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2024 MarsdenLR 1198
HIGH COURT MALAYA KUALA LUMPUR
AINA SAFIYA YATIM & ANOR – Appellant
Versus
CHOW FOOK KONG & ANOR – Respondent
[Civil Appeal No: WA-12BNCVC-77-05/2023]
The appellate court ruled that the First and Third Defendants were not liable for breach of contract, negligence, or deceit as they had no contractual relationship with the Plaintiffs.
Headnote:(A) Civil Law - Breach of Contract - Tort of Deceit - Negligence - The Plaintiffs claimed against the Defendants for breach of contract, negligence, and deceit related to unsatisfactory alarplasty procedures. The trial judge found the First and Third Defendants liable, but on appeal, it was determined that only the Second Defendant had a contractual relationship with the Plaintiffs. The appellate court found no evidence of misrepresentation or negligence by the First and Third Defendants. (Paras 32-63)
(B) Duty of Care - The court ruled that without a contractual nexus between the Plaintiffs and the First and Third Defendants, no duty of care existed. The Plaintiffs failed to prove that the Defendants owed them a duty of care. (Paras 46-52)
(C) Tort of Deceit - The appellate court found that the elements of deceit were not satisfied against the First and Third Defendants, as no direct representations were made to the Plaintiffs by them. (Paras 53-60)
Facts of the case:
The Plaintiffs underwent alarplasty procedures at the First Defendant's premises and claimed complications due to negligence. The Second Defendant settled with the Plaintiffs, leading to the withdrawal of claims against her. (Paras 1-19)
Findings of Court:
The appellate court found the trial judge's conclusions on liability were erroneous and allowed the appeal of the First and Third Defendants. (Paras 63)
Issues: Whether the First and Third Defendants were liable for breach of contract, negligence, and deceit. (Paras 27)
Ratio Decidendi: The court determined that the trial judge's findings were fundamentally flawed, as the Plaintiffs only had a contract with the Second Defendant, and the First and Third Defendants did not owe a duty of care. (Paras 36-61)
Result: Appeals allowed.
JUDGMENT
Introduction
[1] It may be absurd to find that the appeal by the Plaintiffs, who were customers of a botched cosmetic procedure, against the premise owner and manager was dismissed. The Plaintiffs' claim is on breach of contract, the duty of care, and the tort of deceit by the First and Third Defendants. The Second Defendant settled with the Plaintiffs by paying RM40,000.00 and the action was then withdrawn against the Second Defendant.
[2] Two grounds of judgment are made for the two appeals lodged by the Plaintiffs who were dissatisfied with my decisions in allowing the First and Third Defendants' appeal on liability (Appeal No 77) and in dismissing their appeal on parts of the quantum for damages on losses suffered (Appeal No 76).
[3] This grounds of judgment deals with Appeal No 77, which concerns the liability issue in which the trial judge found the First and Third Defendants for breach of contract and duty of care together with tort by deception. I found them not liable.
[4] The dispute was complicated when the Second Defendant settled with the Plaintiffs, and the claim against the Second Defendant was withdrawn, but the Second Defendant did not come forward to testify. The Second Defendant was found to have dealt with the Plaintiffs and that the Second Defendant had conducted all the alarplasty treatments on them. The treatments were performed at the First Defendant's Hai Au Beauty & Wellness business premises.
Appellate Court Intervention
[5] The cornerstone of appellate intervention of the "plainly wrong" test states that appellate courts should only interfere with a trial judge's factual findings if they are "plainly wrong". This means when the decision could not be reasonably explained or justified, not simply that the appellate Court disagrees (see Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd & Ors; [2021] 4 CLJ 821 FC; Henderson v. Foxworth Investments Limited [2014] 1 WLR 2600 ; Watt (or Thomas) v. Thomas [1947] AC 484).
[6] A high threshold for invention means the appellate courts must properly weigh trial judges' factual findings (see Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors; [2020] 12 MLJ 67; [2020] 10 CLJ 1 FC; McGraddie v. McGraddie And Another [2013] 1 WLR 2477; Chow Yee Wah & Anor v. Choo Ah Pat; [1978] 2 MLJ 41b CA). Mere disagreement with the trial judge's conclusion is insufficient grounds for reversal, and inconsistencies in evidence alone do not justify overturning findings. There must be respect for the trial judge's Role (see Tay Kheng Hong v. Heap Moh Steamship Co Ltd; [1964] 1 MLJ 87 CA; Watt (or Thomas) v. Thomas [1947] AC 484; Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd & Ors; [2021] 4 CLJ 821 FC).
[7] Its intervention is of limited scope (see Tengku Dato' Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case; [2018] 2 MLJ 177; [2018] 2 CLJ 641 FC; Borneo Housing Mortgage Finance Berhad v. Time Engineering Berhad; [1996] 2 MLJ 12; [1996] 2 CLJ 561; [1996] 2 AMR 1537 FC; Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors; [2020] 12 MLJ 67; [2020] 10 CLJ 1 FC), and it is an evolving interpretation (see Gan Yook Chin & Anor v. Lee Ing Chin & Ors; [2005] 2 MLJ 1; [2004] 4 CLJ 309; [2004] 6 AMR 781 FC; Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd & Ors; [2021] 4 CLJ 821 FC).
[8] There must be an emphasis on reasonableness (see Tengku Dato'Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case; [2018] 2 MLJ 177; [2018] 2 CLJ 641 FC; Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd & Ors; [2021] 4 CLJ 821 FC; Henderson v. Foxworth Investments Limited [2014] 1 WLR 2600 ).
[9] Armoured with sound principles, this Court must take a restrained approach to intervention. This Court should only step in when the trial judges' decisions are demonstrably unreasonable, not merely when the appellate Court would have decided differently. This approach respects the trial judge's unique position while allowing clear errors to be corrected.
Backgroun
