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Federal Court of Malaysia |
] [Hide Context] IN THE FEDERAL COURT OF MALAYSIA
AT PUTRAJAYA
(APPELLATE DIVISION)
CIVIL APPEAL NO. 01-4-2004(W)
MAJLIS PERBANDARAN AMPANG JAYA … APPELLANT
ANDSTEVEN PHOA CHENG LOON & 81 OTHERS … RESPONDENTS
Corum : STEVE SHIM LIP KIONG, HBSS
ABDUL HAMID BIN HJ. MOHAMAD, HMP
ARIFIN BIN ZAKARIA, HMP
JUDGMENT OF STEVE L.K. SHIM, HBSS
1. The Issues
There are two appeals before us – one, an appeal proper by the appellant, Majlis Perbandaran Ampang Jaya (MPAJ) and the other, a cross-appeal by the respondents. More specifically, the appellant’s appeal is directed at the decision of the Court of Appeal in affirming the High Court’s finding that the appellant was 15% liable to the respondents for negligence and nuisance. And the respondents’ cross-appeal is aimed at the Court of Appeal’s decision that their cause of action against the appellant for alleged post-collapse liability lay in the area of public law and not private law. In effect and in substance, the appeal and cross-appeal can be said to relate to issues encapsulated in the questions upon which leave to appeal was granted by this Court. These questions are postulated as follows:-
1. Where a plaintiff sustains damage and alleges negligence against various defendants and the tribunal of fact ascribes negligence to the various defendants and where there is a clear finding that the causa causans of the plaintiff’s damage is the negligence of a particular defendant, whether in that circumstance, the other defendants who are guilty of certain negligent acts but whose negligent acts are not held to be the causa causans can be held liable to the plaintiff as well.
2. Whether section 95(2) of the Street, Drainage & Building Act, 1974 (Act 133) is wide enough to provide immunity to a local authority in approving the diversion of a stream and in failing to detect any damage or defect in the building and drainage plans relating to the development submitted to the local authority by the architect and/or the engineer on behalf of the developer.
3. Whether pure economic loss is recoverable under our Malaysian jurisprudence with reference to (a) negligence and (b) nuisance.
4. In a case involving different acts of negligence by multiple defendants committed at different times, whether those defendants are joint tortfeasors.
5. Whether the Court of Appeal erred in providing a distinction between private law and public law when finding that the appellant was not responsible to the 1 st to 73 rd respondents for the appellant’s acts and omissions as determined by the High Court following the collapse of Block 1 of Highland Towers.
2. The Background Facts
The factual matrix relevant to the issues can be briefly stated.
The
3. Causa Causans
The issue relating to the first question is simple enough. Here, counsel for the appellant M PAJ has submitted that as the learned trial judge had found the acts and omissions of Arab Malaysian Finance Bhd (AMFB) were the causa causans of the collapse of Block 1 of Highland Towers, this would have the effect of precluding the learned trial judge in finding that the acts and omission of the other defendants had in fact caused harm to the respondents. In response to this, counsel for the respondents contends that such a submission amounted to misreading the learned trial judge’s judgment. In my view, the use of the expression “ causa causans” to describe AMFB’s acts and omissions as being causative of the“Mr. Abraham in his submission argues that the plaintiffs must prove that the acts and/or omissions of the 5 th defendant was or were the effective cause or the causa causans of the collapse of Block 1 leading to the forced evacuation of the plaintiffs from Blocks 2 and 3. To decide on this, reference must be made to my finding on the cause of the collapse of Block 1. Since it is already decided that it was due to a landslide caused primarily by water which emanated from the damage pipe culvert and the inadequate and unattended drains on the 5 th defendant’s land, then the plaintiffs have sufficiently proved the causa causans of the collapse of Block 1 leading to the forced evacuation of the plaintiffs from Blocks 2 and 3, was due to the acts and/or omissions of the defendants in not maintaining those watercourses.”
