Ahmad Jaafar Latif v Dato’ Bandar Kuala Lumpur [2014] MLJU 1913

Case Review: Ahmad Jaafar Latif v Dato’ Bandar Kuala Lumpur [2014] MLJU 1913

Court: Federal Court (Putrajaya)

Topic: Duty of Local Authority under Section 101 of Act 171

Facts 1.     On 2nd October 2000, the Appellant was driving his car along Jalan Duta, Kuala Lumpur on the left side of the road.  He was about 150 meters away from the junction to Damansara Heights where his office was located.

2.     Suddenly a tree (‘the tree’) fell on his car in which the Appellant was severely injured and his car was damaged as well.  The tree that fell on the Appellant’s car was on a private land.

3.     Due to injuries he sustained and the damage to his car, the Appellant commenced a civil action against DBKL (“the Respondent”) for breach of duty and negligence.

4.     It was argued by the Appellant that the Respondent had breached its statutory duty under Section 101 of the Local Government Act 1976 (“Act 171”).

5.     The Appellant asserted that the Respondent was responsible under the Act to oversee all trees in the city regardless where they were located and ensure all trees were properly trimmed or removed once they posed danger to the public, thus the Respondent would be liable if they failed to carry out the duty and if such danger resulted in an accident.

6.     In response to the claim, the Respondent argued that the Appellant failed to establish the precise location of the tree that injured and caused damage to him where the Appellant could not allege that the tree had posed a danger to the public.

7.     The learned trial judge held that the duty of the Respondent extended to trees on private land and he did not consider the location of the trees as crucial.

8.     As such the Respondent was found liable and had also breached its statutory duties imposed by Section 101 of the Act 171 on the ground that the tree was a danger to the public which the tree was 25 meters tall without leaves and that the same tree was on a slope.

9.     The Respondent then appealed to the Court of Appeal and it was held by the Court of Appeal that the learned trial judge has erred in his finding and that the Appellant failed to produce any evidence as to the exact location of the tree.

10.  The Appellant was dissatisfied with the decision of the Court of Appeal reversing the decision of the High Court, hence this appeal.

Issue 1.     Whether the powers conferred under Section 101(b) and (cc) of the Act 171 confer a duty of care on the local authority?
Ratios 1.     In deciding the issue, it is pertinent that the provision of Section 101 of Act 171 to be highlighted as follows:

“In addition to any other powers conferred upon it by this Act or by any other written law a local authority shall have power to do all or any of the following things, namely-

(b) to plant, trim or remove trees;

(cc) to require the owner or occupier of any premises to do any of the following acts

(i)     to remove, lower or trim to the satisfaction of the local authority any tree, shrub or hedge overhanging or interfering in any way with the traffic on any road or street or with any wires or works of the local authority or which in the opinion of the local authority is likely to endanger the public safety or convenience and in the event of any tree situated in private premises falling across any public road or street the local authority may remove the fallen tree and the expenses incurred shall be charged on and recoverable from the owner or occupier thereof.”     [Emphasis added]

2.     The Federal Court concurred that Section 101 (b) of the Act 171 is a direct duty for a local authority to plant, trim or remove trees while Section 101 (cc) of the Act 171 authorizes a local authority to request an owner or occupier of premises to remove, lower or trim any tree, shrub or hedge interfering with the traffic, any road or street which in the opinion of the local authority is likely to endanger the public safety.

3.     It is the view of the Federal Court that it is the duties for a local authority to perform, whether or not it is a direct duty or duty to request another party to perform certain tasks.

4.     In this case, the Federal Court believed that the duties imposed upon a local authority under Section 101 (b) and (cc) of the Act 171 are not absolute but rather relative depending on any given factual situation.

5.     The Federal Court found that the Act does not contain any provisions that imposes a higher obligation upon a local authority or in the nature of strict liability.  It is only to that extent the duty of care is imposed upon a local authority by virtue of Section 101(b) and (cc) of Act 171.

6.     As far as this present case is concerned, it was alleged by the Appellant that the Respondent was negligent in failing to act and ensure the public roads kept safe from danger and such negligence included failing to take positive steps towards discharge of the Respondent’s duty.

7.     Referring to Section 101 of Evidence Act 1960 and the landmark case of Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389, the Federal Court has carefully examined the factual situation and decided that the burden to prove the Respondent’s negligence fall upon the Appellant to establish it on the balance of probability.

8.     It has also been cited by the Federal Court in the case of Ma Clyde v Wong Ah Mei & Anor [1970] 2 MLJ 183, in which negligence is a question of fact and not of law, and that each case must depend on its own facts.

9.     In the present case, the Appellant relied heavily upon the doctrine of res ipsa loquitor to say that the Respondent was negligent.  However, the Courts below did not find the doctrine applicable and the Federal Court agreed with the findings of such Court.  As such, the burden remained with the Appellant to establish negligence and breach of statutory duty by the Respondent.

10.    Applying the principle of the case above, the Federal Court held that the fundamental basis of the maxim (res ipsa loquitor) is that it is for the Plaintiff to prove negligence and not for the Defendant to disprove it, may cause hardship to the Plaintiff if it is impossible for him to know what precise acts of omission led to his damage, and this is most obviously so where the cause of the damage is peculiarly within the means of knowledge of the Defendant who caused it.  This hardship can sometimes be avoided by the application of the maxim res ipsa loquitur’.

11.      By merely relying on the fact that a tree fell and so the Respondent must be held liable, the burden of proof would not be discharged upon the Appellant. Moreover, the doctrine of res ipsa loquitor did not apply in this case as found by the Court of Appeal which held that just because the tree in question was on a slope, without any leaves, it did not necessarily mean that the tree was dangerous to the public.

12.      The Federal Court held that the location of the tree is of primary importance since the Federal Court cannot make a finding of fact that the tree posed a danger to the public when there is insufficient evidence as to the precise location of the tree.

13.     The Appellant failed to prove his case on balance of probability because he failed to establish that the tree was a danger to public before the accident occurred.

Decision 1.     The powers conferred on the local authority such as the Respondent under Section 101(b) and (cc) of Act 171 is subject to the element of danger being present and proven based on the reading of the said sections.

2.     The appeal was dismissed.

Key Take Away 1.     Although Section 101(b) of Act 171 gives the Respondent the authority to plant, trim, or remove trees, it must be noted that Section 101(cc) of the Act 171 gives the Respondent the duty and authority to act only when there is danger to the public.

2.     According to the aforementioned Section 101(cc) of Act 171, the Respondent could not simply remove, or trim any tree if there was no element of risk and/or danger present.

3.    In a nutshell, before it could be determined that the Respondent had violated its duty of care to the Appellant, the Appellant must first establish that the element of danger was present and that the Respondent had failed to exercise the powers granted to it under Section 101(b) and (cc) of Act 171.

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