Gopal Sri Ram JCA (Judgment Of The Court):

Facts And Background

We must say at the very outset that after hearing full argument over four days, we find these appeals to be tolerably plain. They entail no new point of policy or principle. At the end of the day this is merely a case calling for an application of settled law to particular facts. And a brief narrative of those facts is as follows.

Along Jalan Ulu Kelang there is a residential area known as Taman Hillview. It comprises of bungalows and high rise apartments. At all times material to the present litigation there were three tower blocks that stood there. They were called Block 1, 2 and 3. They stood in fairly close proximity to each other. They were all constructed between 1975 and 1978. The trial judge treated them for the purposes of the present litigation as a single unit. All before us are agreed that they should be so treated. Behind these three blocks is a hill. There is a stream that flows along it. At one time that stream used to flow its course.

On 11 December 1993, after continuous rainfall for the preceding ten days, Block 1 collapsed. Many people lost their lives in consequence. It had a serious impact on people of all walks of life. The trial judge called it a national tragedy.

The residents of Blocks 2 and 3 brought an action against ten defendants. The substance of their plaint was that their apartments in Blocks 2 and 3 had become worthless because of the collapse of Block 1. They based their cause of action principally in negligence and nuisance. The judge dismissed their action against some of the defendants. The remaining defendants who were found liable have appealed to us. They are the 3rd defendant (the engineer), the 4th defendant (the local authority), the 5th defendant (the owner of the land directly behind the towers), the 7th defendant (the owner of the higher land adjacent to the 5th defendant's land) and the 8th defendant (who provides management services to the 7th defendant). In all, four appeals were lodged. They were taken together. We find it convenient to refer to the parties according to the titles assigned to them in the court below.

We must also mention that counsel before us agreed that the 5th defendant should go forward with its appeal first. It was also agreed that the submissions made by counsel for the 5th defendant on all issues of law and fact would be adopted by counsel for the other defendants save those matters of particular concern to each of the other defendants. With these remarks, we now turn to consider the specific complaints addressed to us. This is what we propose to do. We will first set out and deal with those matters that are common to all the defendants before us. After that, we will deal with any point specific to a particular defendant. But before we do that, we must remind ourselves of our function as an appellate court.

The Appellate Approach

There are several statements of high authority as to the proper approach that a court of appeal should adopt towards the exercise of its appellate power in a case as the present. These cases fall into two broad categories. First, those that set out the general rule, and second, those that provide broad cases of exceptions. As to the general rule, there are numerous decisions in point. But we find it sufficient to quote from only two of them.

In Clarke v. Edinburgh Tramways[1919] SC (HL) 35 at p. 36, Lord Shaw of Dunfermline, in a passage referred to on numerous occasions by our courts, said:

When a judge hears and sees witnesses and makes a conclusion or inference with regard to what on balance is the weight of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the trial judge makes any observations with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the judge has announced as part of his judgment that he believes one set