R.Rajasegharan A/L R.Rakappan v 1. ) Pengarah Muzium Diraja, Kuala Lumpur (WA-A71-6-06/2023)

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MENTERI KEMENTERIAN PERPADUAN NEGARA KERAJAAN MALAYSIA JUDGMENT [A] Introduction. [1] This is a civil suit filed by R Rajasegharan a/l R Rakappan on the 20th of June 2023 as against the Defendants for the damages inflicted on a multipurpose vehicle he owned, which is a Honda CR-V bearing a registration number of VEA 9792 (hereinafter referred to as the said vehicle) amounting to RM 38,245.58 as special damages, loss of usages of vehicle amounting to RM 1,000.00 per month from April 2022 until December 2022 and general damages to be assessed by this court. [2] After deliberations and taking into consideration the pleadings, evidence and submissions tendered by parties, this court hereby dismisses the Plaintiff’s claim with cost against the Defendants. Here are the reasons for this court in doing so. 2 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [B] Agreed Facts. [3] It was undisputed that the First Defendant were under the authority and control of the Second Defendant to which both of the Defendants were under the authority and control of the Ministry of Tourism, Culture and Arts (MOTAC). It is also agreed that, during the time this incident had taken place, MOTAC was in charge in overseeing the First and Second Defendant’s affairs. [4] It is an undisputed fact that all the Defendants and MOTAC were under the authority and control of the Fourth Defendant being the Government of Malaysia. [5] It was also agreed that on the 8th of July 2022, the Plaintiff had written a letter to demand for damages to the Second Defendant and a reply from the latter was that for the former to forward such a claim against the MOTAC and a reply will be given by the Second Defendant upon procuring the MOTAC’s instructions. [6] It was also agreed that later, the affairs of the First and Second Defendant was taken over the Third Defendant from MOTAC. [7] It was also agreed that on the 6th of March 2023, the Plaintiff had contacted the Defendants. 3 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [C] Issues to be Tried. [8] There are 8 issues raised by parties for this court’s consideration, such issues are tabulated as per below: Issues to be Tried

Whether the tree had fallen and hit the said vehicle was under the ownership, control, responsibility and authorities of the First Defendants and/or Defendants?

Whether the Defendants were jointly and severally liable for their failure to ensure the road to which the said tree had fallen which was allegedly owned by the First Defendant is safe for public to pass through?

Whether the Defendants were jointly and severally liable for their failure to ensure proper maintenance of the said tree which had caused the said tree to fall and hit the Plaintiff’s vehicle?

Whether the Second to Fourth Defendant were vicariously liable for the First Defendant’s breach of care?

Whether there was a delay of 8 months on the Defendants’ part to rectify the losses complained of?

Whether the Defendants are liable for the losses suffered by the Plaintiff as a result of the tree hitting his vehicle?

Whether the tree fall incident was due to an act of God which excludes the Defendant’s liability towards the Plaintiff?

Whether the accident occurred was due to the Plaintiff’s fault? 4 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [D] List of Witnesses Called and Exhibits [9] For ease of reference, here are the witnesses called by parties as tabulated below: Name of Witness Label A. Plaintiff’s Witness 1. R.Rajasegharan a/l Rakappan SP1

Jeyabalan a/l Parichit SP2 PSP-2

Miti Fateema Sherzeella binti Mohd Yusoff SD1 PSD-1 4. Nor Sherizan binti Darus SD2 PSD-2 [10] All cause papers are enlisted and labelled as follow: Cause Papers Enclosure 1. Bundle of Pleadings

Common Bundle of Documents (1) B1 5 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3

Plaintiff’s Bundle of Documents B2 4. Defendants’ Bundle of Documents B3 5. Issues to be tried (Enclosure 20)

Agreed Facts (Enclosure 21)

