Abdul Hamid Mohamad FCJ:

The respondent (plaintiff in the High Court) sued the appellant for damages for negligence on the part of the appellant. The learned judge (as he then was) gave judgment for the respondent. The appellant appealed to this court. We allowed the appeal with costs in this court and in the court below.

Both the appellant and respondent were employed by Chai Kim Kong & Sons Sdn. Bhd ("the company"). The appellant was employed as a manager of the company for fifteen years prior to the accident. He was also a director of the company which was owned by his father.

The respondent was employed by the company for sixteen years before the accident. He was at first employed as a tractor driver but was promoted to be a "kepala" about three months before the accident.

It was raining heavily on the day of the accident and the town of Malim Nawar in which the tin mine in question was situated was flooded partially.

According to the respondent, after dinner, he went to the mine and saw that water in the mine pit was rising. He informed the appellant. The appellant took him in a land rover to the kongsi house. There the appellant and the respondent each took out a tra