Noble Sound Sdn Bhd v 1. ) Mass Rapid Transit Corporation Sdn Bhd (WA-22C-27-04/2016)

MASS RAPID TRANSIT CORPORATION SDN BHD (Company No: 902884-V)

SUNWAY CONSTRUCTION SDN BHD (Company No: 27175-V) … DEFENDANTS THE JUDGMENT OF Y.A. LEE SWEE SENG [1] The Plaintiff is the registered owner of a double storey bungalow house No.16, Persiaran Endah, Damansara Heights, 50490 Kuala Lumpur (“Affected Property”). The house that has stood there for a good 40 years is near a mass rail transit line that was being constructed by the First Defendant (D1) who had in turn appointed the Second Defendant (D2) as 2 their Work Package Contractor with respect to a project known as Package V4 of the Sungai Buloh-Kajang (SBK) Line of the Mass Rapid Transit for the construction of 6.5km of elevated guideway from Section 17 to Semantan Portal including the 3 MRT stations (“the MRT Project”). [2] The construction of the MRT viaducts in relation to the said MRT Project involved excavation work for foundations and other substructures work including temporary sheet-piled cofferdam and bored pile construction (“MRT Excavation Works”). Problem [3] The Plaintiff noticed that the cracks in the extended filing room portion of the house that was being used as an office had propagated and that more cracks seemed to have appeared on the concrete pavement and apron slab at the car park. More distressing to the Plaintiff was that the integrity of the rubble wall at the edge of the house near the filing room extension has been compromised in that it had tilted slightly towards the main road at Jalan Semantan. Pleadings [4] The Plaintiff claimed that the said damage to the Affected Property was solely the result of the MRT Excavation Works carried out by the Defendants negligently. [5] The Plaintiff alleged that the Defendants failed to ensure that no loss and damage will be caused to the said Affected Property which is in close proximity to the MRT Project. They alleged that the constant hacking, drilling, piling, boring and compacting carried out by D2 near to the Affected Property had caused damage to it and in particular to the structural integrity 3 of the existing rubble wall whereby it has been compromised by the soil movement and settlement due to deep pile cap execution for MRT piers. [6] The Defendants denied liability altogether and contended that the Affected Property had been poorly maintained and that there were cracks that had appeared before the MRT Excavation Works in both the Main Building and the Extended Filing Room as well as in the concrete pavement and slabs. The cracks would have propagated any way without the MRT Excavation Works and that scientifically, works done to a depth of 4 meters could not have no bearing on the Affected Property which is 28.5 meters away. [7] With respect to the rubble wall, the Defendants argued that it was under-designed and that whilst its integrity had been compromised, that was because it was under-designed to begin with and that the slight movement was because of earth movement that had nothing to do with the MRT Excavation Works but rather because of poor construction and maintenance of the Affected Property. At any rate the rubble wall had stopped moving after the completion of the MRT Excavation Works. Prayers [8] The Plaintiff claimed damages to the tune of RM6,445,775.00 being rectification and repair costs and damages to be assessed for loss of rental of the Affected Property besides general and special damages. [9] The Defendants denied liability and attributed the propagated cracks to the differential settlement of the soil through the passage of time and that the Rubble Earth Retaining Wall (“RERW”) was under-designed to begin with and not built to support such a weight of the bungalow house and the Extended Filing Room. They asserted that the movement of the RERW 4 would have happened anyway without any MRT Excavation Works being done. Preliminaries [10] Parties had agreed that the factual witnesses can be dispensed with save for Mr. Lim Chiew of the Plaintiff as PW 1 and Mr. Subba Rao as DW 2 for the Defendants and that no adverse inference shall be drawn against anyone. The key evidence in this case was from the experts of both parties, Ir Ang Huck Hoon for the Plaintiff as PW 2 and Ir Dr Wong Fook Keong for the Defendants as DW 1. [11] Ir Ang is a Civil and Structural Engineer and Ir Dr Wong is a Geotechnical, Civil and Structural Engineer. [12] In terms of expert witnesses, aside from Dr. Wong Fook Keong (DW 1), Defendants had engaged Dr. Vincent Hii as a vibration expert to testify on whether vibration from the sheet piling works at pier PB23 could have caused damage to the Affected Property. However, during the experts joint meeting on 14.2.2017 (attended by Dr. Vincent Hii, Ir. Robert Ang and Ir. Dr. Wong), it was agreed between the Plaintiff's and Defendants' experts that “ground vibration” was not one of the causes of the damage to the Affected Property and the rubble wall. [13] To the credit of the 2 Expert Witnesses, Ir Ang and Ir Dr Wong could confer and they came up with the following Expert Witnesses’ Joint Statements in Enclosure 290 as follows:

Ground vibrations are not causation to the Plaintiff’s claimed damage to his property and rubble wall. 5

The damage to the Main Building of the Plaintiff’s bungalow is not a matter for dispute insofar as damage by MRT works is concerned.

The Filing Room had suffered additional damage after the first dilapidation survey (Pre-MRT) was conducted. The gap between the filing room and the main building had widened.

Ir. Ang attributed this damage to the filing room to the MRT works. Dr. Wong disagreed.

The rubble retaining (wall) had moved because cracks were observed behind the wall. Ir. Ang attributed any deterioration of the rubble wall from the Pre-MRT dilapidation survey to the MRT works. Dr. Wong disagreed.

Ir. Ang’s observation when he visited the site with OSD and the MRT people that the gap between the main building and the filing room had widened. Ir. Ang attributed this widening to the MRT works. Dr. Wong disagreed.

The estimated cost for repairing or strengthening the rubble wall using soil nails and steel walers was estimated by Dr. Wong to cost RM277,200 to RM360,000 without consideration of design fees. Ir. Ang was given the cost estimate and he will give evidence and/or opinion on the cost estimate during the hearing. Principles Whether the Defendants owe a duty of care to the Plaintiff in executing the MRT Excavation Works near the Plaintiff’s Affected Property 6 [14] The tort of negligence, since its genesis in the seminal case of Donoghue v Stevenson [1932] AC 562, has developed dynamically as courts when confronted each time with a fresh challenge under a myriad of circumstances have applied the “duty of care test” arising from the “neighbour principle” flexibly to cover many a case where the damage done is foreseeable. The dicta below rings true in that whilst circumstances in life may change the guiding principle enunciated in the case may be applied across a broad spectrum of anticipated accidents. Premised upon the same question asked by a wise teacher in the parable of the Good Samaritan, the same question is being asked today as follows: “Who then is my neighbour? The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and 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 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.” (emphasis added) [15] I have no difficulty in holding that the Defendants owe a duty of care in carrying out the construction and Excavation Works for the MRT not to 7 cause any damage to the nearby Affected Property belonging to the Plaintiff. [16] Learned counsel for the Plaintiff referred to the scope of duty of care as well established in the Federal Court case of Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 CLJ 1 where it was held that: “(3) In cases of pure economic loss in the law of negligence, the critical question is whether the scope of the duty of care in the circumstances of the case is such as to embrace damage of the kind which the plaintiff claims to have sustained and applies the Caparo test which takes into account the elements of foreseeability, proximity and the additional requirements of justice, fairness and reasonableness” (emphasis added) [17] The Federal Court adopted the general duty of care test enunciated in Caparo Industries Plc. v Dickman [1990] 2 AC 605 as applicable to all negligence claims, including claims for pure economic loss where: “Pursuant to this test, 3 questions have to be addressed, namely, whether the damage suffered by the plaintiff is reasonably foreseeable; whether there is a relationship of proximity between the plaintiff and defendant; and whether it is fair and reasonable that the defendant should owe the plaintiff a duty of care.” (emphasis added) [18] It is obvious to all that the distance between the said Affected Property and the construction site of the MRT is about 28.5 meters which shows a very close proximity. We do not live as lone rangers but in community and it is clear that a duty of care is imposed on the Defendants 8 to perform their works done for a public purpose no doubt in such a manner that no foreseeable damage is done to the Affected Property. [19] The proximity of the Affected Property to the construction site of the Defendants is such that it is fair, just and reasonable to impose the duty of care on the Defendants as laid down in the case of Telekom Malaysia Bhd v Mudajaya Corporation Bhd [2014] 10 CLJ 791 where it was held as summarized in the head notes as follows:

