It'll be a difficult case, say lawyers

New Straits Times

KUALA LUMPUR: Residents affected by the Bukit Antarabangsa landslide can file a negligence suit against the local authority.

Lawyer Derek Fernandez said the residents have a case as long as they could prove that the local authority had been derelict in its duties and had failed to act on the residents' complaints.

He said although the 2006 Federal Court decision on the Highland Towers set a precedent when the Ampang Jaya Municipal Council (MPAJ) was cleared of any wrongdoing, the decision only applied in relation to earthworks and planning approvals.

"Residents can file a negligence suit or a breach of statutory duties as long as they can prove that the local authority had failed to rectify a problem when it was brought to its attention."

He said residents could seek compensation for loss of use of home, death, rebuilding of homes, dependency claims, relocation expenses and loss of personal properties.

However, Fernandez cautioned that the residents should find out the causes of the tragedy before embarking on a legal suit.

Asked on their chances, Fernandez said at the moment, it appeared to be tough due to the precedent set by Highland Towers.

"This is why residents should consider legal action against other relevant parties as well."

If filed, he expects the case to take a minimum of five to six years, as the Highland Towers case took almost 10 years to settle.

Another lawyer, Roger Tan, said it would be difficult for residents to sue the local authority as MPAJ enjoyed immunity under Section 95 of the Street, Drainage and Building Act 1974.

"I have been calling for the repeal for Section 95 for 15 years as the section breeds a lackadaisical attitude rather than professionalism in our authorities in the manner they approve building plans and later supervise the progress of the construction works."

He said it was against public interest to insulate local authorities from any suit if they failed in their statutory duties.

"If we expect first-class engineers, surveyors and architects when they perform their professional duties, the public, too, expect a first-class local authority when it comes to the granting of approvals and supervision of development projects," he said.

However, Fernandez said residents stood a better chance in filing their suits either under the Town and Country Planning Act 1976 or the Local Government Act.