Summary of the Plaintiff’s Case (Enclosure 18) E1 8. Summary of the Defendants’ Case Enclosure 26) E2 [11] It is noteworthy that all documents in Enclosure B1 to B3 are categorized under Part B hence no markings of exhibits are required for this case. [E] Parties Case. i. Plaintiff’s Case [12] The gist of the Plaintiff’s case rests solely on the Defendants’ refusal to compensate for damages inflicted on his vehicle, a Honda CR-V model bearing a registration number of VEA 9792, from a fallen tree, which was believed to be on the land belonging to the First Defendant. 6 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [13] According to the Plaintiff, such incident occurred on the 29th of March 2022, when the Plaintiff, alongside his friend known as Jeyabalan a/l Parichit (hereinafter referred to as SP2), was on their way from Kuala Lumpur to Shah Alam. This court was further told that while the Plaintiff was on Jalan Syed Putra nearby the Previous National Palace, an enormous tree had suddenly fallen on his vehicle causing the said vehicle to stop abruptly. [14] Due to such incident, the Plaintiff and SP2 were trapped inside the said vehicle and was rescued by firefighters who was alerted by the public of such incident. [15] A report of the said incident was thereafter lodged by the Plaintiff where this court was told that the Police had taken photographs of the said vehicle. [16] Acting on the instruction of the Police, the Plaintiff averred that he then had brought the said vehicle to one CD Car Care Sdn Bhd (hereinafter referred to as the said workshop) to repair the said vehicle. According to the Plaintiff, upon inspection, the said vehicle was placed at the said workshop awaiting compensation from the First Defendant. [17] Despite the Plaintiff’s efforts to claim compensation from various authorities, including DBKL and the Defendants, such attempt was not fruitful. [18] The Plaintiff further pleaded that due to blatant refusal of the Defendants to compensate for the damages incurred to repair the damages of his vehicle, the Plaintiff 7 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 suffered losses of RM 38,000.00 as cost incurred to restore his vehicle and an additional RM 1,000.00 per month for the loss of usage of his car. [19] Based on the above, the Plaintiff claims for RM 38,000.00 plus RM 9,000.00 (from April 2022 until December 2022) as special damages and costs from the Defendants. ii. First Defendant’s Defence [20] In objecting to the Plaintiff’s claim, the Defendants argued that the said accident occurred beyond the Defendants’ territory. [21] It was the Defendants’ pleaded case that even if proven otherwise, the Defendants argued that such incident occurred was due to an act of God. [22] As to the damages claimed, the Defendants deny such sum of damages as it was not specifically proven. [23] As such, the Defendants pray that the Plaintiff’s claim against them ought to be dismissed with costs. 8 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [C] Findings [24] After perusing through the Notes of Evidence, pleadings and submissions filed by parties, this court finds that the issues to be tried could be summarized or jived as per the discussion below. [25] Perusing through issues forwarded by parties, this court had observed that for issues

(2), (5), (7) and (8) were concerning on whether the said tree was under the maintenance and management of the First Defendants or in other words were the tree was planted on a land owned by the First Defendant? [26] As to issues (3) and (4), these issues could be summarized into one main issue which is whether the Second to Fourth Defendants are vicariously liable for the damages inflicted on the Plaintiff’s vehicle due to the said incident? [27] Based on the above observations, this court finds that there are 4 main issues to be tried for this case, these issues are enlisted as follow: Issues to be Tried 1. Whether the tree of which had fallen and hit the said vehicle was under the ownership, control, responsibility and authorities of the First Defendant? 9 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3

If so, whether the First Defendant had breached his duty of care in ensuring safe usage of the said road by public?

Whether the Second to Fourth Defendant were vicariously liable for the First Defendant’s Breach of Duty of Care?

