1. ) HALIMATUN SAADIAH BINTI ISMAIL v 1. ) Tenaga Nasional Berhad (TNB) (BF-B51-1-02/2021)

HALIMATUN SAADIAH BINTI ISMAIL

NIZAM BIN MOHD NORDIN (NO. K/P : 721018-10-5901) … PLAINTIF-PLAINTIF

ROSDI BIN SHAFIE

KAMIL BIN HAMADAN

RIZAL BIN BUANG

KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (ENCLOSURE : 1) [1] This is my grounds of judgment in respect of the Plaintiffs’ claims against the Defendants for declaration and damages due to negligence and breach of statutory duty by the Defendants. The prayers can be found are as follows :- “(a) Deklarasi bahawa Defendan ke-2, ke-3, ke-4, ke-5 dan ke-6 telah melakukan kecuaian, perlanggaran tugas statutori Seksyen 5 Akta Perkhidmatan Bomba 1988 dan ketinggalan kerana tidak mengambil tindakan sesegara yang mungkin ke atas kejadian kebakaran pada 01.04.2018 di premis PlaintifPlaintif;

Deklarasi bahawa Defendan ke-2, ke-3, ke-4, ke-5 dan ke-6 telah melakukan kecuaian, perlanggaran tugas statutori Seksyen 5 Akta Perkhidmatan Bomba 1988 sehingga mengakibatkan kerosakan harta benda dan 'mental distress' terhadap Plaintif Pertama kerana Plaintif Pertama secara tidak adil dituduh cuba menipu pihak bomba tentang tarikh kejadian sebenar kebakaran dan dipaksa untuk mengakui tarikh kebakaran yang salah serta bersusah payah menguruskan hal kejadian kebakaran tersebut untuk mendapatkan salinan kebakaran bagi insurans yang akhirnya tidak diberikan oleh Defendan ke-2 hingga ke-4;

Deklarasi bahawa Defendan Pertama telah cuai dan melanggar tugas statutori Seksyen 13 Akta Bekalan Elektrik 1990 kerana tidak menyenggara pepasangan kabel servis utama Defendan Pertama pada waktu yang munasabah dan bahkan tidak mengakui bahawa pepasangan tersebut adalah milik Defendan Pertama seperti dinyatakan di dalam surat bertarikh 29.06.2018 yang akhirnya menyebabkan siasatan bersama pihak bomba tidak dapat dilakukan dengan lengkap dan akhirnya salinan kebakaran bagi tuntutan insurans tidak berjaya diperolehi;

Deklarasi bahawa Defendan ke-2, ke-3, ke-4, ke-5 dan ke-6 telah cuai, ketinggalan, gagal dan abai untuk terus segera pergi ke tempat kebakaran apabila dihubungi oleh Plaintif-Plaintif dan oleh itu, telah gagal menjalankan tugas statutori sebagai pegawai bomba di dalam seksyen 5 Akta Perkhidmatan Bomba 1988;

Deklarasi bahawa Defendan Pertama, ke-2, ke-3 dan ke-4 telah melakukan kecuaian, ketinggalan dan perlanggaran tugas statutori berdasarkan Seksyen 5 Akta Perkhidmatan Bomba 1988 dan Akta Bekalan Elektrik 1990 apabila gagal menghadiri kejadian kebakaran sesegera mungkin apabila Plaintif Kedua menghubungi bagi mendapatkan bantuan segera;

Deklarasi bahawa Defendan ke-2, Defendan ke-3 dan Defendan ke-4 telah bertindak cuai dan salah guna kuasa (abuse of power) serta melakukan misfeasance in public office kerana memalsukan maklumat tentang tarikh kejadian kebakaran yang sebenar iaitu 02.04.2018 sedangkan tarikh sebenar ialah 01/04/2018 bahkan memaksa Plaintif-Plaintif untuk mengakui fakta tarikh yang salah dan membuat saranan lakonan kebakaran yang tidak patut;

Deklarasi bahawa kecuaian dan ketinggalan serta pecah tugas statutory Defendan-defendan menyebabkan Plaintif-Plaintif tidak dapat membuat tuntutan insurans kebakaran rumah;

Deklarasi bahawa Defendan ke-5 dan Defendan ke-6 adalah bertanggungan secara beralih terhadap semua kecuaian dan ketinggalan Defendan ke-2, ke3 dan ke-4 sebagai pengkhidmat mereka;

Perintah Defendan-defendan membayar gantirugi teruk dan tauladan untuk ditaksirkan kepada Plaintif-Plaintif;

Perintah Defendan-defendan membayar gantirugi am dan khas untuk ditaksirkan kepada Plaintif-Plaintif;

Perintah supaya Defendan-Defendan membayar gantirugi pampasan pendapatan yang hilang melalui cuti kerja, masa, usaha, kualiti kerja, dan kos perjalanan Plaintif-Plaintif menguruskan hal berkaitan kejadian kebakaran di mana jumlah akan ditentukan semasa bicara penuh atau untuk ditaksirkan jumlahnya;

Perintah supaya Defendan-Defendan membayar kos atas dasar peguamcara dan anakguam kepada Plaintif-Plaintif;

(m)Perintah supaya Defendan-defendan membayar gantirugi khas sebanyak RM25,865.00 kepada Plaintif-Plaintif;

Perintah supaya Defendan-Defendan membayar faedah 5% atas gantirugi daripada tarikh kejadian kebakaran iaitu 01.04.2018 sehingga tarikh pemfailan tindakan ini;

Perintah supaya Defendan-Defendan membayar faedah 5% atas gantirugi daripada tarikh pemfailan tindakan ini sehingga tarikh penghakiman atau perintah;

Perintah supaya Defendan-Defendan membayar faedah 5% setahun bermula dari tarikh Perintah sehingga tarikh penyelesaian penuh; dan

