Gee Eng Wah v Teoh Eng Keong (P-02(NCVC)(W)-932-05/2018)

DALAM MAHKAMAH RAYUAN MALAYSIA 5 (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO. P-02(NCVC)(W)-932-05/2018 ANTARA 10 GEE ENG WAH … PERAYU (NO. K/P: 500925-07-5348) DAN

1. TEOH ENG KEONG (NO. K/P: 730528-07-5137) … RESPONDEN- 15

2. TEOH BEE YEAN (NO. K/P: 740103-07-5384) RESPONDEN [Dalam Mahkamah Tinggi Malaya Di Pulau Pinang Guaman Sivil No.: 22NCVC-174-04/2013 20 Antara

1. Teoh Eng Keong (No. K/P: 730528-07-5137) …

2. Plaintif-Plaintif Teoh Bee Yean (No. K/P: 740103-07-5384) 25 Dan Gee Eng Wah … Defendan (No. K/P: 500925-07-5348) 30 Dan Geoscience Engineering Sdn Bhd … Pihak Ketiga] (No. Syarikat: 456327-W) 35 CORAM HAMID SULTAN ABU BACKER, JCA 40 HANIPAH FARIKULLAH, JCA KAMALUDIN MD SAID, JCA 2 GROUNDS OF JUDGMENT 5 INTRODUCTION [1] The High Court at Penang delivered its decision on 13.4.2018 10 allowing the Plaintiffs’ claim for special damages of RM622,100.00 and estimated reparation costs of RM2,362,000.00 for Plaintiffs’ bungalow and costs of RM50,000.00 15 [2] There are two (2) separate appeals filed herein against the said decision as follows -

1. The Defendant appealed against the whole of the said decision on liability and special damages in respect of 20 loss of usage and estimated reparation of costs; and

