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|Legal Subjects > Law of Malaysia > Case & Codes > Judgments|
The Nature Of The Plaintiff's Claim
The plaintiffs have described the 4th defendant and its predecessors-in-title as the local authority who: (a) processed and granted planing permission and building approval for the Highland Towers Project; (b) supervised the construction of the 3 apartment blocks of Highland Towers; (c) maintained the Highland Towers and its surrounding area. And in the course of these duties have caused negligence, nuisance and liability under Rylands v Fletcher.
For particulars of wrong the plaintiffs identified 6 areas.
Firstly, at the planning and design stage of Highland Towers Project, this defendant had not taken reasonable care, skill and diligence in checking the plans submitted to ascertain whether they are reasonably fit for the purpose it was intended for. This included matters relating to watercourses, streams and rivers in the vicinity the Highland Towers Site, Arab Malaysian Land and the surroundings which were under the jurisdiction of the 4th defendant.
Secondly, at the construction stage of the Highland Towers, this defendant failed to exercise reasonable care, skill and diligence to ensure the drainage system and the rubble walls on Arab Malaysian land were adequately provided for and/or constructed in a workman like manner before the issuance of the CF to the 3 apartment blocks.
Thirdly, failure of this defendant to maintain and upgrade drains and rubble walls on Highland Towers Site and the Arab Malaysian Land and to provide adequate drainage requirement to watercourses, streams and rivers after the Highland Towers was constructed.
Fourthly, failure to take any action against damage caused by the Tropic for clearing the Arab Malaysian Land.
Fifthly, for failing to take remedial measures to remove, rectify and/or minimize the hazards posed on the Arab Malaysian Land and the surroundings after the collapse of Block 1.
Sixthly, in the aftermath of the collapse of Block 1 failing to prevent vandalism and theft to Block 2 & 3.
A Back Ground Of 4th Defendant
The 4th defendant is the successor of the following:
Before 1975 the area where Highland Towers is located was under the jurisdiction of District Officer of Kuala Lumpur.
In 1975 when Kuala Lumpur became a Federal Territory the area became a district of Selangor called the Lembaga Bandaran Gombak (LBG).
Then in 1978 when the State Government of Selangor adopted the Local Government Act, Gombak District Council or Majlis Daerah Gombak (MDG) as is more commonly known was created.
In 1992, MDG was replaced by Majlis Perbandaran Ampang Jaya (MPAJ), the name of the present 4th defendant.
Presently the area is under the jurisdiction of Majlis Perbandaran Selayang.
System Of Operation
The system of operation between the local authority and the technical department of the State Government of Selangor I have divulged earlier. There is no necessity to repeat except to say that some time after the setting up of the MDG, this local authority was able to recruit some technical personnel - a qualified architect, an engineer and a few supporting staff. With this, reliance on the Selangor State Government departments was less as time went by except in certain field, such as the drainage and irrigation, where it has no expertise.
Analysis - Negligence
Though Mr. Viswanathan, leading counsel for the 4th defendant, in his submission made feeble attempts to influence me otherwise, I am convinced that, judging from the facts as disclosed in the chronology of events, the 4th defendant is negligent of the wrongs as stated in the particulars, except for item 4. As a local authority, the 4th defendant owes a duty of care to the plaintiffs to use reasonable care, skill and diligence to ensure that the hill slope and the drainage was properly accommodated before approving building or other related plans, and during construction stage, to comply with and to ensure the implementation of drainage system. Then when CFs were applied for, there should be proper and thorough inspection on whether the buildings so built were safe in all aspect and not just confine only to the structure. And after the Highland Towers was erected, to ascertain drainage requirement in the area was adequate to ensure slope stability behind Block 1. Then subsequent to the collapse of Block 1, measures should have been taken to prevent recurrence of the tragedy to Block 2 & 3.
