Gill J:

This was an action by the plaintiff for damages arising out of an injury to his right eye which was caused by his being struck by a splinter of stone as a result of an explosion at the Pegoh Estate quarry, Pegoh in the district of Alor Gajah in the State of Malacca at about 3.45 p.m. on 19 September 1957.

The first defendant was at all material times the contractor of the quarry and the second defendant was his servant employed as a kepala at the quarry. He had a licence to possess explosives for the purpose of carrying out blasting operations at the quarry, the condition of his license being that such explosives were to be stored at Padang Sebang Police Station (now called Pulau Sebang Police Station) which was about 1 1/2; miles from the quarry. Because of the Emergency the defendant was required to take the explosives from the police station to the quarry under police escort, the purpose of the escort being to ensure that the explosives did not pass into wrong hands.

The first defendant took explosives from the police station from time to time under police escort. The officer-in-charge of the police station was normally in charge of the escort and he took two or three policemen with him. At about 2.00 p.m. on the date of the accident as a result of which the plaintiff was injured, corporal Abdul Manan bin Mahmud (PW 2) accompanied the first defendant to the quarry as the officer in charge of a police escort party. The other members of his party were the plaintiff, who was then attached to Pulau Sebang Police Station as a police constable, and police constable Abdul Majid.

The explosives consisting of dynamites, detonators and fuses were taken out of the magazine in the compound of the police station and loaded into the first defendant's car. The defendant drove the car from the police station to the quarry and the police escort party travelled with him in his car.

The evidence of the plaintiff was that when they reached the quarry the explosives were unloaded from the car and handed over to a kepala named Chua. He and his party took their positions about 20 feet from the place where the explosives were to be set. He saw the labourers fixing the dynamites to the wires with the first defendant standing nearby. This took about one hour. When the explosives were ready to be blasted corporal Abdul Manan directed them to take cover. There was an estate road passing by the side of the quarry for people to go into and come out of Pegoh Estate. He positioned himself behind a big rubber tree about four feet from the estate road and his instructions were to prevent people from passing along the road. After taking cover he was to wait for the sound of a whistle from corporal Abdul Manan whereupon he was to stop people from using the road.

After this the kepala was to blow his whistle three times which was the signal for the start of the blasting operations.

The plaintiff went on to say that after he had taken position behind a rubber tree he heard the first whistle from corporal Abdul Manan followed by three whistles from the kepala after which he heard approximately ten explosions. About five seconds after the last explosion the kepala blew a long blast whistle which was the signal for all clear and for them to come out of cover. After the all clear whistle he was to wait for a whistle from corporal Abdul Manan before allowing anyone to use the road. He heard the whistle from corporal Abdul Manan as soon as the whistle from the kepala stopped. On hearing the corporal's whistle he came out from behind the tree. After he had taken about three steps from the tree he heard another explosion, and he was hit by a splinter in his right eye. His eye started bleeding and he was taken to Tampin hospital from where he was sent to Seremban hospital where he remained for 17 days. As a result of the injury he has lost the sight in his right eye.

Corporal Abdul Manan gave evidence and related what happened on the afternoon of