Image credit: Katrina Flores, 18.04.2019 DEMO: What can happen if you dig irresponsibly and rupture gas pipeline, available at https://www.wndu.com/content/news/DEMO-What-can-happen-if-you-dig-irresponsibly-and-rupture-gas-pipeline-508717951.html
Construction is replete with danger. Hitting underground pipes and cables would probably be at the top of this list.
Hemraj v TNB [2022] 4 MLJ 608 brings home how dangerous a practice this can be. The CA also discusses salient principles pertaining to the non-delegable duty of care.
The factual matrix
Hemraj v TNB involved a claim brought by Tenaga Nasional Berhad (TNB, national electricity provider) against a homeowner (Hemraj Sdn Bhd). Hemraj brought a Third-Party Claim against its contractor (Contractor).
Hemraj had engaged the Contractor to complete excavation works at its bungalow. These works were outside the bungalow and were executed without any approval from DBKL (local council) or TNB.
The Contractor hit an oil-filled 132kv XLPE cable installed by TNB. The rectification costs were an eye-watering:
RM3,110,445.09 together with 25% administrative costs"
The High Court
After a full trial, the High Court held that Hemraj was liable for the full sum. Hemraj's third-party claim against the Contractor was also allowed.
The Court of Appeal
Dissatisfied, Hemraj appealed to the CA. The CA affirmed the HC's decision.
On appeal, Hemraj asserted that TNB had not pleaded "non-delegable duty of care" as a part of its claim.
The CA held that this 'non-pleading' issue had not been raised by Hemraj in its Memorandum of Appeal. Notwithstanding, the CA stated that TNB had pleaded the essence of non-delegable duty of care against Hemraj:
[23] Even though the words ‘non-delegable duty of care’ were not expressly pleaded in para 18 of the SOC, we find that the essence of the duty was sufficiently pleaded. Negligence was alleged not only against Hemraj but also against Hemraj’s ‘kontraktor-kontraktor, pekerja-pekerja dan agen-agen’. Particulars of negligence against Hemraj and/or its contractor, its servants and/or agents were also pleaded.
On the non-delegable duty of care
The CA held that as a general rule, an employer would not be liable for the negligence of his independent contractor. However, an exception arises where the duty of care is non-delegable:
[25] The general principle is that an employer is not liable for any tort committed by his independent contractor. An employer may however be liable for the tort committed by his independent contractor if the employer is deemed to have committed the tort himself. This is an exception to the general rule, and the employer is liable where the duty is held to be non-delegable.
The CA then went on to list several categories of non-delegable duty of care, together with their supporting cases (paragraphs 30-38):
Category 1 of non-delegable duties
(a) Hazardous cases
(b) Hazardous and highway cases
(c) Dangerous activities on or near a highway
(d) Fire or other hazardous activities
Category 2 of non-delegable duty: Under common law
The CA's ratio
The CA opined that Hemraj, by engaging the Contractor, had undertaken a dangerous activity on a public road. That dangerous activity gave rise to a non-delegable duty of care:
[42] The same factual matrix is present in the present appeal as the excavation works were also executed on a public road, involving not just exceptional danger to the public but damages and/or inconveniences to the neighbourhood due to damage to the underground cables. Hemraj had appointed LCS Engineering and the third parties to carry out the exaction works on public road. Unlike Tenaga Nasional Bhd v Syarikat Bekalan Air Selangor Sdn Bhd & Anor, there was no written contracts between Hemraj and LCS Engineering and the third parties. The excavation works, which was executed without the required permits, had damaged TNB Cables. We are of the considered opinion that the duty imposed on Hemraj 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. As such, we find that this appeal falls within Category 1 of the doctrine of non-delegable duty of care, in relation to highway and hazard cases.
The upshot
The CA dismissed the appeal and upheld the HC's findings. It contains an excellent discussion as to the non-delegable duty of care, which practitioners would do well to take note of.
This case also illustrates the need for adequate care, planning and supervision to be taken when commencing any construction work in or around one's home. The simplest act of digging outside one's home could lead to dire consequences, should one not take adequate care.
GAVIN JAYAPAL
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