Besides the above, which are associated with buildings, the plaintiffs have accused this defendant for being negligent in not maintaining the East Stream which is under the jurisdiction of this defendant. To convince me of this, section 49 of the National Land Code (NLC), section 3 of the Water Act 1920 and section 53 and 54 of the Street, D & B Act are cited together with the case of Azizah Zainal Abidin & Ors. V Dato Bandar Kuala Lumpur (1995) 5CLJ 565. He explains that "River" under the definition section (section 5) of the NLC includes streams and watercourses and any deviation thereof. The ownership of these belongs to the Ruler of the State in which the streams or watercourses are located - see section 49 NLC and section 3 of the Water Act. In our present case the East Stream is definitely in the State of Selangor and therefore His Royal Highness, The Sultan of Selangor, is the purported owner. But under section 53 & 54 of the Street, D & B Act, the 4th defendant, being the local authority of the area, has the duty to maintain "watercourses" within its jurisdiction. And "watercourses" under section 53 and 54 of the Street, D & B Act as defined in the case of Azizah Zainal Abidin & Ors v Dato Bandar Kuala Lumpur (supra) include streams and rivers. Thus possessed of this duty, Mr. Navaratnam alleges that the 4th defendant has breached this duty when it failed and/or neglected and is still failing and/or neglecting to maintain this stream, which was a major factor that caused the collapse of Block 1 and is an important element in ensuring the instability of the slope behind Block 2 & 3 at the present moment.
I am much convinced by this proposition above and based on the facts as disclosed I find this defendant owes a duty of care for the maintenance of the East Stream and this duty has been breached resulting in damages to the plaintiffs.
Section 95 (2) Of Street, Drainage & Building Act (Street, D & B Act)
Though negligent for the acts stated, the main thrust of the 4th defendant's defence is the claim of immunity offered by section 95 (2) of the Street, D & B Act which provides:
"The State Authority, local authority and any public officer or officer or employee of the local authority shall not be subject to any action, claim, liabilities or demand whatsoever arising out of any building or other works carried out in accordance with the provision of this Act and any by-laws made thereunder or by reason of the fact that such building works or plans thereof are subject to inspection and approval by the State Authority, local authority, or such public officer or officer or employee of the State Authority or the local authority and nothing in this Act or any by-laws made thereunder shall make it obligatory for the State Authority of the local authority to inspect any building, building works or materials or the site of any proposed building to ascertain that that the provisions of this Act or any by-laws made thereunder are complied with of that plans ,certificates and notices submitted to him are accurate."
In evoking this provision for the benefit of the 4th defendant, Mr. Viswanathan did not fail to remind me of a passage in my judgment in Dr. Abdul Hamid Rashid v Jurusan Malaysian Consultant & Ors (supra) supporting the concept of economical loss is recoverable where I reiterated that:
"If there is any fear that this approach may encumber the local authorities to pay out substantial claims due to their negligence in granting approvals or inspecting building works, there is section 95 of the Street, Drainage and Building Act, 1974 (Act 133) which prohibits such authorities to be sued."
Faced with this limitation, the plaintiffs counsel advanced the following arguments to overcome this obstacle.
The first is based on the Federal Court decision of MPPP v Syarikat Berkerjama-sama Serbaguna Sungai Gelugor (1999) 3 MLJ 45 which says that:
"unless there are special circumstances governing a particular case, notwithstanding a privative clause, of not ' to be challenged, etc kind, judicial review will lie to impeach all errors of law made by an administrative body or tribunal and, we may add, inferior courts."
But where are the special circumstances in this case to qualify this Court's intervention? The negligent acts of the 4th defendant were not done ultra vires nor were they involved in creating an error in the law. This is a case of negligence and the legislature had promulgated that the 4th defendant, being the local authority, should be excused.
The second is based on the argument that since section 95 (2) of the Street, D & B Act does not harmonize with section 7(3) of the Government Proceedings Act, and section 124 of the Local Government Act to be read in line with section 2 of the Public Authorities Protection Act, this provisions should not prevail over the latter two Acts of Parliament.
To comprehend this, it is necessary to set out the various provisions of the Acts referred. Firstly, section 7(3) of the Government Proceedings Act states:
" Nothing in this section shall prevent the bringing of any suit for damages or compensation arising out of negligence or trespass in the execution of any works of construction or maintenance undertaken by the Government in the exercise of the said public duties (emphasis added)."
