JUDGMENT

Hazizah Kassim JC:

A. Introduction

[1] The plaintiff in the present suit is suing the defendant for negligence in building the retaining wall in 2005 with an inadequate factor of safety (FoS), which allegedly caused it to collapse in 2018.

Parties

[2] The plaintiff owns a piece of land registered under HS(D) 77860 PT 91972, Mukim Klang, District of Klang, State of Selangor, together with a 2½ storey bungalow at No 1, Jalan Anggerik Vanda 31/168, Seksyen 31, Kota Kemuning Hills, 40460 Shah Alam (the property).

[3] The defendant is the developer of a housing development known as the Kota Kemuning Hills. The property is one of the houses developed by the defendant in Kota Kemuning Hills.

[4] The property is situated on a sloping terrain directly adjacent to a pond within the Kota Permai Golf and Country Club. The back portion of the property is supported by a boundary retaining wall (the "Retaining Wall").

[5] On 30 December 2009, the plaintiff purchased the property from Mohd Effendi bin Norwawi, who had previously acquired it from the defendant.

[6] From October 2010 to July 2011, the plaintiff carried out renovation works on the property. A swimming pool was constructed, along with a koi pond and a BBQ area, which had tiled flooring laid. The plaintiff and her family moved into the property around May 2012.

[7] The plaintiff also pleaded that over the years, she and her family frequently used the swimming pool and regularly hosted dinners and parties with friends and family.

[8] First and foremost, this court wishes to express its gratitude to the learned counsel for the plaintiff, Mr Jason, and the learned counsel for the defendant, Mr Chan, for their comprehensive submissions before this court.

[9] This court also wishes to thank the experts appointed by both parties who attended the trial and participated in the hot tubbing session to help me resolve the technical issues related to this claim.

[10] The trial was conducted over a period of 2 days on 19 May 2025 and 4 June 2025.

[11] Six witnesses have been called during the trial, including two experts from each party.

List Of Agreed Opinions (Bundle L)

[12] Following the hot tubbing session, the four experts signed the List of Agreed Opinions, which has been filed before this court and marked as Bundle L. I accepted the evidence from Mr Cheah Siew Wai and Dr Wong Fook Keong, as well as the witnesses for the defendant, Dr Toh Cheng Teik and Chen Chean Sin, as experts pursuant to s 45(1) of the Evidence Act, since they are independent and skilled in the area in which they provided evidence.

[13] All four experts agree that the retaining wall collapsed due to a rise in the groundwater level behind it.

[14] Therefore, the critical question to be determined is where the groundwater came from.

B. Issues To Be Decided

[15] List of issues to be decided as agreed by parties is as follows:

a) Whether the defendant owes a duty of care to the plaintiff as pleaded in para 26 of the Statement of Claim dated 16 November 2021 (the "SOC").

b) If issue 1 above is answered in the positive, whether the defendant had breached its duty of care owed to the plaintiff as pleaded in para 27 of the SOC.

c) Whether the act of the plaintiff in installing the swimming pool and koi fish pond amounts to a novus actus interveniens which is tantamount to a break in the chain of causation.

d) If issues 1 through 3 above are answered in the positive, whether the defendant is liable to pay the plaintiff general damages and/or the special damages pleaded in para 28 of the SOC.

e) Whether the plaintiff's claim is barred by limitation as pleaded in para 39 of the Defence dated 5 January 2022.

C. Legal Principles Negligence

[16] In Ahmad Rubil Ahmad & Ors v. Minda Muhibah Sdn Bhd & Anor; Terminal Bersepadu Gombak Sdn Bhd & Ors (Third Party); [2024] 8 MLJ 869; [2024] 2 CLJ 73 the court held that:

The tort of negligence requires proof of specific elements before it is established, despite carelessness on the part of the defendant and