2. The Plaintiffs cross-appealed against part of the said decision on loss of usage which the learned judge reduced the Plaintiffs’ claim of RM20,000.00 to 25 RM10,000.00 per month. [3] The Defendant is the Appellant and the Plaintiffs are the Respondents in the appeal before us. For ease of reference, we shall refer to the Appellant and the Respondents as Defendant 30 and Plaintiffs respectively. 3 BACKGROUND OF FACTS 5 [4] The Defendant is the registered owner of Lot No. 3665, Puncak Bukit Mutiara, Bandar Tanjong Bungah, Pulau Pinang ("Lot 3665"). Lot 3665 is adjacent to a multilevel bungalow built on Lot No. 3663, Puncak Bukit Mutiara, Bandar Tanjong Bungah, Pulau 10 Pinang owned by the Plaintiffs ("the Plaintiffs' Bungalow"). The Plaintiffs are husband and wife (the 1st Plaintiff being the husband and the 2nd Plaintiff being the wife). [5] Sometime in mid-year of 2011, the Defendant commenced 15 foundation works for the purposes of constructing a bungalow on Lot 3665 by using blasting method ("the foundation works"). Before the Defendant commenced the foundation works on Lot 3665, the Defendant gave an undertaking to Alex (the 1st Plaintiff) to the effect that the Defendant "will take full responsibility should 20 the blasting on my land during the construction cause any damage to your house ..." (see document dated 15.4.2011 at Tab1 of Common Core Bundle Vol.1) [6] During and from the time the blasting work was being carried out 25 by the Defendant, the Plaintiffs' Bungalow began to experience cracks which became serious. Towards the end of 2012, the Plaintiffs discovered that the Plaintiffs' Bungalow had serious structural cracks caused by the blasting in the foundation works on Lot 3665. 30 4 [7] The Plaintiffs complained to Majlis Perbandaran Pulau Pinang 5 ("MPPP") which later inspected the Plaintiffs' Bungalow with the Defendant and her representatives. [8] The Plaintiffs appointed Professional Civil Engineers, lr. Hum Peng Too ("lr Hum") and lr. Cheah Chin Huat ("lr Cheah") to 10 inspect and investigate the Plaintiffs' Bungalow who then prepared a report of the damage. The Engineers certified the Plaintiffs' Bungalow to be unsafe for occupation. The said Engineers also certified that the damage to the Plaintiffs' Bungalow was caused by the construction and blasting works 15 carried out on Lot 3665. [9] The 1st Plaintiff then lodged a Police Report No. Tg. Tokong/ 003435/12 at the Tanjong Tokong Police Station. 20 [10] The Plaintiffs applied to MPPP vide their solicitors letter dated 2.2.2013 requesting MPPP to issue a "Stop Work Order". MPPP had issued the Stop Work Order. [11] On the advice of the Engineers that the Plaintiffs' Bungalow was 25 unsafe for occupation, the Plaintiffs were compelled to vacate the Plaintiffs' Bungalow and as such the Plaintiffs had been denied the quiet enjoyment of their Bungalow. The Plaintiffs also alleged that they had to carry out temporary repair works that resulted in them suffering loss and damages as a consequence of the 30 5 blasting in the foundation works and sought the reliefs inter alia 5 injunction to stop work on the Defendant's Lot 3665, Special damages of RM680,100.00, Damages for rectification cost of the Property estimated at RM2,362,000.00, general damages and Costs. 10 [12] The Defendant’s case is that the blasting in the foundation works were carried out by the Defendant's agents in compliance with the guidelines issued by the Minerals and Geoscience Department of Malaysia and the Royal Malaysia Police. Furthermore, the blasting was carried out with the representatives of the Minerals 15 and Geoscience Department of Malaysia and the Royal Malaysia Police to ensure that the Defendant's agents complied with the said guidelines. [13] The Defendant denied that the alleged damage to the Plaintiffs' 20 Bungalow was caused by the blasting works because there were no contemporaneous complaints. Although MPPP had initially issued a Stop Work Order on 26.12.2012, MPPP has after a site visit to the Plaintiffs’ Bungalow agreed vide their letter dated 27.2.2013 to allow the Defendant's construction works to 25 continue. The construction works has completed and the CCC was issued on 25.9.2015; 30 6 [14] The Defendant disputed the Plaintiffs' 2 Engineers' Reports dated 5 10.12.2012 and 7.2.2013. In support, the Defendant procured 3 Reports. The first report dated 9.5.2013 was prepared by lr. Yau Ann Nian ("lr Yau") who is an Independent Geotechnical Review Engineer. These reports concluded that the blasting works did not cause damage to the Plaintiffs' Bungalow. The Defendant 10 contended that the damage, if any, to the Plaintiffs' Bungalow it was caused by the misuse of the Plaintiffs' Bungalow by their act of rearing fish in the said Bungalow. ISSUES BEFORE THE HIGH COURT 15 [15] The learned judge identified two (2) issues for the trial as follows -

