JUDGMENT

Abdul Aziz J:

In this case the plaintiff sued the Government of the Federation of Malaysia and the Public Works Department, Kelantan, Kota Bharu for damages arising from a traffic accident. It was alleged that somebody left an unlighted steam roller belonging to Government parked on the road at night causing the deceased who was riding a motor-cycle to crash into it with fatal consequences.

At the hearing of this action the learned State Legal Adviser who appeared for the defendants raised two important preliminary objections: firstly, that the Public Works Department Kelantan is not a legal person and secondly, the action was not commenced within twelve months from the date the cause of action arose. As regards the first preliminary objection, Mr. Wong, who appeared for the plaintiff conceded that the Public Works Department has no legal status and consequently applied for amendment of the pleadings by striking out the second defendant. The pleadings were accordingly amended. The learned State Legal Adviser then submitted that under s. 6 (1) and (4) of the Government Proceedings Ordinance, 1956, no proceedings could lie against the Government in tort unless it is established that by reason of neglect or default on the part of a specified public officer in the course of his employment or acting in the scope of the authority of the officer, his principal i.e. the Government was also vicariously liable.

There are, therefore, two questions to be decided: firstly, whether the action was commenced within twelve months after the neglect or default complained of and secondly, whether action would lie against the Government as principal when the servant of the Government was not also a defendant to the action.

In considering the first point I had before me the Court file which showed that the writ and the praecipe were submitted to the Registry on 1 April 1964, i.e. the last date on which the action could be commenced as the accident occurred on 2 April 1963. There was also a note stating a specific instruction by the solicitors for the plaintiff that the writ was not to be issued until further instructions were received from them. The writ was finally sealed and issued on 18 January 1965. It was submitted by the plaintiff that the action was commenced when the writ and praecipe were tendered to the Registry and that the delay in the, issue of the writ was due mainly to the refusal of the Attorney-General's Office to supply the name of the driver of the steam roller through whose neglect, they say, the accident occurred. It later transpired that this submission was not quite true because the request for the particulars of the steam roller driver was only made on 7 April 1965. Learned Counsel then went on to distinguish between our rules and the English Rules of the Supreme Court. Under the English Rules of the Supreme Court (the Singapore provisions are similar) the words "and thereupon the writ shall be deemed to be issued" appear but they do not appear in our rules and the date of commencement of this action, therefore, was the date on which the writ was tendered to the Registry for registration. I think there is no substance in this argument. In any event, whatever merits there may be in the plaintiff's argument is negatived by the specific request not to issue the writ until further instructions.

The second point also presents little difficulty. Section 5 of the Government Proceedings Ordinance, 1956 which prescribes the liability of the Government in tort reads:-

... Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent,...."

Section 6(1) states that:-

(1) No proceedings shall lie against the Government by virtue of s. 5 in respect of any act, neglect or default of any public off