The 5 th defendant above refers to AMFB. The expression “ causa causans ” merely means a cause that causes: ( Smith, Hogg & Company Ltd. v Black Sea & Baltic General Insurance Co. Ltd (1940) AC 997, 1003 ). There may be more than one cause that causes a particular injury. From the passage cited above, it would appear that Mr. Abraham was of the view that causa causans merely meant an effective cause. It has been held that such an expression should be avoided as the issue of causation does not necessarily turn upon it: (see Environment Agency (Formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd (1999) 2 AC 23, 29). Causation is a matter to be determined by common sense and what the law regards as fair, just and reasonable in the circumstances of a particular case (see Fairchild (suing on her own behalf) etc v. Glenhaven Funeral Services Ltd & Ors, etc. (2002) 3 WLR 89; March v E & MH Stramare Pty Ltd & Anor (1991) 99ALR 423, 429). The relevant question is whether the acts and/or omissions of a particular defendant made a material contribution to the harm suffered by the plaintiff (see Bonnington Castings v Wardlaw (1956) AC 613, 620, 623; Nicholsons & Ors v. Atlas Steel Foundary & Engineering Co. Ltd (1957) 1 WLR 631, 624; Fairchild (suing on her own behalf) etc v. Glenhaven Funeral Services (supra); Chappel v Hart (1998) 156 ALR 517, 524-524).
When all the relevant authorities are examined in their proper perspective, the answer to the first question must be in the affirmative.
4. Scope of Section 95(2) of Act 133
The second question postulated concerns the scope of s. 95(2) of the Street, Drainage & Building Act, 1974 (Act 133) when examined
in the context of the factual circumstances of this case.
Here, the learned trial judge found that the landslide was caused by
soil on the hill slope being saturated with excessive water; that this water triggered the failure of the high retaining wall within
the
“As a local authority, the 4
th
defendant owes a duty or care to the plaintiffs to use reasonable care, skill and diligence to ensure that the hillslope and the
drainage thereon were properly accommodated before approving building or other related plans and during construction stage, to comply
with and to ensure the implementation of the 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 confined to the structure.
And after the
The 4
th
defendant alluded above refers to MPAJ.
There is ample evidence to show that MPAJ and/or its predecessor Majlis Daerah Gombak had
required a proper drainage system to be implemented on the hillslope before and during the construction of the
On the need by MPAJ and/or its predecessor to maintain the East stream, the learned trial judge said this:-
“ But under ss. 53 & 54 of the Street, Drainage & Building Act, 1974, the 4 th defendant, being the local authority of the area, has a duty to maintain ‘watercourses’ within its jurisdiction. And ‘watercourses’ under ss. 53 & 54 of the Street, Drainage & Building Act, 1974 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 4 th defendant has breached its duty of care when it failed and/or neglected and is still failing and/or neglecting to maintain this stream, which was the major factor that caused the collapse of Block 1 and is an important element in ensuring the instability of the slope behind Blocks 2 and 3 at the present moment.
I am much convinced by this argument above and based on the facts as disclosed, I find such a duty of care exists and this duty has been breached by the defendant resulting in damages to the plaintiffs.
From the facts as found by the learned trial judge, it seems evident that the need by MPAJ and/or its predecessor Majlis Daerah Gombak to divert the East stream must have been intended to resolve the drainage problems in the affected areas around the hill slope behind the Highland Towers. There is no dispute by the respondents that if the drainage was implemented in accordance with the P34 plan, the possibility of a land slide causing the collapse of Block 1 would not have occurred. Having required the diversion of the East stream, as in the P34 plan, it would have been reasonable to expect the local authority (in this case MPAJ and/or its predecessor) to ensure its proper maintenance. This would have entailed a duty on the part of the said local authority to conduct regular inspections so as to ensure its proper implementation of the said diversion. The learned trial judge found this to be wanting. Not surprisingly, he found support in the respondents’ contention that MPAJ and/or its predecessor had breached its duty of care in failing and/or neglecting to maintain the East stream, which according to him, “was a major factor that caused the collapse of Block 1 and an important element in ensuring the instability of the slope behind Blocks 2 and 3”.
