31 July 2025

LAW OF TORT
Negligence – Nuisance – Breach of Statutory Duty – Duty of Care

Ahmad Rubil & Ors v Minda Muhibah Sdn Bhd & Anor
Civil Appeals No: W-02-(NCvC) (W)-1172-07/2023) | Court of Appeal
– see the grounds of judgment here

Facts The Plaintiffs, residents and owners of houses in Taman Muda Gombak 2, brought an action against the Defendants, a developer and its contractor, alleging that the Defendants’ development works on an adjacent land (Lot 17782) had caused structural damage and flooding to their homes. Prior to the works, the Plaintiffs claimed a swampy detention pond and a natural waterway existed behind their houses, collecting surface runoff from the elevated MRR2 highway. In 2018, the Defendants commenced earthworks and constructed a reinforced concrete (RC) wall near the Plaintiffs’ boundary, which allegedly blocked the natural water flow. The Plaintiffs asserted that subsequent flooding incidents and land subsidence caused significant damage to their properties. The Defendants denied liability, arguing that proper approvals were obtained and that water flow from MRR2 was beyond their control due to separate upgrading works by other parties. The High Court dismissed the Plaintiffs’ claim, holding that the Plaintiffs failed to provide compelling evidence linking the Defendants’ works to the damage, and that the cause of flooding was speculative. Hence, this appeal.

Issues 1. Whether the High Court erred in finding that the plaintiffs failed to establish liability on the part of the defendants for negligence, nuisance, and breach of statutory duty in relation to the damage and flooding suffered.

Held In delivering the unanimous decision of the Court of Appeal, YA Datuk Azhahari Kamal bin Ramli dismissed the appeal and held that that the trial judge was not plainly wrong in her factual findings and had thoroughly assessed the evidence, including expert testimony and contemporaneous documents. The Court of Appeal found that the Plaintiffs failed to prove, on a balance of probabilities, that the Defendants’ earthworks and RC wall caused the flooding or structural damage. The evidence pointed to multiple contributing factors, including surface runoff from MRR2 due to third-party upgrading works, for which the Defendants were not responsible. The Appellate Court also noted that there was no substantial interference with the Plaintiffs’ land use to establish nuisance, and the pleaded case did not support reliance on piling works as a cause. As such, the appeal was dismissed with no order as to costs.

Zul Rafique & Partners
{31 July 2025}

Please email your details to look@zulrafique.com.my if you would like to subscribe to our Knowledge Centre.

Let’s Connect!
➭ LINKEDIN: Zul Rafique & Partners
➭ INSTAGRAM: @zrplaw