Khy Foods and Beverages Sdn Bhd v Plaza Mont' Kiara Management Corporation (WA-A53-14-05/2023)

This is an appeal by the Defendant against the court’s decision given on 11.4.2025. The court have allowed the Plaintiff’s claim with cost RM 10,000 given to the Plaintiff.

The Plaintiff is a company and the registered owner of an Audi car no W733U.

The Defendant is a management corporation duly registered, and is responsible for the management, maintenance, and full control of Plaza’s Mont’ Kiara and its surrounding areas.

On 22.08.2022, the Plaintiff’s director parked the Plaintiff’s car at the carpark within the premises of the Defendant. The car park is in the jockey parking area managed by Niya Ventures 2 Sdn Bhd Plaza Mont’ Kiara.

The Plaintiff’s director, at around 4.30 pm while in the office at Plaza Mont’ Kiara, was contacted by his personal driver, informing that his vehicle was crushed by a tree that collapsed in the said car park which is within the premises of the Defendant.

The collapsed tree that damaged the said car is a tree that was planted beside Jalan Kiara which is close to the main entrance of Plaza Mont’ Kiara. The collapse of the tree caused the said vehicle to be badly damaged, which has caused loss to the Plaintiff.

The Plaintiff through its solicitors sent several letters to the Landscape and Recreation Development Department of the Kuala Lumpur City Hall (‘Jabatan Pembangunan Landskap dan Rekreasi, Dewan Bandaraya Kuala Lumpur’) (“DBKL”) to verify whether the collapsed tree was under the care, maintenance and/or control of DBKL or the Defendant.

The authorities of DBKL from the tree management unit (‘unit pengurusan pokok rendang’) has given a reply by a letter dated 14-10- 2022 from DBKL to the Defendant. The said letter verified that the said tree was within the premises of the Plaza Mont’ Kiara building and DBKL is not responsible for any losses. This fact is not disputed.

The Plaintiff then filed this suit claiming for the damages of the Plaintiff’s car due to the Defendant’s failure to maintain and take care of the tree which end up collapsing and damaging the Plaintiff’s car.

Plaintiff based its claim on the negligence, occupier liability, doctrine of res ipsa loquitur and also nuisance. The Court however reject the Plaintiff’s argument base on nuisance as the Court agree with the Defendant argument that one of the important elements in the nuisance which is that the alleged nuisance must escape from the Defendant’s land onto another property is missing. In this case, the tree was reminded in the Defendant’s premises.

The Court in Ahmad Rubil bin Ahmad & Ors V Minda Muhibah Sdn Bhd & Anor (Terminal Bersepadu Gombak Sdn Bhd & Ors, Third Parties) [2024] 8 MLJ 869 in determining whether the Defendant is liable for nuisance had implemented the use of the rule in Rylands v Fletcher (1868) LR 3 HL 33 to distil the following principles:

the defendant must be the owner or occupier of the land;

the defendant must bring or keep or collect exceptionally dangerous or mischievous things on his land;

the defendant must have recognized or ought reasonably to have recognized, judged by the standards appropriate at the relevant place and time, that there is an exceptionally high risk of danger or mischief if that thing should escape, however unlikely an escape may have been thought to be;

The Defendant’s use of his land must, having regard to all the circumstances of time and place, be extraordinary and unusual;

the thing must escape from his property into or onto the property of another;

the escape must cause damage of a relevant kind to the rights and enjoyment of the claimant’s land;

damages for death or personal injury are not recoverable, and

it is not necessary to establish the Defendant’s negligent, but an Act of God or the act of a stranger will provide a defence”. The Defendant’s Defence [12] The Defendant’s claim that they are not responsible for the damages of the car base on the exclusion clause of the house rules and the jockey disclaimer signboard that the Defendant’s is not responsible for the damages of the vehicle parked there and it was parked on its own risks. [13] At the same time, the Defendant’s claim act of the god as according to the Defendant, it was heavily rain at the material time and no reasonable person would reasonably be able to anticipate the said tree in its condition at the material point of time would pose a danger or hazard to any, including to the Plaintiff. [14] The Plaintiff bring four witnesses while the Defendant bring one witness. The witnesses before this Court are: a) PW1: Kow Han Yuan (Plaintif’s Director) b) PW2: Ahmad Rizal bin Mohamad @ Che Mat (Senior Assistant Director of Horticulture (DBKL)) c) PW3: Nor Sherizan binti Darus (Meteorological Officer of the National Climate Centre of the Malaysian Meteorological Department) d) PW4: Ariesya Syamiera binti Sharifan (Accounts Department of Planet Car Enterprise Service Centre) e) DW1: Mohamad Shukry bin Ibrahim (Assistant Building Manager of the Defendant company) [15] The Court on 11.4.2025 after hearing all the witnesses’ testimony, perusing all the documents involved and listening to the submissions of the parties, on the balance of probabilities, allowed Plaintiff’s claim with costs. The Court however allowed part of the Plaintiff’s claim for damages. The Court allowed special damages of RM 60, 154.00 as the cost of repairs of the car. The Court rejected the claim for legal fees, loss of insurance and road tax, loss of cost of vehicle maintenance and claim for exemplary and/or punitive damages. [16] The Defendant, not satisfied with the said decision filed a notice of appeal dated 21.4.2025 appealing this matter to the High Court. THE COURT FINDING [17] Every documentary evidence referred by the parties has been marked as “A” and there is no marking of exhibits as discussed and agreed by the solicitors for the Plaintiff and Defendant on the date of the trial. [18] The issues for the Court’s determination are as follows: a) Whether the Defendant is liable under the Tort of Negligence against the Plaintiff in respect of the damage to the Car? b) Whether the Defendant is liable under the doctrine of Res Ipsa Loquitor against the Plaintiff in respect of the damage to the Car? c) Whether the Defendant has occupier’s liability against the Plaintiff and the Plaintiff’s assets including the car? d) Whether the Defendant is liable to pay general, special, exemplary and/or punitive damages to the Plaintiff in respect of the damage to the car? Issue No 1: Whether the Defendant is liable under the Tort of Negligence against the Plaintiff in respect of the damage to the Car [19] In the case of Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 5 MLJ 360 at paragraph [67], the Court of Appeal laid down the elements for the tort of negligence in three-folds as follows: - “[67] Negligence is a tort and three things must be proved to support the claimant’s claim:

that the defendant owes the claimant plaintiff a duty of care;

that the defendant is in breach of that duty of care; and

that the claimant plaintiff suffers damage as a result of that breach of duty and that damage is not too remote.” Element (a) – that the defendant owes the claimant plaintiff a duty of care [20] In the case of Maria Ak Unting v Billion Heights Services Sdn Bhd [2021] MLJU 3025 whereby the Magistrates’ court had referred to the Federal Court case of Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd and another appeal [2018] 5 MLJ 561 which held as follows: - [50] Caparo’s ‘three-fold test’ to determine a new situation duty of care, encompassed public policy concerns, probably, to limit ‘a liability in an indeterminable amount for an indeterminable time to an indeterminable class’ (Ultramares Corporation v Touche 174 NE 441 (1932) per Cardozo CJ) if Lord Atkin’s neighbor principle were applied without restriction. In order for a duty of care to arise in negligence: (i) harm must be reasonably foreseeable as a result of the defendant’s conduct (as established in Donoghue v Stevenson); (ii) the parties must be in a relationship of proximity; and (iii) it must be fair, just and reasonable to impose liability. [9] According to this case, the Plaintiff has to fulfil the Caparo test as laid down above to raise the Defendant’s duty of care in the alleged negligence.