(ii) If the answer to issue (i) above is in the positive, whether the Plaintiffs had proved their claim for special damages 25 and general damages in this case. DECISION OF THE HIGH COURT [16] The High Court judge’s (“learned judge”) written grounds of 30 judgment dated 27.4.2018 is at pages 37 to 72 of the Appeal 7 Record Part A, Vol.1. 5 [17] Having heard and analysed the evidence of witnesses and the documentary evidence, on the balance of probabilities, the learned judge made her finding that the damage to the Plaintiffs’ Bungalow and loss suffered by the Plaintiffs were caused by the 10 underground blasting works carried out by the Defendant on the Defendant’s land which was adjacent to the Plaintiffs’ Bungalow. [18] The Defendant’s defence that the damage to the Plaintiffs’ Bungalow was caused by overloading of Plaintiffs’ 20 fish tanks 15 for rearing fish in the Bungalow was rejected because the Defendant failed to produce evidence to substantiate her defence. [19] The learned judge rejected the admissibility of Plaintiffs’ Dilapidation Report and Investigation Findings prepared by Ir 20 Hum and the letter dated 7.2.2013 written by Ir Cheah. These documents were marked as exhibits P2, P3 and P4. The makers were not present in Court to give evidence. The Plaintiffs failed to give a valid explanation for non-calling of the witnesses and/or made attempt to comply with the requirement provided under 25 section 73A of the Evidence Act 1950. [20] However, Plaintiffs’ exhibit P6 which is the Dilapidation Report prepared by engineer Tan Eng Hock (PW4) from Lumbini Consultancy was accepted as reasonable and reliable evidence. 30 8 It was found that a mere distance of 2 feet to the Defendant’s land 5 and 16 – 20 feet to the Plaintiffs’ Bungalow from the nearest blasting point on the Defendant’s land was not safe. The Defendant’s attempt to challenge the admissibility of exhibit P6 failed. The Defendant objected to the admissibility of exhibit P6 on the ground that the Plaintiffs’ expert, PW4 was appointed in April 10 2017 i.e. six (6) years after the blasting works were carried out on the Defendant’s land and exhibit P6 was not done at the time the blasting works was carried out and PW4 merely copied the contents in Plaintiffs’ exhibits P2, P3 and P4 which were held as inadmissible by the Court. In other words, PW4 was not the 15 maker of exhibit P6 and by copying other expert reports, PW4 lacks credibility therefore, exhibit P6 is not credible and no weight can be attached to exhibit P6. [21] The learned judge gave her opinion that the issue raised were not 20 a relevant factor in considering the weight to be attached to exhibit P6. The learned judge found that PW4 was a qualified engineer who had seen, took photographs and inspected the traces of the cracks and damage to the Plaintiffs’ Bungalow. All the photographs taken were incorporated in exhibit P6. The 25 evidence by PW4 that at the material time (April until June 2011) there were activities of blasting works done on the Defendant’s land adjacent to the Plaintiffs’ Bungalow and the cracks occurred due to the blasting works was indeed the relevant and true facts. It was also not a disputed fact that when the Plaintiffs bought the 30 9 Bungalow in 2010, the Bungalow was in good condition as 5 supported by the valuation report prepared by Azmi & Co (exhibit P1) which stated that “at the date of inspection, the subject property is in a good condition and well renovated”. [22] The learned judge found PW4’s evidence corroborated with SP1’s 10 evidence that the Property started to crack immediately after the blasting works begin. The purpose of blasting works was to make 33 holes with 10 meters deep. This fact was not disputed. Therefore, the learned judge made an inference that each blasting done will cause strong vibration to the Plaintiffs’ 15 Bungalow. The Bungalow was located on the hill slope. The distance between the Bungalow and the Defendant’s land is only about 16 to 20 feet. PW3’s evidence stated that a single blasting can go to 1-meter deep. Therefore, in order to achieve 10 meters deep, one caisson hole requires 10 repeated blasting. Hence, for 20 33 holes, it requires 330 repeated blasting. The minimum blasting would be 33 times. Taking into consideration of the number of blasting, duration and distance from the blasting works to the Plaintiffs’ Bungalow, the learned judge accepted exhibit P6 and PW4’s evidence that the blasting works was in fact, the main 25 cause for the cracks and damage to the Plaintiffs’ Bungalow. [23] The Defendant relied on the Independent