Then section 124 of the Local Government Act says:
"The Public Authorities Protection Ordinance 1948, shall apply to any action, suit, prosecution or proceeding against any local authority or against any Councilor, officer, employee, servant or agent of any local authority in respect of any act, neglect or default done or committed (emphasis added)."
But in section 2(a) of the Public Authorities Protection Ordinance (which has become the Public Authorities Protection Act 198) it says:
" Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced in the Federation against any person for any act in pursuance or execution or intended execution of any written law, duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect - the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of continuance of injury of damage, within thirty-six months next after the ceasing thereof (emphasis added)."
Focusing on the emphasized words in the various sections of the Acts above, the plaintiffs' counsel argues that since the cause of action for negligence is preserved even against the local authority and its officer in the various enactment mentioned, then section 95(2) of the Street, D & B Act, which does not harmonize with these provisions, should not be apply.
I do not agree with this advancement made by the plaintiffs. On the contrary, as I see it, there is complete accord among all the enactment highlighted. Indeed under the relevant sections of the Government Proceedings Act, and the Local Government Act read with the Public Authorities Protection Act, an action or suit for negligence is maintained against government bodies, which includes local authorities, but it does not mean that Parliament cannot create an exemption from liability for certain acts committed by these bodies and its officers. It is my view that section 95(2) of the Street, D & B Act is just such a piece of legislation to exempt the local authority and its officer from negligent act related and connected with certain specified activities. In our case, since the acts of the 4th defendant found to be negligent by this Court are within those specified activities the immunity under section 95(2) of the Street, D & B Act applies to the 4th defendant.
The third is also associated with interpretation. Mr. Navaratnam feels that by applying the established canon of interpretation of statute section 95(2) of the Street, D & B Act is not applicable. He cited two cases in support. The first is the Metropolitan Asylum District v Hill (1881) 6 App Cas 193. The second is a more recent case of Allen v Gulf Oil Ltd. (1981) A.C. 1001.
I cannot agree with this contention that section 95(2) of the Street, D & B Act falls foul with the long established authority on statutory interpretation. In fact both cases cited supports the view that if there is specific provisions for exemption then such provision applies. In the case of Allen v Gulf Oil Ltd (supra) an oil refinery was set up by an English Act of Parliament. The residents in the vicinity of the refinery claim damages for nuisance caused by noxious fume and excessive noise emitted from the refinery. The defendant attempted to seek protection from exemption from liability under an enactment meant for statutory authorities since there is no such provision found in the Act that created the defendant. The House of Lords in deciding against the defendant was of the view that since no express exemption clause from paying compensation was written in the Act that created the refinery then the defence must failed. This is again the view of the same Court in the case of Metropolitan Asylum District v William Lund (1881) A.C.195, where the Law Lords rejected a claim by the defendant for protection from tortuous liability under a statute because no express words or by implication show that such protection exist in the statute claimed. But when there is such express provision provided, as in our present circumstances, then such protection applies.
The fourth argument tendered by the plaintiffs is that the 4th defendant when exercising its duty in approving building and development plans discovered a danger or created one, then section 95(2) of the Street, D & B Act offers it no protection since this act and/or omission (of discovering a danger or created one) is no longer within the parameters of the section 95(2). To support this two cases are cited - Capital & countries v Hampshire CC (1997) 3 WLR 331 and Pyrenees Shire Council v Day (1998) 72 ALJR 152.
I need not discuss these two cases in detail since I believed that they are not applicable in view of the wordings in our section 95(2) of the Street, D & B Act. This section 95(2) covers situation "whatsoever arising out of building or other works carried" by the 4th defendant in accordance with the provision of the said Act " or by reason of the fact that such building works or the plans thereof are subject to inspection and approval". By the usage of the phase "whatsoever arising" to relate with the specific acts described then it must include consequences of such specified acts. Danger discovered or created in the course of the 4th defendant's specified acts are certainly consequences or a result of such specified acts - thus falling within the provision of section 95(2) of the Street, D & Act.
