EU SIM CHUAN V. KRIS ANGSANA SDN BHD HIGH COURT MALAYA, KUALA LUMPUR [CIVIL SUIT NO: S2(S5)-22-432-1997] AZMEL MAAMOR J 22 OCTOBER 2006 JUDGMENT Azmel Maamor J: [1] In this case, the plaintiffs, who are husband and wife, are the owners of a property at No. 290A, Lorong Palas, Off Jalan Ampang, 50450 Kuala Lumpur on which is constructed a double storey bungalow house (the said property). The property is registered in the name of the wife (the 1st plaintiff) but the purchase of the said property was wholly financed by the husband the second plaintiff (PW1). Needless to say that the second plaintiff has beneficial interest of the said property. Both husband and wife had been living together in the said bungalow house together with their children until it was damaged by the defendant which led them to bring this action against the defendant. Facts Of The Case [2] Sometime in early March 1997 the defendant began to develop the land immediately adjacent to the said property to construct two 20 storey condominium blocks. Part of the initial works carried out by the defendant were piling activities for the construction of basement carparks which involved excavation and removal of soil. Such activities had caused movement and settlement of the underground soil which in turn caused damages to the plaintiffs' bungalow house which developed cracks in various parts of the building including the compound of the said bungalow. What had caused the cracks to the said bungalow house was not seriously disputed. In addition to the evidence of PW1, PW4 and PW5 the cause of cracks to the plaintiffs' bungalow house was also admitted by DW1, an engineer who had inspected the plaintiff's bungalow house. [3] There do not appear to be any action taken by the defendant in the form of any precautionary or preventive steps and measures before commencing works on excavation and removal of soil, to ensure that no damage would be caused to the said bungalow house. None of the 4 witnesses called by the defence gave any evidence on that issue. Only when cracks had appeared in the plaintiffs' bungalow after the defendant had commenced excavation works that the defendant began to get his workers to inspect the damages to the plaintiffs' bungalow. Yet the defendant continued with its activities and only forced to stop activities for a while on being given stop work order by Dewan Bandaraya Kuala Lumpur. Because the cracks continued to get worse due to the fact that settlement of the underground soil had not fully stabilised the plaintiffs and their family, on the advice of their engineer, vacated the said bungalow house to stay in another house for fear of their safety. On inspection by the plaintiffs' engineer the bungalow had suffered structural damages particularly the existence of cracks on the floor area, the walls, column and beam. Issue Of Negligence [4] In this action the plaintiffs alleged that the defendant had been negligent in carrying out the construction works adjacent to their bungalow house. Para 7 of the plaintiffs' statement of claim stated 7 acts of negligence of the defendant namely:
[5] As the cause of the damage to the plaintiffs' bungalow had not been disputed and in fact admitted by the defendant the only issue to be determined is whether there was negligence on the part of the defendant in carrying out the construction work that led to damages caused to the plaintiff's bungalow. To do this I need to examine the evidence as regards the actions of the defendant before commencing the construction works. According to the evidence of PW1 the defendant only contacted the plaintiff to request for permission to install "ground anchors" into the plaintiffs' property to secure the construction on the site. The action was not for the benefit of the plaintiffs but was in fact done for the benefit of the defendant's activities. Nothing appeared to have been done by the defendant to ensure that the said bungalow house would not be damaged by the activities carried out by the defendant. As the plaintiff had alleged that the defendant had been negligent in carrying out the construction activities particularly the excavation and removal of soil from the site it is therefore incumbent upon the defendant to show that it had done all the necessary steps to ensure that the plaintiff's bungalow at the adjacent property would not be damaged. No evidence had been given by any of the 4 witnesses called by the defence. [6] The plaintiffs had called two engineers (PW4 and PW5) to give evidence as regards the cause of the damage to the plaintiffs' bungalow. [7] Purnam Singh (PW4), a practicing engineer, in his statement said, as regards the most probable causes of the defects to the plaintiffs' bungalow:
[8] PW4 went on to state his professional conclusion as to the cause of the damage:
[9] Hence in the light of the clear cause of action alleged by the plaintiff against the defendant for negligent acts particulars of which had been enumerated in para 7 of the statement of claim the defendant should prove to the satisfaction of the court that it had taken all the necessary steps and measures to prevent possible damages to said bungalow adjacent to the defendant's construction site. No such evidence had been adduced by any of the defence four witnesses. [10] Nonetheless the defence counsel submitted that the defendant could not be held liable for the damages caused to the plaintiffs' bungalow. He based his argument on the authority of a 19th century case of Acton v. Blundell [1843] 152 ER 1223. The facts of this case were that the plaintiff sunk a well in his property for raising water for the working of his mill. Subsequently, the defendant sunk two coal pits in his land adjacent to the plaintiff's property. The result was that the supply of water to the plaintiff's mill was considerably diminished and the plaintiff sued the defendant for interference with his right of enjoyment over the water flowing under his land. It was ruled by the court that a man may abstract water under his land which percolates in undefined channels to whatever extent he pleases, notwithstanding that this may result in the abstraction of water percolating under the land of his neighbour and, thereby, cause injury to him [11] This principle was adapted by the Singapore case of Singapore Finance Ltd v. Lim Kah Ngam (Singapore) (Pte) Ltd. and Eugene HL Chan Associates (Third Party) [1984] 1 LNS 3; [1984] 2 MLJ 202. In this case the defendants were in the course of erecting a 13-storey building and passed sheet piles surrounding their land. During that period the owners of building in the neighbourhood complained that cracks appeared on their building. [12] The defendant contended and admitted that ground de-watering of the plaintiffs' soil had been caused by the defendants excavation works, but the defendant maintained that such de-watering, that is the flow of water from the defendants' soil into the excavation hold through indeterminate or undefined channels, was due to the forces of nature and the forces of gravity and was neither avoidable nor was it due to any positive acts done by the defendant their servants or agents. The defendant contended that the damage to the plaintiffs' building was damnum sine injusia (damage without legal injury). The court dismissed the plaintiffs' claim. [13] However there was a subsequent case in Singapore which ruled the principle of Acton v. Blundellto be no good law to be applied to modern Singapore and therefore should not be followed. It is the case of Loh Siew Keng v. Seng Huat Construction Pte. Ltd. [1998] SGHC 197. In this case the defendant carried out certain sewerage works which included replacement of an underground sewer line adjacent to the plaintiff's house. The plaintiff brought an action for negligence and nuisance arising from the defendant's excavation of the trench next to the plaintiff's house as cracks penetrated the walls on the 1st and 2nd floor of the plaintiff's house as well as a continuous crack line on the external floor and at other parts of the house. [14] In his judgment Chan Seng Onn JC gave his view on the ruling of Acton v. Blundell:
[15] I am in full agreement with the views expressed by Chan Seng Onn JC in the Singapore case of Loh Sim Keng (supra). The drastic change in the living style of people since ancient England in the 19th century to those in the 21st century would require a change in the application of the law. Principles of law that are archaic as the one propounded in Acton v. Blundell should no longer be applied to modern society like Kuala Lumpur where, like Singapore, buildings are very close to each other. And, as observed by Chan JC, drinking water are no longer obtained from wells. The modern society are supplied with pipe water to their houses. Hence the factor that one has to bear in mind in doing any construction works in one's land is to ensure safety and security of one's neighbour's property especially the house the neighbour lives in. Reasonable steps and measures must be taken to ensure no damage would cause to one's neighbour's house before commencing any construction works. Failing to take such precautionary measures before commencing such construction works would render one to be actionable for the tort of negligence. [16] In the instant case in order for the defendant to escape liability for the tort of negligence the defendant must show sufficient evidence that it had taken the necessary steps and measures to ensure no damages were done to the plaintiff's bungalow located immediately adjacent to the defendant's work site. Having regard to the activities carried out at the site which included piling works and excavating and removing of soil that caused damages to the plaintiffs' bungalow the defendant could not and should be heard to say that it is not liable for the damage to the plaintiff's bungalow. It is a common knowledge that whenever any activities of sheet piling, excavating and removal of soil are carried out in any area it would cause movement of the water level of the land in the surrounding area. The likely consequence would be that any building constructed on the neighbouring land would develop cracks depending on the degree of the piling, the excavation and removal of soil activities being carried out. A developer like the defendant who employs engineers for carrying out such construction works must be fully aware that the activities it carried out at the work site would likely cause damages to the plaintiffs' bungalow house and should therefore take the necessary steps to prevent damages to the plaintiffs' house. [17] But the defendant in the instant case chose not to take any such preventive measures before commencing the construction works of sheet piling, excavation and removal of soil. There it is of no surprise that the defendant's activities had caused major damages to the plaintiffs' bungalow. [18] The damages to the plaintiffs' bungalow that had been caused by the activities are so severe that on the advice of the plaintiffs' engineers it was no longer safe for the plaintiffs to continue to stay in the house. Not only major and minor cracks to the building had developed the electrical system had also failed and the water supply had also been adversely affected due to the damages to the walls where the electrical and water systems were hidden. It was my finding that the bungalow was no longer safe for habitation. The plaintiffs were quite right in deciding to vacate the house for fear of their safety and convenience. [19] In the light of the facts and circumstances as I have mentioned above I found the defendant liable for negligence for its failure to take any reasonable preventive measures to ensure that no damages would be caused to the plaintiffs' bungalow before commencing its construction works at the adjacent site. Issue Of Quantum [20] After having ruled that the defendant was liable for negligence I proceeded to hear witnesses from both parties as regards the issue of quantum of damages payable by the defendant to the plaintiff. The plaintiff called 5 witnesses some of whom had given evidence earlier when the case proceeded on determining the issue of liability. The defendant called 3 witnesses. I also asked counsels for both parties to give their written submissions. Based on the evidence adduced and submissions of both counsels before me I arrived at the decision on quantum on the various items claimed by the plaintiff as follows.
[21] I thereby allowed the plaintiff's claim for damages in the sum of RM6,306,242.43. I award interest at the rate of 8% p.a. on the amount awarded from the date of filing of this suit to the date of realisation. I order that the costs of this action be paid by the defendant to the plaintiffs.
|
|