Now, although the learned trial judge held that MPAJ and/or its predecessor to be negligent, he took the view that they were protected from liability by virtue of s. 95(2) of Act 133. He felt that the immunity provided under the said section was wide enough to embrace the alleged danger created by MPAJ and/or its predecessor in diverting the East stream. On appeal, the Court of Appeal took a different approach. It said as follows:-
“Mr. Navaratnan learned counsel for the plaintiffs has submitted that the section does not apply to the facts of the present instance. For, this is a case which the 4 th defendant directed the carrying out of certain works thereby creating a danger to the plaintiffs’ property. Counsel is referring to the requirement by the 4 th defendant that the East stream be diverted from its natural course. This is a fact as found by the trial court and amply borne out by the evidence, the relevant parts of which were read to us. Accordingly, this is not merely a case of – to borrow the language of the section – inspection or approval of building or other works or the plans thereof. This is a case where a danger was expressly created at the instance of the 4 th defendant. We are therefore in agreement with learned counsel for the plaintiffs that the judge went wrong on the indemnity point.”
The Court of Appeal went on to extrapolate on the common law duty of care a local authority such as the 4 th defendant owed to a third party citing a number of cases including Kane v New Forest District Council (2001) 3 AllER 914. The Court then states:-
“If the local authority in Kane V New Forest District Council (supra) could not wash its hands off the danger in the footpath it required to be constructed, we are unable to see how the 4 th defendant could possibly escape liability in the present case of requiring the diversion of the East stream. Accordingly, we set aside the indemnity granted to the 4 th defendant by the trial judge. The consequence is that the 4 th defendant is liable to the plaintiffs in the tort of negligence. We would add for good measure that the kind of harm that was foreseeable by the 5 th defendant was equally foreseeable by the 4 th defendant. Upon the evidence on record and applying it to the relevant principles already referred to earlier in this judgment, it is clear that the 4 th defendant must as a reasonable local authority have foreseen the danger created by diverting the East stream would probably cause a landslide of the kind that happened and that in such event, resultant harm, including financial loss of the kind suffered by the plaintiffs, would occur. We would in the circumstances uphold the apportionment of liability as against the 4 th defendant.”
Essentially, the position taken by the Court of Appeal is that the appellant (who is a local authority) had created a danger by requiring
or approving the diversion of the East stream on the hill slope behind
The State Authority, local authority and any public officer or employee of the local authority shall not be subject to any action, claim, liability or demand whatsoever arising out of any building or other works carried out in accordance with the provision of this Act or 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 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 or the local authority to inspect any building, building works or materials or the site of any proposed building to ascertain that the provisions of this Act or any by-laws made thereunder are complied with or that plans, certificates and notices submitted to him are accurate.”
In this connection, counsel for the respondents has submitted that s. 95(2) does not give local authorities any power to act negligently or create a nuisance. He contends that as an essential principle of statutory interpretation, statutory powers granted to local authorities must be exercised without negligence and without committing avoidable nuisances, citing in support cases such as David Geddis v. Proprietors of Bana Reservoir (1878) 3AC 430, 447; Allen v. Gulf Oil Refining Ltd (1981) AC 1004, 1011; Capital & Countries Plc. V. Hampshire County Council (1997) GB. 1004, 1045. As a general principle, I agree that is the correct approach. However, it has been held that although a statute should be interpreted as far as possible to ensure it does not permit a tortfeasor to escape the wrongful consequences of his acts and omissions, nevertheless a statutory body can be granted immunity from liability for such consequences if and only if the words granting such immunity are clear and explicit: (see Boulting v. Association of Cinematograph, Television & Allied Technicians (1963) 2 QB 606, 643-644; Capital & Countries Plc. V. Hampshire County Council (supra) The issue before us is whether s. 95(2) grants such an immunity, Here, the respondents have taken the position that when the factual matrix of this case is examined in the context of s. 95(2), they do not afford MPAJ and/or its predecessor any protection whatsoever. Counsel for the respondents contends that there are 3 limbs to s. 95(2). According to him, the first limb only protects local authorities from liability for building or other works carried out in accordance with Act 133; the second limb merely states that local authorities shall not be under any liability simply because building works and building plans are subject to inspection and approval; and the third limb states that local authorities shall not be under any obligation to inspect buildings and building works to ascertain that they comply with Act 133.