Whether the Defendants are liable for the losses suffered by the Plaintiff as a result of the tree hitting his vehicle? Issue (i) Whether the tree of which had fallen and hit the said vehicle was under the ownership, control, responsibility and authorities of the First Defendant? [28] Perusing through the evidence procured to this court, this court had observed that via a letter titled as “Maklum Balas Tuntutan Kerosakan Kereta Akibat Tumbang Pokok” dated 6th of March 2023 from the Third Defendant, the Third Defendant did admit that the said tree was on the Second Defendant’s land. [29] Based on the above, this court finds that such admission is in accordance with section 23 of the Evidence Act 1950 [Act 56] as it was in a document included in an agreed bundle (the Supreme Court case of Jaafar bin Shaari & Anor (Suing as Administrators of the Estate of Shofiah bte Ahmad, Deceased) V Tan Lip Eng & Anor [1997] 3 MLJ 693 at paragraph (8) is referred to). 10 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [30] It was observed that besides the above document, this court finds that such fact was also commensurate with SD1’s testimony where she did not deny the said fact of such tree belonging to the land owned by the Second Defendant but had also admitted that SD1 and her team had actually maintained the said tree. [31] Based on the above observation, this court finds that the said tree was indeed within the land owned by the First and Second Defendants. Therefore, as the owner of the said land, the Defendants have a duty of care to ensure that the said land are safe for public usage since such land gives rite of passage to the public. [32] As such, this court finds that the answer to issue (i) is in the positive. Issue (ii): If so, whether the First Defendant had breached his duty of care in ensuring safe usage of the said road by public? [33] Before this court begins to discuss on issue (ii), this court must firstly determine whether there was a duty of care accorded to the First Defendant as Occupier of the said land. 11 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [34] To determine as such, this court must firstly determine on how the said accident had occurred. Based on this court’s observations against the totality of the Plaintiff’s evidence, despite the Plaintiff had based his version of the story via his police report via Trafik Kuala Lumpur 23618/2022 (at page 4 of B1), this court had found that besides the evidence of SP1 and SP2, the Plaintiff did not call the investigating officer (hereinafter referred to as “IO”) or any other independent witnesses to testify of such incidence, he also did not produce any sketch plans nor photographs of the scene after the tree had fallen to show firstly, the cause of the said accident (whether it was due to the Plaintiff hitting the said tree to which had caused the said accident or the tree had fell on its own) and whether it was due to the fault of the First Defendant’s. [35] In facing such a situation, this court hereby refers to the case of Projek Lebuhraya Usahasama Bhd v Hawa Liyana binti Hashim (suing as the lawful wife and dependant of Imran Kamali bin Ahmad Nadzirin, deceased) [2018] MLJU 2011 where it was held that the Plaintiff has failed to establish any negligence against the Defendant since there was lack of independent witness, photographs of the incident and that the sketch plans were sketched based on when the vehicle was moved. [36] Based on the case enumerated above, this court hereby finds that since the Plaintiff has failed to call the IO for his case nor exhibit any sketch plans of the said incident and photographs of the aftermath of the said accident, as per Hawa Liyana’s case, the Plaintiff has failed to relinquish his duty to prove the First Defendant’s negligence against him. 12 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [37] Despite finding as such, this court proceeded to determine this issue as if this court finds that such accident was directly due to the tree had fell on its own accord as per the Plaintiff’s version. [38] Based on this court’s analysis, it was observed that it was the Plaintiff’s case that it was due to the First Defendant’s failure to properly maintain the said tree to which had led the said incident to have taken place. [39] In dealing with such matter, this court hereby refers to the case of Chen Chen Hung v Board of Trustees of The Sabah Parks [2024] MLJU 1442 which the Learned Justice Faridz Gohim Abdullah had pointed out that to determine the negligence of the Defendant, the court in determine whether there is duty of care owed to the Plaintiff by the Defendant must first see whether the damage caused by the falling of the tree is foreseeable. Such relevant excerpt is as follows: “…[24] See also the case of Thean Chew v The Seaport (Selangor) Rubber Estate Ltd [1960] 1 LNS 152 where the High Court held:-”The standard of care required of the occupier of land with growing trees is stated in Charlesworth on Negligence, 3 Edn., 6 at p.147: The occupier of land is not liable if a tree, which he did not know, and had no reasonable grounds for knowing, to be unsafe, falls onto the highway and injures a person passing along the highway. This duty is to act as a prudent landowner to prevent his trees which adjoin a highway from being 13 