Gopal Sri Ram & Mahadev Shankar JJCA:

[1] This is an appeal against the dismissal of a claim for damages for personal injury. The appellant is referred hereafter as the plaintiff.

[2] On 17 November 1976 the plaintiff was a detainee at the Pulau Jerejak Detention Camp. The first defendant (hereafter referred to as Samy) was a Prison Warden holding the rank of Corporal. It is common ground that whilst under the supervision of Samy, the plaintiff climbed a coconut tree from which he fell, sustaining severe injury to his spinal cord with resulting paralysis of both legs and loss of bladder and bowel control.

[3] The plaintiff testified that he had no experience in climbing coconut trees. He said that on the day in question he and his brother and another two detainees, one of whom named Rajendran were called out by Samy to do some work in the immediate vicinity of a Hindu "Temple". On reaching the "Temple", the plaintiff said that Samy ordered him to climb the tree and pluck the coconuts. The plaintiff said that the discipline in the camp was such that disobedience attracted severe punishment. So he climbed the tree as instructed but he lost his hold in the course of plucking the coconuts and fell to the ground. The plaintiff's brother also gave evidence confirming that such an order was given. The plaintiff also called Rajendran who could not confirm whether he personally heard the order by Samy to the plaintiff, but otherwise corroborated the rest of the plaintiff's evidence.

[4] For the defence a number of senior officers were called to testify that it was common knowledge that detainees were not permitted to climb trees in the Detention Camp. Samy himself said that on the days in question he only called out two persons, namely the plaintiff and his brother. On arrival at the "Temple" he said, the plaintiff had asked him permission to climb the tree in order to pluck coconuts for his brother but he refused this request. He then ordered both of them to clean the "Temple" compound. He himself washed the "Temple" idol. He then said that he only noticed the plaintiff when the plaintiff was on top of the tree and the coconuts started to fall whereupon he ordered the plaintiff to come down carefully. Immediately after this the plaintiff fell down.

[5] This so called "Temple" was only a shrine with a short plank wall of about three to four feet in height around it. Samy's evidence was that he was only about 13 feet from the tree and the height of the tree between 12 - 18 feet. It is the duty of a Prison Warden to maintain close surveillance of the detainees in his custody. It is impossible to expect that from a distant of 13 feet Samy would not have been aware of the movements of the plaintiff. Furthermore if the alleged request had been made and refused, the plaintiff's ascent must have been executed in total defiance of an immediate order. The official record showed that the plaintiff up to that point had never had a single act of disobedience recorded against him.

[6] Compelled to choose between these two conflicting versions, the learned trial Judge preferred Samy's version and found that the plaintiff, in defiance of orders, had voluntarily climbed the tree of his own accord and was therefore not entitled to recover.

[8] First, the trial Judge appears to have completely overlooked the inherent probabilities of the case. Evidence was led to prove that the plaintiff was a person who had a history of following orders given him by those who held him in their custody, including the first respondent. Indeed the plaintiff testified, wit