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WISMA PUNCA EMAS SDN BHD v DR DONAL R O’HOLOHAN

CaseAnalysis | [1987] 1 MLJ 393

WISMA PUNCA EMAS SDN BHD v DR DONAL R O' HOLOHAN

[1987] 1 MLJ 393

Copy Citation

Malayan Law Journal Reports · 5 pages

SC KUALA LUMPUR SUPREME COURT

WAN SULEIMAN, SEAH & WAN HAMZAH SC JJ
CIVIL APPEAL NO 109 OF 1985
6 March 1986, 18 October 1986

Case Summary

Torts — Nuisance — Cause of action founded on natural right of support —

Statement of claim based on negligence — Nuisance not specifically pleaded —
Defendants not prejudiced — Judgment given for actionable nuisance — Appeal
dismissed

Practice and Procedure — Pleadings — Whether parties bound by their pleadings

— Negligence — Nuisance — RHC 1980, 020 r 5

In this case the appellant and respondent were registered owners of adjoining landed properties in
Seremban. As a result of development works carried out on the appellant's land the respondent took out
a writ against them claiming inter alia, damages and also prayed for an injunction. The case against the
:
 appellant was summed up in the statement of claim 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

[1987] 1 MLJ 393 at 394

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."

The appellant delivered a defence denying liability. The learned trial judge found the appellant liable for
actionable nuisance and gave judgment for the respondent. The appellant appealed. On the appeal,
learned counsel for the appellant contended that the main issue in the case was a question of negligence.
It was submitted that the parties were bound by their pleadings and since nuisance was not specifically
pleaded, the appeal should be allowed.

Held: (Seah S.C.J. dissenting): in this case learned counsel for the respondent said that the cause of
action is founded on the natural right of support. That in the context of the present case is the same as
saying that the claim is based on nuisance. In any event it is clear that the appellant was not caught by
surprise and his defence was in answer to what was alleged in the statement of claim. There was no
conceivable prejudice to the appellants that the word "nuisance" had not been expressly set out in the
statement of claim.

Cases referred to

Janagi v Ong Boon Kiat [1971] 2 MLJ 196

Chartered Bank v Yong Chan [1974] 1 MLJ 157

Leakey & Ors v National Trust for Places of Historic Interest or Natural Beauty [1980] 2 WLR 65

Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218

Farrell v Secretary of State (1980) 1 All ER 166 173

Hadmor Productions v Hamilton [1983] 1 AC 191 233

Burns v Dixon's Iron Works Ltd [1961] SC 102 107

John G Stein Co Ltd v O'Hanlon [1965] AC 890 909

Waghorn v George Wimpey Co Ltd [1969] 1 WLR 1764

Kiaw Aik Hang Co Ltd v Tan Tien Choy [1964] MLJ 99

SUPREME COURT

KC Tee for the appellant.

T Thomas (Dato Lee Boon Peng with him) for the respondent.

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

[1987] 1 MLJ 393 at 395

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
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 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) recoverability of damages for injury to buildings in these
circumstances).

The defence of the defendants in this case appears to be that they have exercised all reasonable
care, caution and skill. Thus, defendants have adduced evidence of soil investigation, subsequent
sinking of piling sheets, placing wedge of earth on them etc. Examination and cross-examination of
witnesses and submission from both parties were invariably or almost exclusively directed to the
causes of the subsidence and the consequential settlement. Would this defence really absolve the
defendants from liability in nuisance, even if it is established?

In my view, negligence is not an essential element in action for nuisance of the kind concerned here.
A plaintiff does not have to prove any negligence to establish this kind of nuisance, all that is
necessary is proof of special damage, i.e. the subsidence, settlement and the damage to his building
being due to the actions of the defendants on the adjoining land. The defence as relied on, will be a
most relevant defence to an action for negligence, but the fact that the defendants have exercised all
reasonable care and caution is no defence to an action of the kind here."

For the appellant it was submitted that parties are bound by their pleadings, and since nuisance was not
specifically pleaded, the appeal should be allowed.

Two authorities cited by counsel needs special attention.

