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|Legal Subjects > Law of Malaysia > Case & Codes > Judgments|
The Plaintiffs' Claim
The plaintiffs' claim against the 5th defendant is based on the causes of action of negligence, nuisance and liability under the rule of Rylands V Feltcher. It is in respect of two periods: pre-collapse and post-collapse of Block 1. The areas of complaint during the time of pre-collapse are:
(a) negligence and nuisance for failing to periodically investigate and to ensure the drains and rubble walls on Arab Malaysian Land were repaired, maintained and/or upgraded;
(b) negligence and nuisance for activities committed by Tropic;
(c) liability under Rylands v Fletcher for the maintenance of dams and reservoirs on Arab Malaysian Land.
(a) negligence and nuisance for failing to take measures to restore the stability of the Arab Malaysian Land;
(b) negligence and nuisance resulting in the looting and vandalism of the plaintiffs' property in the 2 apartment blocks.
Events & Background
Before analyzing the liability of this defendant, a brief history of the Arab Malaysian Land is essential.
The 5th defendant came to be owners of the 50 lots of Arab Malaysian Land (lot 3620 to 3673, but excluding lot 3628, 3653, 3665 & 3670) in 1991 after some loan facilities associated with the 1st defendant were not repaid. To set off these loans, the 5th defendant purchased these 50 lots with the objective of selling them as soon as possible in the open market to recover the amount spent. Bank Negara (the Central Bank) approved this deal (since the 5th defendant is a financial institution) with a condition that the 5th defendant was only to hold this property for only a period of a year from date of purchase.
Except for information contained in a valuation report prepared in 1985 for the purpose of the said loan facilities associated with the 1st defendant, the 5th defendant, its servants and/or agents seldom visit the land. Even when visits were made only a cursory glance was offered.
According to the evidence of Mr. Lim (DW1) he attended to the drainage of the Arab Malaysian Land before it was sold to the 5th defendant. His duties included the clearing of drains and vegetation and repairs. But since the 5th defendant became the owner he was instructed by the 1st defendant to cease such duty. From then on no one from the 5th defendant came to assume his duty.
In the latter part of 1992, the 5th defendant secured a buyer for the Arab Malaysian Land. This was Tropic who paid an initial deposit equivalent to 10% of the purchase price. They then entered into the land and commenced clearing. This caused severe floods to the car parks in the Highland Towers accompanied by mud and rock from the slope. According to PW6, one Dr. Kok Mei Leng, she noticed a landslide on the slope following the acts of Tropic. As a result of this, Miss Seow, DW8, a senior officer of the 5th defendant who is and was in charge of the Arab Malaysian Land received a telephone complaint from one Mr. Jerry Lim of the 1st defendant about the effects caused by Tropic. She acted immediately on this by requesting a colleague, Puan Lutifah - DW9 to investigate. DW9 did go to the site but only observed it from a corner of Highland Towers. She did not enter the Arab Malaysian Land. Obviously satisfied that the complaint was genuine, she returned to her office and wrote a letter to Tropic demanding Tropic to discontinue with whatever it was doing. On 5.5.1992 Tropic replied to say that they will cease their activity on the land.
Except for a few bags of sand placed across the road at a section of the Highland Towers Site, which was completely inadequate and ineffective since a heavy down pour would washed them away, nothing was done to prevent the damage caused by the acts of Tropic. However as vegetation reestablished itself after the Tropic stopped their work, no further complaints of flooding was reported.
But as candidly admitted by Miss Seow, since the 5th defendant bought the land no steps were taken to maintain the land. The reason was: "we (had) intended to sell it". But the 5th defendant remained owner of this said land till today. Its attempt to sell it was not successful, not even to Tropic, who failed to pay the balance of the purchase price.