Lain-lain relit yang selanjutnya disifatkan suaimanfaat dan saksama oleh Mahkamah yang Mulia ini;” [2] Due to the breach of statutory duties and negligence caused by the Defendants and/or Defendants’ agents, Plaintiff suffered losses and damages to the property so as to alleged mental illness, lack of quality of work and depreciation on the value of the premise due to the fire incident. Plaintiffs prayed for declaratory reliefs as well as for general and special damages, aggravated and exemplary damages to be determined by this Honourable Court. Parties [3] The 1st Plaintiff is the registered owner of the property known as No. 10, Jalan Melur Sari 7, Taman Melur Sari, Bandar Sungai Buaya, 48010 Rawang Selangor (“the said premise”). The 1st Plaintiff is also the registered electricity user with the TNB. While the 2nd Plaintiff is the husband to the 1st Plaintiff and they both live in the said premise together with their children at all material time. [4] The 1st Defendant is a public limited company incorporated under the Malaysian Companies Act 1965 and is having a registered address at Ibu Pejabat Tenaga Nasional Berhad, No. 129, Jalan Bangsar, 59200, Kuala Lumpur, Wilayah Persekutuan. The 1st Defendant’s core business is providing electricity to the country’s businesses, homes and industries and country’s sole electricity provider to the nation. It represents the entire electricity production and supply value chain to the country. [5] The 2nd Defendant is at all material time, a Fire and Rescue Officer at the Fire and Rescue Department at the Kuala Kubu Bharu Fire Station. While the 3rd Defendant is the Head of the Fire and Rescue Department at the Kuala Kubu Bharu Fire Station. [6] The 4th Defendant is a Fire and Rescue Officer at the Fire and Rescue Department of Selangor Headquarter, who was in charge in approving and issuing a copy of Fire or Emergency Report (“Salinan Laporan Kebakaran / Kecemasan “SLKK”) dan the (“Salinan Laporan Kebakaran Tidak dilaporkan SPKK”) to the Plaintiffs. [7] The 5th Defendant was sued as Chief of the Fire and Rescue Department of Malaysia Headquarters who is in charge of giving instructions in accordance to Fire Service Act 1988 to the 2nd to 4th Defendants. Whilst the 6th Defendant is sued as the employer to the 2nd to 5th Defendants. Brief Facts [8] On 1.4.2018 at approximately 3.30 pm, a fire broke out at the Plaintiffs' premise which believed to have been caused by the TNB main service cable belonged to the 1st Defendant. The fire had damaged the wall, ceiling in the garage of the Plaintiffs' premise and part of the toilet attached to the parking area. [9] After being alerted by one of the Plaintiffs’ children about the fire, Plaintiffs together with the whole family went out to the garage and saw black smoke plume coming out from the TNB’s service cable near to electricity meter. Plaintiffs’ oldest son then immediately switched off the electricity at the main board to prevent the fire from spreading inside the house through the electricity meter. [10] Due to the worsening fire, the 2nd Plaintiff had promptly put out the fire by using water. After the fire was successfully extinguished, Plaintiffs discovered that one of the TNB wires has been disconnected. According to the 1st Plaintiff, the 2nd Plaintiff immediately called the 1st Defendant careline no of 15454 to inform as regards to the incident of fire that affected the service cable which belonged to the 1st Defendant. [11] Subsequently, the 2nd Plaintiff immediately contacted the Fire and Rescue Department of Rawang Fire and Rescue Station for help. However, Rawang Fire and Rescue Station informed the 2nd Plaintiff that the call should go to the Kuala Kubu Fire and Rescue Station and the premise is not under the local jurisdiction of the Rawang Fire and Rescue Station. [12] According to the 2nd Plaintiff, the call was made to Rawang Fire and Rescue Station based on the fact that the address of the Plaintiffs' premise is indeed in Rawang. However, the officer at the Rawang Fire and Rescue Station had instructed the 2nd Plaintiffs to contact the Kuala Kubu Bharu Fire and Rescue Station for further action. Despite the instruction given and due to the worsening fire, the Plaintiffs attempted to control and extinguish the fire themselves. Later, the fire was successfully extinguished by the Plaintiffs by using water. [13] The 2nd Plaintiff then contacted the Kuala Kubu Fire and Rescue Station to inform them about the incident and that the fire had been extinguished. The 2nd and 3rd Defendants’ officer informed the 2nd Plaintiff that there was no need for them to go to the premise since the fire had been successfully extinguished by the Plaintiffs. After Plaintiffs had ceased fire, Plaintiffs discovered that a TNB service cable had broken. [14] Only at around 6.00 pm on the same day, the 1st team of the 1st Defendant’s technician arrived at the premise and conducted a fire survey by observing and inspecting the electricity pole in front of the Plaintiffs' premise without checking the TNB service cables that were on fire. [15] Later around 9.30 pm, another team of 1st Defendant’s technician came and began cutting the service cable wires to separate the damaged wires from the good ones and connected to the related wires. The burnt wires were taken away by the 2nd team of the 1st Defendant. [16] After the incident, according to the 1st Plaintiff the Plaintiffs' premise has often experienced power outages, i.e. intermittent power outages, causing the Plaintiffs to appoint an external contractor to repair the outage which results to additional costs and losses to the Plaintiffs. [17] On 2.4.2018, the 1st Plaintiff made a police report at Bukit Sentosa Police Station regarding the fire incident that occurred on 1.4.2018. On the same day, the 1st Plaintiff later went to the Kuala Kubu Bharu Fire and Rescue Station to obtain a Fire and Emergency Report (“SLKK”) for insurance claim purposes on the damage and losses caused by the fire. [18] On 3.4.2018, the 1st Plaintiff made a complaint and fire report via the 2018 Technical Complaint Form through the Customer Service at the 1st Defendant's office in Rawang to inspect the damage caused by the fire. On 17.4.2018, the 1st Plaintiff filed a police report since there was no further action from the 1st Defendant regarding the complaint made on 3.4.2018. [19] The next day on 18.4.2018 at around 10.15 am, an officer from the 1st Defendant came to the Plaintiffs' premise to estimate the cost of damage to the TNB wires during the fire incident without the presence of Plaintiffs. After the inspection, the 1st Defendant's officer stated that the burnt wire was a wire that supplied electricity to the neighbors' houses and that the wire did not supply power to the Plaintiffs' premise. [20] Later, the 2nd Plaintiff lodged a police report at the Bukit Sentosa Police Station on 19.4.2018 because the inspection which was carried out on the 18.4.2018 by the 1st Defendant’s officer was made without the presence of Plaintiffs and without the Plaintiffs' knowledge and supervision. Plaintiffs maintain that the inspection by the 1st Defendant was incorrect because there was no transparent investigation conducted by the 1st Defendant. [21] The 1st Plaintiff made a claim to the 1st Defendant vide the Claim Form for Damage to Electrical Goods Due to Excessive Voltage Incident. In consequence to the claim form filed by the 1st Plaintiff, a site visit was conducted by the Energy Commission together with representatives of TNB Rawang to the Plaintiffs' premise on 17.8.2018 at 10.30 am to view and investigate the cause of the fire, but the finding by the Energy Commission indicated that the cause of the fire was unknown. [22] Coming to the breach of the statutory duties of the 2nd to 4th Defendants, on 2.4.2018 when the Plaintiffs went to the Kuala Kubu Bharu Fire and Rescue Station to get advice on making insurance claim, the 2nd Defendant met with the 1st Plaintiff and stated that the 2nd Defendant would help them with the insurance claim and will go down to the Plaintiffs’ premise. To make an insurance claim, the fire and emergency report (SLKK) is needed and in order to issue the SLKK report, the Fire and Rescue team must go down to the fire scene and verify the fire incident. [23] Since the fire incident was on 1.4.2018, Plaintiff alleged that the 2nd Defendant had suggested to hold a reenactment on 2.4.2018 in order to issue a Fire and Emergency Report (SLKK report) so as to support the fire claim. Plaintiffs who were unaware of the procedures had followed the suggestion made by the 2nd Defendant. The 2nd Defendant had also instructed the Plaintiffs to make an emergency call to the Kuala Kubu Bharu Fire and Rescue Department on 2.4.2018. [24] Later that night, the 2nd Defendant then had made a call to Plaintiffs on the night of 2.4.2018 to ensure that Plaintiffs were at the premise before the Fire and Rescue team from Kuala Kubu Bharu Fire and Rescue Station came down to the premise. Therefore, on 2.4.2018 at 8.53 pm, a reenactment as alleged by the Plaintiffs was conducted. A Fire and Rescue team from Kuala Kubu Bharu Station which consist of 8 members together with the 2nd Defendant went down to the Plaintiffs’ premise using the fire engine vehicle to inspect the premise. [25] As guided by the 2nd Defendant, on 7.4.2018, the 1st Plaintiff sent and submitted the Application Form for a Copy of Fire & Emergency Report (SLKK) to the 3rd Defendant via the Kuala Kubu Bharu Fire Station. While on 8.4.2018, the 1st Plaintiff sent a letter to the Shah Alam Fire and Rescue Station and to the Fire and Rescue Department Headquarters in Putrajaya regarding the application for SLKK report. [26] On 10.4.2018, the 2nd Plaintiff was informed by the 2nd Defendant that the SLKK report was available for collection. However, the 2nd Defendant had advised the Plaintiffs to continue to make a fire compensation claim against the 1st Defendant only and not against the insurance company. [27] Bewildered by the advice from the 2nd Defendant, the 1st Plaintiff came to collect the SLKK report at Fire and Rescue of Selangor HQ at Bukit Jelutong. The 1st Plaintiff discovered that the date of the fire incident which was recorded in the SLKK report is on 2.4.2018 and no cause of fire was