In Janagi v Ong Boon Kiat [1971] 2 MLJ 196 the plaintiff sued defendant for repayment of a sum of
money on a promissory note executed by the defendant. The plaintiff admitted that she was a licensed
moneylender. Defendant denied having borrowed any money from the plaintiff but admitted having taken
a loan from a man whose name he was unable to furnish. The learned Magistrate without taking any
evidence from the plaintiff or her witness, began to record a sworn statement from the defendant only in
answer to questions put by him. The plaintiff was not allowed to cross-examine the defendant. On the
evidence then recorded the learned Magistrate found that the defendant could not read, write or converse
in English, and the promissory note could not be used as a basis for plaintiff's claim which he therefore
dismissed. This order was made despite the fact that the defendant never raised any plea that the
plaintiff had not complied with any of the provisions of the Moneylenders Ordinance.

There Sharma J. rightly held that the trial of a suit should be confined to pleas on which parties are at
variance.

Next we were referred to the Chartered Bank v Yong Chan [1974] 1 MLJ 157. The facts there are as
follows: The respondent had drawn a cheque on the partnership account with the appellant bank. The
partnership had been dissolved and under the terms of dissolution the respondent was given authority to
wind-up the partnership business and he continued to operate the partnership account. Subsequently,
one of the former partners wrote to the bank asking the bank to stop withdrawals unless authorised by
all three partners. When notified of this letter, the respondent objected to it. Subsequently, the
respondent issued a cheque which was returned dishonoured with the answer "signature of all partners
required." More than two years later the respondent issued a writ and on the pleadings based his claim
on libel. The learned trial judge held that the action based on libel was statute-barred by virtue of the
Sabah Limitation Ordinance. He, however, awarded a sum of $1,000 by way of damages for breach of
contract.

There being nothing in the pleading to include a claim for breach of contract, the Federal Court held that
the trial judge had decided on an issue not raised in the pleading and accordingly set aside the judgment
and ordered a new trial.

The latter course of action was suggested by counsel for the appellant as the one we should take, i.e.
that the appeal should be allowed and a new trial ordered.
:
 Mr. T. Thomas for the respondent whilst conceding that the statement of claim was not ideal yet
maintained that the learned judge was nevertheless correct and cited as his authority Leakey & Ors v
National Trust for Places of Historic Interest or Natural Beauty [1980] 2 WLR 65

[1987] 1 MLJ 393 at 396

. There it was held per curiam that even though the action was properly brought in nuisance rather than
in negligence the distinction is of no practical significance.

He added that whilst paragraph 8 of the statement of claim earlier set out has resulted in submissions
which were largely directed towards negligence, in the court below, the facts of the case which showed
negligence would also show nuisance, and because of his contention that the principles in Leakey's case
are applicable here, I propose to deal with that decision at some length.

For the facts it will be sufficient for me to set out the headnote:

"The plaintiffs' two houses had been built to the west and at the foot of a large mound on the
defendants' land. Over a period of many years, soil and rubble had fallen from the bank of the mound
on to the plaintiffs' lands. The falls were due to natural weathering and the nature of the soil. From
1968 at the latest, the defendants knew that the instability of their land was a threat to the plaintiffs'
properties because of the real possibility of falls from it of soil and other material. After a very dry
summer followed by a wet autumn in 1976, a large crack opened in the mound above the house of
the first two plaintiffs. They draw the defendants' attention to the danger to their house from a major
fall of soil, but the defendants replied that, as it was a natural movement of land, they had no
responsibility for any damage caused. A few weeks later, a large quantity of earth and some tree
stumps fell from the bank on to the plaintiffs' land. The plaintiffs brought an action in nuisance
claiming orders for abatement of the nuisance and damages. In interlocutory proceedings, the
defendants were ordered to carry out the necessary work to abate the nuisance, the plaintiffs giving
undertakings as to damages. On the trial of the action, O'Connor J. held that the defendants were
liable to the plaintiffs in nuisance and awarded the plaintiff damages. The Court of Appeal dismissed
the appeal lodged by the defendants"

Then we were referred to a passage (at pages 74/75) in the judgment of Megaw L.J., in the Court of
Appeal which reads as follows:

