LNS 2019 1 1380 Hoenmoira

[2019] 1 LNS 1380 Legal Network Series
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE STATE OF WILAYAH PERSEKUTUAN, MALAYSIA
[APPEAL CIVIL NO: WA-12BC-10-11/2018]
BETWEEN
SHABIRU (1990) SDN BHD

(COMPANY NO: 831574-D) … APPELLANT
AND
1. GOH AIK CHIN

(SINGAPORE NRIC: S2592819I)
2. GOH AIK BEE

(NRIC: 600711-10-6418) … RESPONDENTS
IN THE SESSION COURT AT KUALA LUMPUR

IN THE STATE OF WILAYAH PERSEKUTUAN KUALA LUMPUR
SUIT NO: WA-B53-03-10/2017
BETWEEN
1. GOH AIK CHIN

(SINGAPORE NRIC: S2592819I)
2. GOH AIK BEE

(NRIC: 600711-10-6418) … PLAINTIFFS
AND
1. NARGIS BEGUM BINTI M.M ABDUL WAHAB
1
(NRIC: 671124-14-5250)
2. FERTUS BEGUM BINTI M.M ABDUL WAHAB

(NRIC: 611101-10-7054)
3. SHABIRU (1990) SDN BHD

(COMPANY NO: 831574-D) … DEFENDANTS
THE JUDGMENT OF
Y.A. LEE SWEE SENG
[1] This appeal arose out of a decision of a Sessions Court where

the plaintiffs there had claimed for damages arising out of the damage
caused to the plaintiffs’ property due to the defendants’ negligence in
executing construction works on their own buildings adjacent to the
plaintiff’s building.
Parties
[2] The plaintiffs are siblings, a brother and a sister, and they had
inherited lot 2 from their deceased father. On lot 2 stands a 2 storey
shophouse for the last 70 years bearing address No. 2 Jalan Utara, Off
Jalan Imbi, 55100, Kuala Lumpur.
[3] The plaintiffs operate a sundry shop business from the ground
floor of their property. They have been doing that since 1956 with the
family members residing in the said property as well. The first
plaintiff, PW 4 Goh Aik Chin, now stays in Singapore but the second
plaintiff, PW 3 Goh Aik Bee, stays with her children in the said
property.
2
[4] The first and second defendants (D1 and D2) are sisters and they
are the owners of the adjacent Lots 6 and 4 respectively along the
same row of pre-war shop houses.
[5] The defendants owners wanted to have an additional floor added

to their existing 2 floors in their shop house and so they engaged the
services of a contractor in the third defendant (“D3”), Shabiru (1990)
Sdn Bhd, to do the construction works.
Problem
[6] As works were done by D3 on the property of the defendants

owners, cracks, subsidence and water seepage appeared in the
plaintiffs’ property. When that happened there were some
communication between the plaintiffs and defendants owners on what
to do and some payments were made by them to the plaintiffs.
[7] However as the plaintiffs’ building deteriorated further because

of the continuing construction works on the defendants owners’
property, the plaintiffs decided to sue for the damage to their property
arising out of what they said is negligence on the part of all the
defendants.
[8] The particulars of negligence consisted inter alia in the

defendants failing to do proper shoring and propping works during the
demolition of the building on the defendants owners land, the use of
micropiling that affected the common foundation of the plaintiffs’
property and generally not complying with proper method of
construction in ensuring cracks, settlement and water seepage does
not occur to the plaintiffs’ building and breaching DBKL’s approval
of only carrying out additional floor works and not demolishing and
reconstructing a new building in its place.
3
Proceedings at Sessions Court
[9] After a full trial the Sessions Court judge found in favour of the
plaintiffs and awarded damages of RM 604,055.40 together with
interest at the rate of 5% per annum from date of the writ to
realization against all the defendants jointly and severally.
[10] The sum was arrived based on a quotation provided by a

contractor PW 2 and confirmed by the plaintiffs’ expert witness PW 5
Ir Tang Chow Ang as being more on the lower side of the costs
necessarily incurred to rectify the damage caused to the plaintiffs’
property.
[11] The Session Court Judge had found that the defendants owed the
plaintiffs a duty of care based on the neighbour principle first
expounded in the seminal case of Donoghue v. Stevenson [1932] AC
562. She also found that the defendants had breached that duty and
that the damage was foreseeable.
[12] The damage as found by the trial judge consisted of 3 main

incidents in the following:
(a) First Incident occurred around 17.06.2014 where the

construction carried out by D3 had caused damage, inter
alia, punctured holes to the Party Wall on the upper floor
bedroom and attic of the plaintiffs’ property;
(b) Second Incident occurred around 25.11.2014 where cracks

and defects started to surface on the walls of the plaintiffs’
property arising from the D3’s works and
(c) Third Incident occurred around 26.01.2015 where new

cracks emerged causing water seepage, and the attic of the
4
kitchen area along with the partition had completely

collapsed.
[13] The defendants owners and D3 were separately represented at

the trial. The common Defence of the defendants was that they had
taken all due care and skill in implementing the renovation project at
the defendants owners property and D3 further stated that they had
taken extra care and precaution due to the condition of the plaintiffs’
property.
[14] D3 further pleaded that the cracks had already existed before
they commenced the works and that the plaintiffs’ building was a pre-
war building prone to cracks and settlement even without any works
being done on the defendants owners property.
[15] The trial judge based on the evidence adduced and the expert
opinion of PW 5 dismissed the defences of the defendants including
that of D3.
[16] Against that decision and judgment given, all three defendants
had appealed to the High Court.
[17] This appeal coming up in this Court is only with respect to the
appeal by D3 as appellant. The other appeal by D1 and D2 is before
another High Court and had not been disposed of when this appeal
was heard.
[18] It was agreed by counsel for both parties that this appeal can be
heard independently of the defendants landowners’ appeal.
[19] For ease and consistency of reference the parties shall be

referred to as plaintiffs and defendants. Where context requires for
clarity the defendants would be separately referred to as defendants
owners in D1 and D2 or contractor in D3.
5
Principles
[20] It cannot be seriously disputed nor disputable that any works

