JUDGMENT

Abdul Hamid Mohamad FCJ:

The respondent (plaintiff in the High Court) sued the appellant for damages for negligence on the part of the appellant. The learned judge (as he then was) gave judgment for the respondent. The appellant appealed to this court. We allowed the appeal with costs in this court and in the court below.

Both the appellant and respondent were employed by Chai Kim Kong & Sons Sdn. Bhd ("the company"). The appellant was employed as a manager of the company for fifteen years prior to the accident. He was also a director of the company which was owned by his father.

The respondent was employed by the company for sixteen years before the accident. He was at first employed as a tractor driver but was promoted to be a "kepala" about three months before the accident.

It was raining heavily on the day of the accident and the town of Malim Nawar in which the tin mine in question was situated was flooded partially.

According to the respondent, after dinner, he went to the mine and saw that water in the mine pit was rising. He informed the appellant. The appellant took him in a land rover to the kongsi house. There the appellant and the respondent each took out a tractor "to do the work" in connection with the rising water.

The respondent drove a tractor to the bund. On one side of the bund was the mining pit and on the other side there was an existing mining pool. The respondent started working by increasing the level (ie, height) of the part of the bund where flood water was flowing over the bund into the mining pit. It was dark. There was no light except for the light of the tractor he was driving. The bund was built of sand and it was broad enough for a lorry or a tractor to be driven on it. His tractor's weight was ten tons.

At that time the appellant was doing similar work nearer the "kongsi" house.

The respondent increased the height of the bund by taking sand from the side of the mine and putting it on top of the bund with his tractor. While reversing his tractor to get more sand, the bund collapsed. The tractor fell into the mining pit. He was pinned down by the tractor. He shouted for help and was rescued by the workers. He suffered injuries.

The appellant had claimed and had received compensation under the Employees' Social Security Act 1969. The present claim is against the respondent as a co-employee for negligence for an "omission to do some act or acts".

The learned judge held that an action lies against a co-employee. The learned judge relied on the judgment of the Federal Court in Sambu Pernas Construction v. Pitchakkaran [1982] 1 CLJ 151; [1982] CLJ (Rep) 299. The learned judge noted that the amendment to the Employees' Social Security Act 1969 that bars a claim against a fellow-employee that came into force on 1 July 1992 (videEmployees' Social Security (Amendment) Act, 1992) was not applicable as the accident happened and the action was filed long before that date. That issue was not taken before us. I agree with the learned judge.

On the issue of liability, the learned judge said:

Very generally, inter aliain connection with negligence, the general duty of care is that one must take care not to cause injury or damage to one's neighbour, (neighbour as explained in Donoghue v. Stevenson,[1932] AC 562).

On the other hand, the law does not impose a general duty of care to save the neighbour from such injury or damage for which one is not responsible, save in one exception. Barring the exception, and carried to its logical conclusion, it has been said that a bystander can watch a small child drown in one foot of water without doing anything to save the child, and yet he will not have incurred any civil liability for damages, though he will be, of course, roundly condemned by all right thinking-members of society and will have to be answerable to God in due course. The law has never imposed a duty on anyone to be a "do-gooder" or a good Samaritan.

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To continue, the exception above-mentioned is