"It is convenient at this stage to deal with the second proposition put forward by the defendants in
the present appeal. The plaintiffs' claim is expressed in the pleadings to be founded in nuisance.
There is no express reference to negligence in the statement of claim. But there is an allegation of a
breach of duty, and the duty asserted is, in effect, a duty to take reasonable care to prevent part of
the defendants' land from falling on to the plaintiffs' property. I should, for myself, regard that as
being properly described as a claim in nuisance. But even if that were, technically, wrong, I do not
think that the point could or should avail the defendants in this case. If it were to do so, it would be a
regrettable modern instance of the forms of action successfully clanking their spectral chains; for
there would be no conceivable prejudice to the defendants in this case that the word 'negligence' had
not been expressly sat out in the statement of claim. The suggestion that if it had been so pleaded
the defendants could have raised a defence of volenti non fit injuria, which they could not raise as
against a claim pleaded in nuisance, is, in my judgment, misconceived. As counsel for the plaintiffs
submitted, while it is no defence to a claim in nuisance that the plaintiff has 'come to the nuisance,' it
would have been properly pleadable defence to this statement of claim that the plaintiffs, knowing of
the danger to their property, by word or deed, had showed their willingness to accept that danger.
Moreover, I find it hard to imagine circumstances in which the facts which would provide a defence of
volenti non fit injuria would not also provide a defence in a case such as the present in the light of
the scope of the duty which falls to be considered hereafter."

There, as in the instant appeal, the difference between nuisance and negligence, it is submitted, is
:
 unimportant.

I agree with him, and whilst I would say that the authorities cited on behalf of the appellant were
correctly decided on their particular set of facts, it matters not whether in this particular appeal before us
nuisance was specifically pleaded or not.

As has been indicated earlier learned counsel for the respondent said that the cause of action is founded
on the natural right of support. That, in the context of the present case is the same as saying that the
claim is based on nuisance. In any event it is clear beyond per adventure that the appellant/defendant
was not caught by surprise and his defence was in answer to what was alleged in the statement of claim.
To paraphrase Leakey's case I can see no conceivable prejudice to the defendants in this case that the
word "nuisance" has not been expressly set out in the statement of claim.

I would therefore dismiss this appeal with costs here and below.

SEAH SCJ (DISSENTING):

The appellant (defendant at the High Court) are a company incorporated in Malaysia under the
Companies Act 1965 with registered office at No. 76, Jalan Lemon, Seremban, Negri Sembilan and the
respondent (plaintiff in the Court below) is a medical practitioner who carries on his practice at No 26,
Jalan Tuan Sheikh, Seremban. Both the appellant and the respondent are registered owners of adjoining
landed properties in the township of Seremban. As a result of development works being carried out on
the appellant's land the respondent on December 26, 1980 took out a writ against them claiming inter
alia, damages and injunction. The appellant delivered a defence denying liability After considered

[1987] 1 MLJ 393 at 397

dering the evidence and the written submissions the learned judge found the appellant guilty of
actionable nuisance and gave judgment in favour of the respondent together with damages in the sum of
$96,151.00 as well as cost. The appellants are dissatisfied with this decision and have appealed to this
court.

It was common ground that the case against the appellant was contained in paragraph 8 of the
statement of claim filed by the respondent which reads:

"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."

It is apparent from this paragraph and the form of pleading that the respondent sought to establish and
the case that the appellant had to meet was based on alleged negligent acts of the appellant and/or their
agents resulting in loss of support and damage. The learned judge found that negligence had not been
established by the respondent and since there was no alternative claim he ought to have dismissed the
action with costs to the appellant. Instead the learned judge proceeded to consider and held that the
appellant was guilty of actionable nuisance and gave judgment in favour of the respondent purporting to
rely on a claim which had not been raised by the pleadings. It would be an understatement to say that
both learned counsel for the appellant and the respondent were taken by surprise at this turn of event
which was totally unexpected.

I think this is an appropriate occasion on which to reiterate that the function of pleadings is to give fair
:
 notice of the case which, has to be met so that the opposing party may direct his evidence to the issue
disclosed by them. The defendant is entitled to conduct the case and confine his evidence in reliance
upon the further and better particulars contained in paragraph 8 of the statement of claim. The purpose
of such particulars is to define the issues and to indicate to the opposing party how much range of his
possible evidence will be relevant and how much irrelevant to those issues. Proper use of them shortens
the hearing and tends to reduce costs. But if any appellate court is to treat reliance upon them as
pedantry or mere formalism, I do not see what part they have to play in our trial system [Esso Petroleum
Co Ltd v Southport Corporation [1956] AC 218 particularly the judgment of Lord Radcliffe].