reported. Therefore, the 1st Plaintiff refused to sign the SLKK report, the Application Form for Obtaining SLKK report and the Questionnaire and Customer Survey Form due to incorrect date recorded and that no cause of fire reported in the SLKK report. [28] Subsequently, the 4th Defendant issued a Fire Confirmation Letter for Non-Reporting Cases (“SPKK”) when the 1st Plaintiff refused to accept the SLKK report. The 4th Defendant had instructed the 2nd and 3rd Defendants to refund the fee paid for the SLKK report. To the 1st Plaintiff’s dismay, the SPKK report which was issued had also failed to state any cause of fire. [29] On 23.4.2018, the 4th Defendant's Fire Forensic Division came to the Plaintiffs’ premise to investigate the cause of fire in order to issue a full report on the cause of the fire. However, a full fire report could not be issued because the investigation could not be carried out due to the evidence at the fire site had been removed by the 1st Defendant and that the affected area had been repaired and restored. [30] The failure of the 2nd and 3rd Defendants to attend the call on the day of the incident which is on 1.4.2018 has caused difficulties to the Plaintiffs to obtain the correct SLKK report. The Plaintiffs contend that the failure of the 2nd and 3rd Defendants to conduct investigation onto the cause of fire has also caused difficulties to the Plaintiffs to claim the compensation from the 1st Defendant and/or against the insurance company. [31] During trial, Plaintiffs had called three witnesses to establish their claims while the 1st Defendant had called three witnesses and the 2nd to 6th Defendants had called four witnesses to defend their case. The list of witnesses are as follows :- PW1 – 1st Plaintiff /wife PW2 – 2nd Plaintiff /husband PW3 – appointed contractor DW1 - investigation officer in the Energy Commission DW2 – assistant technician to the 1st Defendant / 1st team DW3 - an assistant senior technician of the 1st Defendant / 2nd team DW4 - a Fire and Rescue Officer in Fire and Rescue Kuala Kubu Bharu Station / who had received the call DW5 – 2nd Defendant DW6 – 4th Defendant DW7 – 3rd Defendant [32] At the end of the trial, I find that Plaintiffs had successfully made out a case against the 1st to 6th Defendants for breach of duty of care and statutory duties. I allowed the claims as prayed. However, I only allowed the aggravated and exemplary damages of RM50,000 against the 1st Defendant and RM100,000 against the 2nd to the 6th Defendants. Dissatisfied with the decision made on 29.11.2024, the 1st Defendant had filed a Notice of Appeal on 10.12.2024 against the decision. While the 2nd to 6th Defendants filed their Notice of Appeal on 12.12.2024. My reasons are as below. Preliminaries Plantiffs’ case [33] Plaintiffs in their suit contend inter-alia that the 1st Defendant is liable for the negligence caused by the Defendants or its agents for failure to ensure that the main cable electrical wiring installation is safe and meet the residential safety requirements. Plaintiffs have also claimed that the 1st Defendant had breached their statutory duties pursuant to Section 13,24 dan 33 of Electricity Supply Act 1990. Plaintiffs also contend that the 1st Defendant has failed to investigate and prepare a report on the cause of the fire. [34] As regards to the claims against the 2nd to the 4th Defendants, Plaintiffs contend that the 2nd to 5th Defendants were in breach of the statutory duties under Section 5 of the Fire Services Act 1988. The 2nd to the 5th Defendants failed to attend to the emergency calls and to inspect the said premise on 1.4.2018 so as to prepare the SLKK report which contains the correct information. Plaintiffs’ cause of action against the 5th and 6th Defendant is premised on the liability for any wrongful act done or any neglect or default committed by the 2nd to 4th Defendants. The 2nd to 4th Defendants were acting in pursuance of a duty imposed by law shall be deemed to be the agent of and to be acting under the instructions of the Government pursuant to Section 5 and 6 of the Government Proceeding Act 1956. Defence of the 1st Defendant [35] In rebuttal, the 1st Defendant denied that the fire on 1.4.2018 was caused by the 1st Defendant's main service cable. The 1st Defendant avers that the 1st Defendant has taken reasonable steps and every installation and delivery was carried out with great care and in compliance with safety procedures. [36] The 1st Defendant states that their equipment has an effective protection system to cut off excessive electricity supply. The 1st Defendant had also averred that the 1st Defendant had neither received any complaints from the Plaintiffs before the incident nor after the repair work was completed on 2.4.2018. [37] The 1st Defendant also alleged the negligence by the Plaintiffs inter-alia that the Plaintiffs failed to ensure that the electrical wiring was in a safe condition and failed to ensure that the premises met residential safety requirements. The 1st Defendant also avers that the fire incident was not due to the negligence of the 1st Defendant. [38] In furtherance, the 1st Defendant alleged that Plaintiffs had also failed to hire a certified technician to make electrical wiring connection in the said premise. The Plaintiffs failed to take reasonable care to avoid such an incident of fire to happen. Defence of the 2nd to 6th Defendant [39] The 2nd to 6th Defendants claimed that on 1.4.2018, Plaintiffs only contacted the Kuala Kubu Bharu Fire and Rescue Station to find out about the insurance claim procedure not for emergency help. The 2nd to 6th Defendants claimed that the proposal to appear on 2.4.2018 and to reenact at the Plaintiffs' premise was to assist the Plaintiffs in making insurance claim and it was upon the Plaintiffs’ request. [40] The 2nd to 6th Defendants claimed that the Plaintiffs had failed to make an emergency call when the fire broke out, resulting to disability to conduct investigation on cause of fire on the same day. The 2nd to 6th Defendants aver that the evidence at the scene of the fire had been tampered with and removed from the scene of the fire when the Forensic team arrived on 18.4.2018. [41] The 2nd to 6th Defendants aver that the SLKK report can only be signed by Head of Fire and Rescue Department Headquarters Selangor and not the Head of Headquarters of Fire and Rescue Putrajaya. The SLKK report was issued within stipulated time and in accordance to the Arahan Ketua Pengarah Bil 1/2000 on SLKK application procedures. [42] It was the 1st Plaintiff who had refused to sign and accept the SLKK’s report and demanded that the date of the fire incident to be changed to 1.4.2018. The 4th Defendant’s SLKK report was based on the relevant documents uploaded by the 2nd Defendant in the system. The amendment to the date of incident cannot be changed as it followed the date reported in the uploaded documents. The 4th Defendant then had further assisted the Plaintiffs by issuing another SPKK report on 18.4.2018 and refunded the fee to issue SLKK report of RM100 to the Plaintiffs. Evidence of Plaintiffs and Defendants witnesses - analysis Evidence of PW1 [43] PW1 is the 1st Plaintiff who is the owner of the said premise and the registered user of the electricity services provided by the 1st Defendant under the user account no : 210038897410. PW1 is a senior auditor at SIRIM Bhd by profession. [44] According to PW1 on 1.4.2018 at around 3.30 pm, PW1 and PW2 together with their children were resting at the premise. Suddenly, one of PW1’s children ran into PW1 screaming and informing PW1 that there was fire at the parking lot under the garage. The whole family went out to the garage and saw black smoke plume coming out from the TNB’s service cable near to electricity meter. PW1’s oldest son then immediately switched off the electricity at the main board to prevent the fire from spreading inside the house through the electricity meter. [45] Due to the worsening fire, PW2 had promptly put out the fire by using water. After the fire was successfully extinguished, PW1 and PW2 discovered that one of the TNB wires has been disconnected. According to PW1, PW2 immediately called the 1st Defendant careline no of 15454 to inform as regards to the incident and that the service cable which belonged to the 1st Defendant was on fire. Subsequently, PW2 had called Fire and Rescue Department Rawang branch for help but the branch informed PW2 to call Fire and Rescue Department in Kuala Kubu Bharu. [46] PW1 claimed that due to self-maintenance by the Plaintiffs and no upkeeping being done by the 1st Defendant for a long period of time, their system has failed to function properly. PW1 further reiterated that if their system works properly, the excessive electrical voltage current can be stopped and cut off automatically. A well maintain wiring will prevent fire due to excessive electrical voltage. [47] According to PW1, the 1st Defendant’s representatives (1st team) came to their premise at around 6.00 pm to inspect the fire area and their electric pole outside the premise. Later around 9.30 pm, the 1st Defendant’s technician (2nd team) started to cut off the affected wire and separated the unaffected wire from the affected wire. PW1 in her evidence stated that the 1st Defendant’s technician (2nd team) had taken away with him the burnt wire without any confirmation as to the cause of fire. PW1 was told that the burnt fire had to be taken away for further investigation. [48] PW1 had also in her evidence stated that after PW2 had successfully ceased the fire by using water, PW1 saw a wire that was disconnected from the TNB main installation wire. PW1 said that the cable was alive and it dangled as there was a spark on the cable when it comes into contact with water. Due to the incident, PW1 stated that there was disruption to the electricity supply and to the main circuit board of the premise. [49] Two days after the incident, PW1 went to the TNB Rawang to lodge a complaint on the disruption and as regards to the fire incident. PW1 had filled up a technical complaint form and a form to claim compensation for damaged electrical goods due to high volt. Both forms had been submitted to the 1st Defendant. PW1 was informed by 1st Defendant that the complaints will be entertained within seven

