Judgment

Syed Othman FJ

(delivering the judgment of the Court)

1. In this appeal the only question to be determined is whether the appellant is liable for the deaths of the six persons while working in a well on the land of the appellant. The four civil suits brought by the respondents have been consolidated. In the statements of claim (which more or less are the same), it was alleged that on 30 May 1971 the appellant employed the deceased persons and other persons to dig a well for the pigs on the appellant’s land near his pig-stys, and while working in the well the deceased persons were overcome by gaseous fumes and vapours from the well resulting in their deaths. The claim was based on the negligence of the appellant in not providing a safe place of work or safe system of work. The particulars given are that the appellant knew the place was unsafe and he failed to warn the deceased persons of the dangerous condition of the well which he knew or ought to have known.

2. In his defence the appellant denied negligence and stated that the work of digging the well was given to Lim Ah Tee, deceased person in the third estate, who it was contended by the exercise of reasonable care should have known of the existence of the fumes or gaseous vapours in the well. It was further pleaded that the presence of fumes or gaseous vapours in the well constituted an act of God and the appellant could not, therefore, have been responsible for the deaths.

3. At the conclusion of the trial the High Court at Seremban found for the respondents.

4. On the evidence before the trial court there can be no dispute that the six persons worked on the land of the appellant.

5. The appeal is mainly on the following findings of facts by the trial court:

   I accepted the evidence adduced on behalf of the plaintiffs that the defendant knew that Gopal who was in the first group of workers had fainted in the well. As such the defendant was negligent in not taking appropriate steps to enquire into the cause of this incident when Gopal fainted in the well and thereafter to take necessary steps to remedy the defect in the well. As for the relationship between the workers and the defendant all the deceased persons and the survivors were employed by the defendant. Even if it was a contract work which was given out to one person the six who died in the well were in the position of invitees to whom the defendant owed a duty to see that there was no dangerous or harmful substance in the well to affect the health of the workers.

6. It is contended that there was no evidence to show that the deceased persons died as a result of gaseous fumes or vapours in the well, and since no medical reports were produced as to the cause of death it must have been presumed that the deceased persons did not die as a result of gaseous fumes or vapours from the well.

7. The respondents in establishing their case relied on the evidence of Gopal (PW2) and Ramasamy (PW3) who had worked at the well. Gopal in evidence said that he was in the first group of workers digging the well; after two days they had dugged 15 feet and while he was trying to install a pipe in the well he was overcome by a dirty smell; and was unable to breathe and fainted. Ramasamy also said that the well exuded a bad smell when Gopal fainted in the well. He further said that the water in the well was very smelly; so they left without completing the work. He also said that after he had taken out Gopal he informed the appellant who took Gopal to the hospital in his car, and that Gopal remained in the hospital for a day. The evidence of Gopal and Ramasamy clearly showed that the appellant knew that the well was not safe to work in.

8. The evidence also showed the second group of workers consisted of eight persons (who took over from Gopal and Ramasamy), out of whom six persons while going down the well to fix a pipe fell into the well and died. According to Gan Keng Tee, (PW4), the six persons died when they fell into the well going half way down the ladder in the well. He also said that he did not notice anything coming out from the well.

9. A defence witness, a mining consultant, (DW1), said that in his experience he had not come upon anyone dying because of fumes in a well. He also said that in the present case there were few pig-stys near the well, the nearest was about 50 ft and the proximity would have caused gas to be formed in the well and there could be other causes. No evidence was given that the mining consultant took any gaseous sample from the well. In any case, in cross-examination he said that faeces of animals in concentration would produce hydrocarbon gas which could kill depending on the volume of concentration.

10. From the evidence of Gopal and Ramasamy we agree with the learned judge that the appellant was negligent in not taking appropriate steps to enquire what had caused Gopal to faint in the well. There was clear evidence that the well gave out dirty smell. Gan Keng Tee (PW4) merely said that he did not notice anything coming out from the well. Apparently he was not asked whether there was any smell, in view of the overwhelming evidence of Gopal and Ramasamy. The defendant must have known about this smell. The smell might have come from inside the well or even drifted into the well from the surrounding pig-stys. It is common knowledge that pig-stys give out strong smell even in open air. When concentrated in a well 5 ft in diameter and 15 ft deep, the smell must be overpowering. Whatever it was that caused the smell, the fact remains that Gopal had fainted in the well. There was clear evidence it was the appellant who took Gopal to the hospital. The appellant must have known about this men in the well as Gopal and Ramasamy left without completing their work. It was his duty to determine what had caused Gopal to faint. When he employed the second group of workers, it was also his duty, in the circumstances of the case, to inform them what had happened to Gopal so that they could take precautions. But he chose not to inform them, not even to Lim Ah Tee, deceased person in the third estate, to whom the work of digging the well was given.

11. In Bamfield v Goole and Sheffield Transport Co, Ltd [1910] 2 KB 94 (citing from Charlesworth on Negligence, 4th Ed para 712)

    when the defendants shipped ferro-silicon on board a keel belonging to the plaintiff’s husband, and the ferro-silicon gave off poisonous-fumes which killed her husband and injured the plaintiff herself, it was held that the defendants were liable to the plaintiff although they were ignorant of the danger arising from ferro-silicon.

12. In the present case, there was overwhelming evidence to show that the appellant knew the presence of gaseous fumes from the well.

13. We therefore agree with the learned trial judge that on the evidence adduced the appellant was wholly liable for the deaths of the six persons.

14. The appeal is dismissed with costs.

Cases

Bamfield v Goole and Sheffield Transport Co Ltd [1910] 2 KB 94

Representations

M.C. Chong (M/s Kam Woon Wah & Co) for the appellant.

K Pasupathy (M/s Murphy & Dunbar) for the respondents.

Notes:-

This decision is also reported at [1981] 2 MLJ 136.