JUDGMENT OF GOPAL SRI RAM, JCA

1. I have had the advantage of reading my learned brother Raus Shariff's judgment and am in agreement with the reasons advanced by him for allowing this appeal. I merely wish to express my own views on two aspects of this case. The first has to do with the appreciation of the evidence by the learned judge and the second with the existence of a duty of care in tort.

2. Taking the first, it is a settled principle of appellate jurisprudence that the failure of a trial judge to sufficiently appreciate the evidence before him is a ground of intervention by a court of appeal even in cases which turn on the credibility of a witness. As Raja Azlan Shah FJ (as His Royal Highness then was) said in Karthiyayani & Anor v. Lee Leong Sin & Anor , [1975] 1 MLJ 119:

"In cases where the oral evidence of a witness may be tested by some objective fact of a highly persuasive nature, it is within the competence of a modern appellate court to over-ride the trial court on questions of pure fact, even though this has been decided on the basis of credibility."

3. In the present instance this principle is brought into sharp focus because of the way in which the High court approac