No assessment of damages should have been granted as the claim was for special damages and not for unquantifiable claim such as loss of profit. [30] On the appellant’s allegation that the respondent failed to plead the type of “insured peril” under the policy, the respondent’s answer was that it is covered by paragraph 5 of its statement of claim, as follows: “Pada 17.1.2015, sebahagian Dinding tersebut telah runtuh akibat tekanan air berikutan hujan lebat dan Dinding tersebut perlu dibaiki.” (Translation: On 17.1.2015, part of the Wall collapsed due to water pressure following heavy rain and the Wall needed to be repaired) [31] The appellant however contended that the above paragraph 5 of the statement of claim does not plead loss by water (or water pressure) as a peril insured against under the policy, nor does it plead that it is a loss 12 covered by the policy. It was submitted that water pressure or heavy rain is not a type of insured peril under the policy. [32] It was further submitted that paragraph 5 of the statement of claim is only a narrative of facts and does not show the material facts required to be pleaded by the respondent, citing Tang Thung Thian & Anor v United Oriental Assurance Sdn Bhd [2002] 5 MLJ 696. It was the appellant’s contention therefore that the learned judge erred in finding that the respondent has pleaded the named peril in paragraph 5 of the statement of claim. [33] The learned trial judge dealt with the point in the following manner: “[14] The words used in the named “peril” must be given its ordinary and natural meaning. We should avoid an unduly technical interpretation of the word “water” and I am satisfied that the named peril in “water” has been more than sufficiently identified with respect to the use of the words “water pressure” and “heavy rain” in paragraph 5 of the Statement of Claim. [15] After all it is not “water” per se that would cause a retaining wall to collapse but the hydrostatic pressure arising out of it and invariably more of it is present when there is heavy rain.” [34] We agree with the learned judge, and with due respect to learned counsel, we find nothing of substance to his criticism of the learned judge’s reasoning. It is clear that His Lordship’s construction of the word “water” used in the policy is consistent with DW1’s expert opinion that there was a resultant hydrostatic pressure surge behind the wall during heavy rainfall (i.e. rain water) that could have caused the wall panels to collapse, which he described in his evidence at the trial as the “most likely” cause of the collapse. 13 [35] Having regard to the meaning of “water”, “rain water”, and “rainfall” in their ordinary and popular sense, it was untenable for the appellant to argue that heavy rainfall does not fall within the meaning of “water” under the policy, which is an insured peril. [36] Learned counsel drew our attention to the fact that in finding heavy rainfall as the cause of the wall collapse, the learned trial judge relied heavily on the police report lodged by one Lew Tek Lam. It was argued that the police report should not have been taken into consideration by the learned judge as Lew Tek Lam was only informed (“dimaklumkan”) of the heavy rain and had no personal knowledge of the matter. This was how the learned judge dealt with the police report: “[35] I am satisfied on the balance of probabilities that there was heavy rain before the collapse of the Retaining Wall as there was a contemporaneous police report made by the plaintiff dated 18.1.2015 i.e. a day after the collapse. This police report is at page 28 CBOD 1 and it clearly states that there was “hujan lebat” (heavy rain).” [37] This finding was heavily criticised by learned counsel for the appellant as, according to counsel, it was based on hearsay evidence. The basis for the complaint was that the maker of the police report was not called to give evidence. [38] Having regard to the decision of the Judicial Committee of the Privy Council in Subramaniam v Public Prosecutor [1956] 1 LNS 115, we find merit in the point raised. In that case the Privy Council held, inter alia, as follows: 14 “Evidence of a statement made to a witness by a person who is himself not called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. “ [39] In the present case, it is obvious that the respondent’s object in tendering the police report was to prove the truth of what the maker of the report said, i.e. that there was heavy rain prior to the collapse of the retaining wall, and not merely to prove that the statement was made by the witness. Even worse, the maker of the report was relying on what some other person told him. It was hearsay upon hearsay. The police report was therefore inadmissible and should not have been considered by the learned judge. [40] Be that as it may, we do not find the point raised to be of any significance because the respondent was