done on one’s property must be done in such a manner as not to cause
damage to neighbouring properties. The proximity of one’s property
to that of one’s neighbour would attract the application of the
proximity principle in Donoghue v. Stevenson [1932] AC 562.
[21] The enduring nature of the proximity principle can be seen in

the way it has developed dynamically as courts when confronted each
time with an accident or mishap under a myriad of circumstances
where injury or even death has been caused arising out of human
conduct, have applied the “duty of care test” flexibly as the justice of
the case may demand. The dicta below rings true in that whilst
circumstances in life may change the guiding principle enunciated in
the case may be applied across a broad spectrum of anticipated
accidents. It was said that Lord Atkin’s enunciation of the “neighbour
principle” had been inspired from the question asked by a wise
teacher in the parable of the Good Samaritan. The same question is
being asked today as follows as set out in the case of Donoghue v.
Stevenson (supra) at page 580:
“Who then is my neighbour?
“…The rule that you are to love your neighbour becomes in law,
you must not injure your neighbour; and the lawyer’s question,
Who is my neighbour? receives a restricted reply. You must take
reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.
Who, then, in law is my neighbour? The answer seems to be
— persons who are so closely and directly affected by my act
that I ought reasonably to have them in contemplation as
6
being so affected when I am directing my mind to the acts or

omissions which are called in question.” (emphasis added)
[22] I have no difficulty in holding, as the trial court had held, that
D3 owed a duty of care in carrying out the construction works to the
property of the defendants owners in such a manner as not to cause
damage to the plaintiffs’ adjacent and adjoining property.
[23] Learned counsel for the plaintiffs referred to the scope of duty
of care as well established in the Federal Court case of Arab-
Malaysian Finance Bhd v. Steven Phoa Cheng Loon & Ors and other
Appeals [2003] 1 MLJ 567 where in the context of the duty owed by
one property owner to another adjoining property owner it was
observed as follows at page 579:
“Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn

Bhd & Ors [1999] 4 MLJ 9 correctly applied the test to
occupiers of adjoining land. We approve of what Kang Hwee
Gee J there said, at p 17:
That a duty of care situation existed between the first

defendant operator and the plaintiff is plain and obvious.
The plaintiff was the first defendant’s neighbour in the
literal sense of the word. He was the occupier of the land
adjoining the quarry. He was clearly within that category
of persons whom Lord Atkin in the celebrated case of
M’Alister (or Donoghue) (pauper) v. Stevenson [1932] AC
562 at p 580 described as:
‘… persons who are so closely and directly affected

by my act that I ought reasonably to have them in
contemplation as being so affected when I am
directing my mind to the acts or omissions which are
called in question.’”
7
[24] As was explained in Steven Phoa’s case (supra) at page 578:
“To make out a case against a defendant in the tort of

negligence, a plaintiff must establish four ingredients. First, he
must show he was owed a duty of care by the defendant to take
reasonable care. Second, that the defendant breached that duty,
third, that the resultant breach caused the harm in question and
fourth that he (the plaintiff) suffered damage that is not too
remote…”
[25] The proximity of the plaintiff’s property to the construction site

of the defendants as in both adjacent to and adjoining is such that it is
fair, just and reasonable to impose the duty of care on the defendants
and for the purpose of this appeal on D3, as laid down in the case of
Mestika Bistari Sdn Bhd & Anor v. Telekom Malaysia Bhd [2018] 1
LNS 373 as follows:
“[37] Telekom claims that Fujiya had negligently damaged its

cables. It is settled law that the burden of proving negligence is
on the Plaintiff. Accordingly, in this instant case the onus of
proving that Fujiya is negligent is on Telekom. Telekom must
prove that Fujiya owes it a duty of care, that the duty of care
was breached and that the said breach caused Telekom to suffer
damages. In The Fordeco Nos 12 and 17 [2000] 1 MLJ 449;;
[2000] 1 CLJ 605, the Federal Court held that:
“First, the plaintiffs’ claim in the instant case is for

damages for negligence as a result of collision between a
ship and a tugboat. What is the right of action here? An
action lies whenever the plaintiff has suffered damage by
reason of the negligent performance of any duty which the
defendant, his agent or servant owes to the plaintiff. There
are three elements that together constitute the right of
8
action for negligence, namely, duty, breach and

damage. (Bullen & Leake & Jacob’s on Precedents of
Pleadings (13 th Ed, 1990) at p 678). Hence, the burden is
on the plaintiff to prove these elements. It is settled law
that the onus of proving negligence is on the plaintiff (Neo
Chan Eng v. Koh Yong Hoe [1960] MLJ 291). Thus
applying this principle of law to the instant case, it is for
the respondents to satisfy the court that their claim is well-
founded. [Emphasis added]
[38] The Federal Court in Lok Kok Beng & 49 Ors v. Loh Chiak
Eong & Anor [2015] 4 MLJ 734;; [2015] MLJU 261;; [2015] 7
CLJ 1008 citing with approval the House of Lord’s decision in
Caparo Industries plc v. Dickson [1990] 2 AC 605, held that the
elements giving rise to a duty of care are foreseeability,
proximity and policy consideration. Zainun Ali FCJ held that:
“[34] To put it in a nutshell the preferred test is the three

fold test, where the requirements of foreseeability,
proximity and policy considerations must exist in any
claim for negligence. The three fold test has been
recognised by the House of Lords in Caparo Industries plc
v. Dickman [1990] 2 AC 605, as the elements giving rise to
a duty of care. In the judgment of Lord Bridge in Caparo
at pp 617-618, His Lordship said that: What emerges is
that, in addition to the foreseeability of damage, necessary
ingredients in any situation giving rise to a duty of care
are that there should exist between the party owing the
duty and the party to whom it is owed a relationship
characterised by the law as one of ‘proximity’ or
‘neighbourhood’ and that the situation should be one in
which the court considers it fair, just and reasonable
that the law should impose a duty of a given scope on
9
the one party for the benefit of the other. (emphasis

added)”
Whether D3 as an independent contractor of the defendants

owners owed a duty of care to the plaintiffs in the execution of the
construction works
[26] D3 submitted that they were just mere independent contractors

engaged by the defendants owners to carry out the works and that they
do not owe a duty of care to the plaintiffs.
[27] However the position of the law is that generally an employer is

not liable for the acts of independent contractors. In Charles Dalton
Appellant; And Henry Angus & Co. Respondents. The Commissioners
Of Her Majesty’s Works And Public Buildings Appellants; And Henry
Angus & Co. Respondents (1881) 6 App. Cas. 740 the English House
of Lords held that when an employer contracts for the performance of
work which properly conducted can occasion no risk to his
neighbour’s house which he is under obligation to support, he is not
liable for damage arising from the negligence of the contractor.
[28] It is not necessary for this Court for the purpose of this appeal
to consider whether the nature of the construction works carried out
by D3 was one necessarily attended with risk such that the defendants
owners cannot free themselves from liability. In a case where there is
attendant risks involved the defendants owners would not be able to
free themselves from liability and indeed would be held to be jointly
liable with their independent contractor as joint-tortfeasors.
[29] The Court of Appeal case of Mehrzad Nabavieh & Anor v.

