General Rule:
Liability in tort of negligence is contingent on personal fault and a defendant would not be personally liable for the act of another.
Exception:
However, there is an exception to this general rule which is the NON-DELEGABLE DUTY OF CARE (“NDDC”).
Definition:
NDDC is a term used to denote a duty which cannot be discharged by entrusting its performance to an independent contractor.
When should it be applied?
Woodland v Essex County Council [2013], Lord Sumption formulated a framework in where broad categories of cases where NSSC is imposed, namely;
1. WHERE THE DEFENDANT EMPLOYS AN INDEPENDENT CONTRACTOR TO PERFORM SOME WORK WHICH IS EITHER;
a. inherently hazardous or
Tenaga National Berhad v. Syarikat Bekalan Aiur Selangor Sdn Bhd [2017] 6 CLJ 356 (SYABAS), Court of Appeal in SYABAS, embarked on a public policy consideration that public utility bodies providing essential services to the community could not extinguish their duty of care by subcontracting the work to an independent contractor.
b. extraordinarily hazardous or
Honeywill & Stein v. LArkin Bros [1934], in this case the NDDC rule was only applied to extra hazardous operations in its intrinsic nature.
c. liable to become so in the course of his work.
Biffa Waste Services v MAschinenfabrik [2009] 3 WLR, whether there are precautions available to remove or mitigate the hazard. If there are available precautions, then the activity will not be described as exceptionally hazardous and does not come within category 1. However, even if, with the known precautions available, the hazard is still a viable risk, then the activity will be considered exceptionally hazardous within category 1.
2. WHERE THERE EXIST SPECIAL RELATIONSHIPS BETWEEN THE PRINCIPAL AND THE VICTIM SUCH THAT THE PRINCIPAL IS NOT PERMITTED TO DELEGATE HIS TORTIUS LIABILITY TO AN INDEPENDANT CONTRACTOR:
i. Dr Kok Choong Seng & Anor v. Soo Cheng Lin and Anor Appeal, such duties should only be imposed where it is fair, just and reasonable to do so, based on the facts and circumstances of the case.
ii. Dr Hari Krishnan & Anor v. Megat Noor Ishak bin Megat Ibrahim & Anor Appeal [2018]
iii. Mason J in Kondis v. State Transport Authority, where there is extra hazardous activity, a higher standard of care is imposed. It may be delegated to an independent contractor; however liability will only be imposed on the principle if a special relationship is established.
3. HOW IT SHOULD BE APPLIED?
After distinguishing, where it falls under category 1 or 2 as mentioned in the case of Woodland, the principle mentioned in the case Biffa Waste Services v MAschinenfabrik [2009] 3 WL should be applied next. In Biffa Waste, activity is considered to be “exceptionally dangerous whatever precautions are taken” when;
i. the persistence of material risk of exceptionally serious harm to others arising from the activity in question;
ii. the potential extent of harm if the risk materializes; and
iii. the limited ability to exclude this risk despite exercising reasonable care.”
(HEMRAJ & CO SDN BHD V TNB [2022] 1 LNS 2480)
SUMMARY APPLICATION:
In this case, it is TNB who is suffering from Hemraj’s and the homeowner’s activity, unless it is the other way around, then there shall exist a special relationship between TNB and homeowner since TNB is a public utility body as per the case of TNB v. Syarikat Bekalan Air [2017].
Therefore, Court of Appeal found that the present appeal falls under the 1st category of cases, namely that the defendant employs an independent contractor to perform some work which is either inherently hazardous or extraordinarily hazardous or liable to become so in the course of his work. Hence, we will address the duty within the 1st category as enunciated by Lord Sumption. In determining whether the work done are inherently hazardous or extraordinarily hazardous or liable to become so in the course of his work, we shall look at the precautions available to remove or mitigate the hazard.
If there are available precautions, then the activity will not be described as exceptionally hazardous and does not come within category 1. However, even if, with the known precautions available, the hazard is still a viable risk, then the activity will be considered exceptionally hazardous within category 1.
Applying the Biffa Waste’s test to the facts of our present case, the activity carried out by the plaintiff is the connection of the sewage pipe from the house to the mains. The precautionary measure that ought to have been taken by the third-party contractors is the utility mapping exercise before doing any excavation as that would indicate the presence of TNB’s underground cable. It is accepted that no utility mapping exercise was done by the third-party contractors in the present case. However, the test is not whether any precautionary measures were taken before the activity was carried out but rather, whether the activity (the excavation and sewage connection works) would remain extraordinarily hazardous, had the utility mapping exercise been carried out.
Given that it was the duty of the third-party contractors to do the utility mapping exercise, they would have been aware of the underlying cables. This coupled with the low persistence of risk of damage to the TNB cable affirms the fact that the sewage connection works carried out by the premise owner is not an extraordinarily hazardous activity.
Next, applying to the principle “exceptionally dangerous whatever precautions are taken” from Biffa Waste to the facts of the present case, from the evidence of PW4, if there was utility mapping exercised then the persistence of risk of damage to TNB cables in the course of sewage connection works is “very rare’.
Given the aforesaid, it is evident that the activity of excavation works in this case cannot reasonably be said to be extraordinarily hazardous. Excavation work are routinely done and fact that the works were carried out near a highway is not the issue. The central issue is whether such excavation works are exceptionally dangerous whatever precautions are taken.
In the present appeal, there is no evidence that there is a particular risk from the renovation works that remained substantial even if the renovation works were done properly.
In conclusion, we found that the excavation works carried out by the independent contractors were routine residential construction works carried out by a homeowner through its independent contractors cannot be described as extraordinarily hazardous activity, whereby the homeowner owes a non-delegable duty of care, to a public utilities company, namely the plaintiff, TNB for the negligence of those independent contractors. We therefore allow the appeal with costs of RM250,000.00 to the defendant/appellant subject to the allocator. We set aside the decision of the Courts below.
(ZABARIAH MOHD YUSOF) Judge of the Federal Court, Putrajaya