Wan Suleiman SCJ

The appellant who was defendant in the High Court is a company incorporated in Malaysia under the Companies Act 1965 with registered office at No. 76, Jalan Lemon, Seremban, Negeri Sembilan and the respondent plaintiff (plaintiff in the court below) is a medical practitioner who carries on his practice at No. 26, Jalan Tuan Sheikh, Seremban. Both appellant and the respondent are the registered owners of adjoining landed properties in the township of Seremban. As a result of development works carried out on the appellant's land, the respondent on December 26, 1980 took out a writ against them claiming inter alia, damages and also prayed for an injunction. The appellant delivered a defence denying liability. The learned trial judge found the appellant liable for actionable nuisance and gave judgment in favour of the respondent.

It is common ground that the case against appellant is summed up in paragraph 8 of the Statement of Claim filed by the respondent/plaintiff which reads as follows:

"The indiscriminate excavation and removal of earth, stone and clay from the defendants' property without ensuring sufficient support for the adjoining properties and without taking sufficient precautions and providing adequate support or otherwise has caused the surrounding areas to be lowered thereby causing the said premises (of the plaintiff) to sink and its walls to move from its original position and the premises has been damaged."

Learned counsel for the appellant/defendant contends that the main issue here is a question of negligence, drawing our attention to paragraph 8 of the statement of claim set out above.

In his written submission submitted to the learned trial judge (pages 105/106 of Part I of the Appeal Record) he complained in these terms:—

"The pleadings in paragraph 8 of the Statement of Claim need a lot of examination and despite that it is difficult to see what is the actual cause of action that the plaintiff is relying on. It appears that there are two issues here namely

i) that the defendant did not protect the plaintiff's right of support; and

ii) that the defendant was allegedly negligent.

Before us he referred to the reply to this by the respondent/plaintiff (at page 122 of the same volume of the Record). There learned counsel for the respondent conceded that the cause of action is founded on the natural right of support.

Looking at the Grounds of Judgment of the learned trial judge it is clear that he regarded the claim to be one of nuisance i.e. physical damage to adjoining land.

Perhaps it will be more useful to set out in extenso that part of his judgment (pages 180 to 182):

"The damage to the plaintiff's land in this case, I find, is the subsidence of such land due to defendants' constructional or piling or excavation operations. It is settled that an owner of land has a right to the support of his land in its natural state by and from the adjacent land as distinct from a right of support for buildings about which no such right exists in common law. The damage complained of is to the building in regard to those extensive cracks and the tilting wall in question, it is damage for which the defendants would have to accept responsibility, because the damage to the building was caused by the subsidence of land, due to defendants' actions on their land even though there is no natural right of support for buildings in common law. It was not due to weight of the plaintiff's building with such weight causing such subsidence. In this connection, I specifically reject the suggestion of DW 1 that subsidence was caused because the space between the bottom of the ground floor of the plaintiff's building and its foundation was merely filled with earth. Having regard to the time those cracks appeared and the time the defendants started their operations, subsidence could not have been caused by the weight of the plaintiff's building as DW 1's evidence seemed to suggest (Please see Brown v Robins (1859) 157 ER 809)