Events that followed after the collapse of Block 1 concerning the 5th defendant are already disclosed rendering it unnecessary to repeat. To date, not much work has been carried out on the Arab Malaysian Land except some minor temporary measures recommended by the 5th defendant's experts. This approach is adopted by the 5th defendant on the belief that unless a comprehensive drainage plan of the whole area is implemented by the 4th defendant and the retaining walls on the Highland Towers Site are rectified, any remedial work on its land is ineffective and futile.
Mr. Abraham in his submission argues that the plaintiffs must prove that the acts and/or omissions of the 5th defendant was or were the effect cause, or the causa causans of the collapse of Block 1 leading to the forced evacuation of the plaintiffs from Block 2 & 3. For this, by referring to my findings on the cause of collapse of Block 1 the task of analyzing this issue is made simple.
The cause of collapse of Block 1 was due to a landslide caused primarily by water. Where this water emanated from I have discussed in detail in the earlier part of this judgment. Compendiously, it was from the damage pipe culvert and the inadequate and unattended drains, all of which were on the 5th defendant's land. With the collapse of Block 1, the plaintiffs were forced to evacuate Block 2 & 3. They did not return fearing that the Highland Tower tragedy repeats itself, as the slope on the Arab Malaysian Land has not been rectified. With these I find that the causa causans of the collapse of Block 1 leading to the forced evacuation of the plaintiffs from Block 2 & 3, sufficiently proved against the 5th defendant.
Analysis - Negligence
I shall now commence to deal with the first cause of action - negligence. Foremost, the 5th defendant has denied that it owes a duty of care to the plaintiffs. Basically, to impose a duty of care on the defendant, 3 criteria must be fulfilled: that of the foreseebility by the defendant of its act would cause injury to the plaintiff; proximity of relationship between the parties; and the reasonableness or otherwise of imposing such a relationship.
Commencing with the first criterion, Mr. Abraham, leading counsel for the 5th defendant, stresses that the 5th defendant could not have foreseen the seriousness of the injury or damage caused by the acts and/or omissions of the 5th defendant. The collapse of Block 1 was not a reasonable probability but more of a "fantastic possibility".
I find this contention completely devoid of merits. From the factual circumstances as disclosed, I find that the 5th defendant could reasonably foresee that by its acts and/or omissions in failing to take care of its land, it would cause a land slide that would destroy Block 1 and forced the abandonment of Block 2 & 3. When the 5th defendant became associated with the Arab Malaysian Land it was in the capacity of as chargee. Before the land was charged, a valuation report - D85 was submitted by the chargor to the 5th defendant. In it was a description of the land with photographs as illustration. These photographs reveal the terrain of the land being extremely steep supported by high rubble retaining walls. From this, the 5th defendant should have been aware of the nature of the land and its venerability to slope failure if unattended. Yet when the 5th defendant became the owner of the said land it was callous in its attitude towards this factor. The 5th defendant's officers involved seem to believe that a vacant piece of land need not be bothered with. Though officers of the 5th defendant were sent to inspect the land periodically, they were never concerned with the physical aspect of it; they only concentrated on whether any trespassers had got onto the land. Even on this, I could not comprehend how this could be achieved without going into the land itself, especially when the area, as Miss Seow has described, was covered with vegetation. This attitude and practice seem to continue despite the complaints of the flooding caused by the activities of Tropic. Puan Lutifah, who was sent to investigate only stood at the bottom of the hill to looked at the land. She never entered the land to find out what was the cause of the floods. If she had been more concerned and proceeded onto the land she would have discovered the state and condition of the drains, and the drainage of the area which was highly inadequate and unattended to as confirmed by various witnesses who went up to the Arab Malaysian Land soon after the collapse of Block 1. Coupled with any blockage, such as those caused by Tropic, the land would be a potential danger to those residents living down hill. Such failure and neglect by the 5th defendant servants and/or agents must be attributed to the 5th defendant and be considered as the 5th defendant having known or ought to have known of the consequences for not attending to its land. I am not alone on this view. Richard Malanjum J in Takong Tabari v Government of Sarawak & Ors. (1996) 5 MlJ 435 @ 459 supports this proposition. Though this is a case concerning nuisance, but the application of this principle is similar to that of negligence since in nuisance one of the criteria is also foreseeability.