The sixth argument submitted by the plaintiffs is that this section 95(2) of the Street, D & B Act only offers immunity to acts stated in the provision. It offers no protection for any act and/or omission by the local authority not mentioned or specified in this section. To support this proposition the authority of Sivasubramanian v Chong Cheong Wah & Anor, (1973) 1 MLJ 157 is cited. In this case the defendant, a police officer, seized a book from the plaintiff was charged by the plaintiff for the return of the book as well as damages for its detention of the book. The defendant pleaded section 18 of the Control of Imported Publication Act which provides that no legal proceedings whatsoever shall lie, instituted or maintained in any court for account of any publication seized, detained, confiscated or destroyed. Syed Othman J (as he then was) considered that this provision only allows the defendant to claim immunity if the seizure of the book was carried out under the provision of the Control of Publication Act and does not apply when the subject matter was seized under Internal Security Act.
I am in full agreement with the view expressed by the learned Judge as stated above but the acts of negligence I found committed by the 4th defendant, except those committed post-collapse of Block 1, are within the terms described in the Street, D & B Act because with the conjunctive words under Section 95 (2) to include "other works carried out in accordance with the provision of this Act", all drainage and stream relating to the Highland Towers Project would be within the ambit of the immunity provided for in section 95(2) of the Street, D & B Act. Thus, for these no claims can be brought against this defendant.
The seventh argument put forth by Mr. Navaratnam concerns the acts committed by this defendant post collapse of Block 1. He submits that for these, which is not associated with building section 95(2) of the Street, D & B Act does not apply. He has in mind the 4th defendant's failure to attend to the drainage problem after the tragedy. This he claims is no longer connected or arising out of any building or other works carried out in accordance with the Street, D & B Act. To reinforce this proposition, Mr. Navaratnam cited a passage by Lee Hun Hoe CJ Borneo in the Supreme Court case of Government of Malaysia & Anor. V Akasah bin Ahad (1986) 1 MLJ 396 where he says:
"It is the contention of the defendants that they are not liable for nuisance under section 7 of the Government Proceedings Ordinance, 1956. We are not concern with public nuisance which is covered by section 8. Clearly, section 7 permits a person to sue the Government for negligence or trespass. However, the liability of the Government in tort is set out in section 5 which reads:
' 5. Subject to the provisions of this Ordinance, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government.'
This section is wide enough to cover private nuisance. It makes the Government liable in tort in respect of any breach attaching at common law to the ownership, occupation or control of property as though it were a private person. The effect of this section is to render the Government liable to nuisance in respect of property it occupies or owns. This refers only to duties existing at common law. From liabilities imposed upon owners or occupiers by the statute the Government remains immune unless the statute imposing the liabilities itself applies to the Government."
Though I have agreed that the maintenance of the East Stream is and was under the jurisdiction of the 4th defendant, but I must maintain that until the time of the issuance of the CFs for Highland Towers all acts and/or omissions of the 4th defendant in relation to this stream must be considered as matter arising out of the building or any works carried out in accordance with the provision of the Street, D & B Act. Thus section 95(2) of the Act applies to acts and/or omissions committed by the 4th defendant pre-collapse. But for those committed post- collapse, I agree with plaintiffs' counsel that since there is no longer building or other works carried out in accordance with the Street, D & B Act to associate the East Stream with, then immunity from liability under section 95(2) of the Street, D & B Act is not available to the 4th defendant if it is found liable for any negligent act relating to the East Stream. If one were to argue that "other works carried out in accordance with the provision of this Act" in the said section 95(2) would cover situation such as this, then it is my opinion that such a provision must be interpreted in accordance with the ejusdem generis rule to defeat this approach. With the specific word "building" mentioned in the said section 95(2) before the phase: "other works carried out in accordance with the provision of the Act", the latter becomes a general description of the former and must be confined to objects of the same class or kind as the former. It cannot stand by itself to cover every act committed by the 4th defendant in accordance with the provision of the Street, D & B Act. If Parliament had intended this, the august House would not have singled out the works "building" as well as subsequently repeating it in the same provision with: "building works or plans". They would have simply just expressed it by saying, "all acts carried out under the said Act shall be entitled to immunity".