There was reasonable foreseeability on the part of the defendant as a contractor to take steps and safety precautions as not to damage the cables. The defendant who had undertaken the works should have foreseen that the plaintiff could have laid underground pipes or cables. Furthermore, the defendant's construction works were in close and direct relationship of proximity with the plaintiff. Thus, it is fair, just and reasonable to impose the duty of care on the defendant. (para 20)

The defendant was aware of the cable in the vicinity of the project and the construction works would affect the area where the cables were located, but did not make any enquiries on the exact location or discuss any precautionary measures to be undertaken in order to avoid the risk of damage to the plaintiff's cable. The defendant was supposed to relocate the plaintiff's cable to abate the risk of damage to it before commencing works on the site. There was considerable risk involved because the defendant's construction works included earthworks such as drilling and piling which would invariably have an impact on the plaintiff's cables. Thus, the risk of 9 damaging the plaintiff's cable was reasonably foreseeable and the defendant had failed to take reasonable steps to protect the plaintiff's cables against those risks. (paras 24 & 29). (emphasis added) [20] I have no difficulty accepting the fact that there is a duty of care owed by the Defendants to the Plaintiff and the more convoluted issue is whether that duty has been breached by the Defendants, when cracks started to propagate in the Extended Filing Room and Car Park Pavement of the Affected Property and when the integrity of the RERW has been compromised as alleged, it being asserted that the rubble wall had moved during the period of the MRT Excavation Works. [21] The issue is the causal link between the damage to the Affected Property and the Excavation Works some 28.5 meters away sometimes spoken of using the concept of foreseeability. [22] The Federal Court in the case of Lok Kok Beng & Ors v Loh Chiak Eong & Anor [2015] 7 CLJ 1008 explained the issue of foreseeability in this wise: “[36] The threshold test in determining the existence of duty of care is that of foreseeability. The rule in the case of Heaven v. Pender as quoted above envisaged that a man ought to have foreseen certain consequences if he created a real risk of them. The test is whether damage to someone in the plaintiff's position was a reasonably foreseeable consequence of the defendant's negligence. Reasonable foreseeability does not of itself lead to a duty of care and that the speech of Lord Atkin of "persons who are so closely and directly affected by my act" stressed not only on the 10 requirement of foreseeability of harm but also that of a close and direct relationship of proximity.”(emphasis added) [23] Learned counsel for the Defendants referred to the principle enunciated in the Court of Appeal’s case of Chua Seng Sam Realty Sdn Bhd v Say Chong Sdn Bhd & Ors and Other Appeals, [2012] 7 CLJ 337 at page 345, para 32 where it was held that it is trite law that in an action for negligence, the plaintiff has to prove that the defendant’s act was the effective cause of the injury suffered by the Plaintiff. Without a causative link being established by the plaintiff, the claim cannot succeed. [24] As to whether there had been a breach of that duty of care and that causative link to the damage caused that is foreseeable, these issues would be discussed under the headings below. Whether the Defendants are liable for the cracks that had propagated in the Extended Filing Room and the Car Park Pavement after the MRT Excavation Works commenced [25] As part of the Defendants efforts to ensure no damage is done to neighbouring properties, before the MRT Excavation Works are carried out, D2 appointed Veritech (M) Sdn Bhd to carry out a Pre-Construction Survey on 30.10.2012. The Pre-Construction Dilapidation Survey Report is found at pages 80-116 of PBOD 1. The various places in the Affected Property were mapped together with the photographs taken with the relevant comments. This was followed up by a “Follow up Dilapidation Survey” on 6.6.2013 and the Follow up Dilapidation Survey Report is at pages 117-