Counsel for the respondents seems to have placed much emphasis on the first limb in s. 95(2), contending that MPAJ and/or its predecessor, by creating a danger, had failed to carry out its duty in accordance with Act 133, drawing particular attention to ss. 54 & 55 thereof and therefore not subject to any protection under the said s. 95(2). With respect this argument is quite misconceived. As I indicated earlier, the Court of Appeal had accepted the factual finding of the learned trial judge that MPAJ and/or its predecessor had created a danger when it required or approved the diversion of the East stream and subsequently failing or neglecting to maintain the said diversion or to ensure its proper maintenance. As the learned trial judge has pointed out, proper maintenance would have involved regular and effective inspections to be conducted by MPAJ and/or its predecessor. He held that such failure or neglect constituted a breach of the duty of care on the part of MPAJ and/or its predecessor. In effect, the finding of the learned trial judge as to the creation of the danger in the diversion of the East stream relates essentially to approval and inspection by MPAJ and/or its predecessor. Thus, when the facts as found by the learned trial judge which were accepted by the Court of Appeal are examined in the context of the specific provision under s. 95(2), in particular the second and third limbs thereof, they fall squarely within its ambit. In my view, MPAJ and/or its predecessor Majlis Daerah Gombak are fully protected from liability under the said section. For the reasons stated, the Court of Appeal has therefore erred in holding otherwise. It is in this context that the second question postulated has to be answered.
5. Pure Economic Loss
The third question postulated the consideration of whether pure economic loss is recoverable under the Malaysian jurisprudence in negligence and nuisance. In the law of negligence, there is no immutable rule that pure economic loss is not recoverable. All major Commonwealth jurisdictions recognize that pure economic loss is recoverable in negligence. Under English law, the general duty of care test enunciated in Caparo Industries Plc. V. Dickman (1990) 2 AC 605 is applicable to all negligence claims, including claims for pure economic loss. Pursuant to this test, 3 questions have to be addressed, namely, whether the damage suffered by the plaintiff is reasonably foreseeable; whether there is a relationship of proximity between the plaintiff and defendant; and whether it is fair and reasonable that the defendant should owe the plaintiff a duty of care. The English courts have adopted a dual approach in applying the Caparo test (see Marc Rich & Co. AG v Bishop Marine Co. Ltd (1996) 1 AC 211) The first concerns the “categorization approach”. Here, the English courts would determine if the plaintiff’s claim falls into a recognized category of liability. In cases of pure economic loss, the recognized categories include the following scenarios i.e. (1) where a defendant has assumed a particular responsibility towards the plaintiff. For example, in White v. Jones (1995) 2 AC 207, where a solicitor was found to have assumed a responsibility towards the beneficiary under a will when drafting the will pursuant to a testator’s instructions; (2) where a defendant has exposed a plaintiff to a particular danger (see Harris v. Evans (1998) 1 WLR 1285 ) and (3) where there is a recognized legal relationship between the plaintiff and defendant. For example, in Phelps v. Hillingdon London Borough Council (2001) 2 AC 6019,667, it was found that a teacher-pupil relationship might place a teacher under a duty of care not to cause pure economic loss by teaching pupils the wrong syllabus. The second concerns the “open-ended approach”. Here, if the facts of a particular case do not come within a recognized category of liability, a court could go further to look at the facts closely to determine if a duty of care should nevertheless be owed by the defendant to the plaintiff. Recent statements by the English courts confirm that the “open-ended approach” can be used to recognize duties of care in new situations: (see Spring v. Guardian Assurance Plc. (1985) 2 AC 295.)
