IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) THE PALACE OF JUSTICE CIVIL APPEAL NO. A /2011. Appellant LOGANATHAN A/L SUPPIAH

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1 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) THE PALACE OF JUSTICE CIVIL APPEAL NO. A /2011 Appellant LOGANATHAN A/L SUPPIAH v. Respondent ANG AH HUN [In the matter of the High Court of Malaya at Taiping, Civil Suit No ]

2 [Plaintiff Loganathan a/l Suppiah v. Defendant Ang Ah Hun] Coram: MOHD HISHAMUDIN YUNUS, JCA LIM YEE LAN, JCA MOHD ZAWAWI SALLEH, JCA JUDGMENT OF THE COURT On 19 November 2013, having heard submissions, we have unanimously dismissed this appeal with costs. 2

3 This appeal is against the decision of the High Court of Taiping dismissing the plaintiff s (the appellant before us) claim against the defendant (the respondent before us) for damages based on the torts of negligence and nuisance. We find no merits in the appeal. Our reasons are as follows. The essential facts are these. The plaintiff is an owner of a 3-storey terrace shop house in the town of Bagan Serai. It was constructed in In September 2003 the defendant commenced building construction works (including piling works) ( the construction works ) on a lot adjacent to plaintiff s shop house to build a 3-storey terrace shop house. It is alleged by the plaintiff that the construction works carried out by the defendant on his land over several months had damaged his (the plaintiff s) shop house; in that, the construction works had caused numerous cracks to the walls and floors, leakages in the roof, and a deflection of the beams and columns. The plaintiff claims for damages. 3

4 The defendant denies that it was his construction works that had caused the damage to the plaintiff s shop house. At the conclusion of the trial, the learned Judicial Commissioner dismissed the plaintiff s claim. We do not have the benefit of the grounds of judgment of the learned Judicial Commissioner. However, in his notes of proceedings, in his decision, he said (at p. 175 of the Appeal Records) Di atas imbangan kebarangkalian defendan telah membuktikan bahawa kerosakan kepada Bangunan plaintif bukan disebabkan oleh kerja pembinaannya. Oleh itu Tuntutan plaintif ditolak dengan kos. In Chua Seng Sam Realty Sdn Bhd v Say Chong Sdn Bhd & Ors [2013] 2 MLJ 29, the Court of Appeal, citing Clerk & Lindsell on Tort (20 th Edn), ruled (at p. 36, para. 32): It is trite law that in an action for negligence the plaintiff has to prove that the defendant s act was the effective cause of the injury suffered by the 4

5 plaintiff. Without a causative link being established by the plaintiff, the claim cannot succeed. Thus the legal burden of proving causation lies with the plaintiff, and not with the defendant. The plaintiff has to prove on a balance of probabilities that it was the defendant s construction works that had caused the damage to the plaintiff s shop house. In order to prove causation, the plaintiff called as his witness one Mr. Cheng Ming Kai (PW2), a consultant engineer (civil and structural). In his expert report, PW2 states that he was appointed by the plaintiff in 2004 and that the purpose of his appointment was: We are a firm of Civil and Structural Consulting Engineers and were commissioned in August 2004 to conduct a building condition survey and make the appropriate recommendations for remedial works. In his report, PW2 (in his Conclusion ) states Based on the observed defects, it was apparent that the cracks, plaster spallings, deflection of beams and columns and roof leakages were the 5

6 result of the piling and excavation works carried out during the construction of the three storey terraced shop house adjacent and on the right hand side of the affected building. In his oral evidence, PW2 said: The major cause for these damage, based on my own experience these damage can only be due to the external forces, for example: earthquake or heavy vehicle rammed into the building. In this case I understand there are piling works carried out in the neighbour building and the piling works is using hammer method (drop hammer). Normally hammer method cannot be used if there are any building nearby. In Penang Island, [the] Majlis do not allow this drop hammer [method] in the city because of too many houses in the city, old and new. Now, the evidence of PW2 is expert evidence. Under our law of evidence, the evidence of the opinion of a person is, as a rule, irrelevant and inadmissible. However, the opinion of an expert witness is an exception to the rule. It is relevant and admissible by virtue of section 45 of the Evidence Act, This provision states 6

7 Opinions of experts (1) When the court has to form an opinion upon a point of foreign law or of science or art, or as to the identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as identity or genuineness of handwriting or finger impressions, are relevant. (2) Such persons are called experts. In evaluating the evidence of PW2, we are duty bound to examine it critically. In examining the evidence of PW2, an important observation that we make is that, firstly, PW2 visited the plaintiff s shop house to investigate the plaintiff s complaint only one year after the completion of the defendant s shop house. Secondly, we note from his oral evidence and his expert report that PW2 was not appointed by the plaintiff to investigate as to the cause of the damage to the plaintiff s shop house. He was appointed merely to conduct a building condition survey and make the appropriate recommendations for remedial works. Indeed, in his oral evidence (in cross-examination) he confirmed 7

8 Peguam: Skop kerja anda hanya terhad kepada pemeriksaan atas Bangunan dan mengesyorkan remedial work? Saksi: Betul Thus it is not surprising that we observe that PW2 s expert report focuses more on the nature and extent of the damage to the plaintiff s shop house, the methods of repair, and the cost of the repair works that need to be carried out; rather than embarking on inquiry as to the cause of the damage. Thirdly, PW2 s evidence has not adequately addressed the question of causation. It is evident from PW2 s oral evidence as well as his expert report that the opinion expressed by him as to the cause of the damage to the plaintiff s shop house is only superficial. It is mere lip service. It is only based on the observed defects,.... Remarkably, we note that there is no evidence of proper investigation carried out by PW2 to determine the cause of the damage, or to explain in a plausible manner the causal connection between the damage to the plaintiff s shop house and the construction works on the defendant s land. A bare assertion by an expert, that is to say, a mere assertion unsupported by 8

9 sufficient facts and a clear explanation as to causation, has no probative value. Therefore, in our judgment, the plaintiff has failed to prove on a balance of probabilities that the damage to his shop house was caused by the construction works carried out by the defendant. [Appeal dismissed with costs.] (DATO MOHD HISHAMUDIN YUNUS) Judge, Court of Appeal Palace of Justice Putrajaya Date of decision: 19 November 2013 Date of grounds of judgment: 16 July

10 Ramkarpal Singh (Messrs Karpal Singh & Co.) for the appellant. Joshua Ding (Messrs Joshua Ding & Partners) for the respondent. 10