On the first element, this court agrees with the submission of the Plaintiff that the damage to the said Car was foreseeable as the Defendant had put an exclusion clause under its House Rules to avoid liability if there is damage caused to the resident’s vehicle during the usage of the car park and the fact that the Defendant had taken an insurance policy to cover any damage caused to the resident’s vehicles in the car park area.

On the second element, this court also agrees with the submission of the Plaintiff that the Defendant is a management corporation of the said Condominium and the Plaintiff is one of the unit owners in the said Condominium. The Defendant charges a monthly maintenance fee in the sum of RM425.60 and a sum of RM42.66 as sinking fund to the Plaintiff. The Defendant uses the maintenance fee to maintain and manage the said Condominium, as well as paying the security guard service for the said Condominium area. The Plaintiff relies on the Defendant to perform his duty with reasonable care. This court finds that there is a relationship of proximity between the Plaintiff and the Defendant.

On the third element of whether it is fair, just and reasonable to impose the liability to the Defendant, this court is of the view that because of the facts herein that show sufficient proximity between the Plaintiff and the Defendant, hence it is just and reasonable to find a duty of care owed by the Defendant to the Plaintiff to ensure that the said Condominium is properly managed and maintained in accordance with the statutory duties and power of a management corporation as conferred in Seventh Schedule of the Sarawak Strata Management Ordinance 2019.” [21] The Court agreed with the Plaintiff’s submission that a duty of care would arise where the parties have a relationship of sufficient proximity such that it is reasonably foreseeable that damage would occur if the other party did not take reasonable steps to prevent damage. [22] In this case, Plaintiff rented an office in the building of the Defendant. The Plaintiff pay the rental and were given the designated parking in the parking complex of Plaza Mont Kiara. SP1 refused to use the parking in the parking complex as according to him the said vehicle is long and the parking space is small. He used to bring different luxurious cars to the office and opt to use an open parking space managed by Niya Jockey and SP1 paid a fee to Niya Jockey to park his vehicles in the outdoor carpark. [23] The Federal Court in the case of Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd and another appeal [2018] 5 MLJ 561 referred to Clerk & Lindsell on Torts (21st Ed) at page 8 – 12 and observed that the neighborhood principle as stated by Lord Atkin consisted of two elements as follows: - [34] Duty of care, as a legal obligation, is relatively modern. The idea of a general duty of care first appeared in the judgment of William Brett (later Lord Esher) MR in Heaven v Pender, Trading As West India Graving Dock Company

11 QBD 503, who suggested that there was a wider duty to be responsible in tort to those who might be injured if ‘ordinary care and skill’ was not exercised. William Brett MR’s formulation was not accepted by the rest of the court. But it was expressly adopted by Lord Atkins in Donoghue (or McAlister) v Stevenson [1932] All ER Rep 1; [1932] AC 562, where the concept of a tortious duty of care in negligence was first established under English law. Prior to Donoghue v Stevenson, liability for personal injury in tort usually depended upon showing physical injury inflicted directly or indirectly, or upon some contractual relationship. But in Donoghue v Stevenson, the House of Lords moved the common law for tort and delict from strict liability based upon direct physical damage to the modern concept of negligence, which is fault-based and only requires injury. Lord Atkin thus stated the neighbour principle which came to be accepted as establishing the general concept of reasonable foresight as the criterion of negligence: 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 being so affected when I am directing my mind to the acts or omissions which are called in question. [35] ‘…there were two elements in this formulation. The first was the test of reasonable foresight. A duty would exist only where injury was reasonable foreseeable. The second was the proximity requirement, namely that the duty was limited to ‘persons so closely and directly affected’ by the defendant’s act that they should be in his contemplation’ (Clerk & Lindsell on Torts (21st Ed) at pp 8–12). ‘…proximity may consist of various forms of closeness—physical, circumstantial, casual or assumed. It involves considering the relationship from the perspective of both the defendant and the claimant. At root, it will reflect ‘a balancing of the claimant’s moral claim to compensation for avoidable harm and the defendants’ moral claim to be protected from an undue burden of legal responsibility’. As such it will inevitably overlap with considerations of justice between the parties’ (Clerk & Lindsell on Torts supra at pp 8–16). [36] ‘…the criterion is the foresight of the reasonable man, that is, was injury to the plaintiff the reasonably foreseeable consequence of the defendant’s acts or omissions in all the circumstances of the case? If it was not, then the decision will be that no duty of care was owed by the defendant to the plaintiff. This does not mean, of course, that the plaintiff must be a person identifiable by the defendant. What is required is that he should be one of a class within the area of foreseeable injury. As regards what exactly must be foreseen, it is not necessary to show that the particular accident which has happened was foreseeable, any more than it is necessary to show that the particular damage was foreseeable; it is enough if it was reasonable in a general way to foresee the kind of thing that occurred (see Stewart v West African Terminals Ltd [1964] 2 Lloyd’s Rep 371 at p 375). No duty to take care can be said to exist where there is only a remote possibility of injury. To use the words of Lord Dunedin in Fardon v Harcourt-Rivington [1932] 146 LT 391 at p 392, ‘If the possibility of the danger emerging is reasonably apparent, then to take no precautions is negligence; but, if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions … In other words, people must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities. (Jaswant Singh v Central Electricity Board per Gill J, as he then was). [24] As a management body who manage the Plaza Mont Kiara, Defendant is responsible to make sure that the owner or the tenant in that premise is safe. Its responsibility including to make sure the property which is the car which been parked there also safe. The tenancy agreement raised the relationship between Plaintiff and the Defendant. Furthermore, when there is fees been charged in that place, either for rental which included the ordinary fees for common place and also the payment for the car park. [25] The Plaintiff’s vehicle was parked in the premises under the care, maintenance and/or control of the Defendant. the Defendant has expressly admitted in evidence that the Defendant owes a duty of care to the Plaintiff. SD1 in his evidence stated that the Defendant has a responsibility to ensure that vehicles parked in the premises of the Defendant is located at a safe place. Encik Shukry setuju dengan saya bahawa terdapat hubungan di antara pengurusan tempat letak kereta di mana pengurusan perlu menjaga keselamatan kereta yang diparking? Betul? Ulang balik. Soalan saya, Encik Shukry bersetuju saya bahawa terdapat hubungan di antara pengurusan tempat letak kereta dan pemilik kereta di mana pengurusan perlu menjaga keselamatan kereta yang diparking? Tempat parking adalah daripada pengurusan yang bertanggungjawab? Setuju. Dan tanggungjawab ini juga merangkumi tanggungjawab untuk memastikan kereta yang ditinggalkan oleh pemilik berada di tapak atau tempat yang selamat? Ya.” [26] The Defendant also introduce the house rule which give the Defendant power to take any further action against the vehicles which not been park accordingly in the Defendant’s premise. Rule 5.3 House Rules stated as follows: - “5. PARKING OF VEHICLES

