Gill:

This is an action by the plaintiff as administrator for damages arising out of the death by drowning of one Hoon Thye Peng alias Hon Pai Peng alias Chon Thye Peng in consequence of the escape of water in a flood condition from the defendants' mine. Hoon Thye Peng deceased was at all material times the owner and occupier of a farm and farmhouse at the third mile, Cheras Road, Kuala Lumpur adjacent to the defendants' mining lands.

The defendants carried on dredge mining on their lands on which at all material times they maintained ponds or reservoirs of water which were separated from each other by bunds known as intermediate bunds with one bund all round the general area of the mine known as the perimeter bund. There were spillways over the bunds to allow the flow of water from one area into another and for the final run-off into a river. All these are shown in the plans which have been put in evidence.

The ponds material for the purpose of this case have been described as P1 and P2 and the bund separating them as bund A or bund P1/P2. The material spillways were spillways 13, 17 and 6. Spillway 13 was on bund A and Spillway 17 on the outer bund of P2. Spillway 6 was on a bund which separated P1 from a pond into which the Sungei Puteh Tin Mine pumped their slimes. It was the effluent from this pond which flowed into P1 over spillway 6 there being no direct deposit of the slimes from the Sungei Puteh Tin Mine into P1.

It is common ground that the flood which caused the damage in this case arose by reason of the collapse of bund A or P1/P2 bund. It is not in dispute that at the time of the accident there was a large quantity of water in P1 so as to cause a flood condition when it escaped in consequence of a very large breach in bund A. There is also no dispute that the escape of water was likely to cause damage. In this connection A SP Tsia Keng Nam of Cheras Police Station, who went to the scene of the flood soon after its occurrence, has given evidence to say that when he put the flood rescue operation in motion he saw livestock and human beings being washed away. According to him, most of the wooden houses, which were not strong enough to withstand the impact of the flood, were also washed away.

It is in evidence that before April 1960 the defendants' dredge was to the west of bund A in the area shown as P2 on the plans. It went through that bund into the area of P1 during that month. The breach made by it in the course of its passage through bund A was built up to the usual level of the bund after it had entered the P1 area. About June 1962 the dredge came out of P1 through the same bund and after its passage into P2 the bund was built up again. After that it continued in a south-westerly direction until January to March 1963. It turned to the north in April to June 1963 and crossed the railway line. The dredge paddock after that period is shown in the plan submitted with the renewal of the application for the water licence in August 1963.

The rebuilding of bund A after the dredge-crossing was completed in November 1962. It was essentially a sand bund resting on a mat which was built by depositing lumps of rock, clay, sand and slimes on bed-rock and pumping sand into water on top of such deposits. It was designed for the retention in P1 of slimes and water up to a height of about 12 feet from the base. It was larger than an ordinary bund because it was intended to be the permanent bank of a proposed deviation of Sungei Kerayong and Sungei Puteh.

P1 was at one time used as a slimes or tailings area, but there is some evidence that the pumping of slimes into that area stopped in May 1962. In any event there was no direct deposit of slimes into P1 on the completion of bund A after the dredge had moved into P2. The water level in P1 was raised gradually over a period of several months. Being a big area, it took a long time to fill up. In March 1963 the water was up to the foot of the bund. In April 1963 it wa