1. ) Loi Jia Wen v 1. ) Bl Agro Sdn Bhd (BA-22NCvC-429-10/2024)

LOI JIA WEN

WONG WAI FOONG

HOOI JIA HAO NICKY

HOOI MUN YEE STELLA

TEE YEOW KING

QUEK SZE CHEONG

LOH TENG SHUI (NO. K/P: 781019-07-5243) [menuntut untuk dirinya sendiri dan menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai bapa yang sah kepada si mati, ZECH LOH QI YI

TAN EI EIN (NO. K/P: 790807-04-5154) 13/11/2025 09:02:10

LING MUNG SIANG (NO. K/P: 800402-14-5583) [menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai suami yang sah kepada si mati, LIU PEI SI (NO. K/P: 780604-05- 5214)]

SITI ESAH BINTI HASSAN (NO. K/P: 690424-03-5356) [menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai ibu yang sah kepada si mati, NURUL AZWANI BINTI KAMARUZAMAN (NO. K/P: 910909-03- 5428)]

CHONG MUI TIAU (NO. K/P: 530410-04-5278) [menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai ibu yang sah kepada si mati, LAI LEE YIN (NO. K/P:851211-04- 5280) dan LAI LEE KOON (NO. K.P.: 780626-04- 5420), dan menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai nenek yang sah TONG KAI EN

TAN AH CHOE (NO. K/P: 570827-10-5762) [menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai ibu yang sah kepada si mati, HONG MEI JING (NO. K/P: 840827- 14-5980)

LEE LIAN YOONG (NO. K/P: 540616-10-5036) [menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai ibu yang sah kepada si mati, LAM SOOK MAN (NO. K/P: 850618- 14- 6206)]

BEH SU LEE (NO. K/P: 630218-10-6390) [menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai ibu yang sah kepada si mati, GAIN CHOO YIN (NO. K/P: 870817- 43- 5754), dan menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai nenek yang sah kepada si mati, WONG ZI HANG (NO. SIJIL LAHIR: DAE65980) dan

DK58218)] CHONG PIT CHOO (NO. K/P: 610913-04-5114) [menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai ibu yang sah kepada si mati, TAI CHANG LIN (NO. K/P: 870418-04- 5169) dan menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai nenek yang sah kepada TAI JING KEY (NO. K/P: 150817-04- 0407) dan TAI JING ROU (NO. K/P: 181103-04-0300)]

ENG GUAN KAU (NO. K/P: 510621-07-5321) [menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai bapa yang sah kepada ENG CHOON WEN (NO. K/P: 790814-14- 5321)]

KHOR WEI FONG (NO. K/P: 810711-07-5477) [menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai suami yang sah kepada si mati CHIN SU KING (NO. K/P: 860719- 52-5968) dan menuntut menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai bapa yang sah kepada si mati, DANIEL KHOR YAN HONG (NO. K/P: 171029-10-1507)]

TEH KIM HOCK

TEH LYNN YING (NO. K/P: 111106-04-0310) seorang budak, menuntut untuk dirinya sendiri melalui bapanya yang sah TEH KIM HOCK (NO.

K/P: 740720-04-5471) TEH LYNN XI

TEH LYNN XUAN

NG YU CHUAN (NO. K/P: 800527-10-5489) [menuntut untuk dirinya sendiri dan menurut Seksyen 7 Akta Undang-Undang Sivil 1956 sebagai bapa yang sah kepada si mati, NG YEE TONG

NG WEI JUN (NO. K/P: 090118-10-1117) seorang budak, menuntut untuk dirinya sendiri melalui bapanya yang sah NG YU CHUAN (NO. K/P: 800527-10-5489) …PLAINTIF-PLAINTIF

BL AGRO SDN BHD [No. Pendaftaran Syarikat: 201401035292 (1111409-V)]

MALAYSIA BOTANICAL GARDENS RESORT SDN BHD [No. Pendaftaran Syarikat: 200201025339 (593002-A)]

3.

INFRASEL SDN BHD [No. Pendaftaran Syarikat: 201601010586 (1181516-H)]

5.

6.