In the instant case, the Court of Appeal held that under the Atkinian doctrine, loss of any type or description is recoverable
provided that it is reasonably foreseeable; that it is not the nature of the damage itself, whether physical or pure financial loss,
that is determinative of remoteness and the critical question is whether the scope of the duty of care in the circumstances of the
case is such as to embrace damage of the kind that the plaintiff claims to have sustained, whether it be pure economic loss or injury
to person or property.
The Court of Appeal relied on the English case of
Murphy v. Brentwood District Council (
1991) 1 AC 398.
Now,
Murphy v.
(1) That Donoghue v. Stevenson (1932) AC 562 only dealt with the situation whether a defective chattel or building caused personal injury or harm to property that was distinct and separate from the defective chattel itself. If a plaintiff sought recovery for the cost of repairing or replacing a defective chattel or building before it caused personal injury or damage to other property, such a claim would be one for pure economic loss;
(2) That recovery for pure economic loss in the law of negligence was restricted to circumstances where there was reliance on another person’s advice or conduct as was the case in Hedley Byrne & Co. v. Heller & Partners Ltd. (1964) AC 465;
(3) That a builder was not liable for the pure economic loss of correcting defects in a building before they caused harm to other property or personal injury unless reliance in the sense envisaged in Hedley Byrne was shown to exist. Similarly, the defendant council could not be made liable for the cost of correcting such defects;
(4) That it was not fair, just and reasonable to recognize liability on the part of the defendant council for failing to detect errors in buildings in the course of exercising its statutory powers of inspection under the Defective Premises Act, 1972 (UK).
It is perhaps important to note, from the analysis of the various speeches of the law Lords in Murphy v. Brentwood (supra) that pure economic loss is recoverable in negligence in English law on the two alternate bases, namely the “categorization approach” and the “open-ended approach” alluded to earlier. I may add that the two approaches do not exist in strict water tight compartments. It is possible for them to overlap: (see Kane v. New Forest District Council (supra)
In
Having had the benefit of reading the various authorities on this subject, I am more inclined to accept the positions taken
by the courts in
The Court of Appeal in the instant case is correct in adopting the view expressed by Lord Oliver in Murphy v. Brentwood (supra) 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. The decision in Murphy involves, as I have mentioned earlier, the application of the Caparo test which takes into account the elements of foreseeability, proximity and the additional requirement of justice, fairness and reasonableness.
Now, the exposition above relates to pure economic loss in the law of negligence. What is the position in the law of nuisance? Here, I need only rely on the speech of Lord Lloyd in Hunter v. Canary Wharf Ltd (1997) 2 WLR 684 , a case also cited with approval by the Court of Appeal in the instant case. Therein, Lord Lloyd has said this:-
“It has been said that an actionable nuisance is incapable of exact definition. But the essence of nuisance is easy enough to identify, and it is the same in all three cases of private nuisance, namely, interference with land or the enjoyment of land. In the case of nuisances within class (1) or (2), the measure of damages is, as I have said, the diminution of the value of the land. Exactly the same should be true of nuisances within class (3). There is no difference in principle. The effect of smoke from a neighbouring factory is to reduce the value of the land. There may be no diminution in the market value. But there will certainly be loss of amenity value so long as the nuisance lasts. If that is the right approach, then the reduction in amenity value is the same whether the land is recognized by the family man or the bachelor.”
The three classes of private nuisance referred to by Lord Lloyd are (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land. On the authority in Hunter v Canary Wharf Ltd (supra), which I accept to be correct, it seems clear that pure economic loss is recoverable for any of the forms of nuisance recognized by law. Indeed, the fact that damages for diminution in value in land are recoverable in nuisance has been recognized by the Federal Court in Liew Choy Hung v. Shah Alam Properties Sdn Bhd. (1997) 2 MLJ 309.
Before us, both the appellant and respondents are on common ground that recovery for pure economic loss is permitted in
the law of negligence.