In some places in the Filing Room and the Car Park Pavement the cracks had propagated. [26] D2 had also engaged OSD Consultants (M) Sdn Bhd (“OSD”) to prepare a Visual Inspection & Assessment Report (“OSD Report”) dated 11 5.8.2015 to determine the possible cause of damage to the Affected Property. A joint inspection was carried out by OSD with the representatives of the Defendants and the Plaintiff on 30.3.2015. [27] OSD found at pages 56-57 of PBOD 1 the following: “b) Cracks in Extension Building (File Room) …However, follow-up survey indicates that some cracks at the extended part of the building propagated and increased in width after the construction of the viaduct substructure. This might be caused by further support settlement of the building pad footing due to the excavation work during construction of foundation and pilecap for MRT viaduct. The same phenomenon might also have caused the appearance of new cracks in the extended building as recorded by the follow-up survey at the joint between walls, ceiling cornices and brickwall-beam interface”. c) “Cracks on Apron & Driveway Slab, and Perimeter Drain: …The follow-up survey had recorded some of these cracks propagated after the construction of MRT substructure which might due to ground settlement caused by excavation work during construction of foundation and pilecap for MRT viaduct.” (emphasis added) [28] The fact that there were already cracks appearing in the Affected Property prior to the Excavation Works is not in dispute. In fact the Plaintiff through their counsel had informed the Court during trial and also during oral clarification that the Plaintiff was not pursuing the claim with respect to the cracks appearing in the Main Building. [29] The OSD Report had at page 56 PBOD 1 reported as follows: 12 “a) Cracks in Main Building: .....From the pre-construction and follow-up dilapidation survey report, most of the cracks within the Main Building occurred before MRT construction and they do not show any sign of propagation after the completion of substructures.” (emphasis added) [30] All of the pictures on the pre-existing cracks were taken from the pre-construction dilapidation survey done by Veritech (M) Sdn Bhd. Both experts agree that there were serious cracks that exist before the excavation work had started. Aside from the pictures, both experts had agreed that cracks between 1mm to 24mm were already in the bungalow office area and the filing room before the PB23 construction works started. Very significantly, the pictures show wide and large cracks at the office/filing room area which is closest to the RERW. [31] It is also confirmed that some of the cracks in the Filing Room had propagated. Can the Plaintiff make the Defendants liable for the further propagation of these cracks? [32] The Plaintiff submitted that according to the Work Programme (Progress Report PB22-PB24) drawn up by D2, the overall project commencement date was on 18.6.2012 whereas the project completion date was on 31.12.2016. The excavation sheet pile and pile hacking construction of Pier 23 was constructed from 18.4.2014 up till 20.5.2014 as shown in Appendix B (Viaduct Layout Drawing and Work Programme by Sunway Construction Sdn Bhd) in the OSD report dated 5.8.2015 at page 78 of the PBOD 1. [33] The viaduct substructure of Pier 23 (“PB23”) is the nearest pier to the Affected Property being directly diagonally opposite the Affected Property at Lot 8926 as can be seen in the site plan at page 76 PBOD 1. Parties are 13 agreed that the distance between PB23 and the REWR is about 28.554m. There is also no dispute on the size of the REWR as shown in page 90 of Enclosure 233 based on the measurements ascertained by the Defendants’ expert witness. [34] Putting aside the Main Building, the Defendants nevertheless contended that the said Affected Property was already in a state of substantial disrepair and that there were pre-existing defects and damage on the said Affected Property prior to the construction works for the MRT. [35] It would be fair to say that with respect to the Filing Room and the Car Park Pavement, the soil settlement/soil movement had occurred at the Affected Property even before the MRT Excavation Works had commenced as a result of the imperceptibly slow settlement of the soil through the passage of time, the house being built on filled soil rather than cut earth. [36] I agree with learned counsel for the Defendants that the pre-MRT dilapidation survey conducted before the constructions works at PB23 had commenced showed that the cracks were severe and of a nature that shows that the Premises were suffering from differential settlement. [37] It is only too obvious that cracks of this nature and as wide as 15mm- 24mm cannot appear for no reason. Seeing that the Plaintiff’s Expert had failed to and did not offer any explanation why cracks of this nature had appeared at the Filing Room, I would agree that it is attributed more to the slow soil settlement. [38] As for the Car Park Pavement, the Plaintiff’s expert witness testified that as the drains had been broken, water had seeped into the Car Park Pavement and driveway. Through the passage of 40 years there would be ground settlement and non-structural cracks would appear as the pavement and driveway are not joined to the Main Building. 14 [39] Ir Ang called it a common non-structural surface settlement which occurred on the ground of the property over a long period of time. As explained by Ir Ang for the Plaintiff, it is quite common in linked houses over a passage of time. Ir Ang opined that it is due to soil erosion over the years through the rain and water which affected the soil. [40] It was said that the cracks before, in the Pavement, was 1mm and after the MRT Excavation Works it is 3mm. However there is no evidence from the Plaintiff as to how long the cracks had been 1 mm before the Excavation Works began and one must not discount the constant use of vehicles moving on the Car Park Pavement and the driveway as well as the weight of the vehicles. [41] I would attribute the propagation of the Cracks in the Car Park Pavement and driveway to poor upkeep and maintenance and soil erosion or non-structural surface settlement caused by rain through the passage of time. [42] The OSD Report suggested that differential settlement had already occurred at the Premises. In the OSD report, it was stated that: “Preconstruction dilapidation survey, … before the construction of the MRT viaducts recorded that large and penetrate-through cracks had already occurred on the file room walls interfacing with the main building… it is highly possible that the extended building (file room) were built on pad foundation, and these cracks happened as a result of differential settlement between the original and the extended structure. Besides, no steel reinforcement were noticed across the wide cracks indicating the extended building (file room) was not designed to cater for any differential support settlement.” (emphasis added). 15 [43] A natural question to ask would be why the cracks propagated in the Filing Room and the Car Park Pavement but not in the Main Building. When challenged on the fact that the Filing Room had been constructed without the local authority’s approval, the Plaintiff could not produce any approval by the local authority. All that PW 1 Mr Lim Chiew could say was that when he purchased the bungalow house for his client, the Plaintiff, in 1999, it came with the extension in the Filing Room. He said he could not even remember the price, which is rather unusual for an accountant accustomed to proper filing for accounting and tax purposes all purchases for client. Surely it would not be too difficult for him to make the relevant searches of the approved extension with DBKL. [44] Learned counsel for the Defendants also submitted that the Plaintiff had not complied with the Building (Federal Territory Of Kuala Lumpur) By-Laws 1985 which By-law 32(1) provides as follows: “(1) Subject to the specific requirement of Part VII for a detached building there shall be not less than 2.3 meters clear space measured between the extreme projections of the building and any boundaries of its lot and 4.6 meters clear space between such building and any other building unless they are within the same building lot.” [45] The extreme projections of the Premises in this instance would begin from the edge of the extended building or the Filing Room and is merely 2 meters away from the RERW – lower than the required 2.3m clear space that is required by the 1985 By-Laws. The diagram below captures the distance of the Filing Room from the RERW and the position of the Main Building and the Car Park. 16 [46] I would agree to attribute the cracks that propagated at the Filing Room to the fact that on the balance of probabilities the Extended Filing Room was not built based on plans approved by DBKL and that it was “built on pad foundation, and these cracks happened as a result of differential settlement between the original and the extended structure” as pointed out in the above OSD Report. It is noted that the extension in the Filing Room was built too near the edge with less than 2.3 meter. Very importantly the OSD Report highlighted that no steel reinforcement were noticed across the wide cracks indicating the extended building (Filing Room) was not designed to cater for any differential support settlement. [47] On the balance of probabilities I do not find that these cracks in the Filing Room and the Car Park Pavement could be attributed to the Defendants’ Excavation Works seeing that the Main Building was not 2m 17 affected in any way. Further being an illegal extension I do not think that the Plaintiff can pursue a claim for the damage caused. [48] By way of analogy if the owner of a piece of land had erected an illegal structure of his land, he cannot expect the acquiring authority to compensate for the value of the illegal structure for that is disallowed under the Land Acquisition Act 1960 and in particular para 1(3)(b) of the First Schedule. See the Court of Appeal case of Mohd Shah bin Daud v Pentadbir Tanah dan Jajahan Kota Bharu [2016] 3 MLJ 566. It may be added that to allow compensation would be to condone the construction of illegal structure on one’s land. [49] By no means am I suggesting that merely because the extension was illegal, then no one can be sued for a negligent act affecting the building as in driving negligently into the illegal extension and damaging the Filing Room. It is no different from saying that the fact that a driver is not licensed does not disqualify him from maintaining a tort action in negligence from being rammed from behind. [50] However here is a case where the need for approval by DBKL with respect to the extension has everything to do with the proper building plans and compliance with the relevant by-laws affecting the structural integrity or perhaps cosmetic non-structural cracks that may appear whether dormant or current, whether happening once upon completion of the extension or whether continuing to propagate with the passage of time because of normal settlement of filled earth or aggravated by earth movement caused by a nearby MRT Excavation Works as in this case. Whether the Defendants are liable for the safety of Rubble Wall being compromised 18 [51] Parties are also agreed that the exposed vertical height of the RERW as seen along Jalan Damansara/ Jalan Semantan is 5.13 meters. The embedded depth of the RERW which was measured at a trial pit manually dug at the adjacent property is 600mm. The measure width of the RERW is 150mm. [52] The agreement of both parties that the REWR has been compromised and is currently unsafe can be seen in the Notes of Proceedings dated 2.5.2018 during the hot-tubbing session where both the experts in Ir Ang and Ir Dr Wong had confirmed as follows: “YA: Let me stop you there. You are saying that, both sides agree that the retaining wall is not safe? Yes, after MRT construction. The retaining wall is not safe but one says it is not safe but it has stopped moving? Another says it is not safe and it still continues to move. But both are agreed it is not safe. It is not safe. So I think that part we can both accept. The wall is not safe, whether it is still moving or not moving, it is still not safe Yes, correct. But Dr Wong, you are saying the wall is not safe not because of excavation work. Not because of that. But they are saying that it is because of excavation work. Yes.” 19 [53] Whilst both parties are agreed that the safety of the RERW has been compromised, both are not in agreement with what causes it. The Plaintiff had stated that it is caused by the Defendants’ Excavation Works and the Defendants maintaining that it is not so caused and would have moved and tilted anyway with the passage of time. [54] The Defendants’ expert witness DW 1 is of the view that the REWR was grossly under-designed ab initio and is of the opinion that the REWR would continue to move and it will eventually collapse when all resistance against collapse is exhausted as stated by him at paragraph 5.4 on page 25 of Enclosure 295. [55] The Defendants’ expert witness arrived at this conclusion based on a manual calculation of the REWR using Rankine’s theory in which he obtained a global factor of safety (FOS) of 0.8 at page 95 of Enclosure 233. [56] DW 1 said that the internationally accepted minimum FOS for earth retaining walls at paragraph 3.3.1 on page 14 of Enclosure 295 are as follows:

