DI DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU
DI DALAM NEGERI JOHOR DARUL TAKZIM
21NCvC-7-2010
ANTARA
HOCK WEE NURSERIES SDN BHD
(NO. SYARIKAT: 204524-M)
… PLAINTIF
DAN
1.
2.
3.
4.
TUAN MUHAMAD ZAKI BIN HJ MASHUD
JURUTERA DAERAH
TUAN CHONG CHEE HAN
PENGARAH JABATAN PENGAIRAN DAN SALIRAN JOHOR
JABATAN PENGAIRAN DAN SALIRAN JOHOR
KERAJAAN JOHOR
…DEFENDAN-DEFENDAN
DI DALAM MAHKAMAH TERBUKA
DI HADAPAN Y.A. VERNON ONG
HAKIM
GROUNDS OF JUDGMENT
The plaintiff’s claim is for damages due to flooding of its orchid
nurseries which it alleges was caused by a stone wall constructed across a
stream by the 1st, 2nd and 3rd defendants.
Brief account of the undisputed facts
The plaintiff, Hock Wee Nurseries Sdn Bhd, a private limited
company operates orchid nurseries in Kota Tinggi, Johor. A stream runs
across the nurseries. Sometime in November 2007, the 1st to 3rd
defendants constructed a stone wall across the stream. The stone wall is
located about 700 meters downstream from the nurseries. Two 4’ x 4’
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conduits were incorporated to allow for water to flow through. One of the
conduits in the stone wall was sealed. The stone wall was built to reduce
the problem of flooding in Kampung Batu 25 a flood prone area.
Plaintiff’s case
On or about 5.12.2007, there was heavy rainfall and flood water
accumulated on the plaintiff’s nurseries. The flood was caused by the
stone wall. The plaintiff is claiming for special damages of RM899,193.00,
interest and costs.
Defendants’ defence and counterclaim
The defendant is mounted on 3 main planks. Firstly, it is contended
that the plaintiff has failed to discharge the onus to prove that the stone wall
was the main cause of the flood. Secondly, it is contended that the plaintiff
has failed to comply with O 18 r 8(1) of the Rules of the High Court 1980
because the necessary facts and the particulars of the liabilities of each
defendant were not pleaded. Third, it is contended that the defendants’ acts
are protected by law (s 7(1) & (2) of the Government Proceedings Act
1956) as the act of building the stone wall was in exercise of public duties.
The defendants deny that the flood was caused by the blockage of
the stone wall. The damage to the nurseries were due to the plaintiff’s
negligence as the nurseries were situated a few meters from a swamp. By
way of counterclaim, it is alleged that the plaintiff have wrongly and without
the defendants’ approval destroyed the stone wall. Due to the plaintiff’s
wrongful actions, Kampung Batu 25 was flooded and rubbish from the
nurseries were deposited therein. The defendants’ counterclaim for
RM324,044.00 is for the costs of the stone wall, costs of clean-up and
costs of the remainder of orchid plants which was not delivered by the
plaintiff to the 3rd defendant under a land acquisition exercise.
The facts as disclosed in the evidence
On or about 30.11.2007, the plaintiff’s farm manager Mr. Chong Hin
Poh (PW1) went to see the district engineer En. Muhamad Zaki bin Haji
Mashud (DW1). PW1 told DW1 that in the event of heavy rainfall the stone
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wall constructed by the defendants was likely to cause flooding to the
plaintiff’s nurseries.
DW1 informed PW1 that the stone wall was
constructed for the prevention of floods in Kampung Batu 25. PW1 then
asked for permission to open the stone wall if flooding occurred. DW1
agreed for the plaintiff to open a portion of the stone wall. As PW1 was
dissatisfied with DW1’s response, PW1 lodged a police report (exh. P1) on
1.12.2007. P1 refers to the meeting between PW1 and DW1 and to the
discussion which transpired.