However, they disagree on their application to the facts of the instant case.
For the respondents, it
is submitted that they should be allowed to recover economic loss against MPAJ and/or its predecessor Majlis Daerah Gombak.
They
advanced the following grounds:
First, the danger posed by the concept of diverting the East stream across the hill slope behind
6. Joint Tortfeasors
The issue here is whether defendants are joint tortfeasors in a case involving different acts of negligence by multiple defendants committed at different times. In my view, the answer to this question can be found in the Supreme Court case of Malaysian National Insurance Sdn Bhd v. Lim Tiok (1997) 2 CLJ 351, 375 wherein Edgar Joseph Jr. FCJ said:-
“To recapitulate, at common law, if each of several persons, not acting in concert, commits a tort against another person substantially contemporaneously and causing the same or indivisible damage, each tortfeasor is liable for these same damages.”
Counsel for the respondents has cast doubt on the correctness of this proposition which adopts the stand taken by Choor Singh, J. in Oli Mohamed v. Keith Murphy & Anor (1969) 2 MLJ 244, 245, who in turn cited in support the following passage of a speech by Delvin, LJ in Dingle v. Associated Newspapers Ltd. & Ors (1961) 2 QB 162 :-
“… Where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury, must compensate for the whole of it. As between the plaintiff and the defendant, it is immaterial that there were others whose acts also have been a cause of the injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasors for contribution, but the plaintiff is not concerned with that; he can obtain judgment for total compensation from anyone whose act has been a cause of his injury. If there are more than one of such persons, it is immaterial to the plaintiff whether they are joint tortfeasors or not. If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month’s wages, each wrong-doer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given, the loss of earnings is one injury caused in part by all the four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law ….”
According to counsel, Choor Singh J., in citing the above passage, has erred in suggesting that the acts of different defendants must be sufficiently contemporaneous before there can be concurrent liability in tort. He submits that the passage cited above shows clearly that the imposition of joint and several liability on defendants as concurrent tortfeasors is not premised on the contemporaniety of their actions but is determined by deciding whether their separate actions caused the plaintiff indivisible harm. With respect, counsel is misconceived. In my view, the first sentence in that passage is sufficiently clear. I would repeat it for emphasis – “where the injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury , must compensate for the whole of it.” When the words underscored above are examined in their proper perspective, particularly in the light of the illustration given in the same passage, there can be little doubt that the statement of Edgar Joseph Jr. FCJ represents the correct reflection of the position taken by Lord Delvin in Dingle In the circumstances, the attempt by counsel for the respondents to revisit Malaysian National Insurance (supra) , in terms of his proposition, has no basis whatsoever.
7. Private Law and Public Law
The fifth question seeks a consideration of whether the Court of Appeal has erred in holding that the respondents’ cause of action lay in the area of public law and not private law. The complaint of the respondents seems to be directed at the following passage of its judgment:-
“Now, assuming that there was a duty on the 4 th defendant to act in a particular manner towards the property of the plaintiff’s post collapse, such duty must find its expression in public law and not private law. Accordingly, if there had been a failure on the part of the 4 th defendant to do or not to do something as a public authority, the proper method is to proceed by way of an application for judicial review – see Trustees of Dennis Rye pension Fund & Anor v. Sheffield City Council (1997) 4 AllER 749. Further, the substance of the order made against the 4 th defendant appears to demand constant supervision and though this may no longer be a complete bar to the grant of a mandatory order, it is nevertheless a relevant consideration that must be kept in the forefront of the judicial mind. In the circumstances of this case, we are unable to see how such a duty as alleged to exist may be enforced in private law proceedings. It follows that this part of the judge’s judgment cannot stand. It is set aside.”
