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2019 MarsdenLR 2801
HIGH COURT MALAYA KUALA LUMPUR
FANUC SDN BHD – Appellant
Versus
ADENLAND (CHERAS) SDN BHD & ANOR – Respondent
[Civil Suit No: WA-22NCVC-120-03-2017]
The liability for trespass rests with the party directly involved unless agency and participation in the act can be proven.
Headnote:This judgment concerns a suit for trespass and negligence related to property in Hulu Langat, Selangor, positing claims on the removal of earth affecting land owned by the plaintiff. The Court found that the act of the second defendant constituted trespass, whereas the first defendant was not liable due to a lack of evidence of direct involvement. The ruling emphasizes the differentiation between independent contractors and vicarious liability, affirming that liability cannot be assigned without proof of direct participation or negligence. Judgment was granted for damages against the second defendant, while the claim against the first defendant was dismissed.
| Table of Content |
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| 1. civil liability in tort arises from a trespass. (Para 1 , 2 , 3 , 4 , 5 , 12) |
| 2. discussion of the plaintiff's property and trespass. (Para 6) |
| 3. without prejudice negotiations may not affect admissibility unless a settlement is reached. (Para 7 , 8 , 9 , 10 , 18 , 19 , 25) |
| 4. evidence of trespass by the second defendant. (Para 13 , 46) |
| 5. negotiation efforts regarding trespass. (Para 28 , 29 , 30 , 35) |
| 6. without direct participation in wrongdoing, liability may not extend to instructions or proposals. (Para 39 , 41 , 44) |
[1] This was a suit in trespass and negligence against the defendants in respect of a piece of land in Hulu Langat, Selangor that belongs to the plaintiff.
[2] In substance, the plaintiffs claim was based on an alleged wrongful removal of earth from and the levelling of its land in the course of the construction of a retaining wall on a road reserve adjacent to it. The alleged wrongful removal of earth resulted in varying reductions in height along the affected parts of the plaintiffs land.
Background
[3] The plaintiff is the registered proprietor of Lot 14761 (formerly Lot 1169, Geran Mukim 1129), Cheras Batu 9, Mukim of Ulu Langat, Daerah Ulu Langat, Selangor ("plaintiffs Land"). The plaintiffs Land measures 3.908 hectares (approximately 421,000 square feet) in size.
[4] The 1st defendant is a housing developer and was the developer of a proposed building development consisting of a 23-storey block of apartments and two four-storey blocks of apartments on Lot PT 5700 & 571 measuring 3.36 acres in the Mukim of Hulu Langat, District of Hulu Langat, Selangor Darul Ehsan" ("1st defendants Project"). This was a project approved by the Majlis Perbandaran Kajang ("MPKJ") in 2013.
[5] The plaintiffs Land is on high ground. Below and adjacent to part of the plaintiffs land is a road known as Jalan Kemacahaya. Just before Jalan Kemacahaya, between the plaintiffs Land and Jalan Kemacahaya, is a stretch of road reserve.
[6] In order to prevent erosion and landslide flowing from the plaintiffs Land and in connection with the 1st defendants Project, the 1st defendant put forward a proposal to the MPKJ to construct a retaining wall along the road reserve located below and adjacent to the plaintiffs Land. The retaining wall was to be sited several metres away from the boundary of the plaintiffs land.
[7] Approvals for constructing a reinforced concrete retaining wall and associated earthworks were subsequently obtained from the MPKJ on 20 January 2014. In granting the approvals and attached to MPKJs letter of 20 January 2014 to the plaintiffs consultants were various terms and conditions imposed by MPKJ.
[8] Before commencement of works, the 1st defendant approached the plaintiff with a proposal to "cut the slope" at the border of the plaintiffs Land. By doing this, the 1st defendant had hoped to avoid building the proposed retaining wall and at the same time possibly conferring a benefit on the plaintiff by creating accessibility to the plaintiffs Land.
[9] This proposal was evidenced by two emails dated 21 February 2014 and 10 March 2014 respectively, sent by the 1st defendant to the plaintiff. The proposal, however, drew no response from the plaintiff.
[10] For the purposes of constructing the retaining wall, the 1st defendant appointed the 2nd defendant. The 2nd defendant was a contractor. The 2nd defendant was issued a letter of appointment by the 1st defendant dated 10 September 2014.
[11] It was common ground that the retaining wall was eventually constructed by the 2nd defendant. It was constructed along the road reserve and the retaining wall itself was located several metres away from the boundary of the plaintiffs land.
[12] The 2nd defendant, although served, did not enter an appearance to this action and did not participate in the trial.
Discovery Of The Trespass
[13] On 20 October 2014, PW10 who was a director and main shareholder of the plaintiff, together with his driver (PW1), observed an earthmover/bulldo
