The local authority owes a statutory duty to maintain trees on private land accessible to the public, and failure to act on known hazards can result in exemplary damages.

JUDGMENT

Leong Wai Hong JC:

Introduction

[1] Let's say there is a piece of privately-owned vacant land with big shady trees. With the permission of the local authority, the owner decides to lease the land to food operators to run restaurants. If a tree falls on a food operator or a customer, is the local authority like the Datuk Bandar Kuala Lumpur / The Mayor of Kuala Lumpur liable to the injured food operator or customer?

[2] This issue of public importance arose in the trial before me. The issue I will frame as follows:

Does the Datuk Bandar Kuala Lumpur / The Mayor of Kuala Lumpur owe a statutory duty under the Local Government Act 1976 to members of the public to maintain trees which are wholly on private land but which the public was allowed access?

[3] The trial arose out of a tragic death incident that occurred to a lady with the name of Yulma binti Abdul Gafar ["Deceased"] when a huge branch from a tree fell on her head on 19 December 2021. ["Tree"].

[4] The 1st plaintiff is the widower of the Deceased who brought the suit as the husband and lawful dependant of the Deceased. The 2nd to 6th plaintiffs are the children of the Deceased.

[5] The 1st defendant is Datuk Bandar Kuala Lumpur / The Mayor of Kuala Lumpur. The 2nd defendant is Megasas Properties Sdn Bhd which owns the land where a branch from the Tree fell on the Deceased's head. Megasas Properties Sdn Bhd did not enter an Appearance to defend the suit. Thus, the trial proceeds against the Datuk Bandar Kuala Lumpur only. In this Judgment I will refer to the 1st defendant as Datuk Bandar Kuala Lumpur and the 2nd defendant as Megasas Properties.

[6] Before the trial started the plaintiffs and the Datuk Bandar Kuala Lumpur agreed to the pleaded sums of RM1,518,060 as general damages and RM90 as special damages and interest as pleaded at 5% p.a. from the date of judgment. [See Amended Statement of Claim at para 30]. The Datuk Bandar Kuala Lumpur only contested liability and the claim for aggravated and exemplary damages. [See Notes of Proceedings p 7].

[7] The trial was heard over 2 days on 26 February 2024 and 4 April 2024. On 21 June 2024 after hearing oral submissions, I ruled in favour of the plaintiffs and ordered the Datuk Bandar Kuala Lumpur to pay to the plaintiffs:

a) RM1,518,060 as agreed general damages, RM90 as agreed special damages and RM30,000 as exemplary damages to the plaintiff;

b) Interest on these sums from the date of judgment at 5% p.a. till full payment; and

c) costs of RM15,000 subject to allocatur.

[8] The Datuk Bandar Kuala Lumpur filed an appeal to the Court of Appeal on 17 July 2024. The Notice of Appeal wrongly stated that the appeal is against my entire decision. As stated earlier, Datuk Bandar Kuala Lumpur at the trial only contested liability and the claim for aggravated and exemplary damages. [See Notes of Proceedings p 7]. These are my Grounds of Judgment.

Background Facts

[9] The Deceased was operating an ikan bakar restaurant known as Ikan Bakar Seri Tanjung at No 437, Lot 668, Seksyen 47, Jalan Bidor, Off Jalan Pahang, 53000 Kuala Lumpur. ["Business Premise"]. She was a tenant of the land owner, Megasas Properties.

[10] The deceased on 19 December 2021 was walking on the Business Premise with her family members when a huge branch from the Tree fell on her head. Tragically, she died.

[11] The Deceased's family sued the Datuk Bandar Kuala Lumpur for negligence and breach of statutory duty under the Local Government Act 1976 .

[12] The evidence shows that prior to the Tree branch falling, one Encik Azwad a representative of Megasas Properties had lodged a written complaint to the Datuk Bandar Kuala Lumpur on 17 May 2021 that the Tree was in a sick condition which the Datuk Bandar Kuala Lumpur replied on 3 June 2021 that the land owner Megasas Properties was responsible and proceeded to close the complaint. [See Record of Complaint dated 17 May 2021 in encl 31 Common Bundle of Documents marked B3 at p 24]. [See also encl 67. First Defendant's Writt