Local authorities have a statutory duty to maintain trees on private land that pose a danger to public safety, allowing them to act on private property to prevent harm.

Introduction

[1] There are two monsoon seasons in Malaysia. The primary rains generally fall in October and November, while the secondary maximum generally falls from April to May.

[2] This year, the tropical rains started heavily in early September. It has resulted in many trees and branches falling, particularly in Kuala Lumpur, unable to withstand the forces of nature.

[3] When a tree falls on a person, it is invariably fatal. It, therefore, behoves Dewan Bandaraya Kuala Lumpur and all the local authorities to have a proper plan in place to cut and prune trees that fall within their jurisdiction.

[4] In the suit before me, the two issues are:

i. Does the Datuk Bandar Kuala Lumpur/The Mayor of Kuala Lumpur owe a duty of care and statutory duty under the Local Government Act 1976 to members of the public to maintain trees that are on private land but with branches protruding out to a public road or street?

ii. Does the Datuk Bandar Kuala Lumpur/The Mayor of Kuala Lumpur owe a duty of care and statutory duty under the Local Government Act 1976 to members of the public to maintain trees that are wholly on private land but to which the public have a right of way?

Background Facts

[5] The deceased, one Yulma binti Abdul Gafar, was operating a ikan bakar restaurant known as lkan 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 Sdn Bhd.

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

[7] The deceased's family sued the Datuk Bandar Kuala Lumpur/The Mayor of Kuala Lumpur for negligence and breach of statutory duty under the Local Government Act 1976. They claim general damages of RM1,518,060.00, aggravated and exemplary damages, and costs.

[8] The Datuk Bandar Kuala Lumpur/The Mayor of Kuala Lumpur filed a striking out application under O 18 r 19 of the Rules of Court 2012. The defendant contends no duty of care is owed as the tree is on private land.

[9] I had dismissed the striking out application on 25 August 2023. These are my grounds of decision.

Analysis Of Court

Issue 1 - Does The Datuk Bandar Kuala Lumpur/The Mayor Of Kuala Lumpur Owe A Duty Of Care And Statutory Duty Under The Local Government Act 1976 To Members Of The Public To Maintain Trees That Are On Private Land But With Branches Protruding Out To A Public Road Or Street?

[10] In my view, the Datuk Bandar Kuala Lumpur/The Mayor of Kuala Lumpur owes a common law duty of care and statutory duty under the Local Government Act 1976 to members of the public to maintain trees that are on private land but with branches protruding out to a public road or street.

[See Ahmad Jaafar Abdul Latiff v. Dato' Bandar Kuala Lumpur 2014 MarsdenLR 1786; ; [2015] 1 AMR 521]

[11] Raus Sharif PCA in Ahmad Jaafar Abdul Latiff v. Dato' Bandar Kuala Lumpur 2014 MarsdenLR 1786 ; ; [2015] 1 AMR 521 said, in clear and affirmative terms:

[21] It is clear from the report prepared by the defendant that the fallen tree was actually from two pieces of private land which the defendant had no control over. Thus, the defendant's stance was that any mishap to the road users caused by the trees located on private land was not within their jurisdiction. With respect, I disagree. In my considered view, it does not matter that the tree was on a private land, as under the Act, the defendant can require the owner or occupier of any premises to remove or trim the tree. The Act also does not prohibit the defendant from entering any private land to cut or trim trees t