The court found that a supplier has a non-delegable duty to ensure the safety of their supply network and that contributory negligence does not apply when adequate protective systems are in place.

Introduction

[1] This appeal is against the decision of the learned Judicial Commissioner ('JC') of the High Court in dismissing the appellant's claim for damages against the 1st and 2nd respondents for negligence and for breach of contract against the 2nd respondent. For convenience, the parties shall be referred to as they were in the High Court.

[2] We heard the appeal on 11 March 2015. After hearing the parties, we adjourned the matter for our consideration and decision. We now deliver our decision and the reasons for the same.

Background Facts

[3] The plaintiff operates a factory in Tanjong Malim, Perak producing calcium silicate bricks.

[4] Pursuant to a supply of electricity contract dated 1 March 1996 ("the supply contract"), the 2nd defendant, Tenaga Nasional Berhad, supplies electricity to the plaintiff. Prior to the supply contract, as required by the 2nd defendant, the plaintiff constructed a power substation which housed the plaintiff's switch gear and relay systems, functioning as a protection system against internal fault.

[5] On or about 13 October 1997, Jabatan Kerja Raya ("JKR"), under the control of the 1st defendant, embarked on constructing a rest and recreation area ("the project") on the Ipoh-Kuala Lumpur highway ("the project site"). The 1st defendant appointed Markas Perdana Sdn Bhd ("the contractor") to execute the project works.

[6] On 5 August 1998, the contractor whilst carrying out the project works at the project site struck an 11kV underground cable ("the cable") belonging to the 2nd defendant ("the incident"). The cable was connected to the plaintiff's factory via a switching station. The cable was damaged, interrupting the supply of electricity to the plaintiff's factory. Consequently, the operations in the plaintiff's factory ceased and the plaintiff's equipments were damaged ("the damage").

[7] Prior to the incident, the 1st defendant had written three letters dated 31 October 1997, 9 January 1998 and 27 February 1998 respectively to the 2nd defendant requesting for all cables along the project site to be removed so that work carried on the site can be done without hindrance or interruption. There is no evidence whether, having been notified of the same by the 1st defendant, that the 2nd defendant proceeded to take the necessary steps to comply with the requests made by the 1st defendant. Neither did the 1st defendant followed up with the 2nd defendant on the matter.

Decision Of The High Court

[8] At the trial of the action, the primary issue was whether the damage was caused by the incident. Both parties called their own experts to assist the trial Court in determining the issue.

[9] On 24 December 2012, the learned JC dismissed the plaintiff's claim on three main grounds:

i. There was no evidence from the plaintiff to show that there was a protective scheme set up to protect the machines;

ii. There was no duty of care and breach of duty on the part of the 2nd defendant; and

iii. Even if there was such a duty and breach of duty on the part of the 2nd defendant, the plaintiff's contributory negligence was absolute.

Plaintiff's Submission

[10] Before us, the learned counsel for the plaintiff argued that according to the plaintiff's expert witnesses (PW4 and PW8), the damage to the plaintiff's equipments was caused by a surge which was attributable to a "severe voltage transient" caused by a momentary shorting that in turn caused the fuses at the substation to have exploded. On the other hand, the 2nd defendant's expert witnesses DW5 and DW7 opined that the damage was caused by under-voltage. DW5 said that the damage was not caused by a "voltage surge" or "power surge". DW7 opined that based on the report by PW4 he concluded that th