On Mr. Abraham's claim that his clients, or for that matter any reasonable man, could never have foresee that its acts and/or omissions could produce consequences of such magnitude as the collapse of Block 1 and the forced evacuation of the plaintiffs from their properties, it is necessary to be reminded of the test set out in Steward v West African Terminal Ltd. (1964) 2 Llyod's Rep. 371 @ 375 where Lord Denning says:
"It is not necessary that the precise concatenation of circumstances should be envisaged. If the consequence was one which was within the general range which any reasonable person might foresee (and was not of an entirely different kind which no one would anticipate) then it is within the rule that a person who is guilty of negligence is liable for the consequences."
Applying this principle to the present set of circumstances, I find that a reasonable man might foresee that a steep hill slope of a nature as that in the Arab Malaysian Land would collapse if not properly managed and attended to, and with dwelling structures like that of the Highland Towers situated downhill, the damage cause would be those as happened in this case. Thus the collapse of Block 1, as well as the forced evacuation of the two other structures which still remain standing, are not entirely unanticipated.
The next criterion is proximity of relationship. This is in reference to those persons (neighbors) who are so closely and directly affected by the defendant's act that the defendant ought reasonably to have them in contemplation as being so affected when the defendant was directing his mind to the acts and/or omissions which are called to question.
Geographically, the plaintiffs' properties are just below the 5th defendant's hill slope. The parties are in fact immediate neighbors. The 5th defendant cannot deny that it has no knowledge of the presence of the plaintiffs on Highland Towers as its officers visiting the Arab Malaysian Land would have noticed that the buildings were occupied. CFs for the Highland Towers were issued long before the 5th defendant purchased its land. With these, I find that the 5th defendant ought to have reasonably foreseen that its acts and/or omissions in dealing with its land of a nature and condition before the collapse of Block 1 would likely to cause damage to the plaintiffs.
On the third criterion of reasonableness in imposing such a relationship, there is no excuse for the 5th defendant to say that: its intention was to hold the Arab Malaysian Land on a temporary basis; that the walls and drainage system thereon were not erected by it; that it was unaware of the inadequacies of these structures; and finally that it did not actively adopt or utilize these drains and walls. The last of these excuses is most absurd. If these drains and retaining walls were not utilized by the 5th defendant, I wonder what supported the slope and drained the water from it before the collapse of Block 1? Other reasons will also not exculpate this defendant from imposing such a relationship. The 5th defendant is, and at the material time was, not an institution of little means or without personnel who could made an effort to inspect its property. Such effort was relatively simple - just enter into the land and observe. If only those officers who were send to inspect and to investigate had taken a little trouble then they would have discovered all the deficiencies on the slope and made recommendations for corrective and preventive measures which could have avoided the tragedy. But sadly, this small step was not made.
By the reasons listed above, I find that the 5th defendant owes a duty of care to the plaintiffs. Having established this, the next question to be answered is whether the 5th defendant has breached this duty of care? The answer to this is substantially based on my finding on the cause of collapse of Block 1. But before I proceed to it one argument raised by Mr. Abraham must be attended to. He is of the view that since some of the retaining walls and drains, as shown on the post-collapsed survey plan, were on roads reserves and boundaries of bungalow lots then such structures did not belong to the 5th defendant and consequently the 5th defendant should no be liable for negligence for failing to maintain these.
I find this reasoning has two shortcomings. Firstly, the post-collapse survey plan only shows those structures that are still standing. Those washed away by the slide and subsequent clearing of the area are no longer visible. This includes the High Wall and other structures behind block 1. Without their exact location how can the 5th defendant confirmed that these were not on its land. In fact a substantial number of walls still standing are located on the 5th defendant's land itself, as can be seen from the post-collapse survey plan. Secondly, this proposition of Mr. Abraham was made before the cause of collapse of Block 1 was determined by this Court. With the ascertainment of the cause of collapse being attributed to water, derived primarily from the leakage of the pipe culvert, which is and was on the 5th defendant 's land, as well as surface water from rainfall percolating into the 5th defendant's land, the location of these walls and drains is of little significance. For this, I find this excuse raised by the Mr. Abraham cannot be sustained.