KERAJAAN NEGERI SELANGOR DARUL EHSAN …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction 1. The 6th Defendant is the Selangor State Agricultural Development Corporation (“PKPS”). PKPS filed an application under Order 14A and/or Order 33 Rule 2 of the Rules of Court 2012 (Enclosure 113) to have three (3) questions of law determined, believing that the answers will substantially dispose of the matter between it and the Plaintiffs. Pleaded case 2. As the former registered owner of the land held under No. Hakmilik PN31938, Lot 8993, Mukim Batang Kali, Daerah Ulu Selangor (“Campsite Land”) where 31 people died tragically in a landslide of 16-12-2022, the Plaintiffs say that PKPS is liable for negligence, along with its co-Defendants.

The Plaintiffs’ pleaded case against PKPS is as follows: a) The Campsite Land is within the Batang Kali forest reserve. In 1995, 81.7 hectares of the Batang Kali forest reserve was carved out for alienation, covering the Campsite Land and the area identified as the origin of the landslide where the ground first gave way along Jalan Batang Kali-Genting Highlands (“Failure Zone”). b) At some point in time, the Failure Zone had been designated a road reserve for Jalan Batang Kali-Genting Highlands and ceased to belong to PKPS. PKPS remained the registered proprietor of the Campsite Land from 11-2-1998 until 7-3-2019 when it sold the land to the 2nd Defendant. c) PKPS had leased the Campsite Land to the 2nd Defendant before the sale, and that lease covered the period when the following events transpired: i) The 2nd Defendant licensed the Campsite Land to Tanah Gaia Sdn Bhd (later known as Father’s Organic Farm Sdn Bhd) between 23-10-2015 and 31-8-2017 and allowed it to carry out forest clearing and construction of structures to operate Father’s Organic Farm; ii) The 1st Defendant took over the license and farming operations from Tanah Gaia Sdn Bhd after 31-8- 2017 and opened the area to the public as a campsite. Around this time, other structures were constructed to facilitate campsite activities; and iii) In early 2018, more land clearing works were carried out by the 1st and/or 2nd Defendants in an area near the end of the earth filled embankment that was constructed as part of the construction of Jalan Batang Kali-Genting Highlands. d) PKPS was therefore negligent in failing to monitor, supervise and/or stop the said land clearing undertaken by the 1st and/or 2nd Defendant which had encroached into the forest reserve or were undertaken without necessary approvals (“Scope of Duty”).

It does not appear to be disputed that the landslide on 16-12- 2022 started at the Failure Zone and outside the boundaries of the Campsite Land. According to the Statement of Claim, earth, rocks and debris collected and created a dam on the Campsite Land which held for about 20 minutes, before it too collapsed in a second landslide that engulfed more of the Campsite Land.

The questions of law framed were as follows (“Questions”): Question 1: Whether [PKPS], as the former registered proprietor of the [Campsite Land], owed a duty of care and/or statutory duty to the lawful visitors and/or invitees of the current registered proprietor and/or its tenant(s), notwithstanding that the landslide incident occurred after [PKPS] had ceased control and ownership over the Campsite Land. Question 2: If the answer to Question 1 above is in the affirmative, then whether any of the acts (including works, developments, conduct) and/or omissions carried out by the current registered proprietor and/or its tenant(s) and/or their contractors and/or any third party(-ies) (during the period in which [PKPS] was a registered proprietor of the land) constitutes a break in the chain of causation so as to render [PKPS] not liable for the incident; and Question 3: If the answer to Question 2 above is in the negative, then whether any cause of action arising from such acts (including works, developments, conduct) and/or omissions carried out (during [PKPS]’s ownership over land) is time-barred by virtue of Section 6(1) of the Limitation Act 1953. Analysis and findings

The Questions have been framed such that they will only substantially determine the cause or matter between the Plaintiffs and PKPS if they are answered in favour of PKPS. Questions 1 and 2 are related and essentially repeat the primary ground for the earlier striking out application which this Court had dismissed. This Court was not persuaded as no clear authority was cited to support the proposition that the pleaded Scope of Duty cannot be imposed on a former landowner.