FOS for overturning stability = 1.5

(ii) FOS for sliding stability = 1.5

(iii) FOS for bearing capacity stability = 2.0

(iv) FOS for global stability = 1.5 [57] The Defendants’ expert witness DW 1 had opined that because the FOS of the REWR is very much below the minimum international standard of FOS of 1.5, the REWR is grossly unstable and bordering failure. See paragraph 2.7 on page 8 of Enclosure 295. [58] However upon closer scrutiny it was discovered that DW 1 had assumed the cohesive value of the soil to be zero (0) in calculating the 20 FOS of the RERW. This, the Plaintiff expert PW 2 said, evidently does not reflect the actual cohesive value of the soil on the site. [59] I accept the evidence of the Plaintiff’s expert PW 2 that the reading of the FOS is dependent upon the cohesive value of the soil assumed by the engineer involved. The higher the cohesive value assumed, the higher the FOS of a particular rubble wall. [60] Whilst such a practice is common in Hong Kong, I do not think that we should subject ourselves to such an ultra conservative approach. It can be appreciated that Hong Kong is a rock island and the high rise there are super close to one another in a steep gradient where even a minute movement of the soil would send off alarm signal to all the engineers monitoring the slopes. [61] Ours is mainly flat or filled land and the structure here is just a double storey house built quite far away from the nearest house and on a flat surface, albeit higher ground compared to the road below. [62] I can accept the findings of Ir Ang PW 2 that based on the Soil Investigation Test Results, the cohesive value of the soil is valued at 11, 8, 20, 14 and this indicates that the actual FOS of the REWR would have been a higher and stable value. The cohesive value of the soil at various points are found in documents at pages 116 to 119 of Enclosure 233 of Ir Dr Wong’s affidavit. [63] As conceded by Ir Ang, in practice an engineer may work on an assumption of zero (0) cohesive value for ease of calculation and as proceeding from a most conservative position so as to err, if one has to, on the side of a rubble wall that is even twice the required thickness. After all it is the engineer that designed the rubble wall that would have to certify and sign off on its integrity. 21 [64] I can follow the Plaintiff’s argument that the REWR had already achieved its FOS of more than 1.5 when it was built, because if the actual FOS of the REWR was indeed 0.8 (as calculated by the Defendant’s expert witness), the REWR would have collapsed years ago, during the point of its construction. The fact that the REWR had not collapsed all these 40 years is telling and truthful testimony of that. [65] The Plaintiff’s expert witness confirmed the same during his re-examination on 24.10.2017 by his counsel RK Sharma (“RKS”). The explanation is helpful and is reproduced below as follows: 40 years back he designed this rubble wall. Basically this Engineer who designed this 40 years back, he must have used his experience to decide the wall thickness, that this is the best thickness for the wall. Because you know why? What we query on the design, I agree the design is not right because of the parameters he used. What Dr Wong used is cohesion equals zero. Cohesion equals zero and myself means that, it’s the sand, there’s no cohesion. So there’s a force on to the rubble wall. So, if you design that way, yes you need that kind of thick wall. But that is how we are taught in Civil Engineering 101. What this Engineer from 40 years ago did, maybe he’s very passionate about building rubble wall, is like having sand and the plasticine. So what this guy did, he calculated how cohesive the soils are and then he decided on the thickness and made it right. So that’s why this wall stands for 40 years. Otherwise, it will collapse long, long time ago. You understand what I’m saying? 22 So it can’t possibly be a design failure? Can be a design. If you look at the calculation made in the report by Dr Wong, you can see the Factor of Safety is 0.8. 0.8 means, even before the thing is built already collapsed. FOS 1 is minimum. So, these are all calculation. What is physically at the site, what is done by the Engineer who signed, certified that the house is safe, he is responsible as a Professional Engineer that this building is done according to this standard of practice engineering.” (emphasis added) [66] I agree with learned counsel for the Plaintiff that there is a basis for not taking the cohesive value of the soil to be zero. The Soil Investigation Reports at pages 111 and 114 of Enclosure 233 showed that scientifically based on the Soil Penetration Test (“SPT”) results for Borehole 1 and 4 being the nearest borehole to the Affected Property. [67] I agree with the Plaintiff that the Soil Penetration Test results for Borehole 1 and Borehole 4, which are the boreholes closest to the RERW, showed readings much higher than zero. [68] The descriptions of these boreholes indicate that the soil is generally VERY STIFF or HARD. It is also key to note that the values of 9, 8, 13 and 50 in the column labelled SPT (N) displays the hardness of the soil at different depths for Borehole 1. There is the corresponding values of 16,10,19,26,24 and 50 for Borehole 4. See pages 111 and 114 of Enclosure 233. [69] I can thus accept the Plaintiff’s conclusion that this indicates that the compaction of the soil is very high, thus resulting in the REWR being built with such thickness and width. 23 [70] With reference to pages 111 and 114 of Enclosure 233, I can follow Plaintiff’s expert witness Ir Ang’s confirmation on the cohesiveness and strength of the soil during his re-examination on 25.10.2017 as follows: Basically these values 9, 8, 13, 50 these are showing the hardness of the soil. So as you can see, you only look at Bore Hole 1, and Bore Hole 4 because it is the closest to the rubble wall. If you see these numbers 9 you can see that what’s written by the side of, at the scale 2, P1 you can say it’s stiff. Means that the ground there, the compaction is done. The field ground is then very good. It’s stiff ground. So if you look at page 114, you look at the SPT value and you can see 16, 10, 19, 26 24. And these are basically representing stiff soil. And then if you can see the graph SPT plot, you can see it’s exponentially going towards 50 at 7 meters to show that the contractor who did this work, he had done the workmanship, he did the back piling very well all the way to the top and maybe supervision then was very good. Basically in today’s practice you don’t get this kind of result.” [71] The fact that the cohesive value of the soil is very high has also been admitted by the Defendants’ expert witness Ir Dr Wong during cross-examination on 16.4.2018, albeit rather reluctantly where he stated as follows: Ok. I would like to take you now to the same bundle to page 114. Page 114. This is the site exploration of soil investigation works at bungalow No.16 Persiaran Damansara Indah, Damansara Kuala Lumpur. Agree? 24 Yes. And this was done by you? Post in 2016, do you agree? It’s not done by me, it’s done under me. Yes, I mean whatever, I mean, it’s under you lah, ok. Ok, Dr Wong I just want to get back into the, your explanation earlier where went on the earlier, on the chart I’ve shown you. What type of soil was that? I mean soil that was in the, in the ground there? All the movement took place. What are the soils? Soft? Clay? What type of soil would it be? Oh sorry, don’t look at the report I’m just asking a general question, because you see, you’ve said that, that 0.5, that 5% was reasonable movement, correct? And that has to be certain type of soil to have that type of reasonable movement isn’t it? It has to be soft soil, clay soil, I mean if it’s, if it is good or rubbish fuel, for example you’ve said on point in time, there was-Consolidating soil. Sorry? Consolidating Soil. What type of soil consolidates easily? A lot of soils consolidate-No but-Clay, sandy silt-ok And so on Ok and the soil on this, on this ground right? Yes, that’s why I’m referring you to it. 25 Ok, What type of soil? You have sandy silt mostly. Sandy silt mostly, yes? Mostly,yes. OK, and sandy silt is what? It’s a soft soil? Hard soil? It’s what type of soil is it? Sandy silt is a soil, sandy silt can be soft and hard. So, so I mean, yes, I mean that’s general but the soil in the ground, you did soil investigation-Soil in the ground-What, what did you find? Silt is in between cohesive and non-cohesive. So that’s why I’m looking at the table whether the table is there to guide you, Counsel. … You see the two later tables at the bottom… referring to cohesive and non-cohesive soils, we are right in between the two, so it could be and you look at the end value which is the second column from the right, you see SPTN values? Right, now you look back at the table, if it is non-cohesive, right? – Yes …it is medium dense to loose, it’s about 16/10, you know. … Because your SPT of 10/16, right, and it is very cohesive soil, cohesive soil is actually clay, pure clay then you get probably about firm to stiff. 