JUDGMENT

Raja Azlan Shah J:

[1] The plaintiff, Wong See Kui, held a temporary occupation license (hereinafter referred to as a TOL) in respect of a pond situate on lot 3442, Mukim of Rawang, Selangor for use as a fish pond. The TOL No 518047 was first granted in 1961 and had been renewed annually. It was valid on the date of the present action and was to expire on 31 December 1967. There was an outlet from the pond into Sungei Rawang.

[2] On 18 March 1967 the senior inspector of mines, Selangor, issued a licence to the defendant company, Hong Hing Tin Mining Co, for mining operations in nearby land, namely lots 3517 and 4791, Mukim of Rawang, Selangor (Licence No 59/67). This licence was effective from 6 February 1967 to 12 December 1967. The licence stated: "That all tailings be deposited on the land described in Schedule 'B', vide attached plan" which was lot 3442. Accordingly, the defendant company constructed a pipe connecting their mine to plaintiff's pond for the discharge of tailings, slime, dregs and water.

[3] From 12 February 1967, the defendant company started to dump into plaintiff's pond. On the next day, 13 February 1967, plaintiff wrote a complaint to the defendant company and warned them to stop the dumping. A copy of this letter was sent to the Collector of Land Revenue Ulu Selangor, Kuala Kubu Bharu. On 17 February 1967 plaintiff's solicitors wrote to the manager of the defendant company requesting that they immediately cease the unlawful dumping. On 24 February 1967, defendant company's solicitors replied that the defendant company would not comply with plaintiff's request since the use of the pond as tailings area had been approved by the mines department. On 7 April 1967 the mines department wrote to the plaintiff's solicitors confirming that a license had been granted to the defendant company to carry out mining and to make use of the pond for dumping.

[4] Plaintiff then brought this action for trespass and nuisance. In the course of the hearing, plaintiff also submitted a claim on negligence. Plaintiff claimed damages and an injunction.

[5] It is plaintiff's case that the dumping by the defendant company caused him damage. He claimed that the tailings, slime, dregs and water which defendant company discharged into his pond (i) killed the fish which he was rearing therein (ii) caused an overflow of water in the pond which resulted in further loss of fish and (iii) damaged the support surrounding his pond.

[6] Plaintiff claims that during the period January 1966 to May 1966, he introduced 12,000 fish into the pond at a cost of $4,100. Plaintiff produced three bills Nos 2377, 3396 and 5199 from the Keow Kee Fish Merchants, Jinjang South, Kuala Lumpur, dated 29 January 1966, 9 March 1966 and 13 May 1966 respectively for the supply of fish to the value of $1,300, $2,000 and $800 respectively. These fish were to be harvested in a year's time. Plaintiff says that he had not at any time harvested the fish as they were not large enough.

[7] An expert on fisheries, Mr AA Jothy, from the Fisheries Research Institute, Penang described the effect of tailings on fish as follows:

"As soon as the tailings are dumped in the pool they tend to make the water turbid. This can bring about discomfort to the fish, eventually resulting in mortality mainly because of two reasons: (1) silt from the dredge tends to clog the respiratory mechanism of the fish and they die from suffocation; (2) there will be depletion in the dissolved oxygen content of the water, also giving rise to suffocation.

As tailings come in at one end of the pool, the natural reaction on the part of the fish would be to move to the opposite end of the pool or towards any outlets through which they would escape. If there are no outlets, the fish will eventually be trapped by the silt, suffer mortality, and within a matter of about three days sink to the bottom. During the period of the three days they can be observed to struggle on the water surface, gaspi