To consider whether the 4th defendant is liable for the acts and/or omissions committed post-collapse, it is necessary to disclose some events that transpired after the collapse of Block 1. After the Highland Towers calamity there were efforts by the 4th defendant to stabilize the hill slope on Arab Malaysian Land to ensure that no accident of the kind that caused the collapse of Block 1 would occurred to Block 2 & 3. In January 1995, there was a briefing called by the 4th defendant which was attended by the 5th defendant and some others. They were told by the 4th defendant that a master drainage plan for the entire area to accommodate all landowners in the vicinity of Highland Towers would be prepared. It was announced that the consultant engaged by the 4th defendant, M/s EEC would be ready with the master drainage plan within 3 months from the date of the briefing. It was obvious that any master drainage plan for the area must cater for the East Stream. It was substantially due to this East Steam not properly attended to that Block 1 collapsed. In fact this concern of the East Stream, from the chronology of events as set out, was being highlighted by JPS from the very beginning of the development of the Highland Towers Project. Thus the task to incorporate the East Stream into the comprehensive master drainage plan falls upon the 4th defendant who is the body in charge of this watercourse.
But after a period of 1 year there was no sight or news of this plan. After numerous reminders by the 5th defendant of such a plan, the 4th defendant on the 29.3.1996 held another briefing. This time, the 4th defendant informed the attendees that a new firm of consultant, by the name of K.N. Associates, was engaged to replace the previous. Again the 4th defendant gave an assurance that a comprehensive drainage plan of the area would be forth coming with this replacement of consultant. Sad to say, until the time when all evidence for this case was recorded by this Court, no comprehensive master drainage plan for the Highland Towers and its surrounding area was adduced by the 4th defendant. In fact this defendant offered no explanation as to why its promise was not met. These delays had affected the 5th defendant who insists that without a master drainage plan of the area approved by the 4th defendant, and the retaining walls on their land as well as those on Highland Towers site are corrected or rectified, then very little can be done by anyone to secure the stability of the slope behind Block 2 & 3.
Despite this pressing need and the obvious knowledge of the urgent requirement for a master drainage plan (for otherwise the 4th defendant would not have initiated steps to appoint consultants for this work soon after the collapse of Block 1) to secure the stability of the slope so as to ensure the safety of the 2 apartment blocks, the 4th defendant did nothing after the respective consultants were unable to meet their commitments. The plaintiffs and all other relevant parties are kept waiting because of the 4th defendant. This is certainly inexcusable and definitely a breach of the duty of care owed by the 4th defendant to the plaintiffs for not even fulfilling its initial step towards the maintenance of the East Stream. For this I find the 4th defendant liable to the plaintiffs for negligence.
Lastly, the plaintiffs have also alleged that the 4th defendant failed to take any action against the Tropics in clearing the 5th defendant's land. I shall be elaborating in detail the action of Tropics when I analyze the position of the 5th defendant and Tropic. For the present moment, suffice me to say that I do not consider the 4th defendant liable to the plaintiffs in respect of the action committed by Tropic.
As for the claim of the plaintiffs on the 4th defendant for failing to prevent vandalism and theft to Block 2 & 3, I allow it and my reasons shall be intimated in the later part of this judgment.
Analysis - Nuisance
By the acts and/or omissions of the 4th defendant elaborated above I also find that the 4th defendant is an unreasonable user of its land in failing to maintain the East Stream post collapse which is under its care. Its acts and or omissions are foreseeable to cause a damage to the plaintiffs - its neighbor. For this, I find the 4th defendant is also liable to the plaintiffs for nuisance.
Statute of Limitation
Before I leave the arena on the liability of the 4th defendant there is still one other matter to discuss. This involves the assertion of the 4th defendant that the plaintiffs' claim is statute barred under section 2 of the Public Authorities Protection Act requires the suit against the 4th defendant to be commenced "within thirty-six months "next after the act, neglect or default complained of or, in the case of continuance of the injury or damage, within thirty-six months next after the ceasing thereof".
I find no merits in this contention. The plaintiffs brought their action well within the time limit stipulated in the provision cited and which should be considered to commence from the date of the collapse of Block 1. Further, since the injury or damage to the plaintiffs are still continuing and has not ceased then limitation of time to commence action against the 4th defendant has not even started to run.