Chong Shao Fen & Anor and another appeal [2016] 3 MLJ 500
observed as follows with respect to an owner’s liability vis-a-vis an
independent contractor as follows:
10
“[26] After the case of Bower v. Peate (above), the English

House of Lords in the case of Dalton v. Angus [1881] 6 App.
Cas. 740 held that when an employer contracts for the
performance of work, which properly conducted can occasion no
risk to his neighbour’s house which he is under obligation to
support, he is not liable for damage arising from the negligence
of the contractor.
[27] That is the general principle, that employers are not

liable for the acts of independent contractors. However in that
case, Lord Watson went on to say that in cases where the work
is necessarily attended with risk, he cannot free himself from
liability by binding the contractor to take effectual
precautions. He is bound, as in a question with the party
injured, to see that the contract is performed, and is
therefore liable, as well as the contractor, to repair any
damage which may be done (emphasis ours). Therefore
applying Lord Watson’s pronouncement here, the 1 st and 2 nd
defendants should not be held liable alone. The 4 th and 5 th
defendants should also be liable for the damage which was
occasioned to the plaintiffs’ property.
[28] Subsequent to these cases, the English Court of Appeal in

the case of Alcock v. Wraith & Ors [1991] Times, 23 Dec held
that the general rule is that one is not responsible for a tort by
an independent contractor. But the exception is where the
activity involved some special risk of damage, or is work
which from its very nature was likely to cause
danger/damage. The true basis for the exception in party-wall
cases was where the law conferred a right to carry out work on a
wall / division, and that work involved a risk of damage to the
adjoining property, the law also imposed a duty on the party
carrying out the work to ensure that it was carried out carefully.
11
[29] In Alcock v. Wraith (above), Neill LJ stated that the owner

of the damaged property was certainly entitled to claim
damages against the independent contractor for negligence
and trespass. His Lordship stated that for the purpose of
deciding whether he could recover damages from the employers
of the independent contractor, it did not matter whether the
claim was framed in negligence, trespass or nuisance. His
Lordship went on to hold that the owner of the damaged
property could claim against the employers of the
independent contractor. There was no further pronouncement
made that the independent contractor was also liable, probably
because it was stated at the outset that the independent
contractor was adjudged a bankrupt after conducting the works
which caused the damage to the property.
[30] Therefore from a consideration of the case law subsequent

to Bower v. Peate (above), it may be concluded that both the
independent contractor as well as the employer would be
liable for any damage occasioned to the property of
neighbouring land.” (emphasis added)
[30] The proposition of law as suggested by learned counsel for

D3/appellant is not supported by authorities. Rather the reverse is true
which is that the independent contractor owes a duty of care to the
adjoining owner when carrying out works on the property adjacent
and adjoining to it to ensure that no damage is caused to the
neighbouring property.
[31] It is of course open to the plaintiffs to argue that in any event

the defendants owners are co-extensively liable under nuisance even
if the work is not of a nature that carries with it attendant risks but
that would be the subject-matter of another appeal alluded to where
the appellants are D1 and D2 below.
12
Whether there had been a breach of the duty of care by the

contractor D3 to the plaintiffs with damage caused that is
foreseeable
[32] Learned counsel for the plaintiffs submitted that the negligence
of D3 consisted of the following precautions that were not taken to
ensure that the integrity of the existing foundation of the plaintiffs’
property was not compromised as explained by the plaintiffs’ expert
witness in PW 5:
(i) Provide a Method Statement by a professional engineer

with input from a geotechnical engineer with experience in
load bearing structures. Determine if Lot 2 should be
vacated;
(ii) Carry out a Dilapidated Building Report (Pre-Construction

Survey) of Lot 2 to record cracks if any and existing
conditions of the structure and fabric;
(iii) Purchase the necessary Insurance (Contractor All Risk for

example) to include coverage of Lot 2 and specifically to
mention that it is a load bearing structure;
(iv) Explain to residents or owner of Lot 2 the proposed scope

and extent of works. Persuade that an appointed engineer
of Lot 2 participate in the monitoring and supervision
during execution of said works;
(v) Provide temporary props and shore of Lot 2 before the

start of demolition of Lot 4;
(vi) Strengthen the foundation of Lot 2 before demolition of

Lot 4;
13
(vii) Institute structural monitoring of Lot 2 party walls and

ground slab during the demolition, and throughout the
duration of construction of foundation and building, and
after completion during the defects liability period;
(viii) Employ a competent contractor who must demonstrate that

he has capable members of staff such as engineer and
supervisors not to mention equipment. Contractor should
also provide his method statement of construction to be
approved by the professional engineer(s) mentioned in step
(i) and (iv) above;
(ix) Carry out a control demolition of Lot 4 with feedback from

the monitoring instituted in step (vii) above.
[33] The trial judge was satisfied that PW 5 was eminently qualified
to give his opinion on matters of geotechnical engineering especially
with respect to pre-war buildings, having published his research on
this subject and she had accepted the expert report of PW 5. His PhD
was in Civil and Structural Engineering from the University of
Sheffield and he had published in Majalah Akitek in June 1976 his
research article on “Old Row Houses In Peninsular Malaysia where he
had described and explained the features of old row houses. His
Expert Report dated 9.5.2017 covered the following:
1. Pre-Construction Condition Report of the plaintiffs’