5.2 In the event any vehicle is parked in areas other than the designated car park bays, the Management has the absolute right to take any appropriate action, as it deems fit including but not limited to serving of notices, immobilisation of vehicles or towing away.” [27] The house rules, especially rule 5.3 shows that the Plaintiff was within the premises under the exclusive control of the Defendant where the incident occurred, specifically in the outdoor parking area, thereby indicating the existence of a relationship of physical proximity. [28] The Court also agree with the Plaintiff’s submission that there is a relationship of bailor-bailee in existence between the Plaintiff and Defendant which shows that there is a duty of care to ensure the safety of the Plaintiff’s vehicle when said vehicle was parked in the premises of the Defendant. This is because, Niya Jockey is operated under the Defendant’s permission. The car jockey area should be a safe place as certain fees need to be pay to park in that area and jockey operator will put its worker to look after the place. The car also normally being park by the operator and not by the owner himself. [29] The principle of bailor-bailee was explained by the Sessions Court in the case of Euro Rent A Car Sdn Bhd v Sunway Parking Services Sdn Bhd [2017] MLJU 2279, Izralizam Sanusi HMS referred to many cases of other jurisdictions, primarily the United Stated of America, as follows: - “[32] Merujuk kepada isu (1) di atas, adalah jelas bahawa fakta kes di hadapan Mahkamah ini sama dengan fakta di dalam kes Walton Stores Ltd. v Sydney City Council (supra). Oleh itu, kes di hadapan Mahkamah ini juga wajar dibezakan dengan kes Ashby v. Tolhurst (supra). Adalah jelas bahawa plaintif perlu membuat bayaran sebelum dibenarkan memandu keluar dari tempat letak kereta defendan. Sekiranya plaintif gagal membayar, maka defendan berhak menolak dengan penolakan bersyarat untuk plaintif terlebih dahulu membuat pembayaran seperti yang dikenakan. Perlu diambil perhatian juga bahawa berdasarkan D17, defendan boleh mengunci tayar kenderaan dan pemilik kenderaan akan dedenda untuk membuka kunci tersebut. Sekiranya pemilik kenderaan memarkir kenderaanya ‘overnight’ tanpa kebenaran, pemilik akan dikenakan bayaran ‘storage charges’ yang berjumlah