26 … Now let’s go to your SPT finding. You’d agree with me that your findings here shows 16,10,19,26,24,50 and 50. Yes. … Did you give that in a parameter of what type of soil investigation needs to be done? It’s a normal soil investigation. No answer my question, did you give them instructions on the parameters on what type of soil investigation needs to be done? Rotary boring, yes. … You would agree with me that it clearly stipulates here… at Item 2 ‘very stiff medium to dark brown sandy silt’ which you are trying to deny and said soft, and no cohesion and it’s not in this report, gives so many answers but it’s very clear here it shows very stiff, do you agree? Yes, yes it’s written here. Let’s, let’s cut to the chase and let’s get down with at P4 very stiff light, yellowish brown, you agree? Yes, yes. …. 27 You’d agree with me that the only conclusion that can be drawn based on this description of soil that it is very stiff and hard soil. Do you agree? Stiff, yes. No, very stiff and hard, answer is here la, come on, Dr Wong, now stop playing games. I’m not trying to confuse you-Ok. … Dr Wong, based on what is front of your face, you agree with me that it shows very stiff and hard soil. Where’s the word hard? P6,P7, ok? What does it say? Hard medium brown. Hard medium to dark brown. Hard medium to dark brown, correct? Yes Yes, P7, hard dark grey and medium brown, correct? There’s about 9 meters and below, yes. Doesn’t matter I’m asking you. Yes. That’s what it says, correct? Yes, yes that’s what it says. And then the other column says very stiff, you agree? Yes. 28 So, you’d agree with me looking at the consistency and the relative density column at the bottom, this soil quantifies as very stiff soil, you agree? This particular borehole, yes.” (emphasis added) [72] There was also the Rebound Hammer Tests (10 points) that were carried out by BSEN Test Sdn Bhd on 4.6.2015 in order to assess the strength and quality of the concrete frames of the Main Buildings as well as the extended part. This is found at page 243 of Enclosure 223 of Ir Dr Wong’s Report. [73] The test results of the Rebound Hammer Test can be found on page 185 of the PBOD 1. The results revealed that the average rebound number was generally above 30, which means that the concrete structure of the Affected Property was above average good quality. Ir Dr Wong DW 1 agreed to this under cross-examination. [74] The fact that there has been movement on the RERW is not denied. Ir Dr Wong said at paragraph 4 of page 12 of his Affidavit Report in Enclosure 233, and made the following assertion: “… Based on the results of the Soil Investigation, these consolidation and differential settlements is still ongoing. [75] Further, the Defendants’ expert witness went on to say that the cracks propagation that was observed by OSD was due to the continuing movements of the RERW. See page 37 of Enclosure 233. [76] As recalled, the Plaintiff’s expert in Ir Ang had stated that the movement in the RERW, which had stopped for about 6 months already after the completion of the Excavation Works, is solely attributed to and caused by the Defendants’ Excavation Works. 29 [77] Where experts disagree, the Court would have to choose between what is more probable of the 2 opposing versions. In Chua Seng Sam Realty Sdn Bhd v Say Chong Sdn Bhd & Ors And Other Appeals [2012] 7 CLJ 337 Hishamudin Mohd Yunus JCA had the following advice where experts disagree: “(4) In treating conflicting expert evidence, the court, besides examining the credibility of the experts, should also examine the scientific grounds and facts relied by the experts and whether, when taken in totality, the inferences drawn from their findings are sound or otherwise...” [78] It was pointed out that Ir Ang appearing as an expert for the Plaintiff would not be independent because he had done some consultancy Works for the Plaintiff before. I do not think that would disqualify him totally from giving his evidence as an Expert bearing in mind his declaration that his first and foremost duty is to the Court as affirmed in his Affidavits filed. [79] I noted that Ir Ang as the Plaintiff’s expert witness was quite prepared to withdraw his opinion on the vibration element being the cause of the damage to the Affected Property. This was communicated expeditiously to the Defendants and their solicitors as evidenced by the Expert Witness Joint Statement dated 14.2.2017 in Enclosure 290. Both parties had then focus on whether the MRT Excavation Works had caused soil movement that resulted in the integrity of the RERW being compromised. [80] The Court would of course have to guard against any tendency to exaggerate in favour of the Client, the Plaintiff here. This can be seen in the quotations and the kind of remedy works that tend to be on the high side. Otherwise the Court would consider if his expert views, opinions and 30 explanations are cogent and reasonable based on the scientific explanation of integrity of RERW and rectification works on soil, slope and structure. [81] The Plaintiff’s version through their expert Ir Ang is that though there were some earth movement and soil settlement before the Excavation Works commenced, these were aggravated by the MRT works after it had commenced as can be seen in the cracks being aggravated and propagated in the follow-up dilapidation report of OSD and the measurable tilting of the RERW. [82] The second version which is that of the Defendants’ expert in Ir Dr Wong is that even without the Excavation Works having commenced, the aggravated cracks would have happened anyway through the anticipated course of events in the soil movement and settlement. In other words what we see was what inexorably would happen with the passage of time and that it is only a matter of time before the RERW would collapse! [83] Seeing that the 2 experts had given their contrary opinions each staking their position as above, this Court would have to consider which is the more probable version. [84] To accept the second version of the Defendants would effectively be saying that the MRT Excavation Works were merely coincidental and that even without the Excavation Works, the cracks would have gotten worse with the same passage of time! [85] I appreciate that many things in life cannot be neatly explained but to me it is rather far fetched to say that the MRT Excavation Works nearby would not result in any earth or soil movement that would cause the RERW to move and tilt. I mean why would the RERW begin to move appreciably at this particular period in its span of 40 years history!? It is a fair question to ask and all scientific explanations must be tested against the backdrop of 31 that particular period when the cracks chose to propagate or be propagated and movement chose to happen? [86] In order to determine whether there is continuous movement of the RERW, a tiltmeter study was conducted on the Affected Property for a period of six (6) months starting from 19.6.2014 to 20.1.2015. The tiltmeter readings at page 367 of Enclosure 233 reflect the building rotation to identify whether a building is tilting. [87] As can be seen from the Tiltmeter Monitoring Data for Vertical Tilt Plate the readings of the tiltmeter were negligible and insignificant. Learned counsel for the Plaintiff highlighted that this was even confirmed by the Defendants’ expert witness Ir Dr Wong during cross-examination on 14.3.2018 though not without some reluctance as follows: You would agree with me that the tilt meters and the settlement monitoring meters do not reflect any soil settlement or soil movement Yes. You agree. Very minimal. It has got no bearing. If there is any, it has got no bearing. It could even be reading errors and so on that is insignificant. Insignificant. So there was nothing there, isn’t it correct at this timeframe? It shows in engineering terms that taking into account of reading errors and so on, it is not significant to consider. [88] There is inescapably quite cogent evidence that there is no perceptible continuous settlement of the soil and that is because the tilting 32 only happened at a certain period during the Excavation Works and then it stopped. [89] It is both logical and reasonable to conclude that the RERW only moved during the window of the Excavation Works period and immediately stopped right after the Excavation Works, clearly indicating that any movement of the RERW was a direct consequence of the MRT Excavation Works at PB23. [90] I am satisfied that the REWR had effectively stopped moving post the completion of the MRT excavation works based on the Tiltmeter and Settlement Marker Records by an independent body known as Geonamics

