JUDGMENTBY: LORD CROSS OF CHELSEA

LORD CROSS OF CHELSEA (delivering the judgment of the Board): This is an appeal by Hiap Lee (Cheong Leong and Sons) Brickmakers Ltd. from an order of the Federal Court of Malaysia (Azmi L.P., Suffian and Ali F. JJ.) dated 31st December 1971 which allowed an appeal by the respondents Weng Lok Mining Company Ltd. from a judgment of Raja Azlan Shah J. given on the 19th March 1971. By that judgment the appellants had been awarded 3,000 dollars as general damages in respect of the flooding of their land in April 1965 by water which had escaped from land of the respondents and had been given the costs of the action.

The appellants were the owners and occupiers of Lot 3582 in the Mukim of Batu in the district of Kuala Lumpur upon which they carried on the business of brickmakers. A kiln and a building in which bricks were stored stood close to the western boundary of their lot. The respondents held a mining lease of Lot 4661 which lies immediately to the west of Lot 3582 where they carried on the business of tin mining. They used the hydraulic method -- that is to say they took water from the river which was stored on the land in reservoirs and after being drawn off and used for mining purposes was returned to the reservoirs to be used again in due course. When in the course of circulation water is returned to the reservoir it is mixed with a considerable quantity of waste material and in consequence the level of the water tends to rise. Where necessary "bunds" of sand and clay are built to prevent the water from escaping and these bunds are raised when necessary from time to time. On the part of Lot 4661 adjacent to Lot 3582 there was a large pool or reservoir and a previous mining lessee had built a bund between Lot 4661 and Lot 4658 which lies immediately to the south of Lot 3582. That bund did not however extend northwards along the western boundary of Lot 3582.

In an action started by writ on 25th October 1965 the appellants alleged that in April 1965 a large quantity of water escaped from the respondents land on to their land whereby they suffered serious damage. The relevant paragraphs in the statement of claim ran as follows:

"4. The plaintiffs said land lie at the foot of a half completed

bund on the defendants land and the boundary between the

plaintiffs said land and the defendants land.

5. The defendant at all material times maintained upon the land

aforesaid by means of the half completed bund a reservoir of

water of such size that if the said water escaped therefrom it

was likely to injure the plaintiffs land. The maintenance of the

said reservoir constituted a non-natural use of the defendants

land.

6. On or about the end of April 1965 owing to the negligence of the

defendant its servant or agents by not completing the bund, the

half completed bund could no longer contain the reservoir of

water and the aforesaid reservoir burst and the water therefrom

escaped and damaged the plaintiffs land.

PARTICULARS OF NEGLIGENCE

a) Failed to complete the bund to contain the reservoir of water.

b) Failed to inspect and see that the discharge of water would not

be in excess of the capacity of the reservoir.

c) Failed to guard against the breaking of the reservoir having the

knowledge or means of knowledge that such a disaster might take

place; regard being had to the condition of the bund at the

material time.

d) The plaintiffs say that the principles of the doctrine of res

ipsa loquitur apply to this case.

7. Further or alternatively the said reservoir was of such

dimensions and the volume of water impounded therein was of such

a volume that the said water if it escaped therefrom w

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