Geotechnical Investigation Report prepared by DW5 from G & P Professional Sdn. Bhd dated December 2016 (exhibit D40). The learned judge 30 10 found that DW5 had admitted visiting the Plaintiffs’ Bungalow once 5 on 10.1.2014 for just half an hour without doing any inspection and investigation. DW5 did not take any photograph of the Plaintiffs’ Bungalow. In his report (exhibit D40), DW5 made some observations that the Plaintiffs’ Property (Lot 3663) is located on top section of the gradient steep slope with existing trees creeping 10 on the slope. Cracks were observed on the concrete surface and no structural crack was observed on the retaining wall located adjacent to Lot 3665 where the crack blasting the rock works were carried out. Having considered the matters above and also reports prepared by Ir Hum and DW4, DW5 concluded in the 15 report (D40) that the cracks of Lot 3663 may be caused by the slope creeping. [24] Having analysed exhibit D40, the learned judge made his finding that the report was not an independent report far from being 20 accurate and true assessment of the situation because the finding of “slope creeping” was not supported by any soil analysis from an independent and neutral party. The learned judge did not believe the report prepared by DW5. She also found DW5 was an interested and incredible witness in this case. The learned judge 25 made her finding that the report was not a fair report because it was not done professionally as expected of DW5 as independent consultant. The learned judge rejected the report (exhibit D40) and made her finding that the blasting works on the Defendant’s land was the cause of cracks and damage to the Plaintiffs’ 30 11 Bungalow. 5 APPEALS AGAINST LIABILITY [25] There are several grounds raised in the Defendant’s memorandum of appeal challenging the decision of the learned 10 judge. Before us, it was submitted by learned counsel that the main issue is ‘causation’ issue which the Defendant contended that the learned judge had wrongly construed the evidence of PW3, PW4 and the admissibility of exhibit P6. It was submitted that the learned judge failed to consider the following evidence - 15 a. PW3 had no experience and knowledge in caisson blasting and his last involvement in caisson blasting was twenty years ago and also not sure what is the standard requirement for caisson blasting; 20 b. PW4’s report exhibit P6 is inadmissible because exhibit P6 is not PW4’s report but copied from reports in exhibits P2, P3 and P4 which had been rejected by the learned judge; 25 c. Exhibit P6 was prepared by Mohd Rosyaduddin and Nurul Fatin and checked by Ir Tan Eng Hock; d. PW4 also admitted during cross-examination that his 30 opinion was based on the Defendant's engineer (DW5), 12 Dr Gue's Report; and 5 e. Exhibit P6 which says that the main cause of the damage and/or cracks towards the properties of the building is the caisson blasting work was not PW4’s finding or opinion. PW4 also admitted in cross-examination that he 10 did not mention in his Report that it (the cracks) was due to the Defendant. [26] The Defendant’s position is that the blasting works had not caused by the blasting works on the Defendant’s land. It was 15 submitted that the learned judge after having accepted exhibit D40, should have accepted the conclusion made in the Defendant’s Independent Geotechnical Investigation Report prepared by G&P Professionals Sdn Bhd who were engaged by MPPP as the Independent Consultants to conduct an 20 independent geotechnical investigation into the cracks of the Plaintiffs' Bungalow that "the blasting works at lot 3665 has no contribution to the distresses/cracks to Lot 3663 (Plaintiffs’ Bungalow)”. 25 [27] It was also raised in this appeal as second issue that the learned judge had accepted exhibit P6 as an expert report. It was submitted that the production of and the reliance upon expert evidence is governed by Order 40A of the Rules of Court 2012 in which the procedure under the Rules had not been complied with. 30 13 OUR VIEW ON LIABILITY 5 [28] First we deal with the second issue of Order 40A Rules of Court 2012 (Order 40A). The Defendant submitted that Order 40A is mandatory. The procedure must be followed, otherwise; the report is inadmissible and must be rejected. The Defendant cited some 10 authorities which show the Court is entitled to reject the expert report. [29] Rule 1 (2) of Order 40A says a reference to an “Expert” in this Order is a reference to an expert who has been instructed to give 15 or prepare evidence for the purpose of Court Proceedings. Rule 2

