KL sinkhole: The controversial law giving DBKL 'legal immunity' from being sued by the victim’s family
The colourful and bustling street of Jalan Masjid India in Kuala Lumpur turned into a place of tragedy recently after a sinkhole suddenly appeared while a woman was walking there, burying her deep underground.
After an intense 9-day search and rescue (SAR) operation, the victim, identified as 48-year-old Indian national Vijayaletchumi, was still not found and on 31 August, it was announced that the operation had been called off, with efforts now shifting into a ‘search and recovery’ phase instead.
Moreover, de facto Federal Territories Minister Dr Zaliha Mustafa also said that the Cabinet would be discussing potentially giving compensation to the victim’s family, who have since returned to India on 1 September after performing the final rites for the victim on the incident site.
Beyond that, one question that many have posed is whether the victim’s family can sue the Kuala Lumpur City Hall (DBKL), given that the incident took place on a public road under the local authority’s jurisdiction.
Well, things aren’t as straightforward as they sound, as there are various hurdles the family would face in a civil suit against DBKL, including a rather arbitrary legal provision that essentially gives the city council ‘immunity’ against any liability.
Join us as we break down the relevant laws and court precedence on the matter below.
Can a public authority such as DBKL be sued in Malaysia?
Firstly, let’s establish whether a public authority, in this case, a city council such as DBKL, can be sued in court in Malaysia.
In short, yes. According to the Local Government Act 1976, a local authority is an autonomous body and in Section 13 of the Act, a local authority is a body corporate which has perpetual succession and “may sue and be sued”.
Furthermore, Section 3 of the Street, Drainage and Building Act 1974 below defined what is considered a ‘local authority’ under the Act, which includes any city councils such as DBKL.
This Act is especially relevant to the case, which we’ll dive into further below.
Civil action under the torts of Negligence and Breach of Statutory Duty
Given that DBKL is a public authority, the civil suit can fall under Breach of Statutory Duty or Negligence. So, what’s the difference between the 2 torts?
One obvious difference between the two is that a Breach of Statutory Duty involves a “breach of statutory duty”, while Negligence involves a “breach of duty”.
Moreover, the right to sue for Breach of Statutory Duty originated in the statute and the remedy to claim damages is provided by the common law. For Negligence, the right to sue doesn’t originate in statute.
Another important difference is that the standard of care used for a Breach of Statutory Duty is fixed by a statute compared to the “reasonable man’s test” in Negligence. In other words, the duty for breach of statutory duty is stricter compared to negligence.
However, both torts have to prove the breach of duty of care must be causally related to the injury received through the “foreseeable test”. Moreover, Breach of a Statutory Duty can occur without the person in question being negligent, but it can also be evidence of Negligence.
The Act and by-laws which establish DBKL’s statutory duties
Accordingly, for the Jalan Masjid India sinkhole incident, the applicable statutes establishing DBKL’s statutory duties are the aforementioned Street, Drainage and Buildings Act 1974 and the Earthworks (Federal Territory of Kuala Lumpur) By-Laws 1988.
Section 4 of the Street Drainage and Building Act 1974 below may apply to the sinkhole incident, as the provision prescribes for local authorities to maintain and repair public streets, which is what the location of the incident was.
Furthermore, given that the sinkhole may have been caused by earthworks done in the area, Section 70A of the Act below may also be applicable, with more detailed responsibilities prescribed in the Earthworks (Federal Territory of Kuala Lumpur) By-Laws 1988 also being relevant.
The legal provision giving DBKL and other local authorities immunity from any action, claim, liabilities or demand
Despite all the statutory duties established by the above provisions, a Negligence or Breach of Statutory Duty suit against DBKL will ultimately fail due to Section 95 of the Street, Drainage and Buildings Act 1974 below:
Essentially, this provision prescribes ‘legal immunity’ to local authorities such as DBKL from any civil action, even if they didn’t carry out their duties as prescribed by the Act and its bylaws.
Furthermore, it also makes local authorities immune from any action, claim, liabilities or demand if they didn’t carry out any inspection to ensure this Act or any by-laws are complied with.
Majlis Perbandaran Ampang Jaya v Steven Phao Cheng Loon & 81 Others [2006] MLJU 49
In the case of Majlis Perbandaran Ampang Jaya v Steven Phao Cheng Loon & 81 Others [2006] MLJU 49, MPAJ was taken to court as the 4th Defendant in a civil suit for the Highland Towers tragedy which took 48 lives.
When the case reached the Federal Court, the highest court in the land, it was held that MPAJ as a local authority was immune from liability for the incident.
In his judgment, Justice Abdul Hamid Mohamad asserted that if local authorities were to be made liable, it would open the floodgates to further claims for economic loss, and this would deplete their financial resources needed for the provision of basic services and infrastructure for the general public.
Abdul Hamid further held that it would be unfair for ratepayers’ money to be used to pay out damages for the local authorities’ negligence.
The learned judge asserted,
“In my view, the provision of basic necessities for the general public has priority over compensation for pure economic loss of some individuals, who are clearly better off than the majority of the residents in the local council area,”
Hence, the Federal Court has set a binding precedent that local authorities are immune from any liability. Of course, it’s only applicable to any future cases with similar facts and circumstances, otherwise, the ruling is only persuasive.
With all of that established, let’s hope that this incident will put a spotlight on this controversial law, which historically has had many detractors before due to its rather arbitrary nature. However, any amendments or abolishment of this provision are up to the lawmakers and as it stands, local authorities shall continue to have this legal immunity as prescribed by the Street, Drainage and Buildings Act 1974.
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