Understanding Negligence and Occupier’s Liability in Malaysia (2025)
1. Introduction
Negligence and occupier’s liability remain two of the most vital concepts in Malaysian tort law. They govern the responsibility of those who control premises—whether individuals, corporations, or management bodies—to take reasonable care to prevent harm to others.
The case of KHY Foods & Beverages Sdn Bhd v Plaza Mont’ Kiara Management [2025] 2 SMC 56 is a recent and instructive example. It examines the liability of a management corporation after a tree collapsed within its premises, crushing a vehicle owned by a tenant company.
This decision, handed down by Wan Nor Aklima Wan Salleh SJ in the Kuala Lumpur Sessions Court, highlights how Malaysian courts interpret duty of care, breach, foreseeability, and the limits of exclusion clauses. It reinforces that occupiers of premises cannot easily avoid responsibility for foreseeable harm under the guise of disclaimers or “act of God” defences.
2. Factual Background
The plaintiff, KHY Foods & Beverages Sdn Bhd, owned an Audi vehicle that was parked at Plaza Mont’ Kiara—a high-end mixed development managed by the defendant, Plaza Mont’ Kiara Management Corporation.
The plaintiff’s director parked the car in an open jockey parking area managed by Niya Ventures 2 Sdn Bhd, an operator acting under the management’s authority. During heavy rain, a large tree planted beside Jalan Kiara, near the main entrance of the complex, collapsed and crushed the vehicle.
The plaintiff sought compensation for damages amounting to over RM60,000, alleging that the defendant failed to properly maintain the trees within the premises. The claim was based on negligence, occupier’s liability, and the doctrine of res ipsa loquitur (the thing speaks for itself).
The management corporation, on the other hand, denied liability, arguing that:
- The tree fall was an act of God caused by heavy wind and rain;
- The House Rules and disclaimer signboards (“park at your own risk”) absolved it from any liability; and
- The trees were inspected and maintained by an independent contractor.
The Sessions Court ruled in favour of the plaintiff, holding that the management was negligent and liable as an occupier.
3. Defining Negligence under Malaysian Law
Negligence is a foundational tort. It occurs when a person or entity fails to take reasonable care, resulting in harm to another. As cited by the Sessions Court from Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 6 CLJ 958, three elements must be established:
- The defendant owed the plaintiff a duty of care;
- The defendant breached that duty; and
- The plaintiff suffered damage as a result of that breach, which was not too remote.
In this case, all three elements were satisfied.
4. Duty of Care: Management Corporation as an Occupier
The court found that Plaza Mont’ Kiara Management, as a management corporation, owed a duty of care to those who use and park within its premises. This included ensuring that trees, pathways, and facilities were maintained to prevent foreseeable harm.
The court relied on the Caparo test (from Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd [2018] 6 CLJ 683), which assesses:
- Foreseeability of harm;
- Proximity of relationship; and
- Whether it is fair, just and reasonable to impose liability.
Given that the plaintiff was a tenant paying maintenance and parking fees, there was clear proximity. The harm—damage caused by a falling tree—was foreseeable, particularly since the management had prior knowledge of similar incidents. Therefore, it was fair and reasonable to impose liability.
5. Breach of Duty: Failure to Maintain the Trees
Evidence showed that the management was aware of potential hazards. Letters to Dewan Bandaraya Kuala Lumpur (DBKL) revealed prior incidents of falling branches and complaints from car owners.
Despite this, the management failed to perform periodic inspections and did not engage contractors regularly. In fact, tree maintenance had not been carried out for nearly a year before the incident.
The court cited the test of the reasonable and prudent landowner from Len Omnibus Co Ltd Bhd v North South Transport Sdn Bhd [1978] 2 MLJ 246, which requires landowners to inspect trees periodically and remove any that pose foreseeable risks. The defendant’s omission fell far below this standard.
6. The Failed Defences: Act of God and Exclusion Clauses
(a) The “Act of God” Defence
The management’s main defence was that the tree fell due to an “act of God”—an extraordinary natural event that could not have been prevented by reasonable care.
However, expert testimony from the Malaysian Meteorological Department revealed that the wind speed during the storm (13.2 metres per second) was categorised only as a “strong breeze”, insufficient to uproot a healthy tree.
The court rejected the argument, citing Kwan Sun Ming v Chak Chee Hing [1964] 1 MLJ 236, noting that an act of God must be unforeseeable and unavoidable even with reasonable precautions. In this case, the defendant’s prior knowledge of similar incidents negated this defence entirely.
(b) Exclusion and Disclaimer Clauses
The defendant relied on the House Rules and a “park at your own risk” sign displayed near the jockey parking area. The court found these disclaimers ineffective for several reasons:
- Lack of Notice: The disclaimers were not properly brought to the plaintiff’s attention. The car was parked by reverse, making the sign unreadable.
- Ambiguity: The disclaimer did not clearly exclude liability for negligence.
- Illegality under Section 29 of the Contracts Act 1950: Any clause that restricts a person’s right to pursue legal remedies is void.
The court cited CIMB Bank Bhd v Anthony Lawrence Bourke & Anor [2019] 2 CLJ 1 (FC), where the Federal Court held that clauses precluding access to justice violate section 29. Hence, the exclusion clauses could not protect the management from its negligence.
7. Res Ipsa Loquitur: The Thing Speaks for Itself
The plaintiff also relied on the doctrine of res ipsa loquitur, which allows an inference of negligence from the mere occurrence of the accident, where:
- The event would not normally occur without negligence;
- The instrumentality causing harm was under the defendant’s control; and
- The precise cause is unknown.
The falling of a tree in a managed parking area met these conditions. The court held that the inference of negligence applied and the defendant failed to rebut it with credible evidence.
8. Occupier’s Liability: A Broader Duty to Visitors
Occupier’s liability refers to the duty owed by those in control of premises to ensure that visitors are reasonably safe. This principle, derived from English law (Wheat v E Lacon & Co Ltd [1966] AC 552), has been adopted in Malaysia.
The management corporation, as the occupier, was responsible for ensuring the safety of common areas, including the car park and its surroundings.
The court observed that the tree was within the defendant’s control and that its failure to maintain or remove unsafe trees breached the duty of care owed to lawful visitors like the plaintiff.
As the court put it, “If the trees in the parking lot were not maintained properly, clearly the trees have a risk of falling and crushing the vehicles and/or injuring people in the area.”
This reinforces the idea that occupiers must take proactive, not reactive, measures to prevent foreseeable harm.
9. Damages Awarded
The court awarded the plaintiff RM60,154 in repair costs for the Audi, rejecting other claims such as insurance loss and road tax.
While the damages were strictly compensatory, the judgment sent a strong message about management accountability in maintaining common property and preventing foreseeable harm.
10. Legal Principles Affirmed
The decision reaffirmed several key principles of Malaysian tort law:
- Occupiers owe a continuing duty of care to ensure the safety of persons and property within their control.
- Foreseeability and prior complaints strengthen the case for negligence.
- Disclaimers and exclusion clauses must be clearly communicated, specific, and lawful to be effective.
- The “act of God” defence is available only for truly extraordinary natural events beyond human foresight.
- Res ipsa loquitur allows courts to infer negligence when the facts “speak for themselves.”
In essence, this case illustrates that liability cannot be avoided through passive management or ambiguous disclaimers.
11. Implications for Property Owners and Management Bodies
(a) Regular Maintenance and Risk Assessment
Property managers and joint management bodies must conduct regular safety inspections and keep documented records of maintenance work.
Failure to maintain trees, lifts, guardrails, or other facilities may expose them to negligence and occupier’s liability claims.
(b) Clear Communication of Disclaimers
Disclaimers must be visible, specific, and unambiguous. For instance, signs such as “The Management is not liable for damage due to its own negligence” may still fail if they contravene Section 29 of the Contracts Act.
(c) Insurance Coverage and Liability Management
Management corporations should review their insurance policies to ensure coverage for property damage and personal injury claims arising from negligence. Liability cannot be transferred through disclaimers alone.
(d) Tenant and Visitor Safety
Occupiers must ensure not only the physical safety of residents but also the safety of visitors, employees, and service providers. Any failure to maintain common areas can lead to legal exposure.
12. Broader Significance: The Evolving Standard of Care
The Plaza Mont’ Kiara case demonstrates the Malaysian judiciary’s firm approach in holding property managers to modern standards of care.
Gone are the days when management bodies could rely on the “act of God” defence or boilerplate disclaimers. Courts now emphasise proactivity, foreseeability, and accountability.
This evolution reflects public expectations in urban Malaysia, where high-rise living and commercial complexes are the norm. Occupiers are expected to act with professional diligence, particularly when collecting maintenance fees and controlling common property.
13. Conclusion: Accountability through Care
The ruling in KHY Foods & Beverages Sdn Bhd v Plaza Mont’ Kiara Management serves as a reminder that negligence and occupier’s liability are grounded in reasonableness and proactive care.
A management corporation that knows of hazards yet fails to act cannot escape responsibility. Likewise, tenants, contractors, and visitors have a right to expect that the premises they use are safe from foreseeable harm.
14. How JY Ko Advocates & Solicitors Can Help
At JY Ko Advocates & Solicitors, we have extensive experience handling claims and disputes involving negligence, occupier’s liability, management corporations, and property-related torts across Malaysia.
Whether you are:
- A property owner seeking to recover damages for property loss or injury;
- A management corporation facing negligence claims; or
- A tenant or visitor injured due to unsafe premises —
our team provides strategic legal advice, evidence-based defence, and effective representation in court.
Our firm has successfully represented clients in negligence, trespass, nuisance, and strata management disputes at every level of the Malaysian judiciary, from Sessions Courts to the Court of Appeal.
If you or your business face an issue involving negligence or occupier’s liability, contact JY Ko Advocates & Solicitors today for tailored legal solutions that protect your interests and reputation.
Contact JY Ko Advocates & Solicitors to make an appointment today!
🌐 Call us: +6017.6965.966 (Call / WhatsApp)
📩 Email Us: nick@jykolaw.com
Or fill in the contact form CLICK HERE
Disclaimer: The above proposition is subject to actual facts and circumstances and shall never be referred as the actual law without seeking legal advice. Consult us for more information!