I think the brief facts in Trustee of Dennis Rye Pension Fund relied on by the Court of Appeal ought to be stated. There, the plaintiffs were served with a repair notice under the Housing Act (UK) requiring work to be carried out to certain houses to render them fit for human habitation. They then applied to the Sheffield City Council for improvement grants under the Local Government & Housing Act The council approved the application but subsequently refused to pay the grants on the grounds, inter alia, that the works had not been completed to its satisfaction. The plaintiffs’ commenced private law actions against the council claiming the sums due under the grants. The council contended that if the plaintiffs had any grounds of complaint (which it did not accept), the only appropriate procedure was an application for judicial review and not an ordinary action. It accordingly applied to strike out the plaintiff’s claims under RSC Ord. 18 r.19 and the inherent jurisdiction of the court. The district judge struck out the claims; but the judge allowed the plaintiffs’ appeal and dismissed the council’s application. The council appealed to the Court of Appeal.
The Court of Appeal presided by Lord Woolf MR held that when performing its role under the Local Government & Housing Act (UK) in relation to the making of grants, a local authority was in general performing public functions which did not give rise to private rights; but once an application for a grant had been approved, a duty to pay it arose on the applicant fulfilling the statutory conditions and that duty would be enforceable by an ordinary action. The court further emphasized that although, in the case before it, there was a dispute as to whether those conditions had been fulfilled, any challenge to the local authority’s refusal to express satisfaction would depend on an examination of issues largely on fact – that furthermore, the remedy sought for the payment of a sum of money was not available on an application for judicial review. The court concluded that an ordinary action was the more appropriate and convenient procedure and consequently that the plaintiff’s actions were not an abuse of process. The appeal was therefore dismissed.
It is clear that when the speeches by Lord Woolf MR and Pill, LJ are read in their proper perspective, they explicitly recognize that remedies for protecting both private and public rights can be given in private law proceeding and an application for judicial review. It is pertinent to note the observations made by Lord Woolf MR in explaining the seminal decision in O’Reilly v. Mackman (1983) 2 AC 237 when he said as follows:-
“Where does that leave O’Reilly v Mackman … and what can be done to stop this constant unprofitable litigation over the divide between public and private law proceedings? What I could suggest is necessary to begin by going back to first principles and remind oneself of the guidance which Lord Diplock gave in O’Reilly v. Mackman. This guidance involves recognizing (a) that remedies for protecting both private and public rights can be given in both private law proceedings and on an application for judicial review; (b) that judicial review provides, in the interest of the public, protection for public bodies which are not available in private law proceedings (namely the requirement of leave and protection against delay).”
Another significant case referred to by Lord Woolf MR was
Roy v. Kensington & Chelsea and Westminster Family Practitioner Committee (1992) 1 AllER 705,
where it was held before a strong bench of law Lords comprising Lords Bridge, Emslie, Griffiths, Oliver and Lowry that although an
issue which depended exclusively on the existence of a purely public law right should, as a general rule, be determined in judicial
review proceeding and not otherwise, a litigant asserting his entitlement to a subsisting private law right, whether by way of claim
or defence, was not barred from seeking to establish that right by action by the circumstance that the existence and extent of the
private right asserted could incidentally involve the examination of a public law issue.
It seems apparent from
It is in the light of the established principles stated above that the respondents in our case maintain that the Court of Appeal has erred in holding that their only cause of action against MPAJ lay in the area of public law for post-collapse liability. The respondents have relied on ordinary tort principles for their claims of negligence. In this, they are amply supported by established authorities. They should be entitled to file their claims against MPAJ by way of writ action. In this connection, I think it is significant to draw attention to the findings of the learned trial judge on the issue of post-collapse liability. This is reflected in the following passage of his judgment:-
“
To consider whether the 4
th
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 I.
After the
But after a period of one year, there was no sight or news of this plan.
After numerous reminders by the 5
th
defendant of such a plan, the 4
th
defendant on 29 March 1996 held another briefing.
This time, the 4
th
defendant informed the attendees that a new firm of consultant by the name of KN Associates, was engaged to replace the previous.