not relying entirely on the police report to establish the presence of heavy rainfall on the date of the incident. As we have mentioned, the appellant’s own witnesses, namely DW1 and DW2 confirmed that there was heavy rainfall on that date. In fact, DW1 in his testimony went so far as to confirm that heavy rainfall was the “most likely” cause of the wall collapse. [41] Thus, even if we were to disregard the police report for offending the rule against hearsay, there was sufficient other evidence of heavy rainfall before the court. And the evidence, we reiterate, came from the appellant’s own witnesses. [42] Learned counsel for the appellant however argued that the learned trial judge was wrong to rely on the evidence of DW1 and DW2 to rule on 15 the existence of rain when DW1 and DW2 had no personal knowledge of the presence of rain and that their evidence on rain was, in counsel’s own words, “pure and uncorroborated hearsay evidence”. [43] It was pointed out that DW2, the appellant’s loss adjuster was not even at the site when the retaining wall collapsed. He was therefore not in any position to confirm if in fact there was rainfall on the date of the incident. To top it all, even the respondent’s only factual witness, PW1 admitted that he had no evidence to prove that on 17.1.2015, there was heavy rain. [44] Relying on this court’s decision in Mohd Shukri Mat v Wan Rahmah Wan Abdullah [2017] 1 LNS 1941, it was submitted by learned counsel that since the respondent failed to discharge its onus of proving the named peril, i.e. the water pressure and heavy rain on the balance of probabilities, the burden did not shift to the appellant to prove its defence that the collapse of the retaining wall was due to inadequate design and poor workmanship. [45] We find this to be a strange proposition. If the burden did not shift to the appellant as contended, why then did the appellant call evidence at the close of the respondent’s case instead of making a submission of no case to answer? DW1 and DW2 were called by the appellant and not by the respondent and the purpose of calling DW1 was clearly to prove its pleaded defence that the collapse of the retaining wall was due to design failure and poor workmanship and not due to heavy rainfall; and that it was not in breach of the contract of insurance or policy when it rejected the respondent’s claim. 16 [46] But DW1 and DW2 were categorical in their testimonies that there was rain on the date of the incident. As we said, DW1 even confirmed that heavy rainfall was the most likely cause of the wall collapse. That evidence is clearly admissible and relevant. It is not hearsay as it was not what they heard from someone else. For DW1 and DW2 to be able to confirm with certainty that there was rain on the date of the incident, they must have had first hand information on the presence of rain. [47] Since the evidence of DW1 and DW2 on the presence of rainfall was before the court and relevant to the issue, it would be wrong for the learned trial judge to ignore it, as learned counsel seems to be suggesting. [48] The proposition by learned counsel would be tenable if the appellant had chosen not to call evidence at the close of the respondent’s case and there was no evidence, oral or documentary, at the respondent’s stage of the case to support its pleaded case that heavy rainfall was the cause of the wall collapse. That in our view is the kind of situation envisaged by this court in Mohd Shukri Mat (supra), and not the situation facing the appellant in the present case. [49] As it was, the appellant chose to take the bull by the horns so to speak by calling its expert witness DW1 to rebut the evidence of the respondent’s expert witness PW2 that heavy rainfall was the cause of the wall collapse. Having taken this step, the appellant cannot now recoil from that position and argue that the burden did not shift to the appellant to prove its defence that the collapse of the retaining wall was due to inadequate design and poor workmanship. 17 [50] It was the appellant’s own choice to discharge that evidential burden. It cannot now be heard to say that it had no burden to discharge. While it is true that the legal burden was on the respondent to prove its pleaded case that the collapse of the retaining wall was due to heavy rainfall, or the named peril, it is also true that the burden could be discharged by the appellant’s own evidence even at the respondent’s (plaintiff) stage of the case. [51] In this case there was evidence before the court of DW1’s September 2015 report, which he reaffirmed in his oral testimony at the trial, that heavy rainfall was the most likely cause of the wall collapse. The appellant must not be allowed to conveniently disavow this report and unilaterally decide not to rely on it at the trial just because it supported the respondent’s case. [52] We are not aware of any law, nor had any