In this Federal Court case, the Federal Court has dismissed the High Court and Court of Appeal’s decisions holding the premise owner liable for the damages claimed by TNB and that the consultants and contractor hired by the premise owner to jointly pay the total damages awarded to TNB.
FACTS OF CASE:
The plaintiff, Tenaga Nasional Berhad (TNB) under the jurisdiction of the High Court has claimed costs and expenses incurred for emergency repairs and replacement of its underground cables, damaged by excavation works carried out by a third-party contractor hired by the defendant (homeowner), in front of a house owned by the defendant. The excavation work is to connect the septic tank of the house to the main public sewer system.
The plaintiff claims because the defendant appointed a third party as a consultant and contractor, for the excavation, the defendant owed the plaintiff, an indisputable duty of care. Thus, the plaintiffs claim that the defendants are responsible for the negligence of their appointed consultants/contractors. Consultants and contractors hired by the defendant to perform the excavation work were brought in as third parties in the proceedings by the defendant.
The High Court found that defendant 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 the third party is the immediate tortfeasor and that the third party was blatantly negligent. The High Court held that this is an exception to the general rule that an employer is not liable for the negligent of an independent contractor. The High Court ordered for the third parties to be jointly and severally liable to indemnify the defendant for the total amount of damages awarded to the plaintiff. The Defendant unsatisfied with the High Court decision, filed an appeal to the Court of Appeal which affirmed the decision in the High Court in that the duty imposed on the defendant is a positive duty to protect TNB underground cables and subsequently to the public, who are users of electricity distributed/transmitted via the underground cable. Where, the Court of Appeal held that the case falls within Category 1 of the doctrine of non-delegable duty of care, in relation to highway and hazard cases. This matter was then appealed to the Federal Court.
LEGAL ISSUES:
Whether the Defendants 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.
WHAT IS THE LAW PRINCIPLE ON NON DELEGABLE DUTY OF CARE AND HOW IS IT CATEGORIZED? Read more…
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