days. [50] Nevertheless, PW1 had only received feedback from the 1st Defendant vide letter dated 29.6.2018 stating that the 1st Defendant is not liable to the fire incident as there was no evidence of negligence by the 1st Defendant and there was no proof that the fire was caused by the 1st Defendant’s service cable. PW1 strongly denied the allegation made by the 1st Defendant since PW1 saw that the fire was due to the TNB cable service. [51] Prior to the feedback by the 1st Defendant, PW1 had appointed Hilmi Iron Work & Construction a private contractor to assess the damage and to examine the wiring at the premise. The hired contractor found that the wires in the parking lot came into contact, possibly due to a fire in the TNB main service cable, which in turn caused the insulated wires to burn. As a result, there is a continuing power outage at the Plaintiff’s premise after the incident. [52] On 17.4.2018 PW1 had lodged a police report against the 1st Defendant in order to protect the premise from any unwarranted incident of fire in future. The report was also lodged due to no further action taken by the 1st Defendant since 3.4.2018. Subsequently on 18.4.2018, the 1st Defendant had sent a representative to assess the damage at the premise without the presence of the Plaintiffs. [53] Due to no further action taken by the 1st Defendant, to PW1’s dismay, PW1 had lodged a report to the Malaysian Energy Commission vide complaint no 0060/07/18 on 18.7.2018. In the complaint, PW1 informed that the fire incident was actually due to the TNB service cable. Subsequently, on 17.8.2018, representatives of Energy Commission made a site visit at the premise to examine the cause of the fire. After the examination, it was reported by the Energy Commission that the cause of fire is unknown. Further in their report, the Energy Commission there was a possibility that the cause of fire came from outside the cable and was due to the compression of goods on the cable. [54] PW1 denied the allegations made by the 1st Defendant are as follows :- a. as regards to allegation in para a & b, it was PW1’s contention that her premise is safe and fire incident had never occurred before but for failure to the TNB main service wire cable installation system protection system function; b. as regards to allegation in para c, PW1 avers that it is the duty of the 1st Defendant to maintain the cable and not the duty of the PW1 as customer to the electricity services by the 1st Defendant; c. as regards to allegation in para d, PW1 denied to make any renovation as to the wall and roof of the premise; d. as regards to allegation in para e, PW1 contends that the electricity consumption capacity in her premise is moderate. The affected cable that has burnt and broken was the wire from TNB cable service that supplies electricity to neighbor’s house. e. as regards to allegation in para f and h, PW1 contends that it is the duty of the 1st Defendant to maintain their system and the installation; f. as regards to allegation in para g, PW1 states that the appointment of private contractor is to assess the damage and prepare a quotation for repair works and not to repair the cable or wire as alleged by the 1st Defendant; [55] PW1 had also contended that the 2nd and 3rd Defendants had failed to attend PW2’s call and went down to the Plaintiffs’ premise as the fire had been extinguished by the Plaintiffs. PW1 contends that due to failure to inspect the premise on the same date of the incident, the 2nd and 3rd Defendant had failed to prepare a proper SLKK’s report in order to support Plaintiffs’ claims to the insurance company. [56] Worst still, the 2nd and 3rd Defendant had suggested to conduct for a reenactment of the incident on 2.4.2018 which was the following day after incident. The reenactment had been conducted according to the 2nd Defendant suggestion. The SLKK’s report issued by the 4th and 5th Defendants failed to transpire the exact date of the incident which was on 1.4.2018. Due to the misdirection given by the 2nd and 3rd Defendants, Plaintiffs had been prejudiced and suffered losses. [57] PW1 states that the costs of repair due to the fire outbreak is amounting to RM25,865 based on the quotation prepared by Hilmi Construction. PW1 had also claimed for the general, aggravated and exemplary damages for the negligence by the Defendants. During cross-examination, PW1 denied that PW1 had made any renovation as to the wiring of the premise. The only renovation made to the premise was to the installation of lamp to the premise. PW1 informed that Court that there’s no receipts for the works done in item 1-16 under the quotation. [58] PW1 had also admitted during cross that there’s no call-log to show that PW2 had call emergency line of MERS 999. PW1 is aware that line MERS 999 is for any emergency call. PW1 agreed that the call was made to the Fire and Rescue Department in Rawang at 4.40 pm and later to Fire and Rescue Department in Kuala Kubu Bharu at 4.43 pm. PW1 admitted that PW1 had received the SLKK report but PW1 refused to sign. Later the SLKK report was taken back by the 2nd to 5th Defendants and the fee was refunded. [59] Both the SLKK and SPKK reports stated the same date of the incident as 2.4.2018 which was the date the 2nd and 3rd Defendants came down to the Plaintiffs’ premise and not the date the fire outbreak. PW1 had also stated that both of the reports did not mention any cause of fire in which causes Plaintiffs difficulties in claiming against the insurance company. Evidence of PW2 [60] PW2 is the husband to PW1 who lives together in the same premise at No.10, Jalan Melur Sari 7, Taman Melur Sari, Bandar Sungai Buaya, 48010 Rawang, Selangor at the time the incident happened. PW2 works as a manager at Proton Sdn Bhd, Tanjong Malim. [61] PW2 was with PW1 together with their children resting at home when the fire broke at 3.30 pm. After one of PW2’s children ran into PW1 screaming and informing PW1 that there was fire at the parking lot under the garage, the whole family including PW2 went out to the garage and saw black smoke plume coming out from the TNB’s service cable near to electricity meter. [62] Immediately, PW2 call line 15454 to inform TNB that the cable service was on fire. PW2 agreed that PW2 had promptly put out the fire by using water. After the fire was successfully extinguished, PW1 and PW2 discovered that one of the TNB wires has been disconnected. During cross, PW2 agreed that he had called the 1st Defendant at 4.02 pm. [63] Subsequently after call was made to the 1st Defendant, PW2 had made a call to Fire and Rescue Department of Rawang at 4.40 pm. The officer in charge who had received the call then instructed PW2 to call Fire and Rescue Department in Kuala Kubu Bharu since the premise is under the jurisdiction of Kuala Kubu Bharu. At 4.43 pm, PW2 had called the Fire Rescue Department of Kuala Kubu Bharu to inform about the fire incident but the PW2 was informed by the officer who picked up the call that their team need not go to the premise since the fire had been extinguished. [64] PW2 then informed the Court that the representative of the 1st Defendant only came at about 6.00 pm to inspect the premise and the electric pole outside the premise. Later around 9.30 pm, the 1st Defendant team came and started the repair works and they had cut off the affected wire and separate it from the unaffected wires. They later left the premise and had taken away the burnt wire with them. PW2 was informed that it was for the purpose of further investigation by the 1st Defendant. [65] PW2 and PW1 later had appointed a private contractor, Hilmi Iron Work & Construction to assess the damage and to examine on the affected area. Based on the inspection and examination done on 4.4.2018, the private contractor had informed PW2 that the wires in the car park were in contact, possibly caused by a fire in the TNB main service cable, which in turn caused the insulated wires to burn. The private contractor provides an estimation for the repair works amounting to RM25,865. [66] On 18.4.2018 (after PW1 had lodged a police report on 17.4.2018) PW2 had received a call from En Mohd Noor a representative from the 1st Defendant informing that he intended to visit the premise to make assessment on the damage to the wires belonged to TNB. PW2 had informed En Mohd Noor to wait for PW1’s call because PW2 was not at the premise. [67] By reading to the report issued by the Energy Commission, PW2 commented that the cable that was disconnected due to fire was the blue phase cable. According to PW2, in electrical circuits, an overload current occurs when the current flowing through a circuit exceeds its design capacity, causing the circuit to overheat and potentially leading to damage or fire. This happens when the demand for electrical power exceeds the circuit’s ability to handle it safely. [68] PW2 contends that it was the duty of the 1st Defendant to maintain their cable service installation and not the Plaintiffs responsibility to maintain their cable and wiring. According to PW2, the fire was from the main service cable of TNB and was due to short circuit. Without the presence of the 2nd and 3rd Defendants to investigate the cause of fire, and without the correct report issued by the 4th Defendant, it is difficult for Plaintiffs to make claims against the insurance company. Evidence of PW3 [69] PW3 is owner to the company known as Hilmi Iron Work & Construction. PW3 testify that on 4.4.2018, PW3 and another worker had come to the Plaintiff’s premise upon request made by PW2. PW3 was expected to inspect the burnt area near the garage and to make quotation as to the repair works that has to be done to the said area. PW3 saw black burn marks on the floor of the garage, the garage walls, and the car porch ceiling. PW3 said that due to fire the wire insulation has melted and therefore it causes the power outage to the premise. [70] Nevertheless, during cross PW3 agreed that PW3 is not an expert in wiring installation and PW3 is not a licensed and registered electrician. PW3 had informed that Court that PW3’s had prepared a quotation for the repair works and the costs of each items is a mere estimation. PW3 agreed that the repair works were not done and the estimation is yet to be paid by the Plaintiffs. Evidence of DW1 [71] DW1 is the investigation officer in the Energy Commission for Selangor and Putrajaya. DW1 was called to give evidence on the report made by DW1 dated 28.8.2018. DW1 informed that Court that the cable which was on fire had been repaired by the TNB when DW1 made inspection to the Plaintiffs’ premise on 17.8.2018. [72] Based on the report, DW1 agreed that the cause of fire is unknown because the wiring and the installation of cable had been repaired by TNB and according to TNB’s report the same unknown cause had been reported. However, DW1 explained there is an assumption or possibility that the cause of the fire was external or coming from an overloaded circuit. Further, DW1 testify that the protective fuse for the blue phase has blown due to fire. DW1 had also informed the Court that based on the photograph of the burnt wire shown by TNB, the fire was coming from below. Nevertheless, no photos of the burnt wire were tendered and produced by the 1st Defendant during trial. [73] During cross-examination, DW1 had agreed that the report prepared by him was incomplete. This was due to delay in receiving information by the TNB about the incident which was after four (4) months. According to DW1 at the time the inspection was made at the premise the effect of fire had gone. The affected wire had been reinstalled and repaired by the 1st Defendant. Therefore, DW1 stated that the report was only based on the information given by the Plaintiffs and the 1st Defendant. [74] DW1 had also informed the Court that the statement DW1 made in para 4.1 that the fire was coming from outside or overloaded circuit was merely an assumption. DW1 had recommended that a further review should be made by the 1st Defendant by sending the burnt cable for a laboratory test in order to identify the cause of fire. Evidence of DW2 [75] DW2 is an assistant technician to the 1st Defendant and has been working for almost 27 years with the 1st Defendant. DW2 who had arrived at the fire scene together with Field Crew Team B around 6.15 pm after the 1st Defendant had received a complaint about the fire at the Plaintiffs premise. At the premise, DW2 found that a fire broke out in the Plaintiffs’ car park area inside the premise. [76] DW2 had also found that the main service cable TNB had burnt and disconnected. Therefore, DW2 and his team immediately switched off all the electricity supply at the