authority been cited to us by learned counsel to say that the plaintiff in a civil suit cannot use evidence coming from the defendant, either documentary or oral, to prove any fact necessary to establish his or its case against the defendant. [53] By urging the court to disregard that part of DW1’s and DW2’s evidence on the existence of rain on the ground that they had no personal knowledge of the rain, the appellant was in fact suggesting that the court should pick and choose only evidence that was favourable to the appellant and to reject those that were not. [54] The suggestion obviously was that the court should only accept that part of DW1’s expert evidence where he said that the collapse of the retaining wall was due to design failure and poor workmanship but must 18 reject that other part of his evidence where he said that heavy rainfall was the most likely cause of the collapse. [55] With due respect to learned counsel, that is not how our adversarial system of justice works. The appellant must take the good, the bad and the ugly parts of DW1’s evidence for what they were worth and leave it to the trial judge to decide if the evidence should be accepted or rejected, wholly or in part. [56] After all it was the appellant itself who offered the evidence for the trial court’s consideration. If the evidence turned out to be unfavourable to the appellant and the trial judge for good reasons accepted that evidence to the appellant’s detriment, then that is where the justice of the case should lie. [57] An important point to bear in mind is this. If indeed DW1 and DW2 had no personal knowledge of the existence of rain at or about the time of the wall collapse, why then did they confirm in their evidence under oath that there was rain prior to the collapse of the retaining wall? Either they were telling the truth or they were committing perjury. There can be no two ways about it. [58] What is clear however is that the learned trial judge accepted that part of their evidence that there was heavy rainfall on the date of the incident. The learned trial judge was perfectly entitled to do so. [59] On the question whether the appellant could reject the respondent’s claim on the ground that the collapse of the retaining wall was due to 19 inadequate design and poor workmanship under Exclusion 3 of the policy, the following observations by the learned judge are pertinent: “[52] The above defences of “inadequate design of and poor workmanship in constructing the Retaining Wall” were relied on based on DW1’s findings as pleaded at paragraph 4(b)(i), 4(b)(ii) and 5 of the Defence filed on 7.3.2017. It is certainly telling and even disquieting when the only findings of DW1 available at the date of the Defence i.e 7.3.2017 is the February 2015 report and the September 2015 report i.e. the abandoned reports. [53] It was as if the Defendant had some prophetic insight that there would be further reports from DW1, their appointed expert, that would support their defence available under clause 3 of the Exclusions to the Policy with respect to proven “inherent defects” which included “loss or damage or expense caused by, or arising out of, or substantially aggravated by inherent defects, wear and tear, gradual deterioration, expansion or contraction of insured items due to changes of temperature” (“Exclusion 3”).” [60] Even assuming, for the sake of argument, that there were two possible causes of the wall collapse (either heavy rainfall or inadequate design and poor workmanship), the learned judge had considered which of the two causes to be the more probable cause, and he found heavy rainfall to be the predominant and proximate cause. This finding can be found at paragraphs [72] and [73] of the grounds of judgment, which we reproduce below: “[72] Assuming for a moment that there were 2 causes for the collapse of the Retaining Wall, I would say here that the trigger and predominant and proximate cause is in the heavy rain and the other so-called defective design, if at all it is relevant, is only a distant contributing and subsidiary cause. So the 2 causes are not independent effective causes operating at the same time. [73] One can appreciate the force of nature and when fully unleashed, no human structure, no matter how strong and well-designed, can stand in the face of the wrath of nature as we know it.” 20 [61] It was clearly a finding that was based on actual evidence before the court and not something that the learned judge plucked from nowhere. Unless the learned trial judge had committed some serious breach of principle in arriving at such finding of fact, which in our view he had not, there is no reason for us to interfere with that finding without offending the rule against appellate intervention on a matter such as this, which is best left to the trial judge to determine as it involves the question of the credibility of the witnesses, especially