(1) says it is the duty of an expert to assist the Court on the matters within his expertise. Rule 3 (1) says that unless the Court otherwise directs, expert evidence to be given at the trial of any action, is to be given in a written report signed by the expert and 20 exhibited in an affidavit sworn to or affirmed by him testifying that the report exhibited is his and that he accepts full responsibility for the report. [30] Rule 3 (2) provides as follows - 25

(2) An expert’s report shall —

(ii) give reasons for his opinion;

2E. The 144 pages consist of questions and answers definitely show much times had been wasted. [41] We were also of the view that to raise on point of procedural non-compliance of Order 40A which the Defendant could have raised 30 21 it at the first instance and if this Court allows it, means cross- 5 examination done on exhibit P6 was a waste of the trial court’s time. The Defendant could have raised it and for the trial court to decide on the procedural issue. Possibly, the learned judge may agree with the Defendant and if otherwise it is up to the Defendant to consider his next course of action. Having taken 10 steps to challenge the evidence of PW4 and exhibit P6 in the proceeding, in our view, the Defendant cannot be allowed to raise the procedural issue on appeal after the trial court had already assessed the evidence. In the circumstances of this case, it is our view that the Order 40A issue raised by the Defendant is without 15 valid reason and is an afterthought. We found that this second issue is without merit. [42] We now deal with the first issue on causation. The issue is whether the finding of the learned judge that the blasting works on 20 the Defendant’s land had caused cracks and damage to the Plaintiffs’ Bungalow was correct. [43] The law is trite that to warrant appellate intervention, the Defendant has to show that the trial judge was plainly wrong. 25 Further, the appellate Court will be slow in interfering with the decision of the trial judge on findings of fact. An appellate court will not readily interfere with the findings of fact arrived at by the trial court to which the law entrusts the primary task of evaluation of the evidence. It has been said that the appellate Court did not 30 22 have the specific audio-visual advantage that a trial judge has is 5 in respect of the assessment of the credibility of the oral evidence, being the witness examined and cross-examined before the trial judge, and the assessment of weight of such non-documentary evidence produced and examined before her. The findings of fact by the trial Judge on such evidence is entitled to 10 great weight, and unless that finding flies in the face of the mute evidence, cannot warrant appellate intervention (Sivalingam a/1 Periasamy v Periasamy & Anor (1995) 3 MLJ 395; Lin Wen-Chih & Anor v Mycom Bhd (2014) 3 MLJ 691; OSK Securities Bhd v Probo Pacific Leasing Pte Ltd & Anor (2009) 3 MLJ 15 712). [44] There is a heavy onus on a party who seeks to displace the conclusion formed by the trial judge on questions of fact. In the present case we found that the learned judge had addressed all 20 relevant issues and her findings and conclusions were correct. We gave our view in the following. [45] The decision to dismiss the Defendant’s objections on PW4’s appointment was made six (6) years after the blasting works were 25 carried out on the Defendant’s land and exhibit P6 was not done at the time the blasting works was carried out and the contents in exhibit P6 were copied from exhibits P2, P3 and P4 was correct. We agreed with the learned judge that the imputation on PW4 as being a dishonest person and the exhibit P6 produced by him 30 23 lacks credibility was correct because the objection raised are not 5 a relevant factor in considering the weight to be attached to exhibit P6. In civil cases, the fact that the character of any person concerned is such that as to render probable any conduct imputed to him is irrelevant (See: section 52 of the Evidence Act 1950). 10 [46] It has been held that the expert witness’s evidence generally would assist the Court arriving into a fair and just decision however, the final determination, would still rest with the Court (PP v Mohammed Kassim [1977] 1 MLJ 64). Expert witness 15 only gives opinion but the Court is free to draw its own conclusion (Kulasinggam s/o Samuel v Rasammah d/o JV Thambipillai [1997] 1 MLJ 288, 269 (CA)). [47] Thus, the verdict as to abnormality of mind is plainly a finding of 20 fact which must be founded on all the evidence which evidence of course includes medical opinion. Even where such medical opinion is unchallenged, the trial Judges would be perfectly entitled to reject or differ from the opinions of the medical men, if there are other facts on which they could do so (Sek Kim Wah v 25 PP [1988] (CLJ REP) 679] [48] In the present case, the learned judge had accepted PW3’s expert opinion that the safest distance between blasting point and other building structures in carrying-out "Caisson" blasting 30 24 works will be at least forty (40) feet. Thus, the distance of two 5

