EXTRACT FROM HIGHLAND TOWER’S CASE
[Abdul Aziz Hussin AMN]
abdaziz@usm.my
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(CIVIL DIVISION)
CIVIL SUIT NO: S5 – 21 – 174 – 1996.
BETWEEN
Steven Phoa Cheng Loon & 72 Ors……………..Plaintiffs
AND
Highland Properties Sdn. Bhd & 9 Ors………….Defendants
Unqualified person….
“If a man is unqualified but holds himself out to be possessing a skill, he will be judged by the standards of a reasonably competent qualified person” – [see Jackson & Power on Professional Negligence, 4th edition @ 86 where the case of Cardy v Taylor (1994) 38 Con. L.R. 79, is cited in support].
Liability of an architects
As an architect, his duty is primarily to his client because he has a contractual relationship with him. But in law, an architect is also liable to anyone who is sufficiently proximate and who suffers loss or damage by reason of his negligence – [see Halsbury’s Laws of England, 4th edition, volume 4(2) @ paragraph 525].
As expressed by Justice Windeyer in Voli v Inglewood Shire Council (1963) ALR 657 to be:
“An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practicing their profession. And he must use due care. If he fails in these matters and the person who employed him thereby suffers damage, he is liable to that person. This liability can be said to arise either from the breach of his contract or in tort”.
Negligence
And as declared by Lord Finlay L.C. in the well-known case of Greenock Corpn. V. Caledonian Rly. Co., and Greenock Corpn. V Glasgow & South Western Rly. Co., (1917) A.C. 556,[ which is quoted by Abdul Hamid F.J. (as he then was) in the Federal Court case of Seong Fatt Sawmills Sdn. Bhd. V Dunlop Malaysia Industries Sdn. Bhd. (1984) 1 MLJ 286 @ 291]:
“It is the duty of anyone who interferes with the course of the stream to see that the work which he substitutes for the channel provided by nature are adequate to carry off the water brought 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.”
“The river” & “watercourse” belongs to whom?
Section 49 of the National Land Code (NLC), section 3 of the Water Act 1920 and section 53 and 54 of the Street, D & B Act are cited together with the case of Azizah Zainal Abidin & Ors. V Dato Bandar Kuala Lumpur (1995) 5CLJ 565. He explains that “river” under the definition section (section 5) of the NLC includes streams and watercourses and any deviation thereof. The ownership of these belongs to the Ruler of the State in which the streams or watercourses are located – see section 49 NLC and section 3 of the Water Act.
And “watercourses” under section 53 and 54 of the Street, D & B Act as defined in the case of Azizah Zainal Abidi & Ors v Dato Bandar Kuala Lumpur (supra) include streams and rivers.
Nuisance
Lee Hun Hoe CJ Borneo in the Supreme Court case of Government of Malaysia & Anor. V Akasah bin Ahad (1986) 1 MLJ 396 where he says:
“It is the contention of the defendants that they are not liable for nuisance under section 7 of the Government Proceedings Ordinance, 1956. We are not concern with public nuisance which is covered by section 8. Clearly, section 7 permits a person to sue the Government for negligence or trespass. However, the liability of the Government in tort is set out in section 5, which reads:
“5 Subject to the provisions of this Ordinance, the Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by this agent, and for the purposes of this section and without prejudice to the generality thereof, any public officer acting or purporting in good faith to be acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government’.
This section is wide enough to cover private nuisance. It make the Government liable in tort in respect of any breach attaching at common law to the ownership, occupation or control of property as though it were a private person. The effect of this section is to render the Government liable to nuisance in respect of property it occupies or owns. This refers only to duties existing at common law. From liabilities imposed upon owners or occupiers by the status the Government remains immune unless the statute imposing the liabilities itself applies to the Government.”
Negligence—who liable for, … and nuisance too!
As a general rule, it is true that an employer of an independent contractor is not liable for the fault or negligence of such a contractor. But there are exceptions. One such exception relates non-delegable duty. This covers “all cases involving extra hazardous acts or omissions, or situations created by them, which all involve special danger to others” – Supreme Court decision in Datuk Bandar Dewan Bandaraya v Ong Kok Peng & Ano. (1993) 2 MLJ 234 @ 239. It is my view that to carry out development work on any land for that matter is normal and not hazardous, but when the land to be developed is perched high on a hill with a populated community below, then the situation is different – an extra hazardous situation will be created if such development work is carried out. This is even more serious if the hill is to be stripped bare of vegetation and its natural water courses unattended. Worse, if there is to be a diversion of watercourses downhill. The extra hazard here is the surcharge of water and silt deposits to cause drains to clog resulting in overflow that may consequent in slope failure downhill to affect lives and properties. The factual situation in our present case is the very case in point. Thus, under such circumstances, these defendants are not exempted from the liabilities for the acts of their independent contractors.
This proposition is not limited to a claim of negligence. It similarly applies to nuisance as is noted in the case of Matania v The National provisional Bank Ltd. & Anor. (1963) 2 All ER 633. In this case the complaint by the plaintiff was dust and noise caused by the building operations of the defendants. The Court decided that although one of the defendants had employed an independent contract, this defendant is still liable in damages for nuisance caused because the very nature of the work carried out involved a risk of damage to the plaintiff.