RM 00 sehari atau kenderaannya akandialihkan atau dikeluarkan. Oleh yang demikian, selaras dengan keputusan kes Walton Stores Ltd. v Sydney City Council (supra), adalah wajar diputuskan bahawa defendan mempunyai ‘possession of the subject vehicle’. Maka saya memutuskan bahawa hubungan di antara plaintif dan defendan di dalam kes di hadapan Mahkamah ini adalah merupakah hubungan bailor dan bailee. Selanjutnya saya juga memutuskan bahawa kewajipan berjaga-jaga yang terletak dibahu defendan juga mencakupi aspek keselamatan kereta plaintif tersebut.” [30] Thus, the Court of the opinion that the Defendant owed duty of care toward the Plaintiff including the Plaintiff’s car which being park in the Defendant’s premises. Element (b) – that the defendant is in breach of that duty of care. [31] The Plaintiff submit that the Defendant had breach the duty of care as the Defendant failed to perform a proper maintenance of the trees in the Defendant premise which let it to fall and damaged the Plaintiff’s car. [32] One would be liable for the tort of negligence when his act or omission fell below the standard of a reasonable person, this is called ‘the reasonable man’s test’. [33] The Court of Appeal in Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] (supra) explained as follows: - “[69] The standard of conduct to determine negligence is that of the reasonable man. It is an objective test.” [34] The Federal Court in Len Omnibus Co Ltd Bhd v North South Transport Sdn Bhd and Sons [1978] 2 MLJ 246 at page 248 explained as follows: - “In my opinion, the learned judge had correctly applied the law to the facts of the present case. It is well established that the duty of the appellants as an estate owner was to take such steps as a reasonable and prudent landowner would take, and the question was one of fact whether their conduct infringed this requirement. This was the test adopted by Lords Normand and Reid in Caminer v Northern & London Investment Trust Ltd [1951] AC 88; [1950] 2 All ER 486 and which was applied in the local case of Thean Chew v Seaport (Selangor) Rubber Estate Ltd [1960] MLJ 166. The test postulates not expert knowledge on their part but some degree of knowledge as a reasonable and prudent landowner would possess. Accordingly, an estate owner who has rubber trees growing on his estate adjoining the highway is not expected to possess scientific knowledge of diseases that may affect the trees but he is expected as reasonable and prudent landowner to inspect the trees from time to time to assess their safety and if there is a danger of one of those trees falling on the highway, and possibly injuring someone who is using the highway, it is his duty to have that tree removed which is found to be dangerous.” [35] According to the Defendant, it had taken reasonable steps to ensure the safety of visitors, and had not breached any duty of care it might have owed to the Plaintiff. Defendant submit that no evidence has been led to assert that there was any reason for the Defendant to believe that the tree in question is unsafe. [36] SD1 in re-examination states that the tree was as far as he could tell, the tree in question seemed to be in good condition and it appeared to still have leaves. There was nothing to indicate that it posed a danger, and as such he had no reason to make any special note or suggest its removal. [37] At the same time the Defendant also engaged a professional landscape contractor, Global Trading & Landscape, to oversee the maintenance of trees and greenery within Plaza Mont’ Kiara. This engagement included periodic inspections and necessary trimming of trees to ensure they did not pose any foreseeable danger to the public. [38] The Plaintiff also take risk by parking his vehicle at the open space compared to the available spaces in a secure and closed building. The Defendant submitted that there is rule and disclaimer signboards that the vehicle park there was under its own risk and the Defendant is not responsible for any loss or damage of the vehicle park there. Section 5 “Parking of Vehicles” 5.1 stated that: All vehicles are to be parked only in the areas designated for car parking in the Complex which shall be managed by a car park management on "a pay as you use" basis and the Management shall not be responsible in any manner whatsoever for any theft, loss or damage or other misdemeanor to the vehicles… [39] Niya Ventures 2 Sdn Bhd, the company which operate of Niya Jockey had put disclaimer signboards (“Park at your own risk”) and it was displayed at various locations throughout the parking area. The disclaimer signboards stated: “Niya Jockey Services shall not be responsible for any theft, fire, collision or any other loss or damage whatsoever suffered by the vehicle or any accessories thereto or contents therein or any part therefore (collectively referred to as "the vehicle") while at the car park or any other location at which the vehicle is located… [40] The picture filed at the page 6 and 7 of the bundle C shows that the disclaimer sign board just at the end of the Plaintiff’s vehicle and thus the Plaintiff should have noticed the disclaimer signboard and should be bound by the disclaimer notice. [41] The Defendant also submit the incident happen due to the act of God as at the material time, there is heavy rain. During the cross-examination of SP3, a Meteorological Officer from the National Climate Centre of the Malaysian Meteorological Department, it was confirmed that the weather conditions at the time of the incident were indeed extreme. SP3 clarified that the wind speed was recorded as 1.4 meters per second at 5:00 PM, which was categorized as light air conditions. However, at 4:44 PM, the wind speed was recorded at 13.2 meters per second, which is considered a "strong breeze" or "strong wind." Such conditions are typical of a weather event with considerable force, capable of causing trees to sway and even fall, especially if the tree is already weakened or susceptible to such conditions. [42] Further clarifications from SP3 revealed that while the exact wind speed at 4:30 PM was not recorded, it was reasonable to assume that the wind conditions at that time were similar to those at 4:44 PM, given the close proximity of the readings. The wind speed of 13.2 meters per second was noted as being strong enough to cause significant environmental effects, including the risk of trees being affected by the wind. This level of wind speed, combined with the heavy rain, clearly contributed to the tree's structural failure, making it difficult to predict or prevent such an incident from occurring. [43] The extreme weather conditions at the time of the incident were a significant contributing factor, and the severity of the storm, with strong winds and heavy rainfall, was an "act of God" that was beyond the Defendant's control. [44] In the case PS-HCM Sdn Bhd V Shahrul Izewan Mat Husin & Ors [2018] 11 MLJ 481, the Court stated as follows: “[32] In relation to the issue that the fallen tree branch was an ‘Act of God’ due to rain, the plaintiff’s counsel submitted that based on the weather report of the meteorology department (exh P3 (a) – (f), pp 270-275 of appeal record lampiran 4), there was no incremental weather found and it rained as normal as 1500hrs-1600hrs (3-4 pm) and 1600hrs- 1700hrs (4-5 pm), for a total of 52 minutes with 1mm amount of rain and the wind was not strong. The Plaintiff’s counsel relied on a number of cases that heavy shower in Malaysia is not considered as an Act of God: Hoon Wee Thim v Pacific Tin Consolidated Corporation [1966] 2 MLJ 240; [1966] 1 LNS 69, HC and the case that the wind can amount to an Act of God if it is exceptionally strong that no one could be reasonably expect to anticipate it or provide against it based on the case of Cushing v Peter Walker & Son (Warrington & Burton) Ltd [1941] 2 All ER 693”. [45] The Court however do not agree with the Defendant submission. Defendant’s letter dated 29.9.2022 to DBKL, shows that the Defendant has knowledge of previous cases whereby the branches of the trees would suddenly fall and crush the cars in the car park area due to the trees being tall and matured and fungi covering the tree trunks. The Defendant asked the DBKL permission to cut and trim the trees in the Defendant’s premise. [46] SD1 also in his evidence admitted that the Defendant has received multiple complaints about the tree branches falling. “Q: Adakah terdapat sebarang kejadian sebelum ini di kawasan letak kereta di Plaza Mont Kiara akibat cabang atau batang pokok yang jatuh? A: Ya, terdapat beberapa kejadian di kawasan parkir di mana cabang atau batang pokok telah menyebabkan kemalangan, seperti merempuh kereta. Walau bagaimanapun, tiada kematian yang dilaporkan setakat ini.” (Please refer to Question 17 Witness Statement SD-1, marked as ‘PSSD-1’) Saya teruskan ya. Soalan dan jawapan kepada nombor 7. Encik Shukry menyatakan berkenaan insiden yang berlaku pada 22 Ogos 2022, setuju? SD1 : Setuju. Dan sebelum insiden ini berlaku, Encik Shukry bersetuju dengan saya memang terdapat beberapa kejadian di mana pokok tumbang atas kenderaan? SD1 : Tiada pokok tumbang, cuma dahan