(2) feet to the Defendant’s land and 16 – 20 feet to the Plaintiffs’ Bungalow in this case is deemed too close and obviously not safe. The learned judge had also accepted PW4’s scientific opinion in exhibit P6 and found PW4's scientific explanations, reasoning and/or opinions were reliable, 10 reasonable and safe for her to rely on. It was found that a mere distance of 2 feet to the Defendant’s land and 16 – 20 feet to the Plaintiffs’ Bungalow from the nearest blasting point on the Defendant’s land was not safe. 15 [49] With the above adduced expert opinions/evidences of both PW 4 and PW3 and Written Undertaking given by the Defendant herself, on the balance of probability, the learned judge found that it is indeed the "Caisson" blasting works carried-out on the Defendant’s land which had caused the cracks and damage to 20 the Plaintiffs’ Bungalow. [50] Hence, it was correctly decided that the burden shifted on the Defendant to disprove the above notion proven by the Plaintiffs. In order to discharge this burden, the Defendant called several 25 engineers and an architect as experts to give their expert opinion. However, the learned judge found their evidences and their opinions did not throw much light to support the Defendant’s case. 30 25 [51] DW2 admitted that he is not an expert. DW2 being the architect 5 for the project was not in the position to confirm on the cause of the cracks on the Plaintiffs’ Property. DW3 on the other hand was found to be an interested witness by his own admission. DW3’s company was directly involved and indeed carried out the impugned blasting works. Hence, we agreed that his evidence 10 must be viewed with great circumspection. [52] In evaluating expert witness evidence, the trial court's approach besides evaluation of credibility is not only examine the scientific grounds and basis on which they rely but also, if one 15 of the experts is involved in the impugned works, the Court may examine the manner in which he had implemented the proposed works as an engineer (Cheong Fatt Tze Mansion Sdn Bhd v. Hotel Continental Sdn Bhd [1996] 4 CLJ 355) 20 [53] The only report produced by DW3 in supporting that, the blasting works could not have contributed/caused the cracks on the Plaintiffs’ Bungalow was exhibit D37. The learned judge had considered DW3’s logical point that as the vibration level of blasting has always been maintained below 5mm/s PPV as set by 25 the authorities, the cracks couldn't have been caused by the blasting works. However, DW3 agreed with the Plaintiff’s counsel that all the info and data in the summary of exhibit D37 were furnished to him by Yen Fatt or the shot firer. 30 26 [54] The learned judge in his judgment had also considered that DW4 5 is the shot firer worked with Yen Fatt Construction. DW4 confirmed there were 33 caisson holes and each holes the blasting was done to reach 10 meter deep. DW4 stated that vibration reading is 5 mm per second which was on the low side. The record then was given to DW3. Therefore, exhibit D37 was 10 very much dependent on the vibration reading records taken by Yen Fatt's shot firer. DW4 admitted that he is an interested witness because the Defendant had brought 3rd party proceeding against DW3’s company and DW4 will make sure the Plaintiffs’ claim was not allowed by the Court. 15 [55] The learned judge had also considered DW5’s evidence. DW5 admitted visiting the Plaintiffs’ Bungalow on 10.1.2014 and saw the traces of cracks on the building structure. However, two years later he prepared a report in the months of December 2016 20 stating that the blasting works did not cause cracks and damage to the Plaintiffs’ Bungalow. DW5 claimed that the cracks were caused by slope creping. The learned judge specifically stated that without soil analysis report and for DW5 to claim slope creeping based on the slanted tree on the Plaintiffs’ Bungalow is 25 something hard for her to believe that the evidence actually come from an engineer. Further, exhibit D40 relied on the ‘Vibration Monitoring Records” prepared by DW4 who was found to be an interested witness. The learned judge had made factual finding that Exhibit D40 by DW5 is not independent report and rejected 30 27 exhibit D40 on the following grounds - 5

(ii) Bukanlah laporan yang tepat dan benar kerana fakta berlakunya "soil creeping" tidak disokong oleh satu 10 laporan analisa tanah dari pihak yang bebas dan neutral;

(iii) Bukanlah laporan yang benar dan tepat kerana fakta kadar gegaran adalah minima adalah berpandukan rekod bacaan gegaran yang disediakan oleh saksi yang 15 mempunyai kepentingan dalam kes ini dan kredibilitinya diragui; dan

