This article first appeared in The Edge Financial Daily on November 13, 2019

PUTRAJAYA: Tenaga Nasional Bhd (TNB) has failed in its final bid to appeal against a court decision that found the company liable for causing flash floods in Bertam Valley in Cameron Highlands six years ago.

The utility giant is therefore required to pay damages to 100 residents who had filed a negligence suit over the loss of four lives and property destruction due to the floods.

The Federal Court refused to grant leave to TNB to appeal against the Court of Appeal’s decision to uphold a High Court decision that found the company negligent in releasing water from the Sultan Abu Bakar Hydroelectric Dam.

Federal Court Judges Datuk Mohd Zawawi Salleh, Datuk Vernon Ong Lam Kiat and Datuk Abdul Rahman Sebli yesterday made the unanimous decision.

“The court held that there were no appealable grounds and that the facts of the case were proven in favour of the [residents],” said Justice Mohd Zawawi. The apex court also ordered TNB to pay RM20,000 costs to the residents for the failed appeal.

In the Federal Court, it is not automatic that a civil appeal be heard as permission must be gained for the full merits to be heard based on questions of law. The apex court is the final judicial avenue to appeal against a decision.

The Bertam Valley residents were represented by lawyer M Manogaran and MR Kumar. Manogaran contested as the Pakatan Harapan candidate in a by-election earlier this year for the Cameron Highlands parliamentary seat, but was unsuccessful.

TNB was represented in court yesterday by counsel Datuk Dr Cyrus Das and David Matthews. The residents now have to return to the High Court for the assessment of damages.

On May 25 last year, the High Court found TNB negligent in releasing water from the dam three times on the evening of Oct 23, 2013, resulting in the disaster.

Trial Judge Datuk Nordin Hassan noted TNB had only installed a water inflow measurement instrument at the dam after the incident, despite the dam having been built in 1963.

“Failing to have the instrument is an act of negligence as it (TNB) is entrusted with the lives and property of the people downstream.

“The defendant failed to maintain the appropriate water level at the dam, particularly in the monsoon season,” he had ruled, adding that the result of the instrument’s absence, the release of water from the dam, could not be properly gauged that fateful evening.

The decision was upheld on Dec 11 last year by a three-member bench of the Court of Appeal led by Justice Datuk (now Tan Sri) Tengku Maimun Tuan Mat. Tengku Maimun was made the chief justice earlier this year after Tan Sri Richard Malanjum retired.