JUDGMENT

Suffian LP:

The question in this appeal is: was the first defendant (a Telecoms Department mechanic) a servant or agent of the Federal Government the second defendant (respondent before us) at the material" time?

On 30 June 1970 the plaintiff (appellant before us) was riding his motor cycle along Jalan Endau, Mersing, in the direction of Endau, Johore, when he was run into and knocked down and injured by a Telecoms. Department Land Rover at the 1'bc milestone. The Land Rover was driven by the first defendant.

The plaintiff sued the two defendants for damages, alleging that the first defendant was negligent and that the first defendant was the servant or agent of the Government.

The learned trial Judge found that the first defendant was negligent and liable. The learned trial Judge said that from a starting position on the grass verge outside his house the first defendant had made a sharp U-turn without regard to the traffic coming from behind him and he had therefore constituted such an obstruction as to cause the plaintiff to collide into him and fall. This finding of negligence on the part of the first defendant has not been challenged.

What however is challenged is the learned trial judge's finding absolving the Government from liability on the ground that at the material time the first defendant was not a servant or agent of the Government.

The learned trial Judge found the following facts proved. Earlier on the day of the accident the first defendant had taken a party of engineers to another place which was in another direction and they had returned to the depot after completion of the work there. The first defendant said that thereafter he took out the Land Rover for a trial run to test its brakes and that in the course of the trial run he had stopped at his house for lunch and that when the accident occurred he was returning to the depot where the vehicle was normally kept and that at this time he was still on duty. This evidence was challenged by his immediate superior officer who denied giving him permission to take the Land Rover out for a trial run.

The log book relating to the use of the vehicle contained an entry "Jalan Seri Lalang, kerana menguji berek". The first defendant's superior admitted that he saw this entry when he countersigned the log book at the end of the month and thought that it was a proper entry and he said that he was certain that he had at no time given instruction to take the vehicle out to test its brakes. The log book however showed an erasure and the learned trial Judge concluded that the entry was a subsequent entry made for the purpose of buttressing the evidence of the driver and that therefore the Land Rover had not been taken out for a trial run. The learned trial Judge found further support for this conclusion in the evidence of the Vehicle Examiner who tested the Land Rover after the collision and found that both the foot and hand brakes were satisfactory. The learned trial Judge found that the state of the brakes after the accident disproved that they needed testing, that therefore on the evidence there was no defect which made the trial run necessary and that the first defendant first had not obtained the permission of his superior to take the Land Rover out. Finally, the learned trial Judge found as a fact that the driver had taken out the Land Rover for his own purpose which was clearly to go home for lunch and that in doing so he had no permission and was driving on his own and that he was at the material time not driving as a servant or agent of the Government.

On appeal by the plaintiff it was argued before us that the first defendant was then driving as the servant or agent of the Government.

The law is to be found in the following two cases.

In Hilton v. Thomas Burton (Rhodes) Ltd. & Anor. [1961] 1 WLR 705. Diplock J, as he then was, said at p. 707 that the true test can best be expressed in these words:

Was the (negligent driver) doing something that he w