JUDGMENTBY: ONG HOCK THYE CJ (MALAYA)

On June 5, 1964 at a bend of the Kampar-Degong road, 11/2 miles from Kampar, a 19 year old motor-cyclist fell off his machine to his death after collision with a 5 ton motor-lorry. Both vehicles were travelling towards Kampar.

A claim for damages under sections 7 and 8 of the Civil Law Ordinance 1956 brought by the deceaseds parents against the owner and driver of the lorry was dismissed by the High Court at Ipoh. This is an appeal by the plaintiffs against such decision.

As may be expected under the circumstances, only the defendants version of the accident was presented to the court. Several months after the event the plaintiffs were put in touch, purely by chance, with a supposed eye-witness, whom they called to their aid, but as he admitted that he had not observed how the accident happened and was unable to assist the court in that respect, his evidence was, quite rightly, disregarded by the trial judge.

In the result, the plaintiffs had to rest their case mainly on the evidence of Chief Inspector Syed Ahmad, the investigating officer, who came on the scene at 4.30 p.m., two hours after the accident, and was able to testify to his examination of both vehicles for evidence of collision, produce photographs taken then and there and the sketch plan made by him on the spot, with explanations of what he saw. The police, themselves, had been unable to trace any eye-witness.

The defendants evidence, however, did not prevail with the trial judge. The driver and attendant of the lorry had related exactly how the accident happened. There were thus irrevocably committed to their version of the story, which was as follows. According to the driver, he was driving his empty lorry at a speed below 30 miles an hour and keeping about 1 foot from the nearside edge of the road when the accident occurred at a right-hand bend. He was then passing an elderly cyclist coming from the opposite direction when he heard a "bang" and, immediately turning his head to look back, he saw a human figure falling under the lorry, followed by a sensation of the rear offside wheel going over some object. He pulled up and saw a body lying diagonally across the white centre line of the road, the head and top torso being over the left of the line, on the same side of the road as the lorry. At no time, he averred, had he gone over the centre line. He saw also the elderly cyclist, who had fallen off his bicycle, in a sitting position near the edge of the road, 8 to 9 feet away from the body. He took no notice or particulars of the cyclist, who got up and rode away. Unable to get other transport to remove the injured man to hospital, he conveyed him there in his lorry. Corroborative evidence was given by the lorry attendant, positioned behind the drivers cabin, who stated that, on seeing the bicycle and motor-cycle approaching from opposite directions, he signalled to the motor-cyclist, but the latter came up alongside and ran into the bicycle, then falling under the lorry. Of this evidence the trial judge said: "I do not accept in toto the defence version of the accident and neither do I accept the plaintiffs version". In one sense this may be taken to mean that he accepted a part of the defence story, though without clarifying what it was. It therefore behoves this court to analyse what he meant or must have meant. This, however, at least, is clear -- that, in his view, it was not the alleged collision between the bicycle and motor-cycle which caused the deceased to fall beneath the lorry. Had he thought this explanation to be true, or reasonable and probable, the claim should have been promptly dismissed, simply and unequivocally on that ground. But he did not.

Instead, he cited Lim Soh Meng v Krishnan [1967] 1 MLJ 8, a decision of this court, as laying down that "if the court does not believe the witnesses for the plaintiffs or for the defence, then the court must find in favour of the defence". Expressing disbelie