property;
2. Report on Defects, Distress and Cracks suffered by the

plaintiffs’ property; and
3. Comments of D3’s documents.
[34] D3 had not called any expert witness to contradict the evidence
of the plaintiffs’ expert witness in PW 5.
14
[35] The trial court had found that the works done by D3 consisted of
Demolition Works, Hoarding Works and Piling Works from the
breakdown of the contract sum of D3. The Demolition Works included
demolishing the existing timber staircase, reinforced concrete floor
slabs, columns, beams, sub-structure works, demolishing half brick
wall, hacking off existing floors and that these were done using
demolition machinery and hammer backhoe. The Piling Works were
by way of micro-piling.
[36] All that D3 said was that they had not breached their duty of
care for they had complied with the Architect’s and Engineer’s
directions and instructions and the conditions laid down by DBKL.
The Architect was Tetuan Meor Architect and the consultant Engineer
was one Ir Azlina from Experts Engineers Sdn Bhd. The defendants
did not call the Architect to testify.
[37] As regards DBKL approval of the plans submitted, I agree with

the plaintiffs that what was approved was for the additional works of
an additional floor to the 2 storey building and not the demolishing of
the whole building to build a 3 storey building.
[38] The DBKL’s approval of 27.3.2014 reads in its original

language as follows:
“ADALAH DIBERITAHU bahawa permohonan Untuk cadangan

tambahan dan perubahan serta menambah satu tingkat dan
menaiktaraf fasad pada bangunan kedai pejabat 2 tingkat sedia
ada pada lot 262 dan 263 (No. 4 & 6), Jalan Utara, Off Jalan
Imbi, dalam Bandaraya Kuala Lumpur
Telah diberi kebenaran perancangan….”
[39] DW 5 Azlina, the Engineer of the project called by the

defendants admitted during trial that based on her opinion as an
15
engineer, the title on the billboard is only to add an additional storey

to the existing building. DW 5 also agreed that the actual works
implemented was different from DBKL’s approval and also agreed
that the title in the Bills of Quantity is in fact more appropriate in
showing the intention to demolish the existing building and build a
new 3-storey building.
[40] I agree with the plaintiffs that it is self-evident from paragraph 5

of the DBKL’s approval letter dated 27.03.2014 (a document adduced
by D3) that DBKL had requested the architect to submit a certificate
from a structural engineer/ consultant engineer to certify that the
existing building was strong enough to bear the weight of the
proposed additional level. The said request in the DBKL letter clearly
rebuts D3’s arguments that DBKL approved the demolition and
rebuilding of a brand new 3-storey building.
[41] I am satisfied that for works of this nature involving demolition

of the existing structure where the foundation appears to be shared by
the buildings in a row and seeing that it is pre-war building, it
behooves D3 to have done a pre-dilapidation report before
commencing work and a monitoring report as the work progressed.
[42] The DBKL’s approval in their letter of 27.3.2014 addressed to

the architect is subject to the condition in paragraph 6 thereof wherein
the Developer is to ensure that the works done does not cause damage
to the neighbouring building both during and after the works and to
take steps to ensure that no damage is so caused and that they shall be
liable for all costs of repair and damages claimed.
[43] D3 stated that the plaintiffs acted unreasonably in wanting them

to sign a non-disclosure agreement before allowing them to enter the
plaintiffs’ property. Considering that the plaintiffs were carrying out a
provision business in the premises and that they had been previous
16
burglaries before, I do not think that the non-disclosure agreement

was an unreasonable request.
[44] It was submitted by learned counsel for D3 that since DBKL had
issued the Certificate of Completion and Compliance (“CCC”) to the
defendants owners’ property after the works, it must mean that all the
works approved had been properly carried out.
[45] The issuance of a CCC is by a qualified person in the Architect

under the DBKL Uniform Building By-laws and it does not mean that
D3 must have complied with all reasonable precautions to ensure that
no damage is caused to the plaintiffs’ adjoining property. The
defendants had not called the architect of the project to testify.
[46] After all a CCC is issued primarily to certify that the property
on which works had been done had complied with the plans submitted
and approved by DBKL.
[47] The plaintiffs also stressed that the defendants and in particular
D3 had demolished the building without proper propping or shoring
works which would be required as explained by PW 5.
[48] As stated punctured holes appeared on the party wall on the

upper floor bedroom and attic. Such punctured holes do not happen to
happen but can only be attributable to D3 in carrying the works as an
independent contractor. Even after repair works were done by D3, PW
4 confirmed that cracks started to surface on the repaired punctured
hole.
[49] PW 5’s evidence as an expert witness is that the installation of a

piled foundation had further aggravated the damage already sustained
by the plaintiffs’ property. PW 5 explained that after the Development
Project was completed, the adjacent property (Lot 4 and 6) is now
furnished with a new micro-pile foundation which was founded deeper
17
than the plaintiffs’ property (Lot 2) and no details provided to show

that the new micro-pile foundation was made monolithic with the
existing original foundation of the adjacent property (Lot 2).
[50] The expert witness, PW 5, had observed and concluded that the
new foundation is erected separate from the foundation of the
plaintiffs’ property wherein the micro-pile is situated at least half
(1/2) a meter away from the Party Wall. The placement of the new
micro-pile foundation (which is further away from the existing Party
Wall) along with the absence of propping and shoring had caused the
plaintiffs’ property, which is a corner lot, to become a standalone
building, thereafter allowing it to tilt and rotate away from the
adjacent property (Lot 4 and 6). In fact, a gap exists between the
original Party Wall of the plaintiffs’ property and the newly
constructed Party Wall of the adjacent property. There is also the
worrying problem of the seepage of water resulting from this said gap
which has yet to be fixed.
[51] DW 4 the contractor of the project also sought to attribute the

damage to another development some 200 m away but she admitted
she has no documentary evidence in the Bundles evidencing that.
Without particulars of the other development and when it had
commenced and concluded, even if there was one, the trial court was
not able to act on such a flimsy and vague reference.
[52] D3 had not been able to refute that all of the damage sustained
by the plaintiffs’ property as stated above evidently arose from the
incompetent execution of construction works by D3. The defendants’
witnesses were themselves D1 and D2 as DW 1 and DW 2. DW 3 who
is the husband of D2 also gave evidence. D3 called DW 4 their
contractor and DW 5 the Engineer.
18
[53] D3 tried to deflect liability by stating that there were already