As stated above and in my reasons given on the cause of the collapse of Block 1, water was major culprit. This was followed by the poorly designed and constructed walls and inadequate, unattended and defective drains. Concentrating on water, this emanated from the leaks from the pipe culvert and the surface flow from rainfall. If the pipe culvert had been maintained and if there was a proper, adequate maintenance of the drainage system water would not have saturated the ground to cause the collapse of the High Wall. But it did happen and from the evidence adduced it was due to the failure and/or neglect of the 5th defendant in not maintaining these. In fact, as admitted by Miss Seow, the 5th defendant had not taken any steps to maintain the slope. For this, I find that the 5th defendant has breached its duty of care to the plaintiffs.
In respect of post-collapse, I am of the view that this duty of care to maintain the slope on the Arab Malaysian Land continues after Block 1 had fallen. Except for some diversions of water to a siltation pond further down slope nothing else was done by the 5th defendant. The 5th defendant seems to be passing the blame for its non-activity to the 4th and 1st defendants for either not implementing a comprehensive drainage plan or neglecting to ensure that the retaining walls on the Highland Towers Site are rectified. I find this completely devoid of merits. There is so much the 5th defendant can do on its land. It can at least prevent water from flowing in an uncontrolled manner over its slope. The earth drains can be replaced by concrete drains and if there is still water flowing into the pipe culverts then this should be repaired. Then there are the retaining walls on its own land. These can be repaired and/or strengthened or replaced with better ones. Vegetation can be cleared and allowed to grow in a more regulated manner to utilize its full advantage to maintain the stability of the slope. All these can be adopted instead of waiting. For this, I again find the 5th defendant negligent in failing in its duty to the plaintiffs for the post-collapse allegations.
Analysis - Nuisance
Against the allegation of the 5th defendant causing nuisance, the first point raised by the 5th defendant is that the plaintiffs do not have sufficient interest in the their properties to bring such a suit under this cause of action; the plaintiffs are not registered owners of the land on which their apartments are built and they do not possess strata title to their lot. To support this contention, Mr. Abraham quoted a passage by Lord Goff in Hunter v Canary Wharf Ltd. (1997) 2WLR 684 @ 695 which says:
"It follows that, on the authorities as they stand, an action in private nuisance will only lie at the suit of a person who has a right to the land affected. Ordinarily, such a person can only be sued if he has a right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession. Exceptionally however, as Foster v Warblington Urban District Council shows, this category may include a person in actual possession who has no right to be there; and in any event a reversioner can sue in so far his reversionary interest is affected. But a mere licensee on the land has no right to sue."
I think this issue is much associated with the question of locus standi of plaintiffs number 44 to 73 to bring this action against the defendants. I have given my reasons why these plaintiffs can proceed with their claims. These will be similarly applied here thus requiring no necessity for repetition. As possession is the only criterion for this rule and not the requirement of being a registered owner then, the plaintiffs amply qualify. The plaintiffs certainly do have exclusive possession of their respective properties and thus, posses every right to bring this action for nuisance.
Was 5th Defendant A Reasonable User Of Its Land
Having decided on the above, I shall now move on to determine whether the 5th defendant was a reasonable user of its land. To begin with, this defendant claims that it did not create any nuisance. If the nuisance originates from the drainage system and the retaining walls then the 5th defendant is not responsible for placing them there. The 1st defendant constructed them and the 5th defendant maintains never adopted them to constitute having continued with such nuisance created by the act of the 1st defendant.
