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Case Update: Unreasonable to hold that routine residential construction works are subject to non-delegable duty

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LAW OF TORTS
Excavation Works – Damages – Underground Cable – Non-Delegable Duty of Care – Independent Contractors – Negligence

Hemraj & Co Sdn Bhd v Tenaga Nasional Berhad
Civil Appeal No. 02(f)-65-11/2021(W)| Federal Court
- see the grounds of judgment here

Facts Tenaga Nasional Berhad (“Respondent”) incurred cost and expenses when they had to carry out emergency repairs and replacements of its underground cable, which was damaged due to excavation works carried out by third-party contractors that was hired by Hemraj & Co Sdn Bhd (“Appellant”), in front of a house that was owned by the Appellant. It was the Respondent’s contention that since the Appellant had appointed third parties as consultants and contractors for the excavation works, the Appellant owes the Respondent, a non-delegable duty of care. The Respondent filed a claim in the High Court where the learned Judge held that the Appellant did owe a non-delegable duty of care. Unsatisfied with this decision, the Appellant appealed to the Court of Appeal which upheld and affirmed the findings of the High Court. Hence, this final appeal.

Issue Whether the Appellant 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?

Held In allowing the Appeal, Judge Zabariah Mohd Yusof began by explaining that non delegable duty of care is a common law tort, the principle of which, a defendant who delegates the performance of its integral duty to an independent contractor, will invariably be held liable for the negligence of the independent contractor. It was the Respondent’s case that there is a standalone category of cases known as the “highway and hazard cases” which was accepted by the Court of Appeal in the present case. The works do not even have to be “extraordinarily hazardous” for non-delegable duty to apply. It was also submitted by the Respondent that based on the principles distilled from the applicable law, as applied to the concurrent findings of facts in the present case, non-delegable duty of care was imposed on the Appellant on the basis that the excavation works which caused damage to the cables were carried out on public road/highway which created a hazard to the public, to utility companies, and to users of such utilities. The Federal Court however disagreed and held that these findings by the Court of Appeal was clearly in error and that non-delegable duty should only be applied in limited and exceptional circumstances because the doctrine imposes stringent duty and that in many instances, it would be unrealistic or almost impossible for the duty bearer to fulfil the duty in question. Further to that, the precautionary measure that ought to have been taken by the third party contractors is the utility mapping exercise before doing any excavation, however, it was not carried out. Nevertheless, 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. Hence, the excavation works carried out by the independent contractors were routine residential construction works carried out by a homeowner through its independent contractors and cannot be described as extraordinarily hazardous activity, whereby the homeowner owes a non-delegable duty of care, to a public utilities company, namely the Respondent for the negligence of those independent contractors. It would not be fair, just and reasonable to hold that routine residential construction works are subject to non-delegable duty as this would expose homeowners to an indeterminate liability for the tortious acts of their independent contractors, whose manner of work are beyond their control.

Zul Rafique & Partners
{29 December 2022}

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