Last week we saw a spate of incidents where heavy winds and rain felled trees in the center of KL city. Most notably, on May 7th, a big tree fell down on 17 vehicles along Jalan Sultan Ismail, just outside the Concorde Hotel, during an afternoon thunderstorm.
With one dead, several injured and damages in the hundreds of thousands, many people are now wondering: who is liable?
A common narrative that is being echoed across forums and social media right now is that the tree that fell was growing on private property, and that since trees on private property are the responsibility of the landowners, who have to maintain and look after it, said landowners should be liable for the damage to the public caused by a tree that on their property falling down. Even DBKL issued a statement saying that “the landowner was responsible for maintaining the tree”.
Before we go any further, we would like to categorically confirm that this is in fact UNTRUE.
Local authorities like DBKL still have a responsibility to look after and maintain trees on private property if there is a likelihood of said tree causing danger to the public.
The pivotal ruling that establishes such a duty is the Federal Court decision in Ahmad Jaafar Latif v Dato’ Bandar Kuala Lumpur [2014] MLJU 1913.
In this case, Mr Ahmad Jaafar was injured and paralyzed by a tree that fell on his car while he was in it. But DBKL chose not to take responsibility as the tree that fell on the his car was on private land.
The matter went to the High Court, where the trial judge found that Section 101 of the Local Government Act 1976 provided that DBKL as the local authority there is responsible for overseeing all trees in the city regardless of whether they stood in public of private land. DBKL would have to ensure that all trees were properly trimmed or cut down if they posed a danger to the public at large.
The Court of Appeal disagreed with the High Court judge, and so the matter went up to the Federal Court.
At the Federal Court, it was held that The Court held that the Local Government Act imposes a statutory duty to DBKL to remove any trees that is likely to cause danger to public safety. It did not matter that the tree was on private land as, under the Act, DBKL can require the owner or the occupier of any premises to remove or trim the tree; and DBKL can also enter any private land to cut or trim trees that pose a danger to the public. In short, the words of the Act clearly imposes a duty of care on DBKL to protect the public from falling trees, and there was a breach of that duty by DBKL. If a tree is seen bending over dangerously on the brink of collapse, DBKL cannot just sit idly by, and say “oh we cannot do anything, it is on private land”.
However, Mr Ahmad Jaafar failed in his appeal, as his lawyers failed to establish that the tree was a danger to public even before the accident occurred.
In other words, while Section 101(b) of Act 171 gives the DBKL or any local authority the power to trim of chop down trees regardless of whether it stood on private or public land, Section 101(cc) of the Act 171 states that the power to act only arises when the tree poses a danger to the public. If the danger is not obvious, or not present at the time, the local authority cannot be held responsible when it falls.
So back to our case of the storm on May 7th, was the danger obvious to DBKL? This remains to be seen. Minister in the Prime Minister’s Department (Federal Territories), Dr Zaliha Mustafa is reported saying that the fallen tree was under monitoring, and an inspection was done every two years by DBKL’s registered arborists.
When someone finally takes DBKL to court, a multitude of evidence will have to be scrutinized in order to determine whether the tree was posing a danger to the public or not. Without the element of danger, DBKL cannot be liable for the damage caused by that falling tree.