One Hock Thye FJ:

In the High Court at Kuala Lumpur the respondent was awarded the sum of $12,523 and costs for damage claimed to have been sustained by him as the result of the appellants' negligence in causing pollution of a fish pond by discharging tailings thereinto from their adjacent mine. This is an appeal against such judgment.

The decision of this appeal requires little more than a brief statement of the facts. The respondent alleged that he was in business rearing fish for the market. In 1964 he was the holder of "Temporary Occupation Licence of State Land or Land Alienated for Mining Purposes". This type of licence is not valid beyond 31 December of the year of issue, unless renewed. It was in fact never renewed, but cancelled by the Collector of Land Revenue, as he was empowered to do by law, on 23 October 1964. Official notice requiring the respondent to vacate could not be served till 11 January 1965 but this was through his own fault, as he could not be found earlier. On or about 28 October 1964 the appellants were informed by letter from the collector that the respondent's licence had already been cancelled. The appellants were duly issued a licence for Hydraulic Mining on adjacent lands authorising and directing them to deposit all tailings on an area which included the pond in question, with effect from 1 November 1964. On the faith of the collector's letter the appellants, on or about 4 November, commenced mining operations and it was held by the learned trial Judge that, by so doing, they had been negligent because they "should have foreseen that by emptying muddy water into the pond it would affect the fish therein." At the same time it may here be mentioned that the learned trial Judge was satisfied that the respondent "had knowledge, as far back as September 1964 that mining operations would affect his fish in the said pond," but he had done nothing whatever to avoid consequences which he must have known were inevitable, if the discharge of tailings were liable to hurt his fish as claimed.

As to damages the respondent alleged that between 4 April and 7 October 1964 he had stocked the pond five times with approximately $9,000 worth of fish fry of certain named species ordered from Hongkong through one Goh Boon Khiong, a person who had been engaged in the business for 20 years. By December the respondent said that they had attained sizes and market values varying according to the length of time they had been in the pond. He claimed for total loss thereof and testified that "from December 1964 and for a period of 20 days thereafter the fish were gradually dying off."

On 15 December, he instructed his solicitors to demand $25,000 as compensation for loss to that date of fish in the pond said to be worth a total of $40,000. On 29 December 1964 he issued a writ against the appellants. In an amended statement of claim it was stated that "since the commencement of mining operations by the defendants until the date of filing of the writ fishes in the said pond to the value of about $32,500 perished as a result of such mining operations." At the trial the total amount claimed was $29,815.50 (see Ex P 16) made up of one sum of $20,886, being his own estimate of the market value of his entire stock of fish as at the end of December 1964 (when it was said that they had all perished) added on to the sum of $8,926 representing the landed cost of the fish fry and a quantity of fish food. The learned trial Judge was content to accept these figures as the basis of calculation, without further examination. After making a series of arbitrary deductions of 20, 30 and 20%, for various reasons, he arrived at the sum of $12,523 as his concluded assessment of damages which he awarded the respondent.

The respondent, as plaintiff, of course had to discharge the burden of proving both the fact and the amount of damages before the could recover. Where he succeeded in proving neither fact nor amount of damage he must los