1. Claim by co-owners of agricultural orchard land in negligence against a highway developer for damage caused by water overflowing and ponding from the adjacent highway. (Para 1 , 2 , 3 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 )
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2026 MarsdenLR 2144
HIGH COURT MALAYA JOHOR BAHRU
NORADURA HAMZAH, JC
MOKHTAR ABDUL WAHAB & ORS – Appellant
Versus
COUNTRY GARDEN PACIFICVIEW SDN BHD – Respondent
[Civil Suit No: JA-23NCvC-5-05/2021]
Petitioner Advocates:Amirul Fairuzzeen Jamaluddin ,Respondent Advocate: Yap Yeow Han,Saw Li Lian
In negligence claims, the plaintiff must strictly prove the duty of care, breach, and causation. Failure to produce the primary document defining the standard of care (e.g., an approved plan) or providing expert evidence to prove a causal link is fatal to the claim.
Headnote:(A) Law of Negligence - Duty of Care and Breach - Claim for damages to agricultural land due to water overflow from a highway - Plaintiffs alleged failure to construct drainage according to approved plans - In the absence of the approved plan being produced in evidence, the court cannot determine the requirements of the plan, whether specific drains were missing, or who the responsible party was for their construction - Burden of proof lies on the plaintiffs to establish duty, breach, and causation on a balance of probabilities (Para 24, 27, 28).
(B) Causation - Link between breach and damage - To succeed in negligence, the plaintiff must establish that the breach was the effective cause of the damage complained of - Failure to prove any link in the chain of causation is fatal to the claim - Mere possibility of a cause does not constitute proof on the balance of probabilities (Para 24, 34).
(C) Evidence - Special Damages - Special damages must be specifically pleaded and strictly proved; mere particulars are insufficient (Para 25).
(D) Pleadings - Parties are bound by their pleadings; a court will not decide a case on an issue not pleaded, such as a claim for trespass when only negligence was pleaded (Para 25, 39).
Facts of the case:
The plaintiffs, co-owners of agricultural land, claimed damages against a developer for the death of numerous fruit trees and land degradation. They alleged that a highway built by the defendant adjacent to their land lacked a proper drainage system, causing rainwater to overflow and pond on their property. The defendant denied liability, asserting that the land was naturally low-lying and that the highway was properly designed and built by independent contractors.
Findings of Court:
The plaintiffs failed to establish that the defendant owed the pleaded duty of care or breached it, primarily because the approved drainage plan was not produced. Furthermore, the plaintiffs failed to prove the causal link between the highway and the ponding, and failed to provide expert agronomic evidence to prove that ponding caused the death of the trees.
Issues: Whether the defendant owed a duty of care and breached it; whether such breach caused water to overflow and pond on the property; whether said ponding caused the death of crops and damage to land; and whether the plaintiffs are entitled to the claimed damages.
Ratio Decidendi: The claim failed because the plaintiffs did not produce the primary document (approved plan) necessary to establish the standard of care and breach. Additionally, the evidence on causation was insufficient as it relied on lay testimony and a civil engineer's report that lacked hydrological and agronomic expertise, failing to displace the possibility of natural causes for the land's condition.
Result: Plaintiffs' claim dismissed with costs.
Legal Category Hierarchy
- tort
- practice and procedure
Table of Contents
2. Plaintiffs contended the defendant owed a duty to provide proper highway drainage and breached it, causing flood damage; the defendant denied ownership, duty, breach, causation, and loss. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 )
3. Claim dismissed with costs; plaintiffs failed to discharge the burden of proving duty, breach, causation, and loss. (Para 40 , 41 )
4. What must be proved to establish duty of care and breach in a highway drainage negligence claim?
To establish duty and breach, the claimant must prove the requirements of the approved drainage plan and that the defendant was responsible for constructing them; without the plan, and where the highway was acquired and built by independent parties, liability is not established. (Para 27 , 28 , 29 , 30 , 31 , 32 )
5. How is causation proved in a negligence claim for flood damage to land and crops?
To prove causation, the claimant must show on the balance of probabilities that overflow from the highway caused ponding and that ponding caused the damage; uncorroborated lay evidence, expert evidence without hydrological or rainfall data, inconsistent tree counts, and mere possibility are insufficient. (Para 33 , 34 , 35 , 36 )
