Following the tragic incident in Jalan Sultan Ismail in Kuala Lumpur where a man lost his life and others injured due to a fallen tree during a storm, many have labelled it as an ‘Act of God’.
But is it truly so?
The Kuala Lumpur City Council (DBKL) was quick to point out that the landowner was responsible for maintaining the tree because it was located on private land.
In Tort law[1] language, the landowner has a duty of care[2] to ensure that the tree on his land will not cause harm to any person. This duty may extend to conducting regular pruning and inspections into the tree’s condition. A failure to perform this duty, may lead to liability for any damage or injury caused by such negligence.
But is this just a straightforward case of landowner’s negligence, or does DBKL have a share of the blame? While it is not wrong for DBKL to claim that maintenance of the fallen tree came under the landowner’s responsibility, DBKL may have some trouble absolving itself of all liability.
Under the Local Government Act 1976 (“the Act”), DBKL is imposed with a statutory duty[3] to maintain trees – yes, including trees on private land!
In particular, section 101(cc)(i) of the Act imposes a duty on DBKL to remove or trim any tree that is likely to cause danger to public safety, regardless that the tree is located on private land.
In the case of Ahmad Jaafar Abdul Latiff (“Plaintiff”) v. Dato’ Bandar Kuala Lumpur (“Defendant”) [2014] 9 CLJ 861, the Plaintiff was seriously injured when a tree along Jalan Duta Kuala Lumpur collapsed on his car. Similarly, the tree was located on private land. The Plaintiff brought an action against the Defendant for negligence and breach of statutory duties. As much as the Defendant argued that the fallen tree was not their business due to its location, the Federal Court held the Defendant liable.
In another case of Pengurus Kawasan, Selia Selenggara Selatan Sdn Bhd & Anor v Iqmal Izzuddeen bin Mohd Rosthy & Ors and another appeal [2023] 11 MLJ 182, the fallen tree was in poor condition. The High Court held that had the Public Works Department (JKR) carried out proper monitoring and maintenance of the tree, the victim would not have suffered his injuries. The damage was foreseeable and JKR was liable for it.
The Minister in the Prime Minister’s Department (Federal Territories), Dr Zaliha Mustafa is reported to have said the fallen tree was monitored by Menara IMC, and inspection was done every two years by arborists registered with DBKL.[4] But was this sufficient to discharge DBKL (or even the landowner) from the duty of care/statutory duty it owed to the public, especially in light of her further statement that “…the frequency of inspections needs to be increased, especially given the unpredictable weather conditions[5]”?
Would the fallen tree have gone unnoticed if regular inspection and patrols were carried out by DBKL? Were there prior signs that the tree was about to collapse but ignored? Did DBKL exercise the powers it had under the Act to take preventive actions?
If the victims of this tragedy took out court action, it is certain that DBKL and the landowners would have some serious explaining to do in court.
Not God.
[1] Tort law is a branch of law which concerns civil wrongs that cause harm to individuals or their property, holding wrongdoers legally liable for their actions.
[2] A duty of care is a legal obligation for a person to act with a standard of reasonable care to not cause harm to others.
[3] Section 101(b) and (cc) of the Local Government Act 1976.
[4]https://www.nst.com.my/news/nation/2024/05/1047582/uprooted-50-year-old-tree-inspected-arborists-every-two-years-says-dr
[5] https://thesun.my/local_news/authorities-property-owners-responsible-for-roadside-trees-ME12432790
About the Author
Lee Jia Vin is a Legal Associate at XK Law, bringing a wealth of experience across a diverse spectrum of legal matters. Her expertise spans corporate disputes, industrial relations litigation, adjudication claims, and criminal cases. Jia Vin is committed to maintaining a balanced lifestyle, engaging in activities such as yoga, hiking, swimming, and playing ultimate frisbee to support her well-being.