Mr. Piers Ashworth QC, sitting as a deputy judge of the High Court, in Home Brewery plc v William Davis & CO (Loughborough) LTD (1987) All ER 637:
“There can be no doubt that an occupier of land has no right to discharge onto his neighbor’s land water that he has artificially brought onto his land (Baird v Williamson (1863) 143 er 83) or water that has come naturally onto his land but which he has artificially, or even unintentionally, accumulated there (Whalley v Lanchashire & Yorkshire Rly CO (1884) 13 QBD 131) or which by artificial erection on his land he has caused to flow onto his neighbor’s land in a manner in which it would not, but for such erection, have done (Hurdman v North Eastern Rly. (1874-80) All ER Rep 735). If an occupier does any of these things he is liable to an action at the suit of his neighbor. Furthermore if he brings water onto his land and accumulates it on his land he may well be liable to his neighbor if that water escapes, even though he has no wish to discharge it and has taken every precaution against discharging it (Rylands v Fletcher (1868) LR 3 HL 330).”
Pride of Derby & Derbyshire Angling Association LTD v British Celanese Ltd. (1952) 1 All ER 1326 which decided that a:
“riparian right is a claim by a riparian proprietor of land to the enjoyment of a natural stream flowing through his land. If water is polluted and his enjoyment in the natural flow of the stream is affected thereby, he may have a course of action against the polluters”.
Negligence
The liability of negligence as defined by Lord Atkin in case of Donoughue v Stevenson (1932) A.C. 562 is: that every man must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure his neighbor, i.e. those persons who are so closely and directly affected by his act that he ought reasonably to have them in contemplation as being so affected when he is directing his mind to the acts or omissions which are called to question, and this results in damage to the neighbor. By this, suffice to say, at this stage, that the important elements for the plaintiffs to prove in this cause of action are: causation and foreseeability.
Nuisance
In general, nuisance is a condition or activity which unduly interferes with the use or enjoyment of one’s land. There is public nuisance and private nuisance. In this case we are only concern with private nuisance which is often described as “unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it”, and this takes three forms. The first: is encroachment on a neighbor’s land. The second: is direct physical injury to the neighbor’s land. And the third: is interference with the enjoyment of the neighbor’s land – see Winfield and Jolowicz, on Tort, 15th edition @ 494.
But not all types of nuisance are actionable. Whether a nuisance is actionable depends on a variety of considerations: the character of the defendant’s conduct, the act complained of, the effect of the complained act and such likes. And all these are to be balanced off against the conflicting interests of the parties; that of an occupier in using his land as he thinks fit with that of his neighbor for the quiet enjoyment of his land.
In deciding the defendant’s conduct, the test is reasonableness i.e. “according to the ordinary usage of mankind living in ….a particular society” – see Sedleigh-Denfield v O’Callaghan (1940) A.C. 880 @ 903. This factor of “reasonableness” of the defendant’s conduct is different from that in negligence. Here it signifies what is legally right between the parties taking account “all the circumstances of the particular case; the time and place of its commission, the seriousness of the harm, the manner of committing it, whether it was done maliciously or in the reasonable exercise of rights; and the effect of the commission, that is transitory or permanent, occasional or continuous; so that it is a question of fact whether or not a nuisance has been committed” – Winfield & Jelowicz on Tort, 15th edition @ 497-8.
Thus “if the defendant is a reasonable user, he would not be liable for consequent harm to his neighbor’s enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it.” – Lord Goff in Cambridge Water Co. Ltd. v Eastern Counties Leather pls (1994) 1 All ER 53 @ 70.
Of late another factor is added to this test. It is expounded by the House of Lords in the same case of Cambridge Water CO Ltd. Lord Goff introduced it in this way:
“We are concern with the liability of a person where a nuisance has been created by one for whose action he is responsible. Here, as I have said, it is still the law that the fact that the defendant has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanism being founded within the principle of reasonable user. But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee; and the development of the law of negligence in the last sixty years points strongly towards the requirement that such foreseeability should be a prerequisite of liability in damages for nuisance, as it is of liability in negligence. For if a plaintiff in ordinary circumstances only able to claim damages in respect of personal injuries where he can prove foreseeability on the part of the defendant, it is difficult to see why, in common justice, he should be in a strong position to claim damages for interference with the enjoyment of his land where the defendant was unable to foresee such damage.”
Negligence
The Liability under Rylands v Fletcher
The rule expounded by Blackburn J. in the case of Rylands v Fletcher is: “that the person who for his own purpose brings onto his land and collects and keeps there anything to do with mischief if it escapes must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” When such a situation is found to exist, then there is no necessity for the plaintiff to prove the negligent act of the defendant; this is a case of strict liability.
However this rule has undergone changes in recent years in the common law practicing countries. Starting with England, the house of Lords, in Cambridge Water CO LTD v Eastern Counties Leather pls (1994) All ER 53 has added to this principle the necessity to prove that the defendant could have reasonably foresee the thing might, if escape, cause damage to the plaintiff. Then in Australia, in the case of Burnie Port Authority v General Jones Pty LTD 120 ALR 42, the High Court after describing this rule as having “all its difficulties, uncertainty, qualifications and exception” completely discarded it as an independent cause of action, and incorporated it into the law of negligence. I tend to favor this Australian approach since after the case of Cambridge Water CO the requirement of foreseeability has deprived this independent cause of action of its attractiveness. Since foreseeability is required to be proved, it might as well be absorbed into the liability of negligence
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