cracks in the plaintiff’s building before the demolition works had
commenced but there was no evidence to that effect.
[54] On the other hand the plaintiffs provided evidence by adducing

the photographs before the commencement of the demolition works to
show that the plaintiffs’ property was without any distress and was in
a safe, stable and sound condition for the plaintiffs’ family to reside
and operate their business.
[55] In any event the nature and position of the cracks that were
complained of by the plaintiffs were evidently fresh cracks that were
aggravated by further works of D3. At page 974 of the Appeal Record
D3 had by their letter of 27.11.2014 admitted that the cracks at the
kitchen of the plaintiffs’ building were caused by them.
[56] Yet another attempt at denying liability by D3 was their

assertion that the 3 incidents of damage happened after they were
terminated but the trial judge had found for a fact that D3 was only
terminated in January 2015 and based on the evidence of DW 3 the
termination was a week before Chinese New Year on 19.2.2015.
[57] In any event their termination did not affect their liability
eventhough the cracks may surface later.
[58] The nature of the damage caused was something that was
foreseeable and indeed D3 had taken out an insurance policy to cover
for such damage or loss arisen therefrom.
[59] D3 also pleaded that they had appointed an expert in heritage

building to do the supervision test but the identity of the expert was
not disclosed and neither was his report produced, if indeed there was
one.
19
Whether the plaintiffs’ property was already in poor condition

being pre-war building or that D3 should take the plaintiffs’
property as they are under the “egg-shell skull rule”
[60] The trial judge had found as a matter of fact that the plaintiffs’
property was safe, stable and in sound condition from the evidence
and photographs produced by PW 1 and PW 4 who had themselves
taken the photographs. The comparison had been set out at the trial
between the photographs pre and post demolition and reconstruction.
There was no evidence of the time stamp in the photographs having
been tampered with as suggested by the defendants. Bearing in mind
that he who alleges must prove under section 101 Evidence Act 1950
(“EA”) and more so when the other party cannot prove a negative that
the photographs had not been tampered with, D3 had not discharged
this burden. See the Federal Court in Letchumanan Chettiar
Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias
Sona Lena Alamelo Acho, deceased) & Anor v. Secure Plantation Sdn
Bhd [2017] 4 MLJ 697 where it was held that the burden of proof lies
with the party who seeks to adduce a fact, as the other party is unable
to prove a negative.
[61] The photographs were produced and rightly admitted as

evidence under section 90A of the Evidence Act 1950 (“EA”) and
duly marked as Exhibits.
[62] Under section 90A(2) EA, if the maker of the computer

generated evidence is himself giving evidence, then the need for a
certificate to confirm that the computer was used in the course of its
ordinary use and in good working order is not necessary. See the
Federal Court case of Ahmad Najib Aris v. PP [2009] 2 CLJ 800.
[63] It was also sought to be argued that there was an illegal

extension on the rear of the plaintiffs’ property which may have been
20
contributed to the damage sustained. However the so-called extension

was merely a metal deck roof. The plaintiffs’ witnesses, PW1, PW3
and PW4 had given clear evidence during trial that the metal deck
roof had always been a part of the plaintiffs’ property and as far as
they are concerned, there was no renovation done to the plaintiffs’
property since their family moved in.
[64] There was further evidence of PW5 the expert witness

confirming that there had been no extension as alleged. I agree with
the plaintiffs that considering the metal deck roof had been there for
decades, for D3 to claim that the damage suffered by the plaintiffs’
property was contributed by the so-called extension cannot be
sustained. PW 5 further gave evidence that though the plaintiffs’
property is pre-war there were no signs of distress or that its
foundations were less than stable.
[65] Even if the plaintiffs’ property has a proclivity to cracks

because of its porous propensity through the prolonged passage of
time with its foundation being more fragile than it otherwise would be
because of age, there is no evidence from any expert witness that it
would have cracked and subsided without D3 attending to any
demolition and reconstruction works beside it.
[66] At any rate this is a fit case for application of the egg-shell
principle which was applied in a case not very dissimilar to the
present case in Cheong Fatt Tze Mansion Sdn Bhd v. Hotel
Continental Sdn Bhd (Hong Hing Thai Enterprise Sdn Bhd, third
party) [2011] 4 MLJ 354 where the High Court Judge Chew Soo Ho
JC (as he then was) held at page 372 to 375, paragraph 28 to 32 as
follows:
“[28] Learned counsel for the plaintiff submitted that the

foreseeability of damage arising from the piling works to the
21
defendant is evident from the policy of insurance taken by both

the defendant and their contractor Hong Hing Thai Enterprise
Sdn Bhd ie the third party. According to the general cover note
D47 (bundle F p 6 or 8 which are the same document), the sum
insured covers inter alia ‘piling works (spun piling)’ and
‘vibrations’. It was also submitted that once the foreseeability
of damage is satisfied, the defendant is obliged in law to take
the mansion as it stands and is answerable for the full extent
of the damage which the mansion has sustained whether
owing to some sensitivity or susceptibility citing the ‘egg-
shell skull rule’ as stated in para 7-192 in Clerk & Lindsell on
Tortswhich is as follows:
The ‘egg-shell skull’ rule. Long before Wagon Mound it

was an established doctrine that a defendant has to take his
victim talem qualem, which means that if it was reasonable
to foresee some injury, however slight, to the plaintiff,
assuming him to be a normal person, then the defendant is
answerable for the full extent of the injury which the
plaintiff may sustain owing to some peculiar susceptibility.
The doctrine under consideration applies only when the
plaintiffs pre-existing hypersensitivity is triggered into
inflicting the injury complained of, or an existing injury is
aggravated by the defendant’s act … The commonest
examples of the hypersensitivity type of case are persons
who have the misfortune to suffer from haemophilia or
‘egg-shell skulls’. Mackinnon LJ said that ‘one who is
guilty of negligence to another must put with
idiosyncrasies of his victim that increases the likelihood or
extent of damage to him: it is no answer to a claim for a
fractured skull that its owner had an unusually fragile
one’. (Owens v. Liverpool Corp [1939] 1 KB 394 at pp 400
22
— 401)… Where the expected magnitude of the damage