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 a danger to persons passing along the highway, but he is not bound to call in an expert to examine his trees unless he has reason to believe that they may be unsafe. The principle formulated by Stable J, and approved by the Court of Appeal in Brown v Harrison 177 LTR 281, 282 is in these words: Having regard in each particular case to the circumstances of that particular case, if there is a danger which is apparent not only to the expert but to the ordinary layman, which the ordinary layman can see with his own eyes, if he chooses to use them, and he fails to do so, with the result that injury is inflicted, as in this case, upon somebody passing along the highroad, the owner is in those circumstances responsible because in the management of his property he has not acted as a normal reasonable landowner would act. That, as I understand it, is the extent of the duty.... Finally, I would quote the opinion of Lord Radcliffe [1950] 2 All ER at p.501: The accepted test that liability only begins when there is apparent in the tree a sign of danger has the advantage that it seems to ignore, or to a large extent to ignore, the distinction between the spot that is much, and the spot that is little, frequented, but on the other hand, I think that it does end by making the standard of the expert the test of liability...” (Emphasis added) [40] His Lordship, in taking all matters into consideration had found that the Defendant does not owe any duty of care to the Plaintiff. In coming to such conclusion, his Lordship had made the following observations: 14 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 “...[128] As alluded to earlier, there was no evidence to prove the condition of the particular tree at that particular time was reasonably dangerous to the visitors. Evidence of DW1 and DW2 clearly shows that they have no reason to suggest to their top management (Director) for the said tree to be cut down as the physical appearance of the tree based on their visual observation does not reasonably require such action. There is no apparent sign that it or some of its branches may fall and injure some person in the park. Given this, it is not a case where the Defendant had reasonably foreseen the danger posed to the Plaintiff...”(Emphasis added) [41] Reverting back to the present case at hand, sieving through the evidence of SD1, as director of the First Defendant, there is no evidence by the Defendant to show that there are apparent signs that the tree or some of its branches may fall and injure some person, as such as per Chen Chen Hung’s case. As such, this court finds that it would be unforeseeable that the said tree in question would have fallen. [42] As such, this court finds that based on this fact alone, the Defendants are not liable for the said incident. [43] To conclude, this court hereby finds that the answer to issue (ii) negative. 15 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 Issue (iii): Whether the Second to Fourth Defendant were vicariously liable for the First Defendant’s Breach of Duty of Care? [44] Since this court finds that issue (i) and (ii) is in the negative, in other words, as this court finds that there was no liability accorded to the First Defendant, this court finds that the Second to Fourth Defendants, as employer of the First Defendant, were vicariously liable for the said incident occurred on the Plaintiff. Issue (iv): Whether the Defendants are liable for the losses suffered by the Plaintiff as a result of the tree hitting his vehicle? [45] Since issue (i) to (iii) are in the negative, this court finds that the answer to this issue is also negative. [46] Regardless so, even if this court were to find issue (i) to (iii) in the affirmative, sieving through the Plaintiff’s pleadings, this court has found that, while the Plaintiff had told this court that he had sent the said vehicle for inspection and repair work which had caused losses amounting to a sum of RM 38,245.58, he did not mention on how the said sum claimed was arrived at in his pleadings. 16 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [47] It was only through a document known as a Quotation from CD Car Care Sdn Bhd and a Supplementary Quotation from the same both at pages 18 and 19 of B1 that this court was informed of how such an amount was arrived at without including specification of any parts replaced and its costs. [48] Facing such a situation, this court hereby refers to the case of Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Mineral Asia Bhd [2021] 5 MLJ 1 where in dismissing the Plaintiff’s claim on the ground that the damages were not specifically pleaded held as follows: “…[156] The principle in relation to special damages is trite, i.e., it must be specifically pleaded (and particularized) and strictly proven. In Ong Ah Long (supra), Justice Syed Agil Barakbah FCJ (pages 327-328) speaking for the Federal Court explained the principle in the following words:- "It is a well-established principle that special damages in contrast to general damages, have to be specifically pleaded and strictly proved. They are recoverable only where they can be included in the proper measure of damages and are not too remote (see Halsbury's Laws of England 4th edition, volume 11- page 218 para 386). That in our view is the cardinal principle