(delivering the judgment of the Court): According to the statement of agreed facts, a collision occurred on February 25, 1976 on a straight stretch of road at or near 9½ milestone Pekan/Kuantan Road between motor cycle No. CE 3890 and motor lorry No. BU 8589.

First plaintiff was the pillion rider and second plaintiff the rider of the motor cycle. First defendant and second defendant are the owner and driver respectively of the motor lorry. Damage was caused to the motor cycle and both plaintiffs also suffered injuries.

It was also agreed at the commencement of the trial that should the court find the defendants 100% liable, general and special damages would be $50,000 for the first plaintiff and $12,000 for the second plaintiff respectively.

In his judgment the learned trial judge remarked that second plaintiff was unable to give a clear account of how the accident had come to pass. He had merely heard a braking sound, after which there was a collision. He was 3 feet from his near side of the road just before that. He also denied that he was overtaking another motor cycle and had therefore encroached onto the off-side of road. The time he said was about 6.30 a.m., it was misty and visibility limited to about 24 feet. As regards his speed, second plaintiff said that he was travelling at between 40 to 45 m.p.h., he had slowed down on hearing the noise of the approaching vehicle to about 40 m.p.h., (a figure which he subsequently reduced to 30 m.p.h.) at the point of impact.

His Lordship also noted that first plaintiff had likewise not been able to see how the accident had happened and that all he could say was that the motor cycle had collided with the lorry.

Summarising the evidence of second defendant (the lorry driver), the learned trial judge noted that according to him the lorry had come from the opposite direction whilst plaintiffs were overtaking another motor cycle whereupon the collision took place. After impact he had applied his brakes, the steering wheel then jammed so that he could not "pull" (presumably move) the lorry onto his side of the road.

Each party had said that the other party's vehicle did not have its lights on.

Faced with two conflicting and what he clearly considered both inadequate and inexact evidence, the learned judge turned to the sketch plan for a clearer picture of the event. It cannot be denied that the inferences which he drew from what is recorded thereon inclined him to the view that second plaintiff had encroached onto the path of the lorry at the time of the collision, and he therefore found that second plaintiff was liable to the extent of two-thirds, in short that his own negligence had been the major cause of his downfall.

Mr. Mahinder Singh's (for the second plaintiff, the first having abandoned his appeal) criticism of this finding can be condensed to two grounds viz.:

Firstly the trial judge had erred in holding that both plaintiffs had not given a clear account of how the accident had happened, and that the sketch plan and photographs supported the plaintiff's version of the accident;

Secondly, that two scratch marks found at J and K on the sketch plan on the defendant's side of the road, had because of inferences wrongly drawn by the trial judge caused him to find that the second plaintiff was more to blame for the accident, the sort of erroneous inference from facts specifically found which would incline an appellate court on the principle in Benmax's [1955] AC 370 case, to upset the finding of a trial court.

With regard to the first ground of appeal, we have compared the testimony of the two plaintiffs with the careful analysis of their evidence in the judgment of the trial court, and can find no fault with his Lordship's conclusion that neither plaintiffs had given a clear account of how the accident had happened. That the collision had taken place suddenly in conditions of poor visibility is common ground, and the cautious approach of the trial court in not rely