is caused by the unexpected sensitivity of the property
damaged, it is submitted that here too the defendant
should be liable for the full extent. To distinguish
between personal and property damage in respect of
hypersensitivity would be unacceptable …
[29] In the instant case, the defendant was well aware of the
possibility or probability of damage to the mansion which had
non- reinforced walls from the concern expressed by PW1 to
DW1 which the defendant ought to endorse that they had been
fore-warned. Foreseeability of damage on the defendant, to this
court, is proved by the plaintiff as defendant ought to have so
anticipated since their attention had been drawn to the non-
reinforced structure of the mansion that hammer-driven piles
system with its excessive vibrations might likely cause damage
to the mansion. The defendant’s contention, principally is
that the mansion itself is century old; it is fragile and
vulnerable. Hence the cracks and/or damages had or would
have occurred as a matter of course. Defence also contended
that the cracks as appeared were superficial, with dirt marks and
traces of fungus and produced several photographs of the cracks
which as submitted by the plaintiff were actually cracks on the
boundary wall and not cracks on the plaintiff’s mansion. Such
contention is unsubstantiated under the thin skull rule above.
Having been fully aware of the fragility of the mansion, all
the most defendant ought to exercise more care to avoid any
probable and foreseeable damage. On the defence’s claim of
reasonable user of land, plaintiff contended that there can be no
defence to actionable nuisance when damage was caused to the
mansion by the hammer-driven piling system used by the
defendant. The English case of Hoare & Co v. McAlpine [1923]
23
1 Ch D 167 is cited by learned counsel for the plaintiff which

had been considered by His Lordship Vincent Ng Kim Khoay J
in Cheong Fatt Tze Mansion Sdn Bhd v. Hotel Continental Sdn
Bhd as it is directly on point. His Lordship said at p 368:
I am however persuaded to adopt the approach taken in

Hoare and Company v. McAlpine [1922] 1 Ch D 167 (an
English authority cited by counsel for the plaintiff, which
was followed in Chan Wing & Sons Realty Co v. The Asia
Insurance Co Ltd, the facts wherein are not dissimilar to
our current case. In that case: in preparing a site for a
large building in the heart of the city, the defendant drove
a very large number of piles into the soil, thereby setting
up such heavy vibrations as to cause serious structural
damage to an old house belonging to the plaintiff with the
result that a greater part of the building had to be taken
down in compliance with a dangerous structure notice. It
was therein held that the plaintiffs house though very old
was not in such an abnormally unstable condition as to
prevent the vibration being treated as an ordinary
actionable nuisance. Hence, in my judgment, as the
hammer method of piling may cause nuisance that
produces material damage or injury to property or persons
it cannot in any event constitute reasonable user of land as
contended.”(emphasis added)
[67] An appreciation of the particular susceptibility of the plaintiffs’

property to cracks, subsidence and seepage must surely constrain the
defendants and D3 in particular to take special precaution more than
the standard practice to ensure no damage is caused to the plaintiffs’
property.
24
[68] Bereft of evidence of any special precaution taken D3 cannot

escape liability by saying that they did all that a reasonable contractor
would do.
Whether the plaintiffs had proved the damages claimed
[69] The trial judge found as a matter of fact that the quotation of
RM625,585.40 given by PW 2 from Lembina Bina Sdn Bhd is
reasonable with the expert witness PW 5 stating that if at all, it is
probably on the lower side as in being under-quoted.
[70] D3 had challenged the quotation as being merely a single quote

and that at best it is only an estimate and that in a case of special
damages claim, it must be strictly proved. It was also challenged on
ground that the assessment was done some 2 years after the damage
caused.
[71] The defendants and that included D3 had not produced evidence
of an alternative quote. Like all quotes they are based on an
estimation. PW2 had concluded the calculation for the damages
sustained by the plaintiffs’ property and the amount of monies
required to conduct the necessary repairs based on the engineer’s
requirements, the owners’ list of damage and also his own past
experience. See generally the factors to be considered with respect to
reinstatement of damaged property and the cases referred to in the
Court of Appeal case of Milik Perusahaan Sdn Bhd & Anor v.
Kembang Masyur Sdn Bhd [2003] 1 MLJ 6 at page 12 where it was
observed as follows:
“That brings us to the central question, namely whether there

has been any error of principle in this case. Here, we would
agree with the submission of Mr Anantham that there is no a
priori rule that the registrar assessing damages ought to
25
have resort first to the diminution in value principle and

exclude its application on the evidence before having resort
to the reinstatement method. Counsel’s submission is borne
out by the authorities. Once again we must be forgiven if we do
not refer to the copious citation of cases during argument.
The sole authority we need to refer to is a case cited to us by

both sides. It is the judgment of the Irish Supreme Court in
Munelly v. Calcon [1978] IR 387. In that case Henchey J said:
Since this case was decided in the High Court, the question
of the correct measure of damages in circumstances such
as those now before us was considered by May J in CR
Taylor Ltd v. Hepworths Ltd. Among the passages cited
with approval in the judgment in that case is the following
from McGregor on Damages (13 th Ed – 1972) at para 1061:
‘The difficulty in deciding between diminution in

value and cost of reinstatement arises from the fact
that the plaintiff may want his property in the same
state as before the commission of the tort but the
amount required to effect this may be substantially
greater than the amount by which the value of the
property has been diminished. The test which
appears to be the appropriate one is the
reasonableness of the plaintiff’s desire to reinstate
the property; this will be judged in part by the
advantages to him of reinstatement in relation to
the extra cost to the defendant in having to pay
damages for reinstatement rather than damages
calculated by the diminution in the value of the
land.’
26
Accepting that passage as correctly reflecting the state of

the law, at p 667 of the report May J said:
‘The various decided cases on each side of the line to

which my attention has been drawn, and to some of
which I have referred in this judgment, show in my
opinion merely the application in them of two basic
principles of law to the facts of those various cases.
These two basic principles are, first, that whenever
damages are to be awarded against a tortfeasor or
against a man who has broken a contract, then those
damages shall be such as will, so far as money can,
put the plaintiff in the same position as he would
have been had the tort or breach of contract not
occurred. But secondly, the damages to be awarded
are to be reasonable, reasonable that is as between
the plaintiff on the one hand and the defendant on the
other.’
I accept those two principles as being basis to, although