adopted by all courts both in England and this country. The same principle was adopted by Ong Hock Thye, F.J. (as he then was) in Yee Hup Transport & Co and Anor v Wong Kong [1967] 2 MLJ 93 which was an appeal on quantum of damages. Quoting an excerpt from the judgment of Wilmer L.J. in Ilkiw v Samuels [1963] 1 WLR 991; [1963] 2 All ER 879 he 17 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 held that the general damages should not be awarded as though they were special damages properly pleaded and proved. Similarly Chang Min Tat, F.J. (as he then was) in Murtadza bin Mohamed Hassan v Chong Swee Pian [1980]1 MLJ 216 applied the principle in Ilkiw v. Samuels ( supra) that special damages if pleaded as in that case could be recovered. The principle was also adopted by Mohamed Azmi, J. (as he then was) in Sam Wun Hoang v Kader Ibramshah [1981]1 MLJ 295 in the Federal Court. [157] In Ilkiw v Samuels [1963] 2 All ER 879; [1963] 1 WLR 991, 107 Sol Jo 680 CA 1950 Diplock LJ (page 890 All ER):- As regards the question of damages, I would put it in this way. Special damage in the sense of a monetary loss which the plaintiff has sustained up to the date of trial must be pleaded and particularised. ........ In my view, it is plain law - so plain that there appears to be no direct authority, because everyone has accepted it as being the law for the last hundred years - that one can recover in an action only special damage which has been pleaded, and, of course, proved…”(Emphasize added) [49] Bearing the above principle in mind, this court finds that nowhere was there any mention on which parts were damaged and repaired, in other words, what loss was suffered by the Plaintiff and the cost of repair in the Plaintiff’s pleading. Therefore, this court finds that failure to plead such amount as fatal as per the case of Damansara Realty (Pahang) Sdn Bhd. 18 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [50] In furtherance to the above, this court found that there were discrepancies with documents at pages 16 to 20 of B1 and pages 1 to 3 of B2 which had shown the amount billed on the Plaintiff by his repairer and the amount to which he had allegedly paid was of different amount. At this, this court hereby refers to the case of the case of Yeah Eh Farn v Alliance Bank (M) Bhd [2014] 3 CLJ 803 which held at paragraph 17 of the judgment that evidence given on special damages which was not pleaded cannot be led and are irrecoverable, therefore are to be disregarded by this court. [51] To worsen the situation, such amount in the statement of claim was duly challenged by the Defendants when there was discrepancy with the said amount claimed in the statement of claim i.e., RM 38,182.02, SP1’s testimony during cross examination on the discrepancy between the quoted amount of RM 38,182.02 and the amount actually paid by the Plaintiff (of RM 35,000.00(as seen at page 1-3 of B2)). [52] This court further refers to the Federal Court case of Jaafar bin Shaari & Anor (suing as administrator of the estate of Shofiah bte Ahmad, deceased) v Tan Lip Eng & Anor [1997] 4 CLJ 509 which had held that despite documents were in agreed bundle, the court may refuse to give any weight but however the court in deciding as such to give reasons in doing so. 19 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [53] Since the evidence given by the Plaintiff’s witness and documents were not pleaded and contains discrepancies, this court hereby rejected this evidence and finds that the Plaintiff has failed to prove this part of special damages. This is the reason for the court in rejecting such evidence as required per the case of Jaafar bin Shaari’s case. [54] As to the amount of RM 1,000.00 being an amount of loss of usages of vehicle by the Plaintiff from April to December 2022, this court finds that there is no iota evidence nor via the Plaintiff’s pleading of how such amount of RM 1,000.00 was arrived at and as per the case of Damansara Realty (Pahang) Sdn Bhd’s case, such unpleaded and unproven facts should not be considered by this court. [55] Therefore, even if this court were to find issue (i) to (iii) in the affirmative, this court finds that issue (iv) is in the negative since in the absence of the amount pleaded in the Plaintiff’s pleadings and discrepancies existed in the Plaintiff’s evidence, it is impossible for this court to determine the costs for the special damages so claimed. [D] Decision [56] In a nutshell, this court finds that the Plaintiff has failed to prove his case, on the balance of probability, against the Defendants since he has failed to establish that the accident was due to the fallen trees and that there is not foreseeable that the said tree poses imminent danger to passer by to accord any duty of care against the Defendants. 20 | GROUNDS OF JUDGMENT FOR W A - A 7 1 - 6 - 0 6 / 2 0 2 3 [57] As such, this court hereby dismisses the Plaintiff’s claim as against the Defendants with cost of RM 3,500.00 as costs otherwise provided by Order 59 rule 23 of the Rules of Court 2012 to be paid forthwith. On 23rd of July 2024 Prepared by, NUR FADRINA BINTI ZULKHAIRI Magistrate Magistrate Court Civil 8 Kuala Lumpur Counsel for the Plaintiff: Nagarajan with Fatin Nabihah binti Md Nor from Messrs. Nagarajan Peri & Co. Federal Counsel for the Defendants: Muhammad Asraf bin Shahabuddin from the