(Oral)

Gopal Sri Ram JCA delivering judgment of the court:

This is the judgment of the court.

This appeal arises from an order assessing damages in tort under what has come to be known as the rule in Rylands v. Fletcher[1968] LR 3HL 330. For convenience we will refer to the parties according to the title assigned to them in the court below. This is the defendant's appeal.

The plaintiff and defendant are neighbours. The defendant's land is on an elevated plane. The plaintiff's adjoining land is on a much lower level. The defendant conducted some activities on its land. Earthworks were involved. There was a mudslide. Earth from the defendant's land was deposited onto the plaintiff's land. From the evidence it appears quite clearly that the soil deposits were considerable. The plaintiff launched an action in which it sought, inter alia, a mandatory injunction and damages. The trial judge found for the plaintiff. She held the defendant liable under the rule in Rylands v. Fletcher. But she denied the injunction. She then directed assessment of damages be conducted by the registrar. In the proceedings before the registrar some evidence was called. The evidence recorded by the learned trial judge was also read into the proceedings before the registrar. This is entirely in accordance with our procedural requirements.

Order 38 r. 12 of the Rules of the High Courtpermits such a course to be taken. That rule of court reads as follows:

Any evidence taken at the trial of any cause or matter may be used in any subsequent proceedings in that cause or matter.

At the conclusion of the trial, the learned registrar entered judgment for a sum of RM7,462,377.93. She did not merely issue a certificate. She gave reasons. The defendant was unhappy. It appealed to the learned judge in chambers in the usual way. The learned judge dismissed the appeal. He agreed with the registrar. He found no error in the methodology she had applied. The defendant now comes before us and complains that the registrar was wrong.

Dato' Dr Cyrus Das with his usual clarity of argument put his client's case in a very narrow compass. His argument is that the learned registrar had erred in applying the reinstatement principle without first considering whether the diminution in value principle ought to be applied. It is counsel's submission that as a general rule, in an assessment of damages in a case of this sort by a master or registrar, resort should be first had to the diminution in value principle. It is only upon a finding that that principle is not applicable, is the assessing registrar entitled to have resort to the reinstatement method. Counsel cited a number of authorities and he must forgive us if we do not refer to any of them here because we find that the principles are well established and do not warrant any further discussion.

In responding to the appeal, Mr Anantham who appears for the plaintiff argued that there is no fixed approach of the kind suggested by Dato' Dr Cyrus Das. According to Mr Anantham it all depends on the facts and circumstances of each case.

Before we make our comment on the merits of the submissions advanced before us we consider it necessary to remind ourselves of the nature of the appeal with which we are concerned. This is not a run of the mill appeal from a registrar to a judge and then to this court, for example on a summons for judgment or other interlocutory proceedings. In those types of cases, prior to the amendment to O. 56 of the Rules of the High Court, the approach of our courts has always been not to treat the proceedings before the judge as a mere continuation of the proceedings before the registrar. The position is summed up in the following judgment of that very eminent and learned judge Edgar Joseph Jr, SCJ in Seloga Jaya Sdn Bhd v. Pembenaan Keng Ting (Sabah) Sdn Bhd[1994] 2 CLJ 716at p. 724:

With Lord Atkin's observations in mind, the first point we should like to make is that since the registrar gave no judgment