electric pole JLN MSR 7/1 which is located outside the Plaintiffs’ premise in order to avoid danger to further happens. [77] Subsequently, DW2 had reconnected the electricity supply outside the premise to fuse switch 160A for red and yellow fuse. The blue fuse has been burnt and cut off due fire. DW2 had also ensured that the works for reconnection was safely done without any danger to the Plaintiffs and the premise. DW2 had only made inspection outside the premise because the affected area did not involve inside the premise. [78] DW2 in his witness statement in answer no 8 had informed the Court that the fire only involved service cable at the sidewalk and the electric pole outside the premise which did not danger the Plaintiffs and premise. According to DW2, the following repair works will be done by the SAVR team (2nd team) from TNB Rawang. [79] During cross, DW2 agreed that the cable that had burnt was directly connected from the electric pole outside the Plaintiffs’ premise to the Plaintiffs’ premise. DW2 had also agreed that the cable outside the Plaintiffs’ premise in under the responsibility of the 1st Defendant and not the Plaintiffs, when DW2 was referred to the layout plan of “Garis Panduan Persempadanan Pengurusan dan Penyelenggaraan Sistem Pepasangan Elektrik dan Gas Berpaip di Bangunan” by the Energy Commission. [80] DW2 also agreed with the suggestion made by the counsel for Plaintiffs’ that there is no scheduled review for maintenance issued by the 1st Defendant. If there’s a complaint by the registered user then only the 1st Defendant team will go to the site and attend the complaint. DW2 had also agreed that the cause of fire was coming from the cable service TNB. Evidence of DW3 [81] DW3 was called as an assistant senior technician of the 1st Defendant who had attended the premise at around 10.00 pm together with SAVR TNB Rawang team. DW3 went to the premise after having report by the Field Crew Team B. At the premise, DW3 found that the fire had been extinguished and the service cable at the Plaintiffs’ car porch had burnt and disconnected. [82] DW3 later cut the burnt wire and separate it from the unaffected wire. Meanwhile, the SAVR team had installed a stretched line 3x16+25 from the electric pole MSR 7/3 to connect a temporary electric supply to premises no 12,14,16,18,20,22,22A,26 and 28 and a stretched line from electric polr MSR 7/1 to premises no 2,4,6,8 and 10. [83] According to DW3, although Plaintiffs had informed DW3 that they did not make any renovation to the wiring, DW3 stated that the installation of the service cable TNB which had burnt was not done by the TNB but by other 3rd party. DW3 had also averred that Plaintiffs should have hired a registered technician to make wiring installation inside and near the premise. [84] DW3 had also informed the Court that they have not received any complaints from the Plaintiffs or any application to review their wiring inside or outside the premise. DW3 later had taken away the burnt wire because the burnt wire is belonged to TNB for further investigation. [85] DW3 explained that the protection electrical system provides by the 1st Defendant well functioned. If there is an overloaded current, a fuse switched disconnector (fuse box) which is placed at the electric pole, fuse type NH will operate to cut off the electric supply. Any discrepancy to the electric supply such as short circuit, overloaded current to the circuit the fuse will blow and cut off the electricity supply to the premise. This is how the protection electrical system TNB is operating in order to avoid fire outage. [86] Nevertheless, during cross, DW3 agreed to the suggestion made by the Plaintiffs’ counsel that the wire service cable which was burnt and installed direct from the electric pole outside the Plaintiffs’ premise was under the responsibility of the 1st Defendant. DW3 had also agreed that the blue cable shown in the layout plan of “Garis Panduan Persempadanan Pengurusan dan Penyelenggaraan Sistem Pepasangan Elektrik dan Gas Berpaip di Bangunan” by the Energy Commission was under the responsibility of the 1st Defendant. [87] DW3 had also agreed that the cause of fire was from the service cable of TNB. However, DW3 stated that there was a tampering done to the service cable of TNB. DW3 also informed that Court that the burnt wire that was taken away from the premise had been passed to maintenance team for investigation and DW3 did not involve in the investigation. DW3 also agreed that because the wire and the cable is belonged to the 1st Defendant therefore only DW3 had access to the cable. DW3 had also agreed that DW3 did not know whether Plaintiffs are the original owner to the premise. [88] DW3 during re-examination explained that the tampering found in the cable did not follow the specification by TNB. According to DW3, the wire used in the cable was copper and not aluminum. Nonetheless, DW3 agreed that the 1st Defendant had reported that the cause of fire was unknown and tampering was not mentioned in any reports. DW3 had also admitted that the picture of the burnt wire and the report by maintenance team was not produced in any of the bundles. According to DW3 he had passed the burnt fire to the maintenance team for further investigation. Evidence of DW4 [89] DW4 is a Fire and Rescue Officer in Fire and Rescue Kuala Kubu Bharu Station. DW4 who was on duty in the control room from 8.00 am to 8.00 pm at the KKB Fire and Rescue Station to pick up any calls made on 1.4.2018. At around 2.00 pm to 4.00 pm, DW4 had received a call made by a male caller informing that there was fire at the parking area in his premise which is located in Sg Buaya, Rawang. [90] According to DW4, the male caller had voluntarily mentioned that the fire had successfully been extinguished. Further, the caller informed the Court that the caller had asked about the procedure to make insurance claim due to fire. DW4 answered that if the caller wants to make an insurance claims, the male caller has to make an emergency call and their team will go down to the location during fire and to put out the fire. If not, then the caller has to lodge a police report. The call ends there. [91] During cross, DW4 agreed that DW4 failed to take any particular or details of the caller and did not asked further about the fire. DW4 had also admitted that DW4 did not asked further on details of the caller because it was a mere inquiry as regard to procedure to claim fire insurance. The call was also made through a direct line to the Fire and Rescue KKB Station. Evidence of DW5 [92] At all material time, DW5 was a Fire Brigade Supervisor in Fire and Rescue Kuala Kubu Station and the 2nd Defendant in the suit. DW5 met the Plaintiffs on 2.4.2018 at the KKB Fire and Rescue station. DW5 was informed by PW1 that there was a fire at her premise on 1.4.2018 but the fire had been successfully put out themselves on the same day. PW1 wishes to lodge a report on the incident in order to make an insurance claim. [93] DW5 had explained to PW1 that in order to make an insurance claim, PW1 has to make an emergency call to the Fire and Rescue at the Kuala Kubu Bharu and the Fire and Rescue team will go down to the location and to put out fire. However, DW5 had informed PW1 that in her case, the fire had been successfully put out themselves and therefore the team did not have to go down to the premise. Therefore, the report on the fire incident cannot be produced. [94] According to DW5, PW1 had begged DW5 for help in making claims against the insurance company. DW5 later on good faith had agreed to go down to the PW1’s premise to inspect and later prepare a fire report to support PW1’s claim against the insurance company. DW5 had also advised PW1 to make a call that night to the control room at the Fire and Rescue KKB station so that the fire team can make a move to the PW1’s premise. DW5 who was on duty that night had made a call to the PW1 to ensure that PW1 and her family were at home before DW5 and the Fire and Rescue team make a move. At around 8.54 pm, DW5 and his rescue team arrived at PW1’s premise for a reenactment. [95] DW5 then handed over an application form to issue the SLKK report to PW1 to fill up and send back the form to Fire and Rescue KKB Station for DW5 further action. On 7.4.2018, PW1 had served the application to DW5 and DW5 had uploaded the application form inside the system known as “Sistem Pelaporan Insiden” (SPI) for the Fire and Rescue of Selangor to process and issue the SLKK report. The application form was signed and received by DW5 as the personal in charge of the incident. [96] DW5 had also informed the Court that since the burnt wire was taken away by the 1st Defendant and the due to repair done by the 1st Defendant, the forensic department of the Fire and Rescue was unable to identify the cause of fire. DW5 had also advised PW1 to make claim against the 1st Defendant because the fire was before the TNB meter. DW5 denied that there a replay on 2.4.2018 as suggested by the PW1 since DW5 came to the premise to verify the fire incident in order to issue the SLKK report. [97] DW5 stated that on 1.4.2018, the Fire and Rescue team did not go to the premise because there was no emergency call made by Plaintiffs. DW5 also explained that the SLKK report that was issued contained the date that the fire engine went out for rescue which is on 2.4.2018 and denied that there was a mistake to the SLKK report prepared by the 3rd and 4th Defendant. [98] During cross, DW5 agreed that emergency call may come in many ways not only through the MERS 999 line but a direct call to the Fire and Rescue Station is also considered as emergency call. DW5 had also agreed that the Fire and Rescue Station in Rawang had instructed Plaintiffs to call the KKB Station due to jurisdiction issue. DW5 also agreed that it is natural that Plaintiffs had to extinguished the fire on their own before the next call to KKB Station can be made. Evidence of DW6 [99] DW6 is the 4th Defendant and at all material time was the Senior Assistant Fire Superintendent at the Fire and Rescue Department of Selangor. According to DW6, all of Fire and Rescue Station in Selangor was under the surveillance of DW6. DW6 was called to verify on the SLKK report dated 17.4.2018 signed by him. [100] DW6 stated that PW1 had refused to accept the SLKK report issued to her because the date of the incident is different from the date of the incident and contradict from the date PW1 stated in her police report. Therefore, DW6 had instructed the Head of Fire and Rescue Department in KKB Station to return money of RM100 to PW1 that was paid for the SLKK report. [101]According to DW6, the SLKK report was prepared based on the report prepared by Fire and Rescue Department in KKB Station which had been uploaded in the SPI system. In the report, the date of incident was mentioned as 2.4.2018 at 8.53 pm. DW6 later had issued a Non-reported incident of Fire Report (SPKK) to PW1. DW6 had also informed the Court that the SLKK report prepared by him was in accordance to guideline in the Arahan Ketua Pengarah Bil 1/2000 Tatacara Pengeluaran SLKK. [102]During cross-examination, DW6 agreed that it is the duty of the forensic Department of Fire and Rescue, Malaysia to conduct a forensic investigation and not the 1st Defendant. The investigation was not upon application but it is the statutory duty of the Fire and Rescue Malaysia. However, according to DW6, in this case the forensic investigation could not be done because the fire scene had been tampered and repair works had been done by the 1st Defendant. [103] Further, DW6 informed the Court that it is a duty of Fire and Rescue Department of Malaysia to attend the fire scene even though the fire had been extinguished by the owner of the premise or the 3rd party. Evidence of DW7 [104] DW7 is the 3rd Defendant in the suit and DW7 at all material time is a Chief of the Kuala Kubu Fire and Rescue Station. According to DW7, DW7 was informed that on 1.4.2018 the control room of KKB Fire and Rescue Department did not receive any emergency call but only call to inquire about the procedure to change the TNB fuse box which was burnt due to fire. [105] DW7 was aware about the incident on 2.4.2018 after been informed by DW4. Later, on 23.4.2018 DW7 together with DW4 and other officers from Fire and Rescue Department of Selangor went down to the Plaintiffs premise to investigate about the fire incident. Subsequently, DW7 together with the team went to TNB branch in Jalan Bukit Garing, Rawang to get hold of the burnt wire but DW7 has been informed that the burnt wire had been disposed off by the 1st Defendant. Chronology of Event No. Date / time Remarks 1.