yang jatuh. Dahan yang jatuh? Cuma dahan Tiada pokok yang tumbang? Tiada pokok yang tumbang MAH: Itu sebelum kejadian lah? Ya, sebelum kejadian Saya rujuk kepada soalan dan jawapan nombor 17. Di sini, Tuan telah memberi jawapan Ya, terdapat beberapa kejadian di Kawasan parker di mana cabang atau batang pokok telah menyebabkan kemalangan, seperti merempuh kereta, betul? Betul. So memang terdapat kerugian yang dialami oleh pemilik-pemilik kenderaan ni ya? Ya, betul. Dan pihak Plaza Mont’ Kiara telah memberi ganti rugi terhadap pemilik-pemilik ni? SD: Tiada.” (Please refer to page 28 and 29 Notes of Evidence) Pernah tak pihak pengurusan menerima sebarang aduan tentang pokok-pokok di tempat letak kereta tersebut sebelum kejadian? Ada.” (Please refer to page 32 Notes of Evidence) [47] The Court agree with the Plaintiff’s submission that despite having knowledge of previous similar incidents that have occurred and receiving numerous complaints of the same, the Defendant failed to take reasonable action and thereby failed to act as a reasonable landowner. [48] The Defendant engaged the independent contractor Global Trading & Landscape to maintain the trees. However, that engagement is based on the good will basis. There is no periodical maintenance done and no payment done. [49] The only documentary evidence shows that the Defendant engaged Global Trading & Landscape to cut and trim its trees was, in 2021, whereby only 13 out of 21 trees were maintained. At first, during 2021, Defendant paid for the service, but later, it was done on the good will basis. Page 1-5 of the bundle D shows that the maintenance was done in 2021. However, no other record that can show any effort been done especially in the year 2022 and 2023. The Defendant also failed to call any witness from Global Trading & Landscape to explain further about the works done regarding maintenance of the trees in the said premise after the last documented work done in the said year of 2021. [50] The letter dated 29.9.2022 to the DBKL indicated that the Defendant admitted that fungi covered the tree trunks of the trees. The Court agree with the Plaintiff’s submission that there was nothing done in evidence to show that the Defendant remedy the defect of the fungi growth on the tree trunks. The fungi growth on the tree trunks may indicate that they suffer from an internal defect which is impossible to ascertain with the naked eye and clearly increase the chance of their impending collapse. [51] Accordance to the Defendant, the tree falls due to extreme weather. The said tree was not up-rooted but instead, broke into two, from above the ground. SD 1, stated the following in re-examination: PD: Soalan seterusnya Encik Shukry, tadi ada menyatakan ingin menjawab soalan tadi berkenaan dengan pokok telah patah dua, boleh jelaskan kepada Mahkamah pandangan tuan, Encik Shukry kenapa Encik Shukry mengatakan pokok patah dua? SD1: (inaudible 56.38-57.22) Ok pandangan saya, pokok tersebut, pokok tersebut ia satu batang pokok dan paling atas adalah dahan-dahan seperti yang kita sedia maklum seperti sebatang pokok yang sempurna. Di dalam pandangan saya, pokok ini telah patah dua dimana bahagian atas pokok dahan-dahan, daun-daun jatuh ke bawah dan tinggal batang saja pokok berada di atas…sepatuh pokok…menunjukkan pokok itu tidak sempurna dan yang jatuh itu bukan ranting itu adalah sebagian daripada pokok tersebut di mana bahagian atas… PD: Kenapa ia berlaku Encik Shukry pandangan Encik Shukry dan pernah ia berlaku sebelum ini kejadian ini? SD1: Sebelum ini tidak pernah berlaku dan pandangan saya disebabkan hari kejadian..hari..cuaca berada berkeadaan hujan lebat beserta dengan angina yang sangat kuat pada masa kejadian tersebut. [52] The tree was not uprooted, but rather broke into two. The leaves or the branch was not fall. This disturb the Court. The reason for tree fall is still not known. It needs the extreme weather to broke the tree into two like what happen in this case. In normal situation, the branch or the leaves which fell, not the tree itself. The Court reject the argument that it acts of God due to rain and wind. The Court want to say it due to fungi but no expert opinion was called to support that. So far, the cause of the tree felt still unknown. [53] SP3 did stated that the wind was strong at 4.44 pm with a speed of 13.2 meters per second which is a strong wind. However according to SP3, the strong wind is enough to make the tree move and swing, but not to the extend it can make the tree falls or up rooted. [54] According to the Beaufort scale, page 19-20 bundle B the “strong breeze” can make large branches in motion, whistling heard in telegraph wires and umbrellas used with difficulty. Therefore, the Court of the opinion that the weather at the material time is not strong enough to make the tree fall. There must be additional factors which combined with the strong breeze that cause the tree to fall and the Defendant as the controller of the premise failed to take reasonable steps to identify what can make the tree to fall or factors that weaken the tree and stop that situation from happened. [55] In the case of Kwan Sun Ming v Chak Chee Hing [1965] 1 MLJ 236 where the Federal Court adopted the definition from the textbook Halsbury, 3rd edition, Vol. 8, p. 183 as follows: - “The only defence to the whole claim put forward in the court below was that these logs were lost in a storm so violent as to amount to “an act of God”, and thus the appellant asked to be excused from all liability for damages. It must be conceded that that would have been an adequate defence to this claim. I refer to Halsbury, 3rd edition, Vol. 8, p. 183 for a concise definition of what constitutes “an act of God”: “An act of God, in the legal sense of the term, may be defined as an extraordinary occurrence or circumstance which could not have been foreseen and which could not have been guarded against; or, more accurately, as an accident due to natural causes, directly and exclusively without human intervention, and which could not have been avoided by any amount of foresight and pains and care reasonably to be expected of the person sought to be made liable for it, or who seeks to excuse himself on the ground of it …” [56] At the same time, the Defendant know that the strong wind and rain always happen in that area. Defendant has knowledge of previous incidents in the area and the danger of the collapse of the tree but deliberately ignored in taking suitable and/or reasonable steps in order to reduce this risk. [57] SD-1 in his evidence stated as follows: - Tadi Encik Shukry telah memberi keterangan berkenaan beberapa kejadian yang telah berlaku. Kejadian tersebut berlaku akibat cuaca atau tidak? Akibat cuaca. Hujan lebat, angin? Jadi situatsi berkenaan hujan lebat dan angina adalah sesuatu yang memang dalam pengetahuan pengurusan Plaza Mont’ Kiara betul? Betul. Jadi ini bukan sesuatu yang tidak berlaku … ia memang kerap lah? Tidak kerap berlaku. Pernah tak pihak pengurusan menerima sebarang aduan tentang pokok-pokok di tempat ketak kereta tersebut sebelum kejadian? Ada.” [58] The Defendant alleges that the Plaintiff is bound by the two clauses as per para 38 and 39 above because the Plaintiff rented an office in the Defendant’s building and its vehicle is parked near the disclaimer sign. [59] The exclusion clause only bound when it be reasonably brought to the Plaintiff’s attention. The Court is doubted that the house rules has been properly given to the Plaintiff. SP1 deny that he has been given the house rules when he started the tenancy there. [60] Notes of evidence at page 200 stated as follows: - Encik Kow ditanya tadi bila Encik Kow ditanya Encik Kow setuju bahawa sebagai penyewa adalah tanggungjawab, Encik Kow juga baca house rules. Dia tanya Encik Kow tadi sebagai penyewa adalah tangungjawab untuk baca house rules. Encik Kow cakap tak setuju. SP1: Ya Tak bagi lah. Encik Kow boleh jelaskan kenapa Encik Kow jawab tak setuju tak tahu … SP1: Saya tak tahu, memang tak tahu sebab kita mula-mula staff di tenancy masuk office then memang management tak bagitahu apa house rule, parking rule even though staff kita ada, adalah … Semak parking dapat pun tak bagi … macam tak dapat, tak bagi tahu dia punya rule macam mana, just bayar monthly rental. Lepas itu saya yang, saya bukan hari-hari pergi office. Memang lah tapi saya mention saya pakai kereta besar bukan sebab saya mahu parking bagitahu saya pakai kereta besar. Saya pakai, I just want to try to explain I pakai kereta besar, I must park at the car jockey. You know because kereta mahal.” [61] The Defendant failed to show how the house rules was given to the Plaintiff’s attention. Whether it is in the form of pamphlet, or accessible information though the system or it been printed and put at any notice board in the Defendant’s premises or any other means. [62] With regards to the disclaimer board of the Niya Jockey, SP1 also stated that he does not see the disclaimer board. He just saw the reserved parking notice only. At the page 6 and 7 of the Bundle D, it shows that the vehicle was parked by reversed parking. Therefore, the sign park at your risk was at the back and