JUDGMENT

Terrell A-G CJ:

VD Knowles (with him R Ramani) for the plaintiff-appellant: There is a cause of action shown on the plaint: Read v. Brown, 22 QBD 128 All the facts stated in the plaint are admitted by the defendants-respondents and therefore it is admitted that they were in possession of the films. Plaintiff-appellant's position is that of a bailor invitee. The films were destroyed by fire whilst in the possession of the defendants-respondents and therefore the doctrine of res ipsa loquitur applies, which absolves the plaintiff-appellant from pleading negligence. A contract is established on the pleadings because it is admitted that the plaintiff-appellant had to produce his films. When so produced there is a contract that the defendants-respondents will look after the films with reasonable care and return them to the plaintiff-appellant.

The Public Authorities Protection Enactment (Cap. 30) and the Government Suits Enactment (Cap. 17) were not pleaded in the written statement of defence. In any event sub-section (ii) of s. 2 of the Public Authorities Protection Enactment does not apply to suits against Government. If it did apply it would have the effect of leaving subjects without a legal remedy: Attorney General, Straits Settlements v. Pang Ah Yew [1925] AC 555.

HC Willan, Deputy Legal Adviser, for the defendants-respondents: It is clear that the issue is one of negligence and negligence must be pleaded. Negligence is one of the facts which must be included in the statement of circumstances - see s. 42(i) (d) Civil Procedure Code (Cap. 7). From the plaint it is impossible to say whether cause of action is in contract or tort. No bailment is admitted on the pleadings because it is not admitted the films were delivered to the defendants-respondents. For a bailment to be created there must be delivery - see s. 148 Contract Enactment (Cap. 52).

The doctrine of res ipsa loquitur is a rule of evidence not of pleading. In every case in which the doctrine of res ipsa loquitur was applied the plaint alleged negligence - see Scott v. St. Katherine's Docks Co. 159 ER 665 and Bryne v. Boadle, 159 ER 0299.

The Government Suits Enactment and the Public Authorities Protection Enactment were not pleaded because the plaint is so vague. By s. 10 of the Government Suits Enactment the provisions of the Public Authorities Protection Enactment apply and Government has same rights as if the officer had been sued personally. No need for a subject to obtain a fiat to sue Government and that being so Government must be afforded the same protection as is afforded to its officers. The trial Judge followed the decision in Cheah Cheong Pheng V. Government Of The Federated Malay States and that decision is correct.

This appeal turns entirely upon the form of the pleadings. The plaint and written statement are as follows:

... 2. For several years now the plaintiff had been required by the defendant to produce to the officer in charge of the police district the films, each and every, that he had arranged to exhibit at any of his two said theatres, at the office of the officer in charge of the police district at the Central Police Station, Kuala Lumpur, for the purpose of the said officer being satisfied among other things that the said films so arranged to be exhibited had been passed as fit for exhibition in the States by the Official Censor at Singapore.

3. In accordance with such requirement on the 24 September 1935 the plaintiff caused to be produced at the Central Police Station, Kuala Lumpur, the first reel of the film entitled 'In Caliente' together with other reels making up the 'shorts' usually presented on the screen before the main feature.

... 5. During the examination there was a sudden blaze of fire and several lengths of the said films were destroyed.

6. The plaintiff has in consequence been put to considerable loss and expense by having to pay for the films destroyed to the producers and to make other arrangements for scr