Subsequently, heavy rain fell through out the day on 5.12.2007. By
about 9:00 pm flood waters were inundating the plaintiff’s nurseries. PW1
informed the plaintiff’s director Mr. Lee Chee Wee (PW2) and DW1 of the
situation. When DW1 arrived at the plaintiff’s nurseries at about 10:00 pm,
PW1 showed DW1 the extent of the flood. DW1 also took some
photographs at the location. PW1 asked DW1 for permission to remove
the stone wall to allow the flood water to discharge. DW1 gave permission
to open a small opening in the stone wall. At about 4:00 am on 6.12.2007,
the plaintiff removed about 4 blocks of the stone wall to allow water to
discharge. After that the water in the stream was discharging swiftly and
the water level at the plaintiff’s nurseries did not rise any further. However,
flood waters that accumulated continued to linger on the nurseries.
Photographic evidence produced at the trial shows the extent of the
flooding and damage sustained on the plaintiff’s nurseries. Photographs
(exhs. P18A, B & C) taken by an orchid grower Mr. Wong Kiang Ho (PW3)
on 6.12.2007 shows the plaintiff’s nurseries being submerged in high flood
waters. Other photographs (exhs. P18D, E & F) taken by PW3 after the
flood water had subsided show the extent of the devastation suffered by
the nurseries.
Findings of the Court
On the facts and issues as pleaded it is clear that the plaintiff's claim
is founded on the tort of negligence. The principal issue to be determined is
whether the flood which inundated the plaintiff's orchid farm on 15.12.2007
was brought about by the defendants’ negligence?
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The law on negligence
In order to establish a case for negligence, the plaintiff must prove
four ingredients - (i) that the defendants owed the plaintiff a duty to take
reasonable care; (ii) that the defendants breached that duty; (iii) that the
loss and damages were caused by the defendants’ breach; and (iv) that the
loss and damages is not too remote or unforeseeable.
Due to the peculiar facts of this case, it is also pertinent to visit the
principles relating to liability in respect of water. In Clerk & Lindsell on
Torts Seventeenth Edition at page 969 paragraphs 19-27, it is stated:
Liability in respect of water depends on whether the water is naturally on the
land or whether it is artificially accumulated or interfered with in some way.
The owner of land on a lower level cannot complain of water naturally flowing
or percolating to his land from a higher level. Nevertheless, the higher
proprietor is liable if he deliberately drains his land on to his lower neighbour’s
land, and this appears to be so if the water is caused in a more concentrated
from than it naturally would as the result of artificial alterations in the levels
and counters of the higher land. Nor is it permissible to drain water on to
another’s land so as to affect the quality as well as the quantity of the water in
a way injurious to its use at the lower level.
Touching on the act of diverting a natural stream, Charlesworth & Percy on
Negligence Ninth Edition at page 913 paragraph 12-57 stated:
A person who diverts the course of a natural stream is liable for any
reasonable foreseeable damage caused by the water escaping from the
channel, although there may have been no negligence on his part. As Lord
Finlay said in Greenock Corporation v Caledonian Railway, “it is the duty of
any one who interferes with the course of a stream to see that the works
which he substitutes for the channel provided by nature are adequate to carry
off the water brought down even by extraordinary rainfall, and if damage
results from the deficiency of the substitute which he has provided for the
natural channel he will be liable.”
(i) Whether a duty of care existed?
To determine whether in any given circumstances a duty was owed
by one party to another the courts have traditionally applied the Atkinian
test in the well known case of Donoghue v. Stevenson [1932] AC 562, 580
(see Lim Kar Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109 (FC); Lembaga
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Kemajuan Tanah Persekutuan v Mariam [1984] 1 CLJ 225; [1984] 1 CLJ
(Rep) 197 (SC)). In the words of Lord Aktin, the test is as follows:
The rule that you are to love your neighbour becomes in law, you must not
injure your neighbour; and the lawyer’s question, Who is my neighbour?
Receives a restricted reply. You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour. Who, then, in law is my neighbour? The answer seems to be –
persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts of omissions which are called in question.