Despite Order 20 rule 5Rules of the High Court 1980 and the progress which I discern to have been made
following these changes by the High Court I would like to quote what Lord Edmund-Davies said in the
case of Farrell v Secretary of State (1980) 1 All ER 166 173:

"It has become fashionable in these days to attach decreasing importance to pleadings, and it is
beyond doubt that there have been times when an insistence on complete compliance with their
technicalities put justice at risk, and, indeed, may on occasion have led to its being defeated. But
pleadings continue to pay an essential part in civil actions, and although there has been since the
Civil Procedure Act 1833 a wide power to permit amendments, circumstances may arise when the
grant of permission would work injustice or, at least, necessitate an adjournment which may prove
particularly unfortunate in trials with a jury. To shrug off a criticism as 'a mere pleading point' is
therefore bad law and bad practice. For the primary purpose of pleadings remains, and it can still
prove of vital importance. That purpose is to define the issues and thereby to inform the parties in
advance of the case they have to meet and so enable them to take steps to deal with it."

Words to the same effect were also uttered by Lord Diplock in Hadmor Productions v Hamilton [1983] 1
AC 191 233:

"Under our adversary system of procedure, for a judge to disregard the rule by which counsel are
bound has the effect of depriving the parties to the action of the benefit of one of the most
fundamental rules of natural justice: the right of each to be informed of any point adverse to him that
is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it
is …."

To condemn a party on a ground of which no fair notice has been given may be as great a denial of
justice as to condemn him on a ground on which his evidence has been improperly excluded [see Lord
Normand's judgment in Esso case (supra) at page 239].

I would adopt the cautions expounded in these judgments in dealing with appeals when the trial court
decided on a material point of law which was neither pleaded, expressly or by necessary implication
unless the successful party could bring his case within the test formulated by Lord Justice-Clerk Thomson
in Burns v Dixon's Iron Works Ltd [1961] SC 102 107 viz:

"The court is often charitable to records and is slow to overturn verdicts on technical grounds. But
when a pursuer fails completely to substantiate the only grounds of fault averred, and seeks to justify
his verdict on a ground which is not just a variation, modification or development of what is averred
but is something which is new, separate and distinct, we are not in the realm of technicality."

[1987] 1 MLJ 393 at 398

This dictum was cited with approval by Lord Guest in the House of Lords in the case of John G Stein Co
Ltd v O'Hanlon [1965] AC 890 909 and by Geoffrey Lane J. (as he then was) in Waghorn v George
Wimpey Co Ltd [1969] 1 WLR 1764.

It seems to me that the test used by Lord Justice Clerk Thomson is an elaboration of the Second limb of
Order 18 rule 15(2)Rules of the High Court 1980 which reads:
:
 "… a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the
endorsement of the writ without amending the indorsement."

Learned counsel for the respondent had made no attempt to bring his case within this rule.

I am clearly of the opinion that action framed on nuisance ought to be distinctly and expressly pleaded in
the statement of claim in order to give to the defendant a fair notice to meet it. A fortiori, the pleadings
ought to specify whether or not negligence is to be relied upon to establish it. In my opinion, if the
respondent's case were put in the alternative in this manner, the proceedings would no doubt have been
developed on wholly different lines. The ambit of discovery would have been enlarged and it is idle to
speculate what would have happened if such a case had been made out.

Be that as it may, having regard to the issue raised in the pleadings and the state of the case law on
actionable nuisance, in my opinion, it was not open to the learned judge to give judgment in favour of
the respondent based on legal nuisance — a cause of action which was neither pleaded, expressly or by
necessary implication. Nor was it referred to in the written submissions by both learned counsel.

In such circumstances, the proper order would be to allow the appeal, set aside the judgment of the
learned judge and order a new trial before another judge to be founded on nuisance only after the
necessary amendments to the statement of claim and defence have been made [see Kiaw Aik Hang Co
Ltd v Tan Tien Choy [1964] MLJ 99 and The Chartered Bank v Yong Chan [1974] 1 MLJ 157 ]. In the
exercise of my discretion, I award costs to the appellant in this appeal only to be taxed and that there is
no order as to costs in the court below. The deposit to be refunded to the appellant.

WAN HAMZAH SCJ

I have had the opportunity of reading the judgments in draft of my learned brothers Tan Sri Dato Wan
Suleiman and Dato George K.S. Seah. With due respect I agree with Tan Sri Dato Wan Suleiman that the
appeal should be dismissed with costs. In my opinion averment of nuisance can be perceived from the
allegations of the facts contained in the Statement of Claim although the word "nuisance" is not stated.

Appeal dismissed.

Solicitors: Shearn Delamore & Co; Lee Boon Peng & Co.

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