the two opposing expert witnesses PW2 and DW1. [62] The learned judge had, in any event, found that the retaining wall had been properly built. This was a right call to make as the evidence shows that the wall had withstood the vagaries of nature for some 9 years before it collapsed during heavy rainfall on the date of the incident. It is clear that the loss and damage suffered by the respondent was sudden and unforseeable. [63] The appellant however argued that the respondent’s expert witness (PW2) was not completely independent and therefore unreliable for the reason that being the person responsible for the construction of the retaining wall, he would invariably be inclined to defend his own construction. The complaint was therefore not over PW2’s expertise but over his independence as a witness. [64] On this point, we need only say that the learned trial judge was mindful of the danger of possible bias on the part of PW2 when he said at paragraph [58] of his grounds of judgment: 21 “[58] I do not think that PW2 would be immediately disqualified as an expert merely because he was the professional engineer for the Retaining Wall. The fact that an expert has an apparent conflict of interest does not automatically disqualify him as an expert. I agree with the Plaintiff that the key question is whether his opinion is independent and the Court only needs to caution itself against any default biasness that may rear its ugly head. Finally the Court will accept or reject his evidence based on whether it can be scientifically sustained and supported and whether it is logical, cogent and convincing. See Malaysian Civil Procedure 2018 Volume 1 page 533.” [65] The learned judge had therefore cautioned himself of the danger of accepting PW2’s evidence before deciding to accept it. To our mind, that was the right approach in dealing with an interested witness like PW2. Having said that, we must add that unless PW2’s expert opinion can be shown to be scientifically unsound or defies logic or that for some other reason his evidence ought to be rejected, PW2 was entitled to credence like any other witness. [66] DW1 in his witness statement described as “disingenuous” PW2’s claim that his (DW1) September 2015 report still represented the appellant’s position. According to him, his September 2015 report had been “superseded” by his later reports that the appellant were relying on at the trial. [67] The answer to DW1’s uncomplimentary remarks against PW2 can be found in the following statement by Chang Min Tat FJ in Tindok Besar Estate Sdn Bhd v Tinjar Co. [1979] 2 MLJ 229 at page 234: “For myself, I would with respect feel somewhat safer to refer to and rely on the acts and deeds of a witness which are contemporaneous with the event and to draw the reasonable inferences from them than to believe his subsequent recollection or version of it, particularly if he is a witness with a purpose of his own to serve and if it did not account for the 22 statements in his documents and writings. Judicial reception of evidence requires that the oral evidence be critically tested against the whole of the other evidence and circumstances of the case.” [68] Learned counsel further submitted that the learned judge was wrong to take judicial notice of the fact that in the Klang Valley, rainfall is common and more so during the monsoon season and that sometimes the rain can be torrential or heavy, causing flash floods especially when the drainage system may be inadequate or clogged. [69] It was argued that the presence of rain on the date of the wall collapse was a fact that needed to be proved by evidence and not by judicial notice. We can accept the argument but it is stretching the imagination to suggest that only those facts that are listed in section 57 of the Evidence Act 1957 (“the Evidence Act”) can be taken judicial notice of by the court. [70] The list is not meant to be exhaustive. What it means is that for those facts that are listed, the court has no discretion but to take judicial notice of their existence. But surely there are other facts that the court can take judicial notice of. For example, the court can take judicial notice of the fact that the sun rises in the east and sets in the west although it is not specifically listed in section 57 of the Evidence Act and although it is a total myth (fact is, the sun does not “rise” or “set”, in the east or in the west. It sits still in its own orbit). [71] The phrase “judicial notice” (or judicial cognisance) is defined by the Oxford Dictionary of Law (Seventh Edition) as follows: 23 “The means by which the court may take as proven certain facts without hearing evidence. Notorious facts (i.e. matters of common knowledge) may be judicially noticed without inquiry. Some other facts (e.g. matters that can easily be checked in a standard work of reference and are reasonably indisputable) may be judicially