Learned Federal Counsel for the defendants submitted that there is
no direct relationship of proximity between the defendants and the plaintiff.
The defendants did not foresee that their action to prevent the flood to
Kampung Batu 25 may cause damage to the plaintiff due to the fact that
there is a large and big swampland in between the area. There is no link
between the alleged wrongdoing and the damage caused (Wu Siew Ying v
Gunung Tunggal Quarry & Construction Sdn Bhd & Anor [2011] 1 CLJ
409). The defendants are the authority empowered to maintain and
preserve river and drains and to prevent flood. The defendants owe a duty
to the public in general and in particular to the flood prone Kampung Batu
25 residents situated adjacent to the stream where had higher risk of flood
as compared to the plaintiff’s nurseries which is situated at higher ground.
In reply, learned counsel for the plaintiff submitted that the duty of
care arose when PW1 went to see DW1 to complain about likelihood of
flooding because of the construction of the stone wall. The defendants
owed a duty of care to the plaintiff not to allow a structure to be built across
the stream which will cause the flood.
In this case, the plaintiff’s nurseries have been operating for more
than 20 years prior to the incident in question. The defendants knew of the
plaintiff’s nurseries prior to the construction of the stone wall. The stream
runs across the plaintiff’s nurseries. The stone wall was constructed across
the stream at about 700 meters away from the nurseries. In view of the
proximity of the stone wall to the plaintiff’s nurseries, the plaintiff’s nurseries
were so closely and directly affected by the construction of the stone wall
that the defendants ought reasonably to have the plaintiff in contemplation
as being so affected when the defendants were directing their minds to the
construction of the stone wall. This finding is strengthened by the fact that
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prior to the flooding on 5.12.2007, PW1 had forewarned DW1 of the
possibility of flooding in the event of heavy rainfall. As subsequent events
showed, PW1’s fears were not unfounded. For the foregoing reasons, the
Court holds that the defendants owe a duty to the plaintiff to take
reasonable care to avoid the occurrence of flooding on the nurseries
because of the construction of the stone wall.
(ii) Whether there was a breach of the duty of care?
If it can be shown that a duty of care exists, then the Court will go on
to consider whether there has been a breach of that duty to take
reasonable care. This is a pure question of fact. As to what constitutes a
breach, the Court of Appeal in Arab-Malaysian Finance Bhd v Steven Phoa
Cheng Loon & Ors [2003] 1 CLJ 585, 604 (CA) referred to the test as
applied in the following three English cases. The test as formulated by
Baron Alderson in Blyth v. Birmingham Waterworks Co [1856] 11 Exch 781,
784 is as follows:
[T]he omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do.
According to Lord Dunedin in Fardon v. Harcourt-Rivington [1932] 146 LT
391, 392 the test is this:
If the possibility of the danger emerging is reasonably apparent, then to take
no precaution is negligence; but if the possibility of danger emerging is only a
mere possibility which would never occur to the mind of a reasonable man,
then there is no negligence in not having taken extraordinary precautions ... .
In other words, people must guard against reasonable probabilities, but they
are not bound to guard against fantastic possibilities.
The test was also stated by Lord Macmillan in Bourhill v Young [1942] 2 All
ER 396, 403 in the following manner:
The duty to take care is the duty to avoid doing or omitting to do anything the
doing or omitting to do which may have as its reasonable and probable
consequence injury to others and the duty is owed to those to whom injury
may reasonably and probably be anticipated if that duty is not observed.
In other words, whether a breach of a duty to take care existed
depends on whether in a given situation a party did something which he
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ought not to have done, or omitted to do something which he ought to have
done. The test is objective and subjective. It is subjective because
whether he did something or omitted to do something turns on the
particular facts of the case. However, whether the act or omission
amounted to a breach of duty is determined by what a reasonable and
prudent man would or would not do in the circumstances – the objective
test.
Learned Federal Counsel for the defendants argued that the
defendant have taken all necessary steps to prevent any damage that
might be caused to properties nearby the stone wall. The stone wall is not
a permanent structure. It did not block the water as there were holes in
between the stone block. The plaintiff failed to prove that DW1 had
breached his professional duty to the plaintiff (Jacob Mathew v State of
Punjab & Anor [2006] 6 CLJ 162).
In reply, learned counsel for the plaintiff submitted that the breach of
duty occurred when DW1 refused to remove the stone wall built across the
stream despite PW1’s request.
The stone wall was constructed about 700 meters downstream away
from the plaintiff’s nurseries. There are 2 conduits incorporated into the
stone wall to allow for the flow of water along the stream. For some
reason, which DW1 did not elaborate on, one of the channels was
completely sealed. In the circumstances, the only passage at the stone
wall was one 4’ x 4’ conduit. As can be clearly seen from 3 photographs
(exh. P3A, B & C) the water flow along the stream was substantially
obstructed save for the one conduit. DW1 did not adduce any evidence to
satisfy the court that he had conducted any study on the rainfall and
surrounding areas to ascertain whether the single conduit in the stone wall
would be sufficient to discharge water during heavy rainfall. In fact, DW1’s
predominant focus was on flood prevention to Kampung Batu 25. DW1
disregarded PW1’s objections without giving any reasons.
DW1’s
testimony that PW1 did not meet him on 30.11.2007 is not supported by
evidence. Under cross-examination, DW1 said that he was not sure if he
went to the plaintiff’s nurseries on the night when the flood occurred. DW1
also denied giving permission to PW1 to dismantle a portion of the stone
wall to mitigate the effect of the flooding. On the other hand, PW1’s
evidence is consistent and credible. On the evidence as a whole, the Court
is satisfied that PW1’s evidence is more plausible. Accordingly, the Court
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finds as a fact that PW1 did meet DW1 on 30.11.2007; that PW1 conveyed
his concerns to DW1; that DW1 came to the plaintiff’s nurseries on the
night of 5.12.2007 to witness the flooding. Flowing from the above findings,
there is nothing to preclude the Court from holding that notwithstanding
being made aware of the likelihood of flooding, DW1 failed to take any
precautionary steps or measures to guard against the flood on the plaintiff’s
nurseries. DW1 was aware that water flowing downstream during heavy
rainfall was the primary cause of the flooding in Kampung Batu 25. As
such, DW1 sought to control the water flow along the stream by
constructing the stone wall across the stream. In that regard, DW1 failed to
consider the effects of water escaping from the stream and flowing
backwards into the plaintiff’s nurseries and swamp area. DW1 did not even
consider the possibility of opening the second conduit which was sealed or
incorporated more conduits in order to guard against the possibility of
flooding. There is no evidence to show that the defendants took any steps
to prevent any damage that might be caused to properties nearby the stone
wall. In failing to guard against the flooding, DW1 failed to take adequate
steps and measures to prevent water from escaping from the stream during
heavy rainfall and accumulating on the plaintiff’s nurseries.
In
consequence, the question is answered in favour of the plaintiff.
(iii) Whether the loss and damages was caused by the breach of duty?
This is a question of fact; whether the flood was caused by the
defendant’s negligence turns on the particular facts and circumstances of
this case (Canadian National Railway Company. v Norsk Pacific Steamship
Co. [1992] 1 SCR 1021).
It has been held that the defendants were negligent in constructing
the stone wall across the stream. However, the defendants contend that
the plaintiff have failed to prove that the damages were caused by the
defendant’s breach of duty. On the other hand, PW1 and PW2’s evidence
show that prior to the construction of the stone wall, there were no incidents
of flooding on the nurseries over the years even during heavy rainfall when
Kota Tinggi was flooded. On the totality of the evidence, the Court is
satisfied on a balance of probabilities that the stone wall obstructed the
discharge of water along the stream; that being obstructed the water
escaped and flowed onto and accumulated on the plaintiff’s nurseries. This
fact is corroborated by the photographs which show the deluge of water on
the nurseries and the damage consequent thereof. In the circumstances
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the Court has no hesitation in holding that the loss and damage was
caused by the defendants’ breach of duty.
(iv) Whether the damages is not too remote?
It is also settled law that the test is that of reasonable foreseeability i.e., a plaintiff can only recover that loss which a defendant could
reasonably foresee as arising from his breach of duty (The Wagon Mound
[1961] AC 388 (PC); Jaswant Singh v Central Electricity Board & Anor
[1967] 1 MLJ 272; Government of Malaysia & Ors v Jumat bin Mohamed &
Anor [1977] 2 MLJ 103). In Arab-Malaysian Finance Bhd v Steven Phoa
Cheng Loon & Ors, supra the Court of Appeal citing Jolley v Sutton London
Borough Council [2000] 1 WLR 1082, 1089 also said that whether a
particular kind of harm was reasonably foreseeable is a question of fact
that depends upon the peculiar facts of each case. Whether the damage is
too remote or not is not to be determined by the nature of the damage
itself, whether physical loss or pure financial loss. Instead the question is
whether the scope of the duty of care in the circumstances of the case is
such as to include damage of the kind which the plaintiff claims to have
sustained, whether it be injury to person or property or pure economic loss.
In other words, the question to be determined is whether the injury to
person or property or pure economic loss to the plaintiff was reasonably
foreseeable by the defendant.
In the law of negligence as recognised in all major Commonwealth
jurisdictions pure economic loss is recoverable in negligence. In Malaysia
the Federal Court recognised that pure economic loss is recoverable in
negligence under limited circumstances. In Majlis Perbandaran Ampang
Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 CLJ 1 (FC) Steve Shim
(CJSS) agreed with the view that the critical question is not the nature of
the damage itself, whether physical or pecuniary, but whether the scope of
the duty of care in the circumstances of the case is such as to embrace
damage of the kind which the plaintiff claims to have sustained. He
accepted the “open ended approach” taken by the courts in Australia and
Singapore that claims for pure economic loss in the law of negligence are
not precluded and will depend on the facts and circumstances of each
individual case; adding, however, that caution should be exercised in
extending the principle in Donoghue v. Stevenson to new situations. On
this issue Abdul Hamid Mohamad FCJ (later CJ) observed that there had
only been a few judgments of Malaysian courts and all at High Court level.
Page 9 of 15
In three cases the claims for pure economic loss were dismissed by the
trial judges because there was no injury to person or property. In two other
cases Abdul Hamid Mohamad FCJ had in Nepline Sdn Bhd v Jones Lang
Wooton [1995] 1 CLJ 865 allowed the claim after resorting to s 3(1) of the
Civil Law Act 1959, following and extended Hedley Byrne on the basis that
there was fiduciary relationship between the parties. In the other case of
Dr. Abdul Hamid Abdul Rashid v Jurusan Malaysia Consultants [1999] 8
CLJ 131 (HC), James Foong J (now FCJ) appears to base his decision to
allow economic loss on his concern that otherwise “the entire group of
subsequent purchasers in this country (would be left) without relief against
errant builders, architects, engineers and related personnel who are found
to have erred.” Abdul Hamid Mohamad FCJ concluded that the decision
whether to accept claims for pure economic loss in negligence in limited
cases should be based on s 3(1) of the Civil Law Act 1959 taking into
consideration the local circumstances.
In this case, the loss and damage suffered by the plaintiff is
documented by the photographs and substantiated by the testimonies of
PW1, PW2 and PW3. This part of the evidence was not challenged by the
defendants. PW3 has been the president of the Commercial Orchids
Planters Association of Malaysia for more than 20 years. PW3 went to the
plaintiff’s nurseries on 6.12.2007 to assess the damage suffered by the
plaintiff. PW3 returned on 8.12.2007 and took photographs of the flooding
and the loss and damage caused to the nurseries. PW3 noticed that the
infrastructures had been damaged and most of the potted orchid plants
were seriously infected with bacteria and had began to rot. PW3 attributed
this to the fact that the plants had been soaked in flood water for more than
24 hours. PW3 also observed that ornamental plants and cordyline plants
were mostly swept away. Ginger plants and heliconia were also beginning
to rot. The cement road was also damaged by the strong water current.
On 10.12.2007, PW3 went to the nurseries again to check and calculate
the damaged orchid and ornamental plants. On 11.12.2007, PW3
conducted an assessment of the damaged infrastructures including the net
shades, benches and road. PW3 produced a report dated 20.12.2007
(exh. P2) documenting his report on the loss and damage suffered by the
plaintiff. PW3’s evidence and P2 corroborates the plaintiff’s claim for
special damage in the sum of RM899,193.00.
In the circumstances aforesaid, it is clear that the loss and damage
was caused by the flood waters rushing into and accumulating on the
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plaintiff’s nurseries. Therefore, the fact that in the event of flooding, the
orchid and other plants and infrastructure thereon would be damaged or
destroyed must have been reasonably foreseeable by the defendants. In
short, the loss and damage suffered by the plaintiff is one that the
defendants could reasonably foresee as arising from their breach of duty.
For the foregoing reasons, the question is answered in favour of the
plaintiff.
In the light of the above findings, the Court will now address the
remaining issues.
Whether the plaintiff’s statement of claim discloses any cause of action
against the defendants?
Learned Federal Counsel for the defendants contended that the
Statement of Claim did not plead the cause of action citing O 18 r 8(1)(b)
RHC. In reply, learned counsel for the plaintiffs submitted that the fact of
nuisance or negligence has been pleaded.
It is pleaded by the plaintiff that in November 2007 the defendants
constructed a stone wall across the stream; that on 5.12.2007 the nurseries
were flooded due to heavy rainfall and the blockage of the stream by the
stone wall. The words ‘negligence’ and ‘nuisance’ have not been pleaded.
In this instance, the facts which show the alleged negligence have
been set out. The fact of the stone wall being constructed by the
defendants is not a matter of dispute. The only point of conflict relates to
the issue of negligence. As the plaintiff alleges that the flood was caused
by the stone wall, it fell upon the plaintiff to prove its claim. In their
Statement of Defence the defendants have denied that the flood was
caused by the stone wall; further they contend that the loss and damage
were attributed to the plaintiff’s negligence. Coupled with their defence, the
defendants have also made a counterclaim against the plaintiff. In all the
circumstances, it cannot be said that the defendants have been taken by
surprise given that all the material facts have been pleaded (K.E.P
Mohamed Ali v K.E.P Mohamed Ismail [1981] 2 MLJ 10 (FC)). In addition,
the defendants’ reliance on O 18 r 8(1)(b) RHC is misplaced as it relates to
any pleading subsequent to a statement of claim. For the foregoing
reasons, the question is answered in favour of the plaintiff.
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Whether the defendants’ act are protected by law under s 7(1) & (2) of the
Government Proceedings Act 1956?
Section 7(1) and (2)(c) of the Government Proceedings Act 1956
upon which the defendants rely provides as follows:
7. (1) Notwithstanding any provisions of this Act to the contrary no
proceedings, other than proceedings for breach of contract, shall lie against
the Government on account of anything done or omitted to be done or
refused to be done by the Government or any public officer in exercise of the
public duties of the Government.
(2) for the purposes of subsection (1) the expression “exercise of the public
duties” includes –
(a) the construction, maintenance, diversion and abandonment of
railways, roads, bridle-paths or bridges;
(b) the construction, maintenance and abandonment of schools,
hospitals or other public buildings;
(c) the construction, maintenance and abandonment of drainage, flood
prevention and reclamation works; and
(d) the maintenance, diversion and abandonment of the channels of
rivers and waterways.
Learned Federal Counsel for the defendants submitted that as the
construction of the stone wall for flood prevention is an act in exercise of
public duties falling within s 7(1) and (2)(c), the defendants are therefore
immune from any proceedings there under.
In reply, learned counsel for the plaintiff submitted that the claim against
the defendants is based on negligence which is permitted under law. In
support of the proposition he cited subsection (3) of s 7 which provides:
(3) Nothing in the 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
exercise of the said public duties.
The plaintiff’s claim is for damages arising of the negligence in the
execution of the construction of the stone wall across the stream. That
being the case, this action falls within the exception stipulated under
subsection (3). Accordingly, there is nothing to preclude the Court from
holding that the defendants’ act is not protected by law.
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Having dealt with the issues pertaining to the plaintiff’s claim, the
Court will now consider whether the defendants have prove their
counterclaim.
Whether the defendants’ counterclaim has been proven?
The defendants’ counterclaim for RM324,044.00 is in respect of the
following items:
(i)
(ii)
(iii)
construction costs of the stone wall
cleaning up costs at Sungai Tembioh
remainder of orchid plants to be
delivered to the 3rd defendant
...
...
RM 19,044.00
RM 5,000.00
...
RM300,000.00
------------------RM324,044.00
-------------------
No submission by learned Federal Counsel for the defendants was
made in support of the defendants’ counterclaim. Be that as it may, the
defendants’ only witness DW1 testified that the costs involved for the
construction of the stone wall was RM19,044.00 and referred to a Borang
Inden Kerja dated 3.12.2007 (exh. D22). According to D22, the stone wall
was to be built within one week of 3.12.2007 and to be completed by
31.12.2007. On the face of D22, it is difficult to reconcile the dates of the
indent and the date for the construction stone wall with the fact that the
stone wall was constructed in November 2007. This indent can be
discounted altogether as it cannot relate to the repair costs of the stone
wall since it was issued on 3.12.2007, two days prior to the flood on
5.12.2007. There was no evidence from DW1 to clarify this inconsistency
despite being challenged under cross-examination. In the premises, D22
does not support the claim for item (i) above. Apart from the above, there
is no evidence before the Court in support of items (ii) and (iii).
Accordingly, the Court is constrained to conclude that the defendants’
counterclaim is not proven.
Concluding remarks
On the totality of the evidence adduced at the trial, it is clear that the
flooding of the plaintiff’s nurseries on 5.12.2007 was caused by the
obstruction of the stream by the stone wall. It is not disputed that the stone
Page 13 of 15
wall was constructed by the defendants. Notwithstanding being forewarned
by the plaintiff on 30.11.2007, the defendants refused, failed and or
neglected to take any action to guard against the possibility of flooding. If
the defendants had acted timeously, the flooding could have been averted.
On 5.12.2007 there was heavy rainfall and because of the obstruction to
the natural flow caused by the stone wall, the water escaped from the
stream and accumulated on the nurseries causing a deluge thereon.
Consequently, the plaintiff’s nurseries suffered loss and damages; the
damages which have been described by the first hand accounts of PW1,
PW2 and PW3 and documented by the photographs and report by PW3.
For the foregoing reasons, the Court hereby orders judgment for the
plaintiff as follows:
(a)
(b)
(c)
damages in the sum of RM899,193.00;
interest on RM899,193.00 at the rate of 8% per annum from
5.12.2007 until fill realisation;
costs of RM15,000.00.
As the defendants’ counterclaim is not proven, the counterclaim is
dismissed with costs of RM12,000.00.
(VERNON ONG)
JUDGE
HIGH COURT MALAYA
JOHOR BAHRU
DATED:
23RD JUNE 2011
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COUNSEL
Datuk Khutubul Zaman & B. Subashini – Tetuan Zaman & Associates, Suites 12-01 & 12-02,
Level 12, Menara TJB, No.9, Jalan Syed Mohd Mufti, 80000 Johor Bahru - for Plaintiff.
Anis Wahidah dan Suhana Sabil – Peguam Persekutuan, Kamar Penasihat Undang-Undang
Negeri Johor, Aras 2, Bangunan Dato’ Jaafar Muhammad, Kota Iskandar, 79100 Nusajaya - for
Defendants.
VO-j-21NCvC-7-2010/mj
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