Abdul Aziz bin Awang @ Muhammad & ors v Tenaga Nasional Berhad [2016]

Information about Abdul Aziz bin Awang @ Muhammad & ors v Tenaga Nasional Berhad [2016]

Published on June 8, 2020

Author: AmaliaSulaiman2

Source: slideshare.net

Content

1. ABDUL AZIZ BIN AWANG @ Muhammad & ors v tenaga nasional bhd Presented by: CHONG XIAO XUAN IMAN ALISYA AMALIA SULAIMAN FATIHAH AROF ANIRA PETER @UKM LAW SCHOOL 2020

2. 1. FACTS OF THE CASE Let’s start! 2

3. FACTS OF THE CASE 3

4. 4

5. 5

6. 6

7. 2. ISSUESBrought to the court 8

8. ISSUE OF TORT LAW 1. Whether D’s action in conducting the 3 releases of water from the SABD was a correct decision which could not be avoided 2. Whether there was any negligent on D’s part in handling the releases of water from the SABD 4. Whether D had taken all the necessary measures to maintain the SABD and Cameron Highlands Hydroelectric Scheme to ensure the safety of the dam, the people and properties particularly at Bertam Valley 9 3. Whether the principle in Rylands v Fletcher and res ipsa loquitor were applicable

9. Hazardous Non-natural use of land 10 Foreseeability of damage Accumulation / intentional storage Escape & causes mischief

10. Vohra Sadikbhai Rajakbhai and others v State of Gujerat & Others [2016] who has brought something on his own property which has not been naturally there, harmless to others so long as it is confined to his own property, but which he knows to the mischievous if it gets on his neighbour's should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. Rylands v Fletcher (1868) that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so, prima facie answerable for all the damage which is the natural consequence of its escape. 11

11. Powell v Fall (1880) If a person uses a traction engine which emits sparks in spite of all precautions being taken to prevent their emission, he will be liable if another person’s hayrick be set on fire by the sparks, upon the ground that such an engine is a dangerous machine. Musgrove v Pandelis [1919] If a man brings on to his premise a dangerous thing which is liable to cause fire, such as a motor car with petrol in it, the carburettor of which is not unlikely to get on fire when the engine is started, and a fire results, though without any negligence on his part, he must be held liable 12

12. Doherty v Allen [1987] The occupier of land who brings and keeps upon it anything likely to do damage if it escapes is bound at his peril to prevent its escape, and is liable for all the direct consequences of its escape, even if he has been guilty of no negligence Abdul Rahman bin Che Ngah & Ors v Puteh bin Samat [1978] In the alternative, even if negligence was not proved, in my view the defendant was still liable under Rylands v Fletcher for the escape of the fire resulting from an unnatural user of the land. 13

13. × Accumulation water that was kept in the Sultan Abu Bakar Dam (SABD) for the purpose of Genting Highlands Hydroelectric Scheme. × Dangerous thing high pressure of the water flowing through the valves when not released according to inflow and outflow measurement × A non-natural use of land the dam was built for the main purpose of Genting Highlands Hydroelectric Scheme, which was not a natural use of land but was kept at the premise by and under the defendant’s peril. 14

14. × Escape failure by respondents to ensure the flow of water which caused flood × Foreseeability of damage experts operating a dam, not having the water inflow measurement gauge and not cleaning the sediment. Failed to maintain the SABD and water level of dam taking into account it was a monsoon season. Thereby they should have known that there is a foreseeability of damage to be caused 15

15. 16 Res ipsa loquitor the thing speaks for itself/ a person whom has exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence and without negligence the accident would not have happened

16. PLAINTIFF’S Plaintiff : Abdul Aziz bin Awang @ Muhammad & Ors v Tenaga Nasional Bhd 17

17. SUBMISSIONS: Negligent on the part of defendant 1. Failure of D to have the water inflow measurement instrument to measure the inflow of water to the SABD 2. Failure of D to monitor closely the water level at SABD 3. Failure of D to take necessary action to release water to JOR station which will reduce the water level at SABD 18

18. 1. D has failed to conduct dredging and clearing of sediments on a regular basis causing the INCREASE of water storage in the reservoir & AVOID CONTROLLED SPILLING which CAUSED THE FLOODS. MAINTENANCE OF SULTAN ABU BAKAR DAM (SABD) 2. D has failed to maintain & ensure that BIS does NOT GET CHOCKED, in which it CHOCKED resulting to 4 TURBINES NOT FUNCTIONING and CAUSED INCREMENT of SABD WATER LEVEL 19

19. Plaintiff also pleaded for the principle in ryland v fletcher & res ipsa loquitor to be applicable in this case.

20. DEFENDANT’S Defendant : Tenaga Nasional Bhd 21

21. SUBMISSIONS: THE 3 RELEASES OF WATER WAS A CORRECT & JUSTIFIED DECISION Reasoning: To avoid the spillway gates to automatically open which will cause massive floods to Bertam Valley and consequently will cause widespread destruction to properties and loss of lives. 22

22. All necessary safety measures and actions in maintaining the Sultan Abu Bakar Dam (SABD) and the Bertam Intake Screen (BIS) had been taken. HOW? By regular desilting and dredging work and cleaning of the BIS throughout the years. 23

23. 24 Dam Desilting: Desilting the dam is important as silt will protect the water supply from becoming contaminated and reduces evaporation while increasing water volume in the dam. Dredging: clear the bed of water by scooping out mud, weeds, and rubbish with a dredge.

24. 25 Source: ©hendrickcorp Intake Screen: Is used in screening out any debris such as algae, sticks, leaves, litter and aquatic life such as fish.

25. 26 Continued act of deforestation, intensive agricultural activities and disposal of rubbish upstream has affected the water holding capacity of the reservoir as it increased the sedimentation and solid waste in the reservoir. It also caused chockage (blockage) at the Bertam Intake Screen.

26. FINDINGS OF THE COURT 27

27. ISSUE OF NEGLIGENT 1. D failed to have a water inflow measurement instrument • Only be installed after the said incident on 23/10/13 • Importance to know the water inflow + will assist the employees at SABD to decide the amount of water to be released • Basically, to justify the release of water 28 3. Executing the releases of water on 23/10/13 • The danger to release waters which would cause floods was acknowledged by Defendant since 2011 when his officers wrote article about it 2. D failed to maintain the SABD and appropriate water level of the dam (monsoon season) • Defendant was supposed to conduct a large scale of dredging and desilting regularly irrespective of cost incurred since it involved lives

28. 1. Principle of Ryland v Fletcher (1868) LR 3 HL 330 is applicable • SABD is owned and maintained by Defendant • On 23/10/13 Defendant had released water for the dam • The release has caused floods and destruction to properties + loss of lives @ Bertam Valley 29 2. There was element of ‘escape’ • There was intentional act of controlled spilling and it’s more serious than unintentional escape of water from the dam 3. Res Ipsa Liquitor is applicable • Failed to conduct proper measure • Failed to have inflow measurement gauge

29. × Plaintiff has managed to prove his case on the balance of probabilities + Defendant was liable for the floods that caused destruction to Plaintiff’s properties & loss of lives Points to ponder: -In strict liability case, Plaintiff needs to prove on the ‘balance of probabilities’ -To prove there’s a strict liability on Defendant’s part, there must be an ‘escape’ -Defendant has to prove he had taken all the necessary steps to maintain the dam -Failure on the part of Defendant to own a such important device (eg : water inflow measurement instrument) could be fatal to his case 30

30. THANKS!Any questions? 31

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