6. Who bears the burden of proof in a negligence claim, and what is the consequence of failing to prove any element?
The plaintiff bears the legal burden on the balance of probabilities for every element of negligence; a failure to prove any link in the chain is fatal to the claim. (Para 24 , 26 )
7. What requirements apply to pleading and proving special and exemplary damages?
Special damages must be specifically pleaded and strictly proved; merely setting out particulars is insufficient. Exemplary damages are confined to recognised categories, and damages cannot duplicate or pre-date the alleged loss. (Para 25 , 37 , 38 )
8. Can a party rely on a cause of action or defence that was not pleaded?
No; parties are bound by their pleadings. An unpleaded cause of action such as trespass cannot be advanced, and an unpleaded defence need not be determined. (Para 39 )
JUDGMENT
Introduction
[1] This is the plaintiffs' claim against the defendant for damage said to have been caused to their agricultural land, Lot 683, by water overflowing and ponding from a highway built by the defendant adjacent to the land. The plaintiffs plead negligence and seek general, special, aggravated and exemplary damages.
Background Facts
[2] The three plaintiffs are brothers and the registered co-owners, in equal shares, of the property held under (originally) Geran Mukim 851, Lot 683, Mukim Tanjung Kupang, Daerah Johor Bahru, Johor ('Lot 683'). It is Malay reserve land in the category of agricultural use, on which a durian and duku orchard stood. Following the acquisition of part of Lot 683 for the access highway, the registered area was reduced from 1.2368 hectares to 1.1287 hectares and a replacement title (H.S.(M) 1823, PTD 7845) was issued.
[3] The defendant, Country Garden Pacificview Sdn Bhd, is the owner and developer of the Forest City development. It is not in dispute that the defendant is the developer of Forest City and that on 13 January 2021 the plaintiffs sent the defendant a notice of demand.
The Plaintiffs' Case
[4] The plaintiffs' case is, in summary, as follows. The defendant was the party responsible for initiating and completing the highway built adjacent to Lot 683 and as such, owed the plaintiffs a duty of care to avoid causing damage to their property.
[5] The defendant is said to have breached that duty by failing to construct the drainage system in accordance with the approved plan, in particular by failing to build the specified drains, by building drainage for only about 150 metres, by not channelling it to any drain or river and by not maintaining it.
[6] As a result, in or about October 2020 the first plaintiff observed excessive overflow of water from the highway onto Lot 683, which caused ponding. The land became clogged and swampy, 40 durian trees and 98 duku trees are said to have died and the soil's structure, stability and fertility are said to have been damaged.
[7] The plaintiffs claim general damages and special damages of RM3,939,420.00 made up of:
(a) RM1,846,660.00 for the dead trees;
(b) RM851,000.00 for depreciation in the value of the land;
(c) RM147,600.00 for loss of yield;
(d) RM1,084,160.00 for reinstatement works; and
(e) RM10,000.00 for the costs of engaging property consultants and consulting engineers, including site-visit expenses, together with aggravated and exemplary damages, interest and costs.
The Defendant's Case
[8] The defendant denies liability. First, it is not the owner of the highway or of the land on which the highway sits. That land was acquired by the Land Administrator under the Land Acquisition Act 1960 and the design and construction of the highway were carried out by independent consultants and contractors. The highway was, it says, properly designed and built.
[9] Secondly, the damage alleged was not and could not have been, caused by the defendant. Lot 683 is naturally low-lying and flat, subject to surface runoff before the highway was built and without any proper agricultural drainage of its own, the swampy condition is the result of natural causes, including rainfall and the geography of the land, rather than the highway. The defendant emphasises that the ponding is confined to part of the orchard, away from the highway and separated from it by a laterite road.
[10] Thirdly, the defendant says the plaintiffs have not proved their loss, that the depreciation and reinstatement heads are a double claim and that the yield-loss head, computed from 2016, pre-dates the alleged damage of October 2020.
Issues To Be Tried
[11] The parties agreed the following issues to be tried:
(a) whether the defendant owed the plaintiffs a duty of care as pleaded;
(b) whether the defendant breached that duty;
(c) whether any such breach caused rainwater to overflow from the highway onto the property and if so when;
(d) whether that overflow caused ponding on the pro
