Routine construction works do not impose a non-delegable duty of care unless extraordinary hazards are present, challenging prior application of this principle in negligence cases.

Zabariah Mohd Yusof FCJ:

[1] The appeal before us turns on the decision of the Courts below which found liability against the appellant for negligence premised upon the breach of non-delegable duty of care of the respondent.

[2] Leave to appeal was granted by this Court to the appellant upon the following questions of law:

"Question 1: Whether as a matter of policy, routine residential construction work carried out by a homeowner through its independent contractors is so extraordinarily hazardous as to impose a non-delegable duty of care on the homeowner to a public utilities company, namely TNB for the negligence of those independent contractors?

Question 2: If the answer to the 1st question is in the negative, whether there is a special relationship between the homeowner and TNB which satisfies the criteria of the "2nd category" described in Woodland v. Essex County Council [2014] 1 All ER 482 such as to impose a non-delegable duty of care on the homeowner in respect of the negligence of its independent contractors?

Question 3: Whether non-delegable duty of care is a cause of action that must be expressly pleaded particularizing the basis on which the duty is said to arise or whether it is a matter of law which may be raised during submissions?

[3] The appellant is the 1st defendant (D1) and the respondent is the plaintiff in the High Court below. In this judgment, parties will be referred to, as they were in the High Court.

[4] The 2nd defendant (D2) and the third parties are not parties in the appeal before us.

Background

[5] The facts are uncomplicated, but the application of the law in the imposition of a non-delegable duty of care in the present appeal is of much concern. The plaintiff, Tenaga Nasional Berhad claims for costs and expenses incurred for emergency repairs and replacement of its underground cable, which was damaged due to excavation works carried out by third-party contractors hired by the defendants, in front of a house belonging to the defendants. The excavation works were to connect the septic tank of the house to the main public sewerage system.

[6] D2 is the director of D1 together with his mother and sister.

[7] The plaintiff claims that since the defendants appointed the third parties as consultants and contractors, for the excavation, the defendants owe the plaintiff, a non-delegable duty of care. Consequently, the plaintiff claims that the defendants are liable for the negligence of their appointed consultants/ contractors.

[8] The defendants took third party proceedings for indemnity against the consultants and contractors which were hired by the defendants to do the excavation works.

Issue

[9] The main thrust of the appeal is whether D1 owe a non-delegable duty of care to the plaintiff - a personal duty to ensure that reasonable care was taken by the third party contractors in doing the said excavation works.

Findings Of The High Court

[10] The High Court found that D1 owes a non-delegable duty of care to the plaintiff and therefore liable for the loss and expense incurred by the plaintiff, despite making a finding that TP1 is the immediate tortfeasor and TP1 was blatantly negligent. The High Court held that this is an exception to the general rule that an employer is not liable for the negligence of an independent contractor. The High Court ordered TP1, TP2 and TP3 to be jointly and severally liable to indemnify D1 for the total amount of damages and the net costs that was awarded against D1 in the suit, and further ordered that such liability for indemnity is to accrue with effect from the date when D1 pays to the plaintiff, the judgment sum inclusive of the net costs.

[11] The claim against D2 was dismissed with costs.

Findings Of The Court Of Appeal

[12] The Court of Appeal affirmed the findings of the High Court in that the duty imposed on D1 is a positive duty to protect TNB underground cables and subsequently to the public, who are users of electricity distributed/transmitted via the underground ca