(M) Sdn Bhd (“Geonamics”). The fact that Geonamics was appointed by the Defendants themselves to evaluate any movement in the REWR post MRT Excavation Works further lends credibility to the findings. [91] DW 1 Ir Dr Wong’s own reading using the Finite Element Method (“FEM”) analysis of the soil movement using the PLAXIS computer software itself showed that there has been a deformation in the soil post Excavation Works as evidenced in Appendix D in page 44 of Enclosure 295 which is the Report of Ir Dr Wong. This was confirmed in the Re-examination of the Plaintiff’s expert witness on 12.12.2017 wherein Ir Ang stated as follows: If you look at page 44, a total displacement. Can see this blue colour thing. You can see after excavation. You can see some yellow things there. This shows the software is saying that due to the excavation there is a movement. There’s a deformation on the soil. So the next step to run from this analysis, from Dr Wong’s analysis is to click the button to get the global factor of 33 safety. But that was not done but what I am saying is even if Dr Wong’s report, using his parameters. If he deemed mine is inappropriate, his is appropriate, I also do not mind. I can use his because he is more conservative than me. You can see this yellow thing there. What does the yellow thing reflect? It shows that there are soil deformation due to the excavation…” (emphasis added) [92] The Defendants however had tried to minimize the impact of this by contending that the tiltmeter test was conducted over a period of six (6) months and that was insufficient to gauge whether there has been any movement of the Affected Property post Excavation Works. If the Defendants is unhappy about this they could have applied to Court for further tiltmeter test to be conducted over a longer period post Excavation Works. As no further evidence was forthcoming we cannot venture into spurious speculation here. [93] I find Ir Ang’s response to this contention of the Defendants expert witness to be reasonable and it resonates with this Court. The relevant parts of his evidence during the re-examination on 13.12.2017 reads: Ok. Next question Dato’ Robert I’d like to ask you is this. There was a proposal that was put forward to you that there was no continuity in the monitoring of tilt meters and the settlement in the accuracy of the OSD report might not be as accurate as the purports to reflect in their report. You disagreed. Why did you disagree? Because basically, they have done a six months, generally for us engineer we do a six month study. 34 Hang on. On the… Hang on. Continue. We do a six month study on the tilt meter and the settlement. Basically if you can see from the results they are all negligible but that one’s after MRT’s completed the work. It almost show zero reading, tilt meter almost zero. So I think six months is generally good enough because six months is half a year. If the building was to go through consolidation of tilting, it will, you can see it is all, the ground is all the way coming down. It doesn’t stay stagnant like that. Then you know the building is going through consolidation. So I disagree with the statement that Dr Wong here that says that consolidation settlement of building between is ongoing and all that because he has ceased. So this definitely due to MRT works that caused the house to crack. So in your opinion the tilt meters were continued to be left on the premises to monitor would it have shown any different results or any further-It would have been same result all the way. Zero all the way because the pile cap all had been flattened… so the work has to cease. And why do you say it will still be zero? What’s your basis for it? 35 Because the graph you can see its all the …it’s a stable graph. Which graph are you referring to? Can you draw our attention to it? 371 371 same enclosure, is it? Yes. You can see its not settling. It’s stagnant through the dry and the wet season. Basically what you want to do is during measure settlement you want to measure three months of wet, three months of dry….” (emphasis added) [94] As can be seen on the graph on page 371 of Enclosure 233, it is evident that the tiltmeter readings are stable throughout the period of six months. [95] Scientifically speaking Ir Ang for the Plaintiff had, in order to establish that there had been a reduction in the global FOS of the REWR due to the MRT Excavation Work, had conducted a Finite Element Analysis for the REWR. The test results are at Exhibit “AHK-1” of Enclosure 294, the Plaintiff’s Expert Report. [96] Based on Figure 6 at page 6 of 6 in Exhibit AHK-1, which illustrates the comparison Factor Of Safety (FOS) Before and After Completion of the Viaduct Pier Excavation, the result and conclusion drawn from the Finite Element Analysis is as follows: “(ii) The finite element analysis shows that the rubble wall is stable with the global factor of safety of 1.07 before the construction of Viaduct Pier PB23.