noticed after inquiry.” [72] Going by this definition, it was certainly not wrong for the learned judge to take judicial notice of the fact that rainfall is common in the Klang Valley and more so during the monsoon season. It is common knowledge. In any event, the learned judge did not say that the respondent had no burden to prove heavy rainfall. What His Lordship said was that the appellant should not put the respondent to prove the actual amount or intensity of the rainfall to show if the rainfall was indeed heavy. [73] Learned counsel for the appellant found support for his argument in the High Court case of Bina Puri v Mui Continental Insurance Sdn Bhd [2010] 1 MLJ 347 where Nallini Pathmanathan J (as she then was) held, on the facts of the case, that where the plaintiff alleged that the damage was caused by heavy rainfall and the plaintiff provided 4 months of rainfall records from the Jabatan Pengairan dan Saliran Malaysia, such records must disclose such degree of certainty that the rainfall could be categorised as “excessive”. Counsel quoted the following passage of the judgment at page 357 of the report: “[20] … The burden falls on the Respondent to show that the loss and damage suffered was sudden and unforseeable. If the Respondent succeeds in so establishing it will follow that the assertion by the Appellant in para 3(b) whereby it is pleaded that the damage is both forseeable and not sudden will not be established. In other words, the Appellant’s assertion in para 3(b) does not derogate from the well established principle that the onus of proving that the loss was caused by a peril insured against, lies on the claimant, ie the plaintiff here.” 24 [74] It was submitted that since the respondent did not adduce any evidence on the existence of rain, the learned judge ought to have ruled that the respondent failed to discharge its burden of proving the peril and not to have taken judicial notice that “rainfall is common”. [75] First of all, it is untrue that the respondent did not adduce any evidence of rain. We have dealt with this issue in the preceding paragraphs of this judgment. With due respect to learned counsel, his reliance on Bina Puri is misconceived. The decision in that case must be confined to its own peculiar facts and circumstances. [76] In the passage that learned counsel had quoted, the High Court was merely stating the trite principle that the burden was on the claimant to prove that the loss it incurred was caused by a peril insured against. Clearly, whether the burden of proof had been discharged by the plaintiff was a question of fact for the trial court to determine. [77] In the appeal before us, the respondent (plaintiff) never disputed that the burden was on it to prove heavy rainfall on the date of the incident. But that burden had been discharged with the trial court’s acceptance of PW2’s expert evidence that the cause of the wall collapse was heavy rainfall and whose expert opinion was in fact supported by the appellant’s own expert witness DW1. In the circumstances, we find no basis for the appellant to argue that the respondent failed to discharge its burden of proving the peril. [78] Learned counsel went on to submit that it was fundamental for the learned judge to subject the respondent to proving how “unusual” or “substantial” was the alleged heavy rain on 17.1.2015 to an extent that the 25 retaining wall which had stood strong and stable for 9 years could collapse. Reference was made to the following observations by the House of Lords in British and Foreign Marine Insurance Co v Gaunt [1921] 2 AC 41 HL at page 46-47: “In construing these policies it is important to bear in mind that they cover “all risk.” These words cannot, of course, be held to cover all damage howsoever caused, for such damage as is inevitable from ordinary wear and tear and inevitable depreciation is not within the policies. There is little authority on the point, but the decision of Walton J. in Schloss Brothers v Stevens, on a policy in similar terms, states the law accurately enough. He said that the words “all risks by land and water” as used in the policy then in question “were intended to cover all losses by any accidental cause of any kind occurring during the transit. … There must be a casualty.” Damage, in other words, if it is to be covered by policies such as these, must be due to some fortuitous circumstance or casualty.” [79] We were also referred to the decision of this court in Malaysian Newsprint Industries Sdn Bhd v Perdana Cigna Insurance Bhd & Ors [2008] 2 MLJ 256 where Suriyadi Halim Omar JCA (as he then was) delivering the unanimous decision of the court said at page 270: “[31] It must be understood that insurance generally covers a risk, not a certainty and if something untoward befalls the insured subject matter it must not be brought about by the act of the insured (British and Foreign Marine