Steve Shim CJSS:

The Issues

[1] There are two appeals before us - one, an appeal proper by the appellant, Majlis Perbandaran Ampang Jaya (MPAJ) and the other, a cross-appeal by the respondents. More specifically, the appellants appeal is directed at the decision of the Court of Appeal in affirming the High Courts finding that the appellant was 15% liable to the respondents for negligence and nuisance. And the respondents cross-appeal is aimed at the Court of Appeals decision that their cause of action against the appellant for alleged post-collapse liability lay in the area of public law and not private law. In effect and in substance, the appeal and cross-appeal can be said to relate to issues encapsulated in the questions upon which leave to appeal was granted by this Court. These questions are postulated as follows:

1. Where a plaintiff sustains damage and alleges negligence against various defendants and the tribunal of fact ascribes negligence to the various defendants and where there is a clear finding that the causa causans of the plaintiffs damage is the negligence of a particular defendant, whether in that circumstance, the other defendants who are guilty of certain negligent acts but whose negligent acts are not held to be the causa causans can be held liable to the plaintiff as well.

2. Whether s 95(2) of the Street, Drainage & Building Act 1974 (Act 133) is wide enough to provide immunity to a local authority in approving the diversion of a stream and in failing to detect any damage or defect in the building and drainage plans relating to the development submitted to the local authority by the architect and/or the engineer on behalf of the developer.

3. Whether pure economic loss is recoverable under our Malaysian jurisprudence with reference to (a) negligence and (b) nuisance.

4. In a case involving different acts of negligence by multiple defendants committed at different times, whether those defendants are joint tortfeasors.

5. Whether the Court of Appeal erred in providing a distinction between private law and public law when finding that the appellant was not responsible to the 1st to 73rd respondents for the appellants acts and omissions as determined by the High Court following the collapse of Block 1 of Highland Towers.

The Background Facts

[2] The factual matrix relevant to the issues can be briefly stated. The Highland Towers consisted of three blocks of apartment known as Blocks 1, 2 and 3 situated on Lots 494, 495 and 635 Mukim, Hulu Klang. These apartment blocks were built in front of a steep slope. The hill slope was originally owned by Highland Properties Sdn Bhd, the developer who also developed Highland Towers. Highland Properties initially intended to construct three apartment blocks on the Highland Towers site and bungalows on the hill slope. Ultimately, only the three apartment blocks were built. This was between 1975 and 1978. No bungalows were constructed on the hill slope. In 1991, Highland Properties transferred ownership of the bungalow lots on the hill slope to Arab Malaysian Finance Bhd (AMFB) as part of a set-off for unpaid loans. On the hill slope was a stream which was referred to at the trial as the "East stream". The East stream originated from land that was being developed by Metrolux Sdn Bhd and MBF Property Services Sdn Bhd. This land was referred to as the "Metrolux land". On 11 December 1993, a landslide occurred resulting in the collapse of Block 1 and the subsequent evacuation of the respondents from Blocks 2 and 3. The respondents then filed a suit in the High Court against various parties including MPAJ, the appellant herein, for negligence and nuisance. After a lengthy hearing, the learned trial judge found the appellant who was the 4th defendant in the case to be 15% liable for negligence in respect of the appellants acts and omissions prior to the collapse of Block 1 of the Highland Towers. However, he held that s 95(2) of the Street, Drainage & Building Act 1974 (Act 133