1. ) Ahmad Rubil Bin Ahmad 2. ) Mazawati Osman 3. ) Low Koe Sei 4. ) Koh Mei Leng 5. ) Abdul Malek Bin Ahmad Zaini 6. ) Haironi Binti Raffaiee 7. ) Chong Sun Chan 8. ) Tong Yap Lan 9. ) Syarifah Aliza Binti Syed Azauddin 10. ) Juraimi Azahar Bin Taharim 11. ) Anwar Ali Bin Vali Mohamed v 1. ) Minda Muhibah Sdn Bhd 2. ) CK East Construction Sdn Bhd

Case Significance

Illustrates the evidential burden on neighbouring landowners who allege that a developer's construction works caused water-related damage: both the duty of care and its breach, and any statutory contravention under the Water Act 1920 or the Environmental Quality Act 1974, must be proved on the balance of probabilities.

This Court of Appeal decision concerns a claim in negligence and statutory breach brought by a group of neighbouring landowners against two construction companies, Minda Muhibah Sdn Bhd and CK East Construction Sdn Bhd, arising out of development works. The appellants, who were the plaintiffs below, alleged that the respondents had failed to exercise reasonable care during their construction works, in particular by failing to manage the land and the flow of water responsibly during the development, thereby causing loss and damage to the appellants' neighbouring land. The claim was put on the footing that the respondents owed a duty of care to the neighbouring landowners and had breached it, and it invoked statutory breaches said to arise under section 5(1)(b) of the Water Act 1920, concerning the obstruction or alteration of the natural flow of water, and section 25(1) of the Environmental Quality Act 1974, concerning unauthorised discharge affecting the environment. The High Court had dismissed the claim, and the plaintiffs appealed. The panel, comprising Ravinthran a/l Paramaguru, Azhahari Kamal bin Ramli and Ahmad Kamal bin Md Shahid JJCA, reviewed the evidence and considered whether the plaintiffs had established that the defendants owed and breached the duty of care alleged, and whether the statutory provisions relied upon had been contravened so as to found civil liability. The court concluded that there were no compelling materials showing that the defendants had breached any duty of care, and that in the final analysis the plaintiffs had failed to prove their claim on the balance of probabilities. It accordingly dismissed the appeal and affirmed the order of the High Court, exercising its discretion to make no order as to costs on the facts of the case. The judgment is a useful illustration of the evidential burden on landowners who allege that a neighbouring developer's works caused water-related damage, and of the need to prove both duty and breach on the balance of probabilities.