JUDGMENT

Ong (Malaya) CJ:

At about 9 a.m. on 21 February 1969 three small Tamil boys were on a lonely stretch of the Kampar-Teluk Anson Road when one of them was knocked down by a motor-cycle driven by the defendant. His right leg was fractured and had to be amputated at the knee. Suing by his father, he was awarded damages by the High Court at Ipoh on the ground that the accident was entirely due to the negligence of the defendant. The object of this appeal is to seek apportionment of blame between the parties.

The defendant as well as the Tamil boys were proceeding in the same direction. The road was 18 feet wide and clear of other traffic. The plaintiff's case was that he was walking two feet away from the left edge of the road, along the grass verge- as were his two friends following about 12 feet behind him when the defendant came on to the grass and knocked him down. He and his friends were positive that they were two feet inside the grass verge when the accident occurred.

The defendant's insurers, who defended the case on behalf of their assured, were unable to produce him at the trial to give evidence on his own behalf. His disinterest in the matter hardly needs explanation. The case is, in my view, indistinguishable from that where the defendant is unable to defend himself because he is dead. The Court in such event applies a wise and salutary rule. As Isaac J put it in Plunkett v. Bull 19 CLR 544, 548:

... in cases of this sort the Court scrutinizes very carefully a claim against the estate of a deceased person. It is not that the Court looks on the plaintiff's case with suspicion and as prima facie fraudulent, but it scrutinizes the evidence very carefully to see whether it is true or untrue."

See also Hill v. Wilson 8 Ch App 888; Re Garnett 1 Ch D 1; Lachmu Parshad v. Maharajah Narendro Kishore Singh Bahadur LR 19 IA 9.

In a negligence action the onus of proof rests wholly on the plaintiff, whether or not the defendant gives evidence. The plaintiff cannot succeed without proof of the defendant's negligence. "Evidence is the foundation of proof, with which it must not be confounded. Proof is that which leads to a conclusion as to the truth or falsity of alleged facts which are the subject of inquiry. Evidence, if accepted and believed, may result in proof, but it is not necessarily proof of itself.": see 15 Halsbury (3rd Edn.) p. 260.

In the instant case there was no ambiguity in the plaintiff's evidence as to where he was when he was knocked down. He was "in fact walking on the grass verge about two feet away from the edge of the road". But was his evidence accepted as proof of the allegation? I think not. As Ali FJ just stated in his judgment, the learned trial Judge "was not, however, altogether satisfied that the collision occurred on the grass verge as stated by the plaintiff's witnesses." And Gill FJ says:

The first ground of appeal is that the learned trial Judge erred in holding that the accident could have happened on the grass verge. The short answer to that is that the learned trial Judge did not say categorically that the accident happened on the grass verge. The finding of fact which he made was that the accident took place at a point somewhere near the left edge of the road."

If the trial Judge did accept the evidence of the plaintiff and his witnesses, he should have said so in the plainest of terms, instead of leaving us to guess what he did find as a fact. The plaintiff was either two feet inside the grass verge, as he claimed, or he must have been on the road. And yet the trial Judge was unable to "say categorically that the accident happened on the grass verge". In my view, therefore, it is clear enough that he was not satisfied as to the truthfulness of the plaintiff or his witnesses.

It is equally clear to me, from his grounds of judgment that under the circumstances he relied mainly on the sketch plan and photographs in the agreed bundle of documents as supporting the plaintiff's case.