(iii) However, after the excavation works for the construction of the viaduct pier, finite element analysis shows additional 36 deformation about 7.1mm on the existing rubble wall and reduction in global safety factor for 9% to 0.976.” [97] As explained earlier, the calculation of the global factor of safety of a wall is dependent on the assumption of the cohesive value of the soil. The Plaintiff’s expert witness has used a very conservative soil cohesive value of 2 to 3, when using the PLAXIS software to calculate the global factor of safety of the REWR. Based on this method it is reasonable to conclude that there has been a reduction in the global safety factor because of the Excavation Work. [98] I can follow and appreciate Ir Ang’s evidence during his re-examination on 12.12.2017 where he clarified as follows: …But my idea of doing Plaxis is not on the global safety factor. It’s more because of the excavation work, is there a reduction in the global safety factor. That is my idea of why we did the Plaxis to analyse at the same parameters of cohesion two and two, with and without the excavation, is there a reduction in the global factor of safety of the soil. That is my idea. I could have out this at 20 and then it can give me a result of global factor of safety of 1.8. But I mean, there’s no point to go back and go and learn, try to learn how to design because there’s no way we can find out. So I think that’s my gist of my report trying to tell that there is a reduction in the global factor of safety due to the excavation work. And the parameters whether it’s 1.07,1.1 or 1.2 or 1.5 is all based on the engineer’s input. Computer has zero IQ. It all 37 depends on what the engineer puts in…” (emphasis added) [99] The Defendants were of the view that MRT Excavation Works could not have damaged the Affected Property because the mass concrete road kerb along Jalan Damansara/ Jalan Semantan which is closer to PB23 did not show any signs of cracking or distress. The Defendants further averred that due to the absence of any damage to the mass concrete road kerb near PB23, it is reasonable to conclude that the excavation works at PB23 is far below the intensity require to cause damage to the Affected Property as claimed by Plaintiff. See paragraph 11.1 (iii) on page 55 of Enclosure 233. [100] However there is evidence, as pointed out by learned counsel for the Plaintiff, of repair Works being done to the roads. There was the letter from D2 to the Defendants’ expert witness dated 17.10.2016 which indicates that road kerb works, drainage works and road reinstatement works along Jalan Semantan (PB22- PB11) had been in fact been carried out. See page 377 of Enclosure 233. There must evidently have been some cracking or distress which occurred on the road kerb along Jalan Semantan. The alternative explanation preferred by Ir Dr Wong that the damage was caused by the lorries is not supported by his Report at page 377 of Enclosure 233. [101] Ir Dr Wong referred to a study by one Dr Scott Peck illustrated in the Peck Chart found in Section 4 of the Enclosure 295 which states that for an excavation of 4 meters deep, there is no effect more than 12 meters from the point of Excavation. However the fact that effect is seen in the RERW having moved would probably be a case where Dr Scott Peck’s findings is subject to the factors of different soil condition and cohesiveness and 38 whether the nearby Wall is on cut soil or filled soil and also the composition of the rubble wall itself and the way it is constructed. [102] There was also the Defendants’ submission that as no other houses in the vicinity had suffered a similar damage, this must be a case of the Plaintiff trying to capitalize on an old bungalow house with an illegal extension and built not in compliance with the DBKL By-laws with little or no maintenance on the overall building and the RERW. [103] I do not think that just because the other surrounding buildings are not affected, the Defendants can conclude that the Plaintiff’s claim is not genuine. The Plaintiff’s Affected Property is about the nearest to the MRT Excavation Works and there would be different soil conditions for different houses. The manner of construction would be different too and they may not have a RERW like the Plaintiff. [104] One must be careful to compare like with like and other owners’ properties are not relevant to this claim as what is relevant is the evidence of the integrity of the RERW being affected. To draw conclusion and inference from a so-called no complaint by other building owners would negate the evidence staring at us. In fact for the case of another house on Lot No.8927 which is said to be about the same distance as the Affected Property from the pier PB 23, the Retaining Wall is only 2 meters compared to the 4.5 meters wall in the present case. Other variance like the size and build up area of the house would doubtless have an impact. [105] I would thus on the balance of probabilities hold that the compromise to the safety of the RERW is as a direct and sole result of the Defendants’ Excavation Works and not contributed to by the Plaintiff. [106] The Defendants are thus liable for the damage that ensued. 39 Whether the Plaintiff had proved the claim for loss of rental [107] The Plaintiff claimed RM10,000.00 per month loss of rental from the date of filling the Writ (19.4.2016) until judgment of this Court (27.6.2018) amounting to RM260,000.00. [108] There was no evidence adduced by the Plaintiff on the market rate of the rental. There was also no nexus between the so-called inability to let out the Affected Property and the negligence arising out of the Excavation Works which this Court had found to be confined to the integrity of the RERW. [109] Naturally prospective tenants looking at the Bungalow house would prefer a place further away from the noise, dirt and dust commonly associated with the MRT Excavation Works. That is not an actionable wrong for which the Plaintiff may sue. [110] There was no evidence adduced that prospective tenants had decided not to rent because the integrity of the RERW has been compromised. [111] As shown clearly from the OSD Report, there were cracks already in the Main Building as well as in the Extended Filing Room which Ir Ang labelled as minor dormant cracks which do not render a building unfit for occupancy. [112] Moreover the remedial actions that this Court would order the Defendants to do to augment the RERW would not be interfering with the occupation and use of the Bungalow house. [113] This claim is frivolous and too remote and in any event not proved and thus was dismissed. 40 Whether the reasonable and appropriate remedy is for the Defendants to carry out the necessary rectification works to ensure the safety of the RERW [114] Both the expert witnesses from the Plaintiff and the Defendants are agreed that the integrity of the RERW had been compromised. Since this Court had held that this is the direct result of the Defendants’ Excavation Works, the question now is what remedial actions would be appropriate. [115] The percolation of water could cause the rubble wall to collapse because of the water seepage into these cracks. The Plaintiff’s expert witness Ir Ang explained it this way in his re-examination on 2.5.2018: …This soil has been disturbed and this rubble wall because of the tension crack that is created by the excavation, water will percolate into the tension cracks, So what will happen is that you do not know when this rubble wall one day will collapse because of seepage of water into these cracks, From the pre and post photographs, you can see the concrete slabs, for 35 years 1mm, just within a matter of three, four months, during the MRT construction, it went to 10mm.” (emphasis added) [116] The Defendants’ expert witness Dr Wong explained clearly the compromise to the safety of the RERW with reference to the cohesion of the soil as follows in his examination in chief on 26.4.2018: “WONG: It will probably take two minutes, Yang Arif. The cohesion is derived from clay or silt components of the soil. Clay and silt have this what the layman would call ‘stickiness’. Stickiness. And stickiness will give strength to the soil. 41 There are two components. One is friction where you rub one against the other. Stickiness is tackiness, you know, between the soil so these two components will give strength to the soil. The angle of friction is quite resistant to anything so that actually doesn’t change very much. However, cohesion will change drastically when the soil is exposed to water. For example, when it rains, water percolates into the soil and when water touches the soil it will reduce the strength of the clay particles. Clay in, unlike sand, which is particulate and rounded and in particle formation… And when water gets in, the plates will float with the water and that is why clay gets a reduction in strength because they get separated from each other unlike the particulate particles. And that is well known among engineers that when water gets into a clay soil you will be very careful not to use the cohesion you get from laboratories and we call it actually, we coin…, a word for this particular cohesion value that we get in laboratories. We call it apparent cohesion, It is that when the clay is dry but it would be lost by, I mean it will reduce a lot when the clay is wet. And engineers in the community uses a reduction factor of 3 to 5 to reduce the cohesion that you get in the laboratory to get a realistic cohesion value to use in design calculations…” (emphasis added) [117] Where public safety is concerned this Court should not make compromises. We cannot wait for a disaster to happen before acting. 42 [118] Where it is clear that the REWR ought to be rectified because the tension cracks created in the REWR by the excavation could result in water percolating into the tension cracks, this Court must explore what is the most feasible and economical way to rectify it without compromising on the integrity of the RERW. [119] Both the Plaintiff’s and the Defendants’ expert witnesses disagreed on the method to rectify and strengthen the REWR. The Plaintiff’s expert witness advocated that the most viable method of rectifying the REWR is using the micro-pile solution. [120] As explained micro-piling is the vertical insertion of metal rods into the REWR to stabilize it without compromising the bungalow or any future building development. [121] Initially, the Plaintiff’s expert witness proposed the micro-piling services of a construction company knows as Key Profile Sdn Bhd which amounted to a quotation of RM6,445,775.00 as can be seen in pages 188 to 195 of the PBOD 1. [122] This is obviously an overkill and not unlike using a machete to kill a fly! It is a case where the cure is worse than the disease. The Defendants might as well offer to purchase the whole Affected Property for the price. [123] The Plaintiff must have realized that the sum claimed itself is perverse and so they descended to a much lower sum through their expert witness who later in the trial presented two (2) quotations from different contractors namely Ambang Besar Sdn Bhd and Shinei Geotechnique (M) Sdn Bhd. See TAB-B and TAB-C of Enclosure 317. [124] As explained by learned counsel for the Plaintiff, TAB B of Enclosure 317 shows that the quotation from Ambang Besar Sdn Bhd amounts to RM3,525,180.50 whereas TAB C of Enclosure 317 shows that the 43 quotation from Shinei Geotechnique (M) Sdn Bhd amounts to RM2,889,587.50. Detailed specifications of the micro-piling process and works have also been described in these quotes. [125] The basis for the different quotes by the two contractors proposed by the Plaintiff is adequately described in the comparison of quotations drawn up by the Plaintiff’s expert witness at TAB-F of Enclosure 317. [126] The Defendants had proposed the soil nailing solution which would appreciably improve the FOS of the RERW. I can appreciate the Plaintiff’s objection to this as it would hamper future development as one would be unduly restricted in avoiding hitting the soil nails in the event of future piling Works that need to be done for redeveloping the land. This itself would reduce the value of the Affected Property. [127] There was also no detailed calculation done to prove that the soil nailing will not go beyond the boundary line of the Affected Property. There is also the real danger, as alerted by Ir Ang that the pressing of a soil nail into the rubble wall may also cause the brittle rubble wall that is already damaged to crack, thus affecting the safety and structural integrity of the Affected Property. There is also the attendant risk that the rubble wall may collapse during the removal process of the soil nail. Overall, according to the Plaintiff’s Expert, this solution is not suitable for the ground on which the REWR is situated because the cohesiveness of the soil has been affected post the MRT Excavation Works. [128] The Defendants are right in saying that their legal obligation is to restore the Plaintiff to the position as if the tortious act did not occur. In this regard, it is not disputed that the soil nailing method can restore the RERW to the Factor of Safety of 1.5 (which is already better than what was 44 originally on site). However the demerits of this soil nailing methodology would out-weigh the cold benefit of shoring up the FOS to 1.5. [129] The Defendants have a point to make in that since the RERW is already under-designed (though it has stood the time of time all this while) it cannot possibly take any further loading than it already has. As such, to cater for any future development, Plaintiff would have had to demolish the existing RERW, re-design and re-construct the RERW. [130] I see a mid-way solution in what the Defendants had proposed in their further Expert Report in Enclosure 316. It is to construct an add-on mass concrete retaining wall to bring the FOS of the retaining wall to at least 1.50 by way of enlargement of width of the RERW. [131] There is only a short stretch at the concrete imprint car-park area where there is not sufficient space to construct the full width of the add-on mass concrete retaining wall and the proposal was to dig a trench behind the rubble wall to construct an additional add-on mass concrete retaining wall behind the rubble retaining wall. The cost of this solution was RM179,100.00 based on a quotation submitted by BC Smart Quotation Sdn Bhd. Further details of the rectification methods can be found in the Defendants’ Expert’s Report dated 22.5.2018 found in Enclosure 316. [132] I appreciate that the Plaintiff had not pleaded any specific performance prayer where the rectification of the rubble wall is concerned but looking at the justice of the case and the expertise that the Defendants have in their main works in building structure that could stand the test of time, this Court is inclined to make an order that would address the needs and concerns of both parties. [133] An order of mere damages may not be used by the Plaintiff to restore the integrity of the RERW, which both parties agree that its integrity has 45 been compromised, though they disagree on who or what has caused it. None of us would want the RERW to collapse into the main road causing injuries to the public if not death; their blood would be upon us! The evidence given by Ir Ang is that based on the topography of the slope where the RERW is, the collapse when it should happen, would be onto the heavy traffic road of Jalan Semantan. From the evidence of both the experts one can only speak of “when” the RERW would collapse and not “if” the RERW would collapse. The only uncertainty is when that would be much like philosophizing about death, knowing its certainty yet uncertain of when the bell would toll for us. [134] I do appreciate that the Plaintiff is equally concerned of safety to the public and I can take their counsel’s word for it that their client, despite the initial enormity of their claim, is not here to make a windfall but to seek redress to damage to the RERW in particular and to address their worry that the RERW would collapse causing injuries to life and limb or worse still, the loss of innocent lives. During the re-examination of Ir Ang on 9.8.2017 the Plaintiff’s counsel had made the following remark: It’s the Highway My Lord and people drive on that road, this is just opposite the old immigration department, the new Pavilion that’s coming up in Damansara Heights. If that landslides, it’s going to go right into the four lanes with the house together, likelihood and if there’s that, that’s something which my client does not want to live with. So that is the reason why this whole suit has been launched. We can come to a common ground to resolve this issue. I 46 don’t think my client has got any more worries or qualms about it.” (emphasis added) [135] That being the case there should be no objection to the remedy that this Court would order which would be akin to a specific performance order. The Plaintiff had pleaded ‘'Any other reliefs which this Honourable Court deems fit and proper.'’ In Lim Eng Kay v Jaafar Mohamed Said [1982] CLJ (Rep) 190 at page 198 it was held by the Federal Court that such a prayer must not be treated as mere ornament to pleadings devoid of any meaning. It is not infrequently invoked by Courts to provide a remedy that would do justice to the parties as the peculiar facts and circumstances of the case may demand. [136] The Defendants on the other hand advanced the view that the rectification and augmentation work to restore the integrity of the RERW could be restored at their quoted rates that they had obtained from a reliable contractor. If so they must be prepared to put their money where their mouth is! The Defendants are best positioned to do the rectification works being in this business of building massive structures for rails and most familiar with slopes and slippages, stability and safety of structures and systems. [137] There were initially some disputes with respect to the costs to be incurred in getting the relevant approvals and permission of the relevant authorities or bodies be they DBKL, SPRINT or the Malaysian Highway Authority (Lembaga Lebuhraya Malaysia - LLM). [138] It was later confirmed that no such fees to the tune of close to RM1 million as quoted by the Plaintiff is necessary. If at all it is nominal and in any event, in view of the order that this Court would make, all these costs to the authorities shall be borne by the Defendants. 47 Pronouncement [139] Considering the justice of this case I would order the following to be done:

That the Defendants jointly and severally do construct the Mass Concrete Wall system and structure as found in the Defendants’ Expert Report Affidavit Enclosure 316 as per the drawings and calculation at pages 1-7 Appendix B and to complete the same within 4 calendar months from the date of this judgment;

The Defendants are to ensure that a Professional Engineer (“PE”) approves the drawings, calculations and is prepared to certify that the wall is safe and when built, it will be according to approved professional standard and the written confirmation on this shall be obtained within 21 days from the date of this order;

The Defendants shall jointly and severally bear the costs of construction of this Mass Concrete Wall system and structure including the costs and fees of the PE’s certification;

The PE’s certification shall be procured by the Defendants within 1 calendar month from the date of completion of the said Mass Concrete Wall system and structure and in any event not exceeding 5 calendar months from the date of this order subject to extension of time by mutual consent;

In the event that the Defendants cannot give the Plaintiff the above confirmation in writing within 21 days from the date of this order, the Court orders the Defendants, jointly and severally, to pay the Plaintiff the sum of RM 1,854,587.50 being 48 the damages assessed by this Court for the rectification of the rubble wall using the method as prescribed by the Plaintiff’s Expert and which quotation this Court accepts at Enclosure 317

Interest at the rate of 5% per annum shall run on the above sum from date of judgment to realization;

Liberty to apply in so far as the specific performance order is concerned. [140] For clarity and completeness, I had also found with respect to the RERW no element of contributory negligence on the part of the Plaintiff. [141] As for costs after hearing parties, I allowed costs of RM30,000.00 from the Defendants to the Plaintiff. Dated: 15 November 2018. -signed-Y.A. LEE SWEE SENG Judge Construction Court High Court, Kuala Lumpur 49 For the Plaintiff : RK Sharma and Amrit Pal Singh (Messrs Amrit and Company) For the Defendants : Belden Premaraj, Shanthi Supramaniam, Kee Meng Fai and Thulasy Suppiah (Messrs Belden) Date of Decision: 27 June 2018.