Since 17 December 2021, 45 lives have been lost. 40,000 people displaced. Over 50,000 cars damaged, not to mention the many buildings destroyed. Losses have been estimated at over RM20 billion. The numbers are painfully staggering.
Much has been said about official relief efforts. The frustration is palpable. However, as the scale of the damage sinks in, anger is mounting as to who ought to bear responsibility for the colossal losses.
Mother nature took the first blow – some have argued that the torrential rains that followed the monsoon cycle is to be blamed for the natural watercourses overflowing its capacity into surrounding developed areas. An “Act of God” they say. But one cannot sue God, can we?
Yet, others have pointed their fingers at the authorities for allowing the conversion of flood mitigation locations into townships. Or for not being aware of a missing pump at a water gate that impeded water clearing.
Developers have not been sparred too – there are reports that the Taman Muda Residents’ Association had repeatedly warned the authorities about the unbridled development that was taking place all around them, and the poor flood mitigation steps taken by these developers.
The question then is this – do the flood victims have a remedy in law against person(s) who can be shown to be responsible for the floods?
For a long time, the law saw flooding by rainfall as a naturally occurring event, and as such no one could be held liable for it. However, more recently the Courts have begun imposing liability where the use of land had resulted in the flooding damage, even if there was an unusual rainfall.
Flooding claims are usually brought under a class of tort law, known as Nuisance. Two English cases come to mind, namely Leakey & Ors v The National Trust (1980) and John Green v Lord Somerleyton (2003). These and other succeeding cases, read together, set out the legal considerations that go into deciding whether a defendant (whether an individual, developer or public authority), sued for being responsible for a flooding damage to occur on another person’s (claimant) land, has a legal duty of care to take steps to abate or minimise damage to the claimant: –
- Whether it was reasonably foreseeable that a hazard occurring on the defendant’s land may cause damage to the claimant;
- The extent of any damage that is foreseeable;
- Whether it was practicable for the defendant to take steps to abate or minimise the damage to the claimant; and if practicable, the extent and costs of those steps;
- The financial capacity of the parties.
Where it is held that the defendant could have taken reasonable steps to prevent damage by flooding (for example, building a retention pond / better drainage or maintaining water pumps) and the defendant failed to take those steps, the defendant could be held liable for losses suffered, including damage to property and loss of life.
However, these are not easy claims to prove in court, particularly where the defendant is a public authority. Extensive groundwork will have to be done to identify the causes of the flood, the parties responsible and the gathering of evidence.
Even so, if nothing is done, one does not have to be a clairvoyant to predict that another epic flood is probably just a monsoon away.
About the Author
Xavier, a Founding Partner of XK Law graduated with Honours from the University of London, United Kingdom. He is passionate about the law and finds pleasure in recognizing the application of law in everyday situations.