1.4.2018 @ 3.30 pm Fire started at the car porch, ceiling and wall of the premise 2.

1.4.2018 @ 4.02 pm PW2 called the 1st Defendant 3.

1.4.2018 @ 4.40 pm PW2 called the Fire and Rescue Department Rawang 4.

1.4.2018 @ 4.43 pm PW2 called the Fire and Rescue

5.

1.4.2018 @ around 6.00 pm – 6.15 pm Field Crew Team B and DW2 arrived at the premise 6.

1.4.2018 @ around 9.30 pm – 10.00 pm SAVR Team and DW3 arrived at the premise

7.

2.4.2018 PW1 lodged a police report at Bukit Sentosa police station

8.

2.4.2018 PW1 and PW2 went to Fire and Rescue Department in Kuala Kubu Bharu to lodge a fire report

9.

2.4.2018 @ 8.30 pm DW5 called PW1 to ensure PW1 and family at the premise

10.

2.4.2018 @ 8.54pm DW5 and the Fire and Rescue team arrived at the premise

11.

3.4.2018 PW1 lodged a report at TNB Rawang vide Borang Aduan Teknikal 2018

12.

4.4.2018 Hilmi Iron Work & Construction came to the premise to make assessment and quotation

13.

6.4.2018 PW1 received the quotation from Hilmi

14.

7.4.2018 PW1 went to Fire and Rescue Department in Kuala Kubu Bharu to hand over all the relevant documents to support the application for SLKK report

15.

10.4.2018 PW2 was informed that SLKK report is ready for collection and payment

16.

17.4.2018 PW1 went to Fire and Rescue Department of Selangor in Bukit Jelutong to pay the SLKK’s fee of RM100 and to collect the SLKK report PW1 refused to accept the SLKK report due to incorrect date of the incident

17.

17.4.2018 @ 5.33pm PW1 lodge a police report against TNB for failure to make further action

18.

18.4.2018 The 1st Defendant’s agent came to the premise to make assessment without the presence of Plaintiffs 19.

19.4.2018 The SPKK report was issued

20.

19.4.2018 @ 12.45 pm PW1 lodged a police report against the 1st Defendant 21.

23.4.2018 Fire and Rescue Forensic Department of Selangor and other team from Fire and Rescue Department of Kuala Kubu Bharu went to the premise to make inspection

22.

25.4.2018 PW1 lodged a police report against the Fire and Rescue team came to inspect the premise on 23.4.2018 23.

26.4.2018 PW1 went to TNB Rawang to fill up a Technical Complaint Form and a Form to Claim Compensation for Damaged electrical goods due to high volt 24.

29.6.2018 The 1st Defendant had reverted to the PW1’s claim in negative 25.

18.7.2018 PW1 lodged a complaint to the Energy Commission 26.

17.8.2018 DW1 and team went down to the premise for inspection 27.

28.8.2018 Energy Commission report on the incident was issued Issues : [106]After having heard the evidence by Plaintiffs’ and Defendants’ witnesses and after perusing the documentary evidence, I find that the main issues in this case are as follows :-

Whether the fire that occurred at the Plaintiffs' premise was caused by 1st Defendant’s service wires or cables;

Whether the 1st Defendant had breached the duty of care and/or had breach their statutory duty pursuant to Section 13 and/or Section 33 of the Electricity Supply Act 1990 for failure to maintain the installation of wire and service cable;

Whether the failure to immediately attend the fire scene after receiving call from PW2 had caused the 2nd and 3rd Defendants in breach of the statutory duty pursuant to Section 5 of Fire Service Act 1988;

Whether the 4th Defendant failed to issue the correct SLKK report;

Whether the 5th and 6th Defendants vicariously liable to the negligence and statutory breach by the 2nd to 4th Defendants;

