Wan Suleiman FJ (delivering the Judgment of the Court) ruled in favour of the plaintiff and said - The main question in the court below and again before us is whether, since paragraph 3 of the Statement of Claim alleged that it was the trailer which collided with the plaintiff's motor cycle and since no evidence was given in court to support this allegation, the plaintiff/respondent can succeed in his claim. … It has not escaped our notice that the circumstances in Menah's case are quite different from the present one. In both her statement of claim and repeatedly in evidence the appellant (Menah) stated that she alighted from a bicycle on which she was a passenger and was standing on the grass verge when the car, travelling on its wrong side of the road had knocked her down. The allegation had been denied by the respondent who averred that the bicycle had come out of a side road and across the path of the motor car. The trial judge did not consider her evidence reliable and found for the respondents, the only issue being whether the respondents were solely liable or not. The appellant (Menah) then appealed against that very finding of fact. It was in these circumstances that Ong C.J. …had said: "I think it is necessary in this case to emphasize once again that the Courts should give their decisions in strict accordance with the pleadings." This Court distinguished Menah's case in the later decision of Siti Aishah bte Ibrahim v Goh Cheng Hwai [1982] 2 MLJ 124. In Siti Aishah's case, the appellant pleaded in her statement of claim that she was walking on her proper side of the road, but in her evidence she said instead that she was crossing the road. This was in accord with her police report. In his defence the respondent said that she was indeed crossing the road. The situation therein was therefore somewhat similar to that in the present appeal, for as was found in the judgment, the defendant was not misled, prejudiced or embarrassed or in any way taken by surprise. The Esso Petroleum decision, upon which the appellant relied so heavily was also distinguished. The House of Lords held there that "Every allegation in the statement of claim was rightly decided by the trial judge in a sense adverse to the foreshore owners, who had made no allegation of unseaworthiness, the shipowners could not be held responsible because they did not negative a possible case which was not alleged against them in the pleadings nor made against them in the course of the trial." It was not without good reason this Court in Siti Aishah gave special emphasis to that part of the judgment of Earl Jowitt, as a thorough scrutiny of the main body of that judgment would reveal. Evidence given at the trial can therefore in appropriate circumstances overcome defects in the pleadings where the net result of such evidence is to prevent the other side from being taken by surprise. The same consideration was again the basis of the decision in KEP Mohamed Ali v KEP Mohamed Ismail [1981] 2 MLJ 10 where, although the statement of claim was statute-barred on April 11, 1974 24 there had been an acknowledgment of the debt in 1976. Although the acknowledgment was not pleaded in the statement of claim or the reply, this Court held that the case has been satisfactorily presented and developed in the proceedings before the High Court and that there was therefore sufficient evidence on record from which a decision to that effect could be arrived at. In delivering judgment of this Court, Raja Azlan Shah C.J. (Malaya) (as he then was) said - "As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded." This case was cited with approval in the recent Privy Council decision in OCBC Limited v Philip Wee Kee Puan @ Wee Kee Phuan [1984] 2 MLJ 1. In yet another decision of this Court cited by Encik Subra Naicker, Playing Cards (Malaysia) Sdn Bhd v China Mutual Navigation Co Ltd [1980] 2 MLJ 182, the pleading was likewise imprecise but each party knew the case presented by the other, it was held that justice required that the substantive issues between the parties should nevertheless be considered. The learned trial judge made a lucid analysis, if we may say with respect, of certain English authorities which dealt with the scope of Order 18 rule 7, which is substantially similar to our Order 18 rule 7, commencing with Waghorn v George Wimpey & Co Ltd [1969] 1 WLR 1764 as authority for the proposition that where the evidence at the trial establishes facts different from that pleaded by the plaintiffs as constituting negligence which are not just a variation, modification or development of what has been alleged but which constitute a radical departure, the action will be dismissed. This same test was again applied by Lord Guest in John G Stein & Co Ltd v O'Hanlon [1965] AC 890 909 who said – "The question is whether the case upon which the respondent succeeded was covered by the pleadings. I have no doubt that the respondent failed to establish the case of a longstanding over-hang some 30 feet from the corner. But in the way in which the evidence came out this became immaterial when the accident was proved to have taken place at about the corner … Although this finding was to some extent a variation or modification of the respondent's case on record, it was based upon the same ground of fault and it related to the facts as found by the Lord Ordinary upon evidence properly before him. There was not, in my view, such a radical departure from the case averred on record as would justify the House in absolving the appellants from liability." The Judge then went on to examine the salient features of the present appeal. He noted that the way in which the defence was 26 conducted showed that the appellants were aware of the contents of the police report made by the plaintiff at an early stage, and that therefore it did not come as a surprise. [Emphasis added]