To determine this, the test set forth by Lord Wilberforce in the Judicial Committee of the Privy Council case of Goldman v Hargrave (1967) 1A.C.645 is relevant. It is:
"The law must take into account of the fact that an occupier on whom the duty is cast has, ex hypothesis, had his hazard thrust upon him through not seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbor. A rule which required him in such unsought circumstances in his neighbor's interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust. One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it...The standard ought to be require of the occupier what is reasonable to expect of him in his individual circumstances."
Thus the first element for consideration is whether the 5th defendant knew of the hazard. The hazard in this case was the insufficient, defective and unattended drains. Though I agree that the 5th defendant may not have knowledge of this hazard at the time of the 5th defendant becoming owner of the land, and the hazard may not even have existed then, but after being notified of the flooding at the car parks in Highland Towers, the 5th defendant should have investigated especially when the complaint was that the flooding emanated from the 5th defendant's land. But if the 5th defendant choose to ignore it instead of probing which, if it did, would have certainly discovered the existence of the hazard, then the 5th defendant must be considered to have constructive knowledge of the hazard. This lack of care to investigate or even making some effort to look after its land does not absolve the 5th defendant's claim of lack of knowledge of the hazard that caused the nuisance.
Having knowledge of the hazard, the next question is whether the 5th defendant could foresee the consequences of not checking or removing it? On this point, my answer is in the positive. To a reasonable man the consequences caused the activities of Tropic resulting in flooding of the car park in the Highland Towers accompanied mud and rocks and a minor slip on the slope was a pre-warning of an impending major land slide if no action is taken to abate it. Yet the 5th defendant paid no heed.
On the ability to abate, I cannot find any excuse as to why the 5th defendant could not perform such task. The complaint of flooding was lodged directly to the 5th defendant and all that was necessary was for the 5th defendant's personnel to, after inspection to take remedial measures. This did not require substantial and enormous financial or physical means. In fact the abatement involves very little effort. All that was necessary was to maintain and improve the drainage system mentioned. Surely, the 5th defendant, as the leading financial house in this country can spare a little sum to perform such menial task. But, this was not carried out.
Given the circumstances of this case and applying the common law principle on nuisance as set out in the earlier part of this judgment, I am convinced that the defendant caused an actionable nuisance to the plaintiffs.
Regarding post-collapse I also find the 5th defendant liable for actionable nuisance. The nuisance is still continuing and the 5th defendant has not taken any measures to effectively abate it. I need not repeat the circumstances constituting this since it is well documented under the liability of negligence.
Since the issue on the liability of the 5th defendant on negligence and nuisance is decided, it is appropriate at this stage to consider whether the 5th defendant (as well as all other defendants who oppose this) is also liable for the acts of vandalism and thief committed on Block 2 & 3.
In the leading English authority of Ward v Cannock Chase Council (1986) 2 WLR 600, Scott J. faced with an almost similar situation as in this case perused extensively through the authorities related to remoteness of damages. His conclusion was to apply the test of whether: "the vandals and thieves was a reasonably foreseeable consequence of one of more of the breaches of duty committed by the council (defendant)." I find this a reasonable and logical approach and shall adopt it for application to the circumstances at hand.
Considering the local condition, I find that when disaster strikes in our country, such as a road accident or when a fire gutters a building, there will be certain uncivil and contemptuous elements who take advantage of such commotion to rob, steal and plunder. The Highland Tower tragedy was no exception. Though security forces were present but with the need at that material time to safe lives as well as preventing curiosity seekers from entering the site, which was then considered unstable, it is foreseeable that their strength and effectiveness in guarding the properties in Block 2 & 3 were less effective leading to the vandalism on the plaintiff's properties. When public security was reduced to only daylight hours the vandalism intensified. This must be expected. The plaintiffs could not employ their own security personnel since they were not allowed to enter the buildings. Even if they were allowed in, the fear of these two building collapsing would have deterred such arrangement. All these, I find, were reasonable consequence of the landslide that brought down Block 1 caused by the acts of the 5th defendant as well as all other defendants who contributed to this. Based on these, I find the 5th defendant liable for thief and vandalism caused to to Block 2 & 3.