Whether Plaintiffs are entitled to the general and special damages and/or aggravated and exemplary damages due to the negligence and/or statutory breach of the 1st to 6th Defendants; Findings : [107] I have heard the evidence, read the documents, exhibits and submission of the parties in detail. All parties have adequately dealt with their case in the submissions and the Plaintiffs has dealt with the evidence in detail. I do not think it will serve any useful purpose to repeat the same. [108] I take the view the Defendants are liable to the Plaintiff for negligence and breach of statutory duties and the claims must be allowed. My reasons inter alia are as follows: Whether the fire that occurred at the Plaintiffs' premise was caused by 1st Defendant’s service wire or cables; [109] It is undisputed facts that the incident happened at around 3.30 pm on 1.4.2018. PW1, PW2 and the whole family saw black smoke plume coming out from the TNB’s service cable near to electricity meter. After the fire had been extinguished by PW2 and his older son by using water, PW1 and PW2 saw that the TNB’s service cable had been disconnected and was cut out due to the fire. [110] The evidence of PW1 and PW2 that the wire of the service cable had been burnt and disconnected is supported by the evidence of DW2 from the Field Crew Team B (1st team) and DW3 from the SAVR team (2nd team) of the 1st Defendant. This can be seen in their witness statements produced here for ease reference as follows :- Witness statement by DW2 :- Witness statement of DW3 :- [111] According to DW1, the service cable meter is belonged to the 1st Defendant. This is based on the “Garis Panduan Persempadanan Pengurusan dan Penyenggaraan Sistem Pepasangan Eletrik dan Gas Berpaip di Bangunan” issued by Energy Commission. Based on the layout, the blue wire which is connected from the meter to the electric pole is belonged to the licence holder who is the 1st Defendant. [112] While the red wire which connected from the meter to inside the premise is under the responsibility of the user. Produced herewith a copy of Rajah 2.1 of the “Garis Panduan Persempadanan Pengurus dan Penyenggaraan Sistem Pepasangan Eletrik dan Gas Berpaip di Bangunan” is as follows :- [113] DW3 had also agreed that since the service cable is belonged 1st Defendant therefore the maintenance of the service cable is under the 1st Defendant and not the Plaintiffs. Cause of fire [114] In this case, it is the evidence of PW1 and PW2 that after the fire had been extinguished they saw that the service cable had been cut off due to the fire. PW2 in his evidence, stated that the cause of fire was coming from the burnt service cable. PW1 and PW2 denied that they had made renovation to the wiring of the premise. [115] While the 1st Defendant in their rebuttal had relied heavily on the report made by the Energy Commission at pg 126-129, Bundle B on the cause of fire. Although it is the evidence of DW1 that the cause of fire is unknown, however according to DW1 the report of unknown cause of fire was only based on the information given by the Plaintiffs and by the 1st Defendant. DW1 had also admitted that the report prepared and issued by him is incomplete. [116] Other reasons given by DW1 that it was due to the absence of the burnt wire that had been taken away by the 1st Defendant and that the wiring installation had been repaired at the time DW1 visited the premise. All the information to help investigation was received after four (4) months from the date of the incident. This can be seen in the notes of evidence at pg 12 as follows :- [117] Even though DW1 had informed the Court that there are possibilities that the fire was coming out from outside or due to overloaded circuit, I find the statements given by DW1 is a mere speculation as admitted by DW1. In fact, in DW1’s report, he had suggested that further investigation should take place. Produced herewith the last part of the report under the title of “Syor dan Cadangan” as follows :- [118] The 1st Defendant had also relied on the evidence given by DW3 on the cause of fire. As regards to the wiring, DW3 found that the wiring in the premise was not following the specification of TNB. DW3 said that the wire service cable found at the premise had used copper instead of aluminum. In other words, the installation of the wire was not by TNB but by the 3rd party. I find that this evidence is not supported by any documents nor by any other witnesses. [119] In fact, DW3 had informed the Court that the burnt wire had been taken away in order to pass it to the maintenance team of the 1st Defendant for further investigation. DW3 was also unaware of the status of the burnt wire after DW3 had passed it to the maintenance team. DW3 admitted that no report was produced to explain that the wire is not following the specification by TNB. The statement made by DW3 on further investigation is produced herewith for ease reference as follows :- [120] In furtherance to the status of the burnt wire, DW7 in his evidence had informed the Court that after the visit to the premise on 23.4.2018, DW7 and his team had requested for the burnt wire from TNB Jalan Bukit Garing, Rawang for forensic investigation. However, they have been informed that the burnt wire is unavailable because it had been disposed of. This statement by DW7 was never cross examined by the counsel for 1st Defendant. The statement given by DW7 can be seen at pg 5 of DW7’s witness statement as follows :- [121] I also find that nothing in the report prepared by the 1st Defendant at pg 123-125, Bundle B, has indicated the cause of the fire and/or anything similar to the evidence given by DW3 as regards to the usage of copper inside the wire or that has been overloaded circuit. The conclusion prepared by Ir Abdul Aziz bin Ahmad as to the cause of fire is only unknown. Ir abdul Aziz bin Ahmad was not called as witness to give evidence on the report. [122] Therefore, I conclude that the evidence given by DW3 is uncorroborated, not conclusive and inadmissible. Produced herewith the Memorandum dated 21.5.2018 (the only report by the 1st Defendant produced in Court) for ease reference as follows :- Forensic report [123] It was the evidence of DW5 that a forensic report is important in order to determine the cause of fire. While DW3 stated that the 1st Defendant is not responsible to prepare a forensic report. It is the duty of the 2nd to 5th Defendants to prepare the forensic report. Although the burnt wire had been sent to the maintenance team of the 1st Defendant for investigation, however no report was produced by the maintenance team. DW1 had informed the Court that the 1st Defendant should have prepared a detail investigation report because the 1st Defendant had delayed in informing the Energy Commission. The note of evidence of DW1 during cross is produced here for ease reference :- [124] I find that it is undeniable that the duty to prepare the forensic report is under the responsibility of the 2nd to 5th Defendant pursuant to Section 5 of the Fire Service Act 1988. However, a forensic report could not be done because the burnt wire had been taken away by the 1st Defendant and the affected area had been repaired and restored. [125] I must further say that based on the chronology of event, the 1st Defendant was aware that Plaintiffs had made complaints and police report against them as early as on 3.4.2018. The action taken by the 1st Defendant in disposing of the material evidence is inexcusable when the cause of fire is still unknown. [126] Based on the evidence given, I also find that there is a serious negligence and/or breach of duty of care by the 1st Defendant when the 1st Defendant failed to keep the burnt wire pending an investigation made and when the 1st Defendant failed to produce a detailed investigation report. The burnt wire was a piece of evidence although it belonged to the 1st Defendant, but by disposing the same would prejudice the affected parties and in this case is the Plaintiffs. [127] I conclude that the defense made by the 1st Defendant that the cause of fire is unknown was actually based on incomplete investigation. The 2nd to 5th Defendants had also failed to identify the cause of fire due to the absence of the material evidence which is the burnt wire. Therefore, I find it is pre-mature to conclude that the cause of fire is unknown as alleged by the Defendants. Duty of care – whether the 1st Defendant owes a duty of care towards the Plaintiffs. [128] It is a settled law that to establish negligence, three fold elements must be fulfilled by the Plaintiffs as per the principle enunciated in the case of Caparo Industries Plc v Dickman [1990] 2 AC 605, where the Court held as follows :- “Three elements are needed for a duty of care to exist: there must be reasonable foreseeability, a close and direct relationship of “proximity” between the parties and it must be fair, just and reasonable to impose liability.” [129] I am also guided by the Federal Court case of Lim Kar Bee v. Abdul Latif Ismail [1977] CLJU 64; [1977] 1 LNS 64; [1978] 1 MLJ 109, Raja Azlan Shah FCJ (as His Highness then was) referred to the common law principles of foreseeability and proximity as the principles giving rise to a duty of care. At p. 117 of the judgment His Lordship said that: “The claim in negligence postulates a breach by the defendant of some duty owed by him to the plaintiff. Accordingly, the first question to be asked and answered is whether a duty was owed to the plaintiff by him of which he committed a breach. In order to determine the existence of this duty, I think a citation of two passages from well-known judgments are relevant. The first is from the judgment of Brett M.R. in Heaven v. Pender (1883) 2 QBD 503: "Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." The second is from the famous dictum of Lord Atkin in Donoghue v. Stevenson [1932] AC 562, 580: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be -- persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."