cannot be seen properly. At the same time, the whole wording of disclaimer board is not stated there. [63] The High Court in the case of Foreswood Timber SB v Rajang Lin SB & Ors [1999] MLJU 159 at paragraph [48] referred to the textbook Halsbury’s Laws of England at page 553 as follows: - “48. In Halsbury's Laws of England, Vol. 9(1), (4th Edn. Reissue) at pg. 553 states: “(1) a contracting party seeking to rely on an exclusion clause to save himself from liability in contract or tort to the other contracting party must show that it was incorporated as term of the contract, which usually involves the taking of reasonable steps to bring it to the notice of the other party, and similar principles of incorporation apply to the exclusion by non-contractual disclaimer of tort liability.” [64] The Court agree with the Plaintiff’s submission as since the Defendant has failed, ignored and/or neglected in taking reasonable steps to bring both exclusion clauses to the attention of the Plaintiff, both clauses are not incorporated into the contract between the Plaintiff and the Defendant and/or his agents and it cannot apply to exclude the Defendant’s liability in negligence and occupiers’ liability. [65] At the same time, both clauses still cannot be used against the Plaintiff as both clauses are ouster clauses which operate to restrict the Plaintiff from enforcing his rights in a court of law and is void by virtue section 29 Contracts Act 1950 (Act 136), as follows: - “29 Agreements in restraint of legal proceedings Every agreement by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights is void to that extent.” [66] The ineffectiveness of such clauses was explained by the Federal Court in the landmark case of CIMB Bank Bhd v Anthony Lawrence Bourke & Anor [2019] 2 MLJ 1 as follows: - “[37] We agree with the Court of Appeal when it opined that it is not right to think that a right can be dissociated from remedy and as can be clearly demonstrated by the instant appeal, where despite the finding that there is a breach by the bank, if cl 12 of the loan agreement is allowed, it would be an exercise in futility for the plaintiffs to file any suit against it. The plaintiffs are precluded from claiming the remedies against the bank. Clause 12 of the loan agreement negates the rights of the plaintiffs to a suit for damages, and the kind of damages as spelt out in the said clause encompasses and covers all forms of damages under a suit for breach of contract or negligence. There is an absolute restriction. Section 29 of the Contracts Act 1950 prohibits such restriction.” [67] The Court of Appeal decision of Thene Arulmani Chelvi a/p Arumugam v London Weight Management Sdn Bhd [2019] 6 MLJ 439 follow the CIMB Bank case (supra) and stated as follows: “[55] We must next deal with the exemption clause in the ‘slimming consultation card’ at p 195 of the record of appeal. The respondent had argued that it was not liable by reason of this clause. Again, we must disagree. [56] The term reads: London Weight Management will not be liable for any claims, losses, damages, injuries or death should the personal information provided be incorrect and/or insufficient. … [60] As expounded recently by the Federal Court in CIMB Bank Bhd v Anthony Lawrence Bourke & Anor [2019] 2 MLJ 1; [2019] 2 CLJ 1, clauses or terms which preclude one contracting party from claiming any loss or damage and exempting the other contracting party from liability for any loss, whether direct or indirect, ‘incidental, consequential, exemplary punitive or special damages’ violate s 29 of the Contracts Act. Such terms prohibiting or restricting a contracting party from seeking remedy against a defaulting party or a party in breach, as we see in this appeal, amount to a prohibition of access to justice which must be struck down for violation of s 29. [61] In this appeal, the respondent who is clearly in breach of its duty of care owed to the appellant has relied on this restriction clause to defend the appellant’s claim. In our opinion, that is clearly prohibited and must be denied.” [68] According to the case of Chin Hooi Nan v Comprehensive Auto Restoration Service Sdn Bhd & Anor [1995] 2 MLJ 100, the High Court explained as follows: - “Before me the issue is whether such an exemption clause can absolve the respondents from any blame for the damages caused to the car. The law on this is quite settled in that an exemption clause however wide and general does not exonerate the respondents from the burden of proving that the damages caused to the car were not due to their negligence and misconduct. They must show that they had exercised due diligence and care in the handling of the car. Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd [1959] X MLJ 200, and Port Swettenham Authority v TW Wu & Co (M) Sdn Bhd [1978] 2 MLJ 137, are authorities for this proposition of the law. In this instance, the respondents had not adduced any evidence that they had exercised due care and diligence when handling the appellant’s car. On the contrary, there is ample evidence to show that the respondents had been negligent when one of their employees had involved the car in an accident when he, the employee, was driving it to a different floor of the basement car park. On this conclusion, the appeal must be allowed.” [69] This principle was explained in the case of ML Breadworks Sdn Bhd v. Malayan Banking Bhd [2013] 1 CLJ 833 as follows: - “[87] Clause 6.1 is a general indemnity clause which seeks to exonerate the defendant entirely. In like manner, cl. 6.3 seeks to limit the defendant’s total liability under the terms and conditions to nothing more than RM500 for all claims. … [89] Even if I am incorrect in so concluding, the defendant ought not to be allowed to rely on the conclusive evidence clause as the bank was negligent in accepting the signature of the accountant as an authorized signatory, as well as failing to check with either authorized personnel or an authorized signatory before paying out on the subject cheque. Even if the forged signature was difficult to ascertain upon examination, the fact that the further oral check by DW5 was done with persons who were neither the authorized personnel to verify the validity of the cheque, nor the authorized signatories, shows that the defendant did not exercise sufficient or adequate care in making or honoring the payment. This is a further reason for concluding that the defendant ought not to be allowed to rely on the exclusion or limitation clauses specified. For these reasons I conclude that these clauses do not exclude or limit the defendant’s liability.” [70] Both cases above were applied in the case Euro Rent A Car Sdn Bhd lwn Sunway Parking Services Sdn Bhd (supra) as follows: - “[58] Berdasarkan kedua-dua kes di atas, adalah menjadi undang-undang yang mantap bahawa sesuatu fasal pengecualian walau bagaimana luas dan am, tidak melepaskan defendan daripada beban untuk membuktikan bahawa kerosakan atau kehilangan yang diakibatkan oleh defendan bukan disebabkan oleh kecuaian atau salah laku mereka. Di dalam kes di hadapan Mahkamah ini, adalah jelas bahawa terdapat bukti yang lebih daripada cukup untuk menunjukkan bahawa defendan telah cuai dan menyebabkan kehilangan kereta plaintif tersebut.” [71] The wordings of the said clauses do not clearly exclude liability for the Defendant’s negligence for any damage. It is well-established that if a party wishes to exclude liability and/or responsibility for negligence, the wording of the exclusion clause must be clear. [72] This principle of law can be seen in the case of Nowran Begam binti Mohamed Saliff (Pentadbir Hart Pusaka Mohamed Ihsan bin Saiyed Abu Thahir, si mati) v Nantha Kumar Devar a/l Sangaran & Anor (CTRM Aviation Sdn Bhd, intervener) [2016] MLJU 226 at paragraph [104], the High Court explained as follows: - “[104] Thus, it is trite law that any attempt to contractually exclude liability for acts of negligence must be expressly and clearly worded. Now, in applying these principles to the facts of this case I find that the exclusion clause relied on by the Defendants is inoperable to exclude liability arising from negligence for the following reasons. The operative words in the aforesaid clause are: ... should my death or any injury to me occur close to or upon the aircraft, hangars or other premises of the Club, or as a result of flying or otherwise I for myself my executors and administrators hereby undertake not to bring any legal proceedings or to make any claim or demand for or in respect of such death or injury as aforesaid against the said Club, its general Committee, members, or agents or any of them. The wordings in this clause are too general. Upon a strict construction, the clause does not seem to exclude liability for negligence of the Defendants. There is no mention of negligence at all in that clause. The clause merely states that if death were to result from flying he or his estate will not make any claims in respect of that death …” [73] At the same time, in the same case, in the same paragraph, the High Court utilized the doctrine of ‘contra proferentem’ to resolve any ambiguity against