not necessarily exhaustive of, the concept of restitutio in
integrum on which the law of damages rests in cases such
as this. It is in the application of those principles that
difficulty may arise, for a court, in endeavoring to
award a sum which will be both compensatory and
reasonable, will be called on to give consideration, with
emphasis varying from case to case, to matters such as
the nature of property, the plaintiff’s relation to it, the
nature of the wrongful act causing the damage, the
conduct of the parties subsequent to the wrongful act,
and the pecuniary, economic or other relevant
implications or consequences of reinstatement damages
as compared with diminished value damages. The
27
reported cases, therefore, required to be viewed primarily

as exemplifications of the application to special facts of
two principles to which I have referred.” (emphasis added)
[72] PW 2 had explained that when he went to visit the site, he did
examine the amount of work required and the manner of repairing the
damage. PW 2 also further justified the amount by explaining to the
Sessions Court Judge roughly what was included in each item in the
said quotation.
[73] There is no law to state that multiple quotes must be produced.

There is also no law to state that the quote becomes unreliable merely
because it was done some 2 years after the event of damage. If at all it
would be more realistic an assessment of the repair for by then any
propagation in the cracks would well have stopped and so is the extent
of subsidence.
[74] Assessment of damages is an art and not a science and that

approximation and estimation may be used in some instances. The fact
that loss cannot be accurately determined is no excuse for not
granting any damages at all, for that would be to add insult to injury.
[75] The Federal Court decision in Tenaga Nasional Berhad v. Ichi-

Ban Plastic (M) Sdn Bhd and other appeals [2018] 3 MLJ 141
reiterated once again the principle on calculation of loss at page 174
paragraph 86 as follows:
“[86] Reverting to the issues raised relating to the calculation

point, due to the nature of the claim, we appreciate that there
may be difficulty in obtaining the evidence for the claim under
s. 38 of the Act. Nevertheless, in our view, it would be unwise
for us to use this occasion to say anything which might be taken
as specifying or limiting the nature and extent of the evidence
necessary to establish a claim for loss of revenue under s. 38 of
28
the Act. Where precise evidence is available, as for example if

there is a special device to measure the loss of revenue due to
the tampering of electricity supply, naturally the court expects
to have it, but where it is not the court must do the best it can.
In other words, there could be other evidence in lieu of
precise evidence. For example, approximation or estimation
may be used provided it is reasonable and fair. This would
depend on the quality of the evidence adduced in court to
support that approximation or estimation. In light of what we
have said thus far, we find it unnecessary to answer the two
questions posed.” (emphasis added)
[76] I accept the fact that the damages assessed should fall more
appropriately under general damages rather than special damages as
no payments had been incurred or made out yet. It is a matter of
nomenclature and does not affect the substance of the claim in terms
of the damages assessed.
[77] Surely D3 is not saying that until the repair and rectification
work had been done there is no basis for the plaintiffs to make their
claim for damages.
[78] There may be many reasons why repair and rectification had not
commenced yet and the lack of funds would be one reason for already
costs had to be incurred in commencing this suit in the Sessions
Court, not to mention the costs of engaging an expert and also to
resist this appeal and the appeal by the defendants owners.
[79] To say that the plaintiffs cannot make a claim until they have
the funds and incurred the costs of the repair might be to wait until
limitation setting in. It would be a double blow for the injured party.
[80] That has not been the position of the law. In the Singapore High
Court case of Afro-Asia Shipping Company (Pte) Ltd v. Da Zhong
29
Investment Pte Ltd & Others [2004] 2 SLR 117, the plaintiff’s
building had tilted, cracks had developed, floors had sunk and seepage
of water had occurred because of works done in the 1 st defendant’s
land when it constructed a building on its land called Robinson
Centre. When the plaintiff sued the 1 s t defendant and other defendants
being the consultants and contractors who worked on the building for
negligence and claimed based on a quotation of the rectification
works, it was argued that as the amount had not been incurred yet then
the plaintiff would only be entitled to mere nominal damages. Her
Ladyship Judith Prakash J (now JA) followed a simple common
sensical approach when she observed as follows:
“[129] …All the arguments made about the plaintiffs trying

to get cash before the building was sold or that rectification
was unnecessary had no legal foundation. A plaintiff whose
land and building has been affected is entitled to be
compensated for the damage. He may apply the money for
repairs or he may not. In this instance, the plaintiffs would
wish to apply the quantum awarded to the building. The building
when sold (if that ever came to pass) would certainly fetch a
value in keeping with its state before all the works of the
defendants started.
[133] On the facts before me, I consider that the damages

payable by the first to third defendants for the damage caused to
AA Building should be assessed on the basis of the diminution
of the capital value of AA Building as at the date of this
judgment ie what the price of the building would be if it was
sold on the date of this judgment in an undamaged condition as
opposed to the price it could expect to fetch on the same day in
its present condition. I do not think it is correct to order
nominal damages. Obviously, substantial damage has been
sustained and this most probably, would have a more than
30
nominal effect on the price of the building even though much

of the value of the site on which AA Building stands may
reside in its development potential. I also think it correct to
send this issue for assessment as the trial was ordered to be on
the liability issue only and the issue of whether the diminution
in value basis for the assessment of damages was the correct one
only arose in the course of the trial.” (emphasis added)
[81] I would uphold this assessment of damages though under the

rubric of general damages, having satisfied myself that the same
amount would have been arrived at by the trial judge.
Pronouncement
[82] At the end of the day D3 as appellant is trying to persuade and

prevail upon this court to disturb what is essentially a finding of facts
of the trial judge with respect to D3 having been negligent in the
execution of the demolition and reconstruction work.
[83] The trial judge had the audio-visual advantage of having

observed and heard the witnesses, not to mention the documentary
evidence in the photographs and expert opinion of PW 5. It is trite law
that there is no need for an appellate court to disturb the finding of
facts by the judge in the trial court unless there are manifest errors.
[84] The Court of Appeal case in Choo Chin Thye v. Concrete