In re-arguing the same point in Question 1, PKPS relies on a decision of the Edinburgh Sherriff Court in SJ as Guardian of L v Cala Management Ltd [2019] SC EDIN 46; 2019 SCLR 873 (“Cala Management”). That case concerned an injury to a child who fell at a play park that the Defendant had contracted a third party to construct, due to the installation of a metal grid with sharp protruding strips to discourage dogs from entering.

In Cala Management, the Court found that there was a lack of proximity between former proprietors of property and invitees as that would create a duty to an indeterminate class. PKPS seeks to apply that as a ratio applicable to the facts of this case on the question of legal proximity between former proprietors and future invitees.

Like in Cala Management, the Courts here also adopted the 3-fold test of foreseeability, proximity and policy considerations recognized by the House of Lords in Caparo Industries plc v Dickman [1990] 2 AC 605, per Lord Bridge: “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 the one party for the benefit of the other.”

It is evident from the above passage that the test to establish the existence of a duty of care are not considered in the abstract, but in the context of the act or omission, the causation of damage and the scope of duty sought to be imposed as part of the factual matrix.

In other words, Cala Management is distinguishable on the facts and is in any event, not binding on this Court nor clearly persuasive considering the distinct facts.

The central dispute in this case is whether the landslide at the Failure Zone was caused by the acts or omissions of one or more of the Defendants, which were a proximate cause of the injury to the Plaintiffs (Malaysian National Insurance Sdn Bhd v Lim Tiok [1997] 2 MLJ 165). As it relates to PKPS, the extent of land clearing and construction on the Campsite Land and its effect on the propagation of the landslide are material facts not yet established.

To the extent that the answer to Question 1 depends on the determination of the causa causans of the landslide and the material effect of the land clearing and construction works at the Campsite Land to the resulting injuries to persons and property suffered by the Plaintiffs, they are unsuited for determination via the Order 14A and/or Order 33 procedures. In Thein Hong Teck & Ors v Mohd Afrizan bin Husain and another appeal [2012] 2 MLJ 299: “[47] It is trite law that O 14A of the Rules of the High Court 1980 may only be resorted to if there is no dispute by the parties as to the relevant facts, or that the court, upon scrutinizing the pleadings concludes that the material facts are not in dispute (see Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2008] 2 MLJ 812). Where the issues of fact are interwoven with legal issues raised, it will be undesirable for the court to split the legal and factual determination for to do so would in effect be to give rulings in vacuo or on a hypothetical ruling, which the court will not do…”

This Court is of the view that all three (3) tests of foreseeability, proximity and policy considerations are dependent on the facts of the case. Next, liability attaches if there is a breach of that duty of care in the Scope of Duty defined, which is also fact sensitive. In this case, that may be disputed because there is no stipulation by PKPS to the effect that it failed to monitor, supervise and/or stop the said land clearing undertaken by the 1st and/or 2nd Defendant.

There are questions in this case around the extent of PKPS’ knowledge, consent and/or participation in the development of the Campsite Land up to the time it relinquished ownership. In the context of the environmental impact of the acts attributed to the 1st and/or 2nd Defendant on PKPS’s land, and the scale of the calamity that transpired, it is also premature to decide what landowners may lawfully turn a blind eye to as a policy consideration.

Question 3 on the statutory time-bar is also fact-dependent because the elements of negligence as a cause of action include damage. The question of when damage was caused, as an essential element of the tort of negligence, bears directly upon the commencement of the statutory limitation period.

In the Court’s view, the question cannot be determined summarily if the contention of PKPS is that of latent damage to the slope since 2018. It cannot be said with certainty at this stage when the latent damage was actually sustained that either contributed to the 1st landslide or set the second landslide in motion. The matter is therefore one that is best left for determination at trial. Conclusion 18. The application in Enclosure 113 is dismissed with costs in the cause. Bertarikh : 31 Oktober 2025 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak Plaintif-Plaintif: Kavitharini a/p T Ramesh (Messrs Tanes, Khoo & Paulra) Peguam bagi Defendan Keenam: Jasneeta Bhullar (with Norazmi Norazman) (Messrs Azmi Fadzly Maha & Sim)