CHEGNE PECK PENG v HICOM-GAMUDA DEVELOPMENT SDN BHD

Case Significance

Illustrates a court's treatment of expert consensus and the doctrine of res ipsa loquitur in a construction-defect negligence claim, holding that the doctrine does not apply where the defendant lacked exclusive control and the plaintiff had herself altered the land.

This High Court decision at Shah Alam concerns a claim in negligence against a housing developer, Hicom-Gamuda Development Sdn Bhd, arising from the collapse of a boundary retaining wall. The plaintiff owned a bungalow on sloping terrain directly adjacent to a pond within a golf and country club, the rear of which was supported by the retaining wall. She alleged that the developer had negligently constructed the wall in 2005 with an inadequate factor of safety, causing it to collapse on 6 December 2018. The trial featured expert evidence from both sides, including a joint experts' session, and the experts broadly agreed that the wall had failed because of a rise in the groundwater level behind it. The court emphasised that such a consensus did not relieve it of its duty to make its own findings of fact, particularly where parts of the joint expert material were inconclusive. The issues were whether the developer owed the plaintiff a duty of care, whether it had breached any such duty by failing to build the wall with a sufficient factor of safety, and whether the plaintiff could rely on the doctrine of res ipsa loquitur. On the last point the court held that the doctrine did not assist the plaintiff: it merely permits an inference of negligence and does not apply where the defendant lacked exclusive control of the thing said to have caused the damage — and here the plaintiff had carried out extensive renovations on the land before the collapse. Weighing the totality of the evidence under sections 101 and 102 of the Evidence Act 1950, the court found that the plaintiff had failed to discharge her burden of proof and dismissed the claim with costs of RM50,000, subject to allocatur. The judgment illustrates how a court treats expert consensus and the doctrine of res ipsa loquitur in a construction-defect negligence claim.