Engineering Products Bhd & other appeals [2005] 4 MLJ 14 held at
page 33 as follows:
“[52] We agree wholeheartedly with the conclusion of the

learned trial judge. Clearly on both issues, namely constructive
trust and conspiracy, CEPCO in seeking a reversal of the learned
trial judge’ judgment is challenging the learned trial judge’s
31
findings of facts. It is trite law that only in rare cases that an

appellate court would interfere with the primary findings of
facts made by the trial court…” (emphasis added)
[85] I have no cogent reason to come to a different conclusion having

carefully reviewed the evidence given in the court below and the way
the trial judge had assessed the evidence given and the conclusion of
law arrived at.
[86] The decision of the trial judge with respect to D3 was affirmed
and thus the appeal of D3 was dismissed with costs of RM10,000.00
and allocator shall be paid before extraction of the order of the Court.
Dated: 31 JULY 2019
(LEE SWEE SENG)

Judge
Construction Court
High Court in Malaya
Kuala Lumpur
COUNSEL:
For the appellant - Nur’ Izzah Mohd Tahir; M/s Zainul Rijal Talha &
Amir
For the respondents - Richgopinath, Nur Muhaimin Mohd; Husaimi

and Teoh Hui Chyuan; M/s Joel & Mei
Date of Decision: 28 MARCH 2019
32
Case(s) referred to:
Donoghue v. Stevenson [1932] AC 562
Arab-Malaysian Finance Bhd v. Steven Phoa Cheng Loon & Ors and
other Appeals [2003] 1 MLJ 567
Mestika Bistari Sdn Bhd & Anor v. Telekom Malaysia Bhd [2018] 1
LNS 373
Charles Dalton Appellant; And Henry Angus & Co. Respondents. The
Commissioners Of Her Majesty's Works And Public Buildings
Appellants; And Henry Angus & Co. Respondents [1881] 6 App. Cas.
740
Mehrzad Nabavieh & Anor v. Chong Shao Fen & Anor and another
appeal [2016] 3 MLJ 500
Letchumanan Chettiar Alagappan @ L Allagappan (as executor to SL

Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v.
Secure Plantation Sdn Bhd [2017] 4 MLJ 697
Ahmad Najib Aris v. PP [2009] 2 CLJ 800
Cheong Fatt Tze Mansion Sdn Bhd v. Hotel Continental Sdn Bhd
(Hong Hing Thai Enterprise Sdn Bhd, third party) [2011] 4 MLJ 354
Milik Perusahaan Sdn Bhd & Anor v. Kembang Masyur Sdn Bhd
[2003] 1 MLJ 6
Tenaga Nasional Berhad v. Ichi-Ban Plastic (M) Sdn Bhd and other
appeals [2018] 3 MLJ 141
Afro-Asia Shipping Company (Pte) Ltd v. Da Zhong Investment Pte

Ltd & Others [2004] 2 SLR 117
33
Choo Chin Thye v. Concrete Engineering Products Bhd & other

appeals [2005] 4 MLJ 14
Legislation referred to:
Evidence Act 1950, ss. 90A(2), 101
34

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[2019] 1 LNS 1380 Legal Network Series

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

SHABIRU (1990) SDN BHD

1. GOH AIK CHIN

2. GOH AIK BEE

IN THE SESSION COURT AT KUALA LUMPUR

1. GOH AIK CHIN

2. GOH AIK BEE

1. NARGIS BEGUM BINTI M.M ABDUL WAHAB

2. FERTUS BEGUM BINTI M.M ABDUL WAHAB

3. SHABIRU (1990) SDN BHD

Y.A. LEE SWEE SENG

[1] This appeal arose out of a decision of a Sessions Court where

[5] The defendants owners wanted to have an additional floor added

[6] As works were done by D3 on the property of the defendants

[7] However as the plaintiffs’ building deteriorated further because

[8] The particulars of negligence consisted inter alia in the

Proceedings at Sessions Court

[10] The sum was arrived based on a quotation provided by a

[12] The damage as found by the trial judge consisted of 3 main

(a) First Incident occurred around 17.06.2014 where the

(b) Second Incident occurred around 25.11.2014 where cracks

(c) Third Incident occurred around 26.01.2015 where new

kitchen area along with the partition had completely

[13] The defendants owners and D3 were separately represented at

[19] For ease and consistency of reference the parties shall be

[20] It cannot be seriously disputed nor disputable that any works

[21] The enduring nature of the proximity principle can be seen in

“Who then is my neighbour?

being so affected when I am directing my mind to the acts or

“Wu Siew Ying v. Gunung Tunggal Quarry & Construction Sdn

That a duty of care situation existed between the first

‘… persons who are so closely and directly affected

[24] As was explained in Steven Phoa’s case (supra) at page 578:

“To make out a case against a defendant in the tort of

[25] The proximity of the plaintiff’s property to the construction site

“[37] Telekom claims that Fujiya had negligently damaged its

“First, the plaintiffs’ claim in the instant case is for

action for negligence, namely, duty, breach and

“[34] To put it in a nutshell the preferred test is the three

the one party for the benefit of the other. (emphasis

Whether D3 as an independent contractor of the defendants

[26] D3 submitted that they were just mere independent contractors

[27] However the position of the law is that generally an employer is

[29] The Court of Appeal case of Mehrzad Nabavieh & Anor v.

“[26] After the case of Bower v. Peate (above), the English

[27] That is the general principle, that employers are not

[28] Subsequent to these cases, the English Court of Appeal in

[29] In Alcock v. Wraith (above), Neill LJ stated that the owner

[30] Therefore from a consideration of the case law subsequent

[30] The proposition of law as suggested by learned counsel for

[31] It is of course open to the plaintiffs to argue that in any event

Whether there had been a breach of the duty of care by the

(i) Provide a Method Statement by a professional engineer

(ii) Carry out a Dilapidated Building Report (Pre-Construction

(iii) Purchase the necessary Insurance (Contractor All Risk for

(iv) Explain to residents or owner of Lot 2 the proposed scope

(v) Provide temporary props and shore of Lot 2 before the

(vi) Strengthen the foundation of Lot 2 before demolition of

(vii) Institute structural monitoring of Lot 2 party walls and

(viii) Employ a competent contractor who must demonstrate that

(ix) Carry out a control demolition of Lot 4 with feedback from

1. Pre-Construction Condition Report of the plaintiffs’