Ong CJ (Malaya):

The respondents are the owners of certain lands situate off Jalan Ampang, Kuala Lumpur, which they have developed as a housing estate. The appellants were miners holding a lease over some 25 acres of land lying south of the respondents' property. They were issued their first hydraulic licence to work this land in November 1964.

On 29 December 1966 "a minor landslide" was reported to the Mines Department by the appellants as having occurred "due to the recent heavy rain". They further stated that they were in the course of doing work to restore the land affected to its natural state. On 24 January 1967 Enche Redzuan, the then Deputy Senior Inspector of Mines, visited the mine and observed such work being done filling in the slip. On 22 February 1967 he wrote to the respondents' solicitors stating that "the damage was caused by a slip of ground on a mine face which had been left unworked for some time. The slip was brought about by wet weather ...." It was alleged by the respondents that a further slip occurred in February 1967 and others subsequently, of which no precise dates or particulars were to be found on the record.

On 21 May 1968 the respondents issued writ in an action for damages claiming from the appellants the sum of $501,991.29, made up as follows:-

Expenses paid for repair to drains damaged ... $22,307.85

Expenses estimated to be paid for current

repairs to drains damaged ... ... ... ... 5,000

Earthworks ... ... ... 800

Repairs to road blocks damaged ... ... .... 400

Loss in value of land estimated at

loss of $2 per sq ft Total land affected

is 186,741.72 sq ft ... ... ... 373,483.44

Estimate filling earth on road reserve ... ... ... 100,000

Total ... ... ... $501,991.29

In their statement of claim the cause of action was set out in paras. 4 and 6 as follows:

4. The defendant firm its partners, servants or agents in or about and from September, 1966 to the date hereof have worked and gotten mines and minerals within and under the said adjacent lands and have thereby withdrawn support from the said lands of the plaintiff company which said lands have in consequence been damaged.

6. The plaintiff company says that the right to work the said adjacent mines and minerals is conferred by the mining title or titles under the Mining Enactment (Cap. l47) and is subject to the conditions that the defendant firm partners, servants or agents or other the persons working the said Guan Soon Tin Mine and minerals should pay compensation for all such damages as might be caused by reason of such working to the owners and occupiers of the surface thereover or adjacent thereto. The defendant firm its partners servants or agents have committed the damage and injury aforesaid in the exercise of that right to work or otherwise but refuse to make compensation to the plaintiff company in respect thereof.

By their defence the appellants denied that their mining operations interfered at any time with the respondents' right of support, if any; they contended that the statement of claim disclosed no cause of action and stated that their mining operations were carried out in a reasonable and proper manner and with due care and skill. By a subsequent amended defence the appellants added a further denial that the respondents were entitled to the right of support alleged in their statement of claim and pleaded that the alleged damage was caused or substantially contributed to by the negligence of the respondents or their own servants and agents of which particulars were given.

No reply was filed to the defence or amended defence. Therefore, when the trial of the action opened in the High Court, the issues before the Court were as follows. The case for the respondents, as plaintiffs, was that, for their own land in its natural state, there was a right to support by adjacent land - according to common law principles which have been given statutory recognition by s. 44(1)(b) of the National Land Code and v