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2022 MarsdenLR 50
COURT OF APPEAL PUTRAJAYA
HEMRAJ & CO SDN BHD & ANOR – Appellant
Versus
TENAGA NASIONAL BERHAD & ORS – Respondent
[Appeal No: W-02(NCVC)(W)-2256-11-2018]
An employer is liable for negligence arising from a non-delegable duty of care regarding hazardous activities conducted by independent contractors, regardless of independent contractor's actions.
Headnote:(A) Electricity Supply Act 1990 – Appeal against liability for negligence – High Court found appellant liable for breach of non-delegable duty of care by independent contractors causing damage to underground cable – Judgment entered for respondent for costs incurred in replacing said cable. (Paras 1, 15, 42)
(B) Non-delegable duty of care – An employer may be liable for negligence through independent contractors if the duty is non-delegable, entailing responsibility for safety and reasonable care in relation to hazardous undertakings. (Paras 25-26, 40)
Facts of the case: The 1st respondent (TNB) sought damages from the 1st appellant (Hemraj) for negligence causing damage to its 132KV underground oil-filled cable from unauthorized excavation works conducted by independent contractors during sewerage connection at the site. (Paras 6-12)
Findings of Court: The trial judge affirmed that Hemraj was liable for the negligence of its independent contractors under the principle of non-delegable duty of care, establishing joint liability for damage and costs for the cable replacement. (Paras 15, 41)
Issues: 1) Whether non-delegable duty of care was sufficiently pleaded; 2) Whether the trial judge erred in imposing such duty; 3) Applicability of the Biffa principle. (Paras 19-20)
Ratio Decidendi: The court affirmed that an employer is liable for negligence if they fail to ensure safety measures are taken when conducting hazardous works, irrespective of the acts of independent contractors. (Paras 26, 32-36, 59)
Result: Appeal dismissed, trial judge's decision affirmed. (Paras 60)
JUDGMENT
Introduction
[1] This is an appeal against the decision of the learned High Court Judge dated 1 October 2018 after a full trial. The High Court has found the 1st appellant to be in breach of its non-delegable duty of care in respect of the negligence of its independent contractors in carrying out unauthorised excavation works on a public road for a sewerage connection, which caused damage to the 1st respondent's 132KV underground oil filled cable. Judgment was entered in favour of the 1st respondent in respect of the costs of cutting and capping the Cable and installing a new replacement XLPE Cable.
[2] The learned High Court Judge also held that the 1st appellant is entitled to claim full indemnity from the Third Parties for the damages and costs that the 1st appellant is liable to pay the 1st respondent. However, such liability is to accrue upon the 1st appellant making full payment of the judgment sum to the 1st respondent.
[3] This appeal deals with the issue of liability only, whilst the issue on quantum of damages will be dealt with in civil suit WA-22NCvC-86311/2019, which is still pending in the High Court.
[4] The 2nd appellant's appeal was struck out on 19 August 2019.
[5] Having considered the appeal records and the submissions of all parties, we had unanimously dismissed the appeal and affirm the decision of the High Court Judge. These are the grounds of our decision.
The Salient Facts
[6] The 1st respondent/plaintiff ("TNB") is a licensee under the Electricity Supply Act 1990 (" ESA 1990") for the generation, transmission and distribution of electricity supply.
[7] The 1st appellant ("Hemraj") was the owner of the bungalow having the postal address of No. 3, Lorong Titiwangsa 4, Taman Tasik Titiwangsa, 53200 Kuala Lumpur (the said "Bungalow"). The 2nd appellant is a director of the 1st appellant.
[8] TNB has a 132KV underground 'oil-filled' Cable from PMU Kuala Lumpur City Centre to PMU Kampung Lanjut (the "underground Cable") which passes through and along Lorong Titiwangsa 4, Taman Tasik Titiwangsa, (the said "Site"). The path of the said underground Cable runs across the front to the said Bungalow, below the road surface.
[9] Hemraj had appointed LCS Engineering Services ("LCS Engineering") as the engineer for the construction of the said House. In March 2013, LCS Engineering informed Hemraj that they would apply for the relevant approval from the Indah Water Konsortium Sdn Bhd ("IWK") to connect the sewerage connection from the said Bungalow to the sewerage tank owned by IWK.
[10] For the purpose of the IWK connection, Hemraj had appointed the 2nd respondent/1st Third Party ("TP1") as the contractor to carry out the sewerage connection to the Bungalow. The 3rd respondent/2nd Third Party, Hiap Leck Construction & Trading ("TP2") was to carry out the excavation works, and the excavation works were carried out on 13 November 2013.
[11] On or about 14 November 2013 at approximately 1:30 am during a routine patrol, TNB workmen found evidence of soil excavation work being carried out at the Site, which was fronting the said Bungalow and found the said underground Cable exposed with the presence of oil leaking out from the set underground Cable. TNB workmen also found that the underground Cable had been damaged by the excavation works, causing the oil leakage. The excavation works have been carried out without the prior knowledge and/or approval of TNB or Dewan Bandaraya Kuala Lumpur ("DBKL").
[12] As a result of the excavation works and the damage to the underground Cables, TNB sued Hemraj and the 2nd appellant for the costs incurred to replace the said underground cables for the sum of RM3,110,445.09 together with 25% administrative costs.
[13] The appellants took out third party proceedings for indemnity against three parties. The 2nd respondent/TP1 was the contractor engaged to carry out the sewerage connection for the Bungalow. The 3rd respondent/TP2 was the licensed sewerage contractor to obtain the