the party that is relying on the exclusion clauses that is ambiguous, the High Court explained as follows: - “I do not find the clause being specific enough to cover the kind of breach that the Plaintiff complains. In such circumstance, the ambiguity must be resolved in proferens against the Defendants who seek to rely on the clause …” [74] Therefore, the Court in the conclusion that the exclusion clauses cannot apply in this case to absolve liability from the negligence of the Defendant. The Defendant indeed has breached its duty of care toward the Plaintiff. Element (c) – that the claimant plaintiff suffers damage as a result of that breach of duty and that damage is not too remote. [75] The tree falls and crush the Plaintiff’s car which was parked near the tree. This kind of damage is not remote and is reasonably foreseeable. If the trees in the parking lot were not maintained properly, clearly the trees would have a risk of falling and crushing the vehicle and/or injuring people in the area. [76] The test of remoteness of damage was explained by the High Court in Suzannah Helen Harvey & Anor v Langkawi Yacht Club Bhd [2024] 7 MLJ 385 at paragraph [334] as follows: - “[334] The principle of remoteness of damages applies both in contract and tort. It limits recovery to losses that were foreseeable at the time the contract was made or at the time of the tortious act. Thus, for each head of claim, the court will evaluate whether the defendant could have foreseen that the supply of contaminated fuel would not only lead to the need for repairs but also result in the loss of use of the vessel and cause significant emotional and psychological distress to the plaintiffs.” Issue No 2: Whether the Defendant is liable under the doctrine of Res Ipsa Loquitor against the Plaintiff in respect of the damage to the Car? [77] The doctrine of ‘res ipsa loquitur’ was explained by the High Court in the case of Tenaga Nasional Bhd v Panareno Sdn Bhd (Vital Projects Sdn Bhd, third party and Semantra No-Dig Engineering Sdn Bhd, fourth party) [2019] 11 MLJ 795 at paragraph [126] where Yang Arif Faizah Jamaludin JC relied on the definition that was given in the textbook Clerk & Lindsell on Torts, (20th Ed, General Editor: Michael A Jones, Thomson Reuters (Legal) Ltd, 2010):- “[126] Res ipsa loquitor is a Latin term, which in English means, ‘the thing speaks for itself’. It is a circumstance where this court can infer negligence on the part of the defendant if TNB can show that the nature of damage to the cable suggests both negligence and the defendant’s responsibilities. The maxim is explained by the editors of Clerk & Lindsell on Torts, (20th Ed, General Editor: Michael A Jones, Thomson Reuters (Legal) Ltd, 2010) at p 542 as follows: It is only a convenient label to apply to a set of circumstances in which a claimant proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result. …” [78] The elements of res ipsa loquitor are as follows: a) the damage could not have happened without negligence; b) the damage was caused by something under the sole management and control of the defendant or someone for whom it is responsible or whom it has a right of control; and c) the exact cause of the damage is not known. Element (a) – the damage could not have happened without negligence [79] The Court rejected that the tree falls due to strong wind as SP3 and Beaufort scale shows that the wind at the material time is not strong enough to cause a big tree similar to the one that crushed the Plaintiff’s vehicle to collapse in the absence of the Defendant’s negligence. [80] According to the Federal Court case, Ahmad Jaafar Abdul Latiff v. Dato’ Bandar Kuala Lumpur [2014] 9 CLJ 861, the doctrine of res ipsa loquitur would not apply unless the cause of the damage is not known at all by the party that caused it, Yang Arif Raus Shariff, PCA explained in paragraph [8] as follows: - “[8] It was held that the ‘fundamental basis of the maxim (res ipsa loquitur) is that the rule that it is for the plaintiff to prove negligence and not for the defendant to disprove it, may cause hardship to the plaintiff if it is impossible for him to know what precise acts of omission led to his damage, and this is most obviously so where the cause of the damage is peculiarly within the means of knowledge of the defendant who caused it.” [81] The letter from the Defendant to DBKL dated 29.9.2022 shows that the Defendant clearly knew about the tree branches in the area suddenly falling and damaging the cars around the area caused by the tall and matured trees, and the fungi growth on the tree trunks. The tree that crushed the Plaintiff’s vehicle had a high risk of imminent collapse and causing damage if immediate action was not taken by the Defendant at the material time. The Court agree that as the Defendant failed to take appropriate action to alleviate this danger, the incident could not have occurred without the negligence of the Defendant. Element (b) – the damage was caused by something under the sole management and control of the defendant or someone for whom it is responsible or whom it has a right of control. [82] The said tree is within the Defendant premise and control. DBKL make some investigation and DBKL letter dated 14.10.2022 confirmed that the tree that crushed that Plaintiff’s vehicle was in the area within the care, maintenance and/or control of the Defendant. The Defendant is responsible to trim and cut the trees on its own budget and not DBKL. Element (c) – the exact cause of the damage is not known [83] The Court agree with the Plaintiff that the exact cause of the damage (i.e. collapse of the tree) is not known, whether it was due to the excessive foliage of the trees as a result of the failure of the Defendant to fell and/or prune it, and/or some internal structural defect of the tree trunk and/or roots which is caused by the fungi growth and renders it easily collapsible by slow wind conditions, etc. [84] The Plaintiff has successfully raised this doctrine. Thus, an inference of negligence is placed on the Defendant. This inference cannot be rebutted with bare denials claiming that the collapse of the tree is an act of God or reliance on the exclusion clause to exclude liability. [85] This inference can only be rebutted by evidence which shows either that the Incident is not caused by the Defendant’s negligence or an explanation of the cause of the Incident which did not connote negligence by them. This principle was explained by High Court in the landmark case of David Chelliah @ Kovilpillai Chelliah David v Monorail Malaysia Technology Sdn Bhd & Ors [2009] 4 MLJ 253 by Yang Arif Harmindar Singh JC: - “[25] An inference of negligence can be rebutted by introducing evidence. Although the burden of proof remains throughout on the plaintiff, where a prima facie case of negligence has been made out, the defendant bears the burden of introducing evidence to explain and show how the incident occurred without negligence on his or her part. Failure to do so will establish liability on the part of the defendants (Teoh Guat Looi v Ng Hong Guan [1998] 4 MLJ 525; MA Clyde v Wong Ah Mei & Anor). [26] In this regard, it was held in Moore v R Fox & Sons [1956] 1 QB 596 that the onus of proof is not discharged by merely showing that the accident was inexplicable. It was not sufficient to show several hypothetical causes consistent with the absence of negligence and that the accident might have occurred without negligence on their part. To discharge the onus they had to go further and either show that they had not been negligent, or give an explanation of the cause of the accident which did not connote negligence by them.” Issue No 3: Whether the Defendant has occupier’s liability against the Plaintiff and the Plaintiff’s assets including the car? [86] The Federal Court in Lee Lau & Sons Realty Sdn Bhd V. Tan Yah & Ors [1983] 2 MLJ 51, citing Indermaur V. Dames [1866] LR IPC, following Indermaur v. Dames [1866] LR IP held that the occupier’s duty is confined to protecting invitees from unusual danger that the occupier knew or ought to have known. “And with respect to such a visitor at least, we consider it is settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damages for unusual danger which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of facts…” [87] In the case of Datuk Bandar Dewan Bandar raya Kuala Lumpur v Ong Kok Peng & Anor [1993] 2 MLJ 234, the Supreme Court explained that there are four categories of visitors to a premise as follows: - “Speaking of plaintiffs entering premises, the liability of occupiers of such premises to take care exists but it depends on the character in which they have entered them. First, we have people who enter them by virtue of a contract, such as a guest in a hotel; secondly, we have people who enter them on business of interest, both to such persons as well as the occupiers, eg a customer going into a shop to view the goods, they are the invitees; thirdly, we have persons who enter them with the express or implied permission of the occupiers, without neither a contract, nor such community of interest, they are called licensees; and fourthly, there are persons who enter as trespassers. In the order we have mentioned such persons, the duty of care is cast in a descending scale, the highest duty of care being towards persons who enter the premises by virtue of a contract down and not so high in the case of invitees and so on. Such duty of care has been spelt out at common law in each case.” [88] The Plaintiff is a contractual entrant because of the payment of a fee to Niya Jockey to park his vehicle and renting an office in the Defendant’s building, this gives rise to a contract between both parties. According to the case of Datuk Bandar Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor (supra), occupiers owe the highest duty of care towards a visitor who is a contractual entrant. [89] This duty of care towards contractual entrants was explained in the case of MacLenan v Segar [1917] 2 KB 325 as follows: - “Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them.” [90] The liability of an occupier with regards to their visitors was explained by the House of Lords in the landmark case of Wheat v E Lacon & Co Ltd [1966] AC 552 as follows: - “Translating this general principle into its particular application to dangerous premises, it becomes simply this: wherever a person has a sufficient degree of control over premises that he ought to realize that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an “occupier” and the person coming lawfully there is his “visitor”: and the “occupier” is under a duty to his “visitor” to use reasonable care. In order to be an “occupier” it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be “occupiers.” And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other.” [91] The Court in Qi Qiaoxian V. Sunway Putra Hotel Sdn Bhd [2022] MLJU 2298 reaffirmed the principle as established in Lee Lau & Sons Realty Sdn Bhd (supra), holding that an occupier is not required to provide absolute safety but only to take reasonable precautions against unusual dangers. The mere presence of a risk does not impose liability unless it is an unusual danger, which the occupier knows or ought to know, that the occupier failed to address. [30] In the instant case there is no issue that the defendant is the occupier and that the deceased was an invitee to the premises on which was the swimming pool that the guests of the hotel or invitees had access. The deceased drowned in the pool. The issue in this case was whether there was an unusual danger with regard to the swimming pool which the defendant, as occupier, knows or ought to know. The pleaded case was that the Defendant failed to take reasonable precautions given the ‘unusual danger’ that the depth of the swimming pool was 3 meters, not manned by an accredited lifeguard and no warning signs were put up as to the depth of the swimming pool” [92] In defining the term of ‘unusual’ risk, the Court in Qi Qiaoxian (Supra) quoted the Federal Court in Lee Lau & Sons Realty Sdn Bhd (supra) which established as follows: “An ‘unusual’ risk is one which is not usually found in carrying out the task which the invitee has in hand.... The occupier has no duty to the invitee unless there is unusual danger which he knew or ought to have known. ... An occupier owes no duty to the invitee is only entitled to expect that the invitor (occupier) will take care to prevent damage from ‘unusual’ danger.” [93] The Defendant, as an occupier, had acted unreasonably to prevent any harm towards his visitors. The tree was within the Defendant’s control. The tree is tall and it is foreseeable for the branches or tree trunk to collapse and damage anything near the area. The evidence show Defendant only take care 13 out of 21 trees and although the Defendant said, the trees was been taken care by the independent contractor based on willingness basis, but no evidence was given to proof that. The period of the last maintenance was close to a year before the incident happened. [94] The Court agree with the Plaintiff’s submission that with the knowledge on the danger of the branches and/or tree trunk collapsing and the risk of it crushing and/or damaging the cars around the area, the Defendant failed, ignored and/or neglected to take reasonable action to perform the appropriate maintenance and/or felling the trees to reduce the risk of it collapsing and, as a result, breached the implied warranty of the contract between the Plaintiff and the Defendant. Issue No 4: Whether the Defendant is liable to pay general, special, exemplary and/or punitive damages to the Plaintiff in respect of the damage to the car? [95] Plaintiff can only claim compensation for negligence when that negligence that was done by the Defendant resulted in damaged that was reasonably foreseeable by a reasonable person. This is an objective test. [96] This test is known as “The Wagon Mound test”, the principle of this test was explained by the High Court in the case of Sivakumaran & Ors v Yu Pan & Anor [1995] 1 MLJ 12 as follows: - “It has to be noted that the Privy Council case of The Wagon Mound has been applied in Malaysia. In Jaswant Singh v Central Electricity Board & Anor [1967] 1 MLJ 272, Gill J explained (at p 275) the rule that was established by Re Polemis and its supersession by the rule enunciated by the Privy Council in The Wagon Mound: As regards damage in consequence of a breach of a duty to take care, the fundamental rule is that the injury suffered by the plaintiff must not be too remote a consequence of the defendants’ conduct, or, as it is often said, the damage must not be too remote. In this connection, on the authority of the decision of the Court of Appeal in England in the case of Re Polemis & Furness, Withy & Co Ltd [1921] 3 KB 560, the rule was that if a reasonable man would have foreseen any damage to the plaintiff as likely to result from the defendant's act, then he was liable for all direct consequences of it suffered by the plaintiff whether a reasonable man would have foreseen them or not, that is, if they were directly traceable to the act and not due to the operation of independent intervening causes. That rule was abrogated by the Judicial Committee of the Privy Council in the case of Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound), in which it was decided that ‘the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen’, and that it is wrong to use one test (reasonable foreseeability) to determine culpability, i.e. duty and breach of duty, and a different test (directness) to determine remoteness of damage. In other words, the test of remoteness is to be treated as being identical with the test of negligence. The test of duty is foreseeability of some damage to the plaintiff. The test of damage is that the kind and the extent of plaintiff's damage should have been foreseeable in general outline. [97] Plaintiff claims that it has suffered loss as follows: - a) Costs of repairing the vehicle RM 56,659.00 b) Loss of insurance RM 2,991.00 c) Loss of road tax RM 5,972.50 d) Cost of vehicle maintenance: RM 10,185.00 [98] The Court allowed the cost of repairs of the car. Plaintiff owned an Audi car and it is accepted as a luxurious car. The Court only allowed the repair costs after the time of the incident and not before that. The court allowed RM 60, 154.00 [RM 46, 474.00 + RM 13, 680] as the costs of repairs. [Refer to page 9 and 10 Bundle B). [99] The Court rejected the claims for road tax and insurance of the cars as the Court are of the opinion that insurance and road tax is a necessary item for the car despite the car cannot not been used after the incident. The Plaintiff failed to give the timeline and the duration of time the car cannot been used. [100] The court rejected the invoice dated 2.6.2022 amounting RM 10,185.00 for the car maintenance as dated of the invoice is before the incident. The car also needs to be maintained regularly and the cost of maintenance still will be invoked despite the car involved in the incident or not. [101] The Court also rejected the claims for the legal fees as it part of the special damages that need to be proven. The Plaintiff failed to give evidence that the legal fees has been paid. Therefore, the Court only allowed a normal party to party cost in this case i.e. RM 10,000 to be given to the Plaintiff as Plaintiff successfully proof its case. [101] The Court of the opinion that the incident happen is not anybody wishes. The Defendant is not intended for the Plaintiff’s car to be damages. Since there is no element of malice or intention, exemplary and/or punitive damages are not been awarded. CONCLUSION [103] Based on the reasons stated above, the Court conclude the Defendant has breach it duty either under the tort negligent or occupier liability. The doctrine of Res Ipsa Loquitor is applicable here and since the Plaintiff suffered damages due to the Defendant’s act, Plaintiff entitled to claim its loss accordingly. Prepared by: WAN NOR AKLIMA BINTI WAN SALLEH, Session Court Judge, Session Court Kuala Lumpur Dated: 15.6.2025 PARTIES BEFORE THE COURT: Solicitor for the Plaintiff: Mr. Lim Tien Loong [ Messrs. Lim & Chia ] Solicitor for the Defendant: Mr. Krisnamorgan a/l Suparmaniam [ Tetuan Ann & Anuar ]