Insurance Company Limited v Gaunt [1921] 2 AC 41; Siang Hoa Goldsmith Pte Ltd v The Wing On Fire & Marine Insurance Co Ltd [1998] 2 SLR 777).” [80] On the strength of these authorities, it was argued that the learned trial judge misdirected himself on the degree of proof required when His Lordship ruled that the appellant could not put the respondent to prove the amount of rainfall to show if the rainfall was indeed heavy, i.e. the actual intensity of the rainfall on the days leading up to the date of the wall collapse. According to counsel, the respondent must establish the 26 “fortuitous circumstance or casualty” to entitle it to coverage under the policy. [81] With due respect, we see nothing wrong with the ‘ruling’ by the learned judge. If indeed the actual amount or intensity of rainfall was intended to be material, that would have been specified in the policy to indicate when it would be considered a triggering event, as in the case of “storm”, which is the named peril (iv). [82] For the peril of “storm”, it is specified in the policy that the air movements must be stronger than grade 8 on the Beaufort Scale. No such requirement is specified in the case of “water”. Therefore, it would be sufficient in our view for the respondent to establish that the collapse of the retaining wall was caused by heavy rainfall, bearing in mind the quantum of proof required is only proof on the balance of probabilities and not proof beyond any reasonable doubt as in criminal proceedings. [83] That disposes of the issue of liability which we agree with and affirm the findings of the learned judge. We shall now deal with the issue of damages. It was the appellant’s contention that even if policy liability had been triggered, there was no evidence adduced by the respondent of the alleged losses. The defence filed by the appellant on 7.3.2017 raised the issue of the wall being under-insured, relying on Memo-1 of the policy. We shall say more on this when we deal with the respondent’s cross-appeal on quantum. [84] It was submitted that the type of claims made by the respondent could properly be regarded as “special damages” as they were out of pocket expenses incurred by the respondent in relation to the collapse of 27 the retaining wall. It must therefore be specifically pleaded and specifically proved: see Ong Ah Long v Dr S Underwood [1983] 2 CLJ 198 FC. [85] It was submitted that no judgment sum should be awarded in favour of the respondent as it did not provide any form of document, quotation, invoices or receipts for its claim of RM1,162,956.75. In other words, the sum claimed was not supported by documentary evidence. [86] The original claim by the respondent for repairing the collapsed wall was RM1,704,456.75 and this was in itemised format at paragraph 10 of the statement of claim dated 31.1.2017. This sum was reduced to RM1,162,956.75 at the trial through the evidence of PW1. [87] It was submitted on behalf of the respondent that the appellant must first accept the sum of RM1,704,456.75 before embarking on the defence of under-insured. This is because the sum claimed by the respondent and available to be defended by the appellant on the under-insured basis at the time of the filing of the defence was RM1,704,456.75. [88] The learned judge recognised the point raised when he said in his grounds of judgment: “[104] Much of the sting in the Defendant’s argument that the Plaintiff had not proved the quantum of their claim had been lost altogether in view of the Defendant’s stand in using those self-same figures to persuade the Court that the subject matter of the Wall was under-insured. [105] It was a double-edged argument that learned counsel for the Defendant must be taken to have been fully conscious of. One cannot have the cake and eat is the aphorism we are acutely aware of in a claim of this nature.” 28 [89] We are inclined to agree with the learned judge. Thus the issue of the sum of RM1,704,456.75 (later reduced to RM1,162,956.75) being not established by the respondent does not arise. It was admitted. [90] We shall now deal with the respondent’s cross-appeal on the quantum awarded by the learned judge. Learned counsel’s contention was that the sum that ought to have been awarded to the respondent was RM1,137,956.75 (RM1,162,956.75 less agreed excess clause of RM25,000.00) and not the lesser sum of RM183,751.36. [91] It was argued that the learned judge erred in disallowing items A1 to A9 at page 710 of the Rekod Rayuan Bahagian C, Volume 2C which came to a total sum of RM305,325.00. The basis for the argument was that the learned judge misread General Conditions 3 and 5 of the policy, which read as follows: “3. The Insured shall at his own expense take all reasonable precautions and comply with all reasonable recommendations of the Insurers to prevent loss or damage and comply with statutory requirements and manufacturers’ recommendations.