... [130] While in another case of Federal Court, Lok Kok Beng & ORS v. Loh Chiak Eong & Anor [2015] 7 CLJ 1008, Zainun Ali FCJ explained the needs for foreseeability as follows:- “Foreseeability [36] The threshold test in determining the existence of duty of care is that of foreseeability. The rule in the case of Heaven v. Pender as quoted above envisaged that a man ought to have foreseen certain consequences if he created a real risk of them. The test is whether damage to someone in the plaintiff's position was a reasonably foreseeable consequence of the defendant's negligence. Reasonable foreseeability does not of itself lead to a duty of care and that the speech of Lord Atkin of "persons who are so closely and directly affected by my act" stressed not only on the requirement of foreseeability of harm but also that of a close and direct relationship of proximity. [37] By foreseeability, liability for a consequence is imposed and judged by the standard of the reasonable man that he ought to have foreseen it. In the words of the Privy Council in Overseas Tankship (UK) Ltd Appellants; And Morts Dock & Engineering Co Ltd (The Wagon Mound) - [1961] AC 388, 423: For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them) the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them. [38] Closer to home, the Singapore Court of Appeal in Spandeck Engineering (S) Pte Ltd v. Defence Science & Technology Agency [2007] 4 SLR 100 observed that the requirements of foreseeability is merely a "threshold question" that needs to be answered in every negligence claim, having regard to the facts of the case without resorting to any legal formulation. By the term "factual foreseeability" Spandeck takes the view that it is from a factual perspective, that the defendant ought to have known that the claimant would suffer damage from his carelessness. Being merely factual, it is not concerned with the kind and extent of losses suffered by the plaintiff and that it must not be confused with the question of remoteness of damages in tort.” [131] It is a foreseeable that by disposing the burnt wire, the 1st Defendant had put Plaintiffs in an injure position which cannot be remedied by any cost. DW3 had knowledge that Plaintiffs was complaining that the fire was caused by the service cable wire belonged to TNB. The 1st Defendant had also received complaints from the Plaintiffs as early as 3.4.2018. [132] The 1st Defendant would have foreseen that a forensic report is needed. The 2nd to 5th Defendant or even DW1 would have enquired the 1st Defendant to produce the burnt wire for further investigation. However, the 1st Defendant failed to keep the burnt fire and/or to produce a detailed report on the cause of fire. Proximity is a non-issue since the 1st Defendant is the nation sole electricity provider while the Plaintiffs are the registered user and customers. Therefore, I conclude that the elements of negligence had been made out by Plaintiffs against the 1st Defendant. Whether the 2nd to 5th Defendants had breached their statutory duty ? [133] In this case, statutory tort refers to a state of responsibility stated under written law where any breach of that responsibility may justify compensation being awarded. This is as stated in the book “Statutory Torts by Keith Stanton, Paul Skidmore, Michael Harris, Jane Wright, Thomson Sweet & Maxwell 2003” at pg 443 as follows : "English law does not recognize the principle that a person injured by an lawful administrative act has a automatic right to claim damages, damages can only be recovered in such circumstances on a basis of a tort duty which was owed to the injured person and the statutory context is a very strong factor opposed to the recognition or a damages remedy under either breach of duty of negligence." [134] It is found that statutory tort refers to the responsibility of a public servant in the context of a public servant discharging a duty that is supposed to be performed in the course of his duties. This was stated by the Court of Lords of the United Kingdom in the case of Stovin v. Wise (Norfolk County Council, third party) [1996] A.C. 923 at 937 as follows : "Public authorities discharging statutory functions operate within a statutory framework. Since the will of the legislature is paramount in this field, the common law should not impose a concurrent duty inconsistent with this framework. A common law duty must not be inconsistent with the performance by the authority of its statutory duties and powers in the manner intended by Parliament, or contrary in any other way to the presumed legislative intention. In some respect the typical statutory framework makes the step to a common law duty to act easier with public authorities than individuals. Unlike an individual, a public authority is not an indifferent onlooker. Parliament confers powers on public authorities for a purpose. An authority is entrusted and charged with responsibilities, for the public good. The powers are intended to be exercised in a suitable case. Compelling a public authority to act does not represent an intrusion into private affairs in the same way as when a private individual is compelled to act." [135] Lord Nicholls of Birkenhead also stated in the case as follows: "Hence the conclusion, that a concurrent common law duty would not impose on the council any greater obligation to act than the obligation already imposed by its public law duties. The common law duty would impose, not a duty to act differently, but a liability to pay damages if the council failed to act as it should. This is the consequence which considerations of proximity must especially address in the present case. Was the relationship between the parties such that it is fair and reasonable for the council to be liable in damages for failing to behave in a way which merely corresponds to its public law obligations? In this type of case, therefore, the reluctance of the common law to impose a duty to act is not in point. What is in point, in effect though not in legal form, is an obligation to pay damages for breach of public law obligations. This leads naturally to a further feature of the typical statutory framework. This feature points away from public bodies being subject to concurrent common law obligations. When conferring the statutory functions Parliament stopped short of imposing a duty in favour of the plaintiff. This is sowhen there is a statutory duty not giving rise to a cause of action for breach of the duty. This is even more marked when Parliament conferred a power. Without more it would not be reasonable for the common law to impose a duty, sounding in damages, which Parliament refrained from imposing. For this reason there must be some special circumstance, beyond the mere existence of the power, rendering it fair and reasonable for the authority to be subject to a concurrent common law duty sounding in damages. This special circumstance is the foundation for the concurrent common law duty to act, owed to a particular person or class of persons. It is the presence of this additional, special circumstance which imposes the common law duty and also determines its scope. Viewed in this way there is no inconsistency in principle between the statutory framework set up by Parliament and a parallel common law duty." [136] Lord Hoffmann also stated in the case regarding this matter as follows: "A similar point was made by Lord Diplock in Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, 1060. There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties (like Mrs. Wise) or natural causes. One can put the matter in political, moral or economic terms. In political terms it is less of an invasion of an individual's freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect. A moral version of this point may be called the "why pick on me?" argument. A duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than another? In economic terms, the efficient allocation of resources usually requires an activity should bear its own costs. If it benefits from being able to impose some of its costs on other people (what economists call "externalities,") the market is distorted because the activity appears cheaper than it really is. So liability to pay compensation for loss caused by negligent conduct acts as a deterrent against increasing the cost of the activity to the community and reduces externalities. But there is no similar justification for requiring a person who is not doing anything to spend money on behalf of someone else. Except in special cases (such as marine salvage) English law does not reward someone who voluntarily confers a benefit on another. So there must be some special reason why he should have to put his hand in his pocket. In Hargrave v. Goldman, 110 C.L.R. 40, 66, Windeyer J. said: "The trend of judicial development in the law of negligence has been...to found a duty to take care either in some task undertaken, or in the ownership, occupation, or use of land or chattels." There may be a duty to act if one has undertaken to do so or induced a person to rely upon one doing so. Or the ownership or occupation of land may give rise to a duty to take positive steps for the benefit of those who come upon the land and sometimes for the benefit of neighbours. In Hargrave v. Goldman the High Court of Australia held that the owner and occupier of a 600-acre grazing property in Western Australia had a duty to take reasonable steps to extinguish a fire, which had been started by lightning striking a tree on his land, so as to prevent it from spreading to his neighbour's land. This is a case in which the limited class of persons who owe the duty (neighbours) is easily identified and the political, moral and economic arguments which I have mentioned are countered by the fact that the duties are mutual. One cannot tell where the lightning may strike and it is therefore both fair and efficient to impose upon each landowner a duty to have regard to the interests of his neighbour. In giving the advice of the Privy Council affirming the decision (Goldman v. Hargrave [1967] 1 A.C. 645) Lord Wilberforce underlined the exceptional nature of the liability when he pointed out that the question of whether the landowner had acted reasonably should be judged by reference to the resources he actually had at his disposal and not by some general or objective standard. This is quite different from the duty owed by a person who undertakes a positive activity which carries the risk of causing damage to others. If he does not have the resources to take such steps as are objectively reasonable to prevent such damage, he should not undertake that activity at all." [137] DW4 during cross had agreed that DW4 did not take any particular of the caller but aware that the caller had informed DW4 that the premise was on fire. DW4 averred that the call was only to enquire the procedure in making insurance claim. The call log was produced by the 2nd to 6th Defendants. However, it only shows the time of the call made but not the content of the call. [138] I find that DW4 had failed to follow the “Prosedur Pengurusan Penerimaan Panggilan Kecemasan” marked as D4 when DW4 failed to take particulars as per procedure 5.2 as follows :- [139] Despite the argument made by the 2nd to 6th Defendant that the call was not an emergency call because PW2 did not make a 999 MERS call, I find Procedure 3.4 of the “Prosedur Pungurusan Penerimaan Panggilan Kecemasan” provides otherwise. I am not agreeable to the argument made by the 2nd to 6th Defendants. This is mainly because the Procedure 3