, Felda Selatan, Sungkai, Perak at about 11.30am on 19 September 1997. He claimed that the said motor lorry which was driven by the first defendant, a driver, servant and/or agent of the second defendant, was negligent at the material time. Due to injuries sustained as a result of this accident, the plaintiff claimed special and general damages.

Initially, in the sessions court, the first defendant appeared to be represented. But when the trial was about to begin, it was recorded on 29 January 2004 that he was unrepresented. And when the trial took place on 18 March 2004, he was not present. There is no statement of defence by the first defendant found in the appeal record.

The second defendant had filed a statement of defence and was represented at the trial. In the statement of defence, the second defendant denies knowledge of the accident and refutes the plaintiff’s claim that the first defendant was a servant and/or agent of the second defendant at the material time.

During the trial, at the close of the plaintiff’s case, the second defendant submitted no case to answer, and declared that it will not be calling any witness. Effectively, this means the second defendant had elected to forfeit its rights to tender any evidence in court to defend its case, and would therefore rely on the evidence adduced by the plaintiff to maintain that the plaintiff had not established a case in law against it or that the evidence so far adduced was so unsatisfactory or unreliable that the plaintiff’s burden of proving its claim had not been discharged — see Ramayee a/p Gengan & Ors Niaz Bi Bi v Mogah Omnibus Co Ltd UN Pandey v Hotel Marco Polo Pte Ltd

Over this contention, the sessions court ruled in favour of the second defendant. The reasons given were: the plaintiff had failed to prove (a) the driver of the said motor lorry ZA 2596 was an ‘officer’ under s 5 of the Government Proceedings Act 1956 (‘GP Act’) and; (b) the second defendant was the registered owner of the said motor lorry. Accordingly, the plaintiff’s claim against the second defendant was dismissed with costs. However, for completeness, the sessions court assessed damages and found that in the event that the second defendant was liable, based on 100%, the plaintiff should be entitled to RM85,150 as general damages and RM745 for special damages with interest thereon. In respect of the first defendant, the sessions court made no order.

Dissatisfied with this decision, the plaintiff appealed to the High Court. The High Court dismissed the plaintiff’s appeal against the second defendant on virtually the same grounds proffered by the sessions court. However, the appeal against the first defendant was allowed with damages as assessed by the sessions court.

The notice of appeal filed by the plaintiff to this court is against the decision of the learned High Court judge given on 29 November 2005. This covers both liability and quantum. However, when this court indicated to the plaintiff that his appeal would be allowed against the second defendant, the plaintiff withdrew his appeal against quantum.

THE PLAINTIFF’S CONTENTION

The main contention of the plaintiff in this appeal against the second defendant is that since the motor lorry carried a licence plate bearing No ZA 2596, it must be presumed that this vehicle belonged to the military and therefore the pro