(iv) Bukanlah laporan yang adil kerana tidak dibuat secara profesional dan telus seperti yang diharapkan dari 20 seorang perunding bebas. Laporan DW5 itu sebenarnya adalah laporan defendan”. [56] We agreed with the Plaintiffs’ counsel that the learned judge had considered DW5's evidence and his Exhibit D40. The learned 25 judge has critically analysed DW5's evidence not only on its own standing but also confronting it with other surrounding evidence and factors. For instance, in perusing DW5's opinion, the learned judge also cross-referred to DW4's evidence. Besides DW4’s evidence, the learned judge also analysed 30 DW5's evidence and his independence by looking into his own 28 contemporaneous documentary evidence in the form of his own 5 letter dated 28.3.2017 to MBPP. The learned judge correctly observed, despite initially requiring various rests and reports to be done in order to ascertain the cause of the cracks and eventually getting none. It is not disputed that DW5 still came up with his “Geotechnical Investigation Report” (Exhibit D40) merely on the 10 Defendant’s request and/or instructions alone. Hence the l earned judge had found that, DW5's credibility as an expert is doubted and his report is not done professionally. [57] DW6 was an Engineer engaged by the Defendant as the 15 "Independent Accredited Checker" for the project. DW6 admitted t h a t t h e D e f e n d a n t was his "Client". For this reason, we agreed that DW6 cannot be construed as an expert giving his expert opinion in this matter as he was under the employment of the Defendant in earring-out his functions as the Checker. 20 This point was well noted by the learned judge in the cause of the trial. It is not disputed that the Defendant relied on "Independent Earthwork Inspection Reports" prepared by DW6 in suggesting that all works pertaining the blasting works were in order and in adherence to the guidelines set by the 25 authorities. However, we agreed with the Plaintiffs that the fact that DW6 is appointed as "the Independent Checker" it does not guarantee independence in his job. 30 29 [58] A finding that the opinion of one expert witness is to be preferred 5 to that of another, is also one which is not lightly to be disturbed by an appellate court unless it can be demonstrated that the judge who heard them and saw them give their evidence has misunderstood it or that his reasons for preferring one to the other are clearly unsound (per Lord Diplock in Collector of Land 10 Revenue v Allagappa Chettiar [1971] 1 MLJ 43, 46 (PC)). Abdoolcader FJ in Dato’ Mokhtar bin Hashim v Public Prosecutor [1983] 2 MLJ 232, 278 (FC) referred to the English Court of Appeal case of Joyce v Yeomans [1981] 1 WLR 549 which held that in the case of evidence given by experts, the trial 15 judge, who had observed the demeanour of the witness, was in a significantly better position than an appellate court to a asses the value of the evidence given, and accordingly the appellate court should be slow to interfere with the judge’s finding. 20 [59] It has been held that the findings of credibility could not be severed from documentary evidence (UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor [2010] 9 CLJ 785). The Court of Appeal found the finding by the trial judge that Seow was being untruthful was an integral part of the 25 whole case on the basis of a reasonable and proper judicial appreciation of the evidence. This is evident from a reading of the trial Judge's judgment as well as his summary and conclusions. The trial judge has come to findings of specific facts, pertaining to the heads of oppression in the UEM's petition 30 30 in rejecting the version put forth by Seow. It was also held that 5 the trial judge had painstakingly identified and dealt with the issues exhaustively in each of the two petitions before him. His findings are supported by cogent reasons. Thus, there is no reason why the Court of Appeal should reverse them. 10 [60] It is also a settled principle of law that in an appeal, where facts have to be reviewed, it is undesirable that the findings of the court below should not be disturbed by a court of appeal unless it appears that those findings are clearly wrong, and more especially that it is undesirable to do so where the conclusions 15 reached must to a large extent depend on the credibility of the witnesses and the impression formed by a court which has seen them and judge their honesty and accuracy (China Airlines Ltd v. Maltran Air Corp Sdn Bhd [19961 2 MLJ 517 (FC)). 20 [61] Similarly, in the present case in rejecting DW5's evidence on the s t a t e d grounds, the learned judge found it i s safer to admit PW4's evidence that the cracks on the Plaintiffs’ Bungalow was indeed caused by the blasting works performed by the Defendant on her land. As such, comparison statement has been made 25 by the learned judge, it should be understood that she had taken sufficient judicial appreciation of all relevant evidence adduced before her, hence her finding must be left undisturbed. We were satisfied that the learned judge in arriving to her decision has made numerous finding of facts mainly on both 30 31 credibility and reliability of the Defendant’s witnesses. The 5 learned judge's finding on both the credibility and professionalism of DW5 cannot be said to be plainly wrong to warrant this Court's interference [62] Based on the above reasons, we dismissed the Defendant’s 10 appeal on the liability. APPEAL AGAINST DAMAGES [63] The Learned Judge allowed the Plaintiffs' claim for special 15 damages as follows: -

(ii) Repair costs RM 33,000.00

(iii) Dilapidation Report RM 8,000.00

(iv) Engineer’s Consultancy’s Fees RM 9,800.00

27. The relevant passages in McGregor on Damages 15 17th Ed are in the following terms: “8-001. A claimant claiming damages must prove his case. To justify an award of substantial damages he must satisfy the court both as to the fact of damage 20 and as to its amount. If he satisfies the court on neither, his action will fail, or at the most he will be awarded nominal damages where a right has been infringed. If the fact of damage is shown but no evidence is given as to its amount so that it is 25 virtually impossible to assess damages, this will generally permit only an award of nominal damages: ... 8-002. On the other hand, where it is clear that some 30 substantial loss has been incurred, the fact that an 44 assessment is difficult because of the nature of 5 the damage is no reason of awarding no damages or merely nominal damages.” Later, after reference to the judgment of Vaughan Williams LJ in Chaplin v Hicks, the editors refer to the 10 judgment of Devlin J in Biggin v Permanite [1951] 1 KB 422, 438 that - “Where precise evidence is obtainable, the court naturally expects to have it [but] where it is not, 15 the court must do the best it can.” The editors continue: “Generally therefore although it remains true to 20 say that “difficulty of proof does not dispense with the necessity of proof the standard demanded can seldom be that of certainty.”

28. Counsel for Mr Janzemini contends that the judge 25 was wrong not to insist on proper proof of loss by Mr Zabihi by establishing exactly what was handed over and adducing expert evidence as to its value. He contends that this case does not fall into any of the eight categories listed later in Chapter 8 of McGregor on 30 Damages. He suggests, in effect, that the judge was 45 wrong to have done his best on the material available.

29. I do not think that this part of the second ground is separate from the third ground comprising grounds 3 to 5 both inclusive. The judge’s reliance on the statements in McGregor were distilled into the principle stated in 10 paragraph 280 that – “the court must do its best on such evidence as it feels able to accept to place some kind of value on jewelry which, on this footing, Mr Janzemini would be 15 shown to have converted even if its precise identity cannot be established and therefore its value must be in doubt. If the judge was entitled to accept the evidence on which he relied as sufficient evidence of value, then no one can doubt that he 20 was required to do his best. If it was not sufficient evidence of value, then the judge’s conclusion was wrong for that reason; not that he should not have tried to do his best.” 25 [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 section 38 of the Act. Nevertheless, in our view, it would be unwise for us to use this occasion to say anything which 30 might be taken as specifying or limiting the nature and extent 46 of the evidence necessary to establish a claim for loss of 5 revenue under section 38 of 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 10 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.” 15 [87] In the present case the learned judge allowed the Plaintiffs’ claim on the estimates amount of RM2,362,000.00 as rectification costs. The learned judge did not have other quotation to rely on. The learned judge has to do the best she can. Before her, there 20 was quotation of estimates rectification costs in exhibit P7 as evidence in lieu of precise evidence. It is not disputed that exhibit P7 was an approximation or estimation that may be used of which the learned judge found it as reasonable and fair. Therefore, the estimates amount in exhibit P7 adduced in Court supported that 25 approximation or estimation. [88] In our considered opinion, the learned judge was correct in her decision to allow the amount in exhibit P7 as the estimates rectification costs. The learned judge was entitled to accept the 30 47 evidence on exhibit P7 which he relied as sufficient evidence 5 of value she had done the best she can. We agreed with the Plaintiffs that even if it is assumed that the Plaintiffs claims were exaggerated, there is no evidential basis proffered by the Defendant to find that the claims were grossly or substantially exaggerated or that they were submitted for the purpose of 10 defrauding the Defendant. [89] In Tan Kuan Yau V Suhindrimani (supra), Dato’ Abdul Hamid J, (as he was then) held that- 15 “The principle which should guide the court in determining whether it should interfere with quantum of damages is crystal clear. Much depends on the circumstances of each case, in particular the amount of the award. In a particular case therefore it is for the appeal court to consider in the light of the 20 circumstances of the case there is an erroneous estimate of the amount of damages in that either there was an omission on the part of the judge to consider some relevant materials or he had admitted for purpose of assessment some irrelevant consideration. If the court is satisfied or convinced that the 25 judge has acted upon wrong principles of law then it is justified in reversing; indeed, it is its duty to reverse the findings of the trial judge.” 30 48 CONCLUSION 5 [90] In the circumstances, it is our unanimous decision that the Defendant’s/Appellant’s appeal and Plaintiffs’/Appellants’ cross-appeal are dismissed with each party bear their own costs. The deposit is refunded, if paid. 10 Dated this 12 June 2019 15 Sgd KAMALUDIN MD. SAID JUDGE COURT OF APPEAL MALAYSIA PUTRAJAYA 20 Parties

1. Dato’ Kiru Bakaran, Joshua Kevin, Ooi Swee Hing, Kek 25 Boon Wei, Leng Wie Mun and Damien Chan for the Appellants (Messrs Kek Ooi & Lee Hong)

2. K. Kumarathiraviam for the Respondent 30 (Lee Hean Cheng & Co.)