Again, the 4
th
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
It seems clear that after the collapse of Block I, MPAJ had promised or assured the respondents that a master drainage plan for the
affected area on the hill slope behind
“ Despite this pressing need and the obvious knowledge of the urgent requirement for a master drainage plan (for otherwise the 4 th defendant would not have initiated steps to appoint consultants for this work soon after the collapse of Block I) to secure the stability of the slope so as to ensure the safety of the two apartment blocks, the 4 th 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 4 th defendant.”
Quite obviously, there was a failure on the part of MPAJ to formulate and implement the promised master drainage plan. This persisted at the time of the trial before the learned trial judge. Certainly no settlement agreement was in sight at the material time. Not surprisingly, the learned trial judge found negligence on the part of MPAJ. Given the factual circumstances, I tend to agree with him. In my view, MPAJ could not seek shelter in s. 95(2) of Act 133 because this is a case of negligence in failing to formulate and implement certain works or plans and not negligence in carrying out those works or plans. There was an assumption of responsibility by MPAJ to do what it had promised to do. The respondents alleged that its failure to do so had exposed MPAJ to liability for negligence. The negligence involved a complete absence or failure of works or plans to be done or effected and not with the manner in which the works or plans were being carried out or with the approval and inspection of those works or plans which would have immunized MPAJ from liability for negligence under s. 95(2) aforesaid.
The failure by MPAJ to formulate and implement the master drainage plan had resulted in damages incurred by the respondents who had to evacuate their apartments in Blocks 2 & 3. The elements of forseeability and proximity are clearly discernible from the established facts. Moreover, I do not think it would be in the public interest that a local authority such as MPAJ should be allowed to disclaim liability for negligence committed beyond the expansive shelter of s. 95(2) or other relevant provisions of Act 133 nor would it be fair, just and reasonable to deprive the respondents of their rightful claims under the law. The respondents’ claim for negligence by way of writ action is perfectly proper in law. In my view, the Court of Appeal has erred in holding that the respondents’ only recourse against MPAJ lay in the area of public law by way of judicial review. I may add that at the time the respondents filed this present action, the public law remedy of judicial review under O.53 of the Rules of the High Court, 1980, did not permit the recovery of damages. Hence, it is not inappropriate for the respondents to proceed by way of writ action which they did. It is therefore in the context discussed above that the question postulated should be answered.
8. The Settlement Agreement
Before us, the appellant MPAJ has relied on a settlement agreement which was effected between AMFB (the 5 th defendant) and the respondents as having the effect of extinguishing its liability to the respondents. It is clear that the proceedings before the High Court and the Court of Appeal were confined to the issue of liability for negligence and nuisance. The High Court found MPAJ to be 15% liable and this was upheld by the Court of Appeal. The said settlement agreement was never part and parcel of the proceedings in the lower courts. As such, it has no bearing on MPAJ’s liability to the respondents. It is therefore not relevant for the purpose of this appeal.
9. Conclusion
Given the answers to the questions postulated and for the reasons stated, it is appropriate to conclude that the appeal by MPAJ is allowed and the cross-appeal by the respondents is also allowed. Costs to the appellant and respondents accordingly. Deposits to be refunded to the successful parties. Finally, let me say, in postscript, that I am greatly indebted to counsel for the parties concerned for their detailed and in-depth research work. They have contributed much to a better understanding and appraisal of the complex issues before the court.
(STEVE L.K. SHIM)
Hakim Besar Sabah &
Date of delivery of judgment: 17.2.2006
Date of Hearing: 18.7.2005
Counsel for the Appellant: Mr. V.S. Viswanathan
Messrs V.S. Viswa & Co.
Counsel for Respondents: Mr. Rajendra Navaratnam with
No. 1 - 73 Mr. Yatiswara Ramachandran,
Miss Marion Qua Li Lian and
Mr. Toh Chia Hua
Messrs Azman Davidson & Co.
Counsel for Respondent Mr. Shamsudin Abdullah
No. 74 Pegawai Penerima
Counsel for Respondent Mr. D. Bhaskaran with Mr. David Soosay
No. 77 Messrs Shearn Delamore & Co. Advocates
] [Hide Context]
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