JUDGMENT

Raja Azlan Shah CJ (Malaya):

This is an appeal from the decision of the High Court, Penang in an action for damages for personal injuries in which the present respondent is the plaintiff and present appellants are defendants. The learned Judge found for the plaintiff and awarded RM34,000 as agreed damages. The trial proceeded on the issue of liability.

The claim was based on the negligence of the appellants in having erected and maintained a terminal steel pole more commonly known as H-pole which carried high-voltage electric wires immediately adjoining an unfenced public foot-path in a padi field in Bayan Lepas, Penang (opposite the international airport) which H-pole and wires constituted a dangerous hazard and allurement to the respondent and for breach of statutory duty under the Electricity Regulations 1951 (LN 406/51). The defence was a bare denial of negligence and breach of statutory duty but in the course of the arguments before the learned Judge and repeated before us, the main contention was that the respondent was a trespasser and therefore the relationship of occupier/trespasser fell into consideration. The learned trial Judge decided the case on the basis that it was a straightforward case of negligence based on the Donoghue v. Stevenson[1932] AC 562 principle. He relied on the Australian case of Munnings & Anor. v. The Hydro-Electric Commission[1971] 125 CLR 1 where it was held that the liability should be determined by reference to the standard of care owed by an undertaker maintaining a highly dangerous electrical transmission system over the land to another to which the plaintiff, a boy aged 11 years and other children resorted, and the English case at first instance in Buckland v. Guildford Gas Light and Coke Co.[1949] 1 KB 410 where a girl aged 13 years was electrocuted while climbing a readily climbable tree immediately below high-voltage electric wires, the property of the defendants, in a farmer's filed. The learned Judge however, failed to consider the issue of contributory negligence which was pleaded in the statement of defence.

There is little or no dispute about the facts. In pursuance of its function to provide electricity in the island of Penang the predecessors of the appellants, the Lembaga Pengurusan Kerajaan Tempatan, Pulau Pinang, erected and maintained the H-pole which was situated immediately adjoining to a foot-path connecting a kampungconsisting of 150 to 200 houses, to the Bayan Lepas main road where there are 3 schools. The foot-path was used by the kampungfolk and children as a public foot-path leading to the main road. The appellants were very much aware of the existence of the footpath before the accident and admitted that they did not take any step, and that it was prudent, to put up anti-climbing devices e.g. warning signs, barbed wires or spikes on the H-pole in view of its potential danger and its proximity to the foot-path.

On 25 April 1975 the respondent then aged 10 years was walking along the foot-path with a group of boys when he was moved to climb the H-pole in an apparent attempt to release a bird trapped on the wire on top of the pole but upon reaching the bracket or cross-arm supporting the cable box which is about 7 feet from the ground level there was a flashover which resulted in the respondent being electrocuted and thrown to the ground. As a result he suffered severe injuries and first and second degree burns which resulted in scars and permanent disfiguring.

The learned Judge held that:

There is no need for the pole to be an allurement as the danger potential of the pole is so great that some form of precaution should have been considered necessary to ensure no one came to or attempted to climb the pole. The proximity of a path which led to the main road from a kampunginhabited should have made it reasonably foreseeable that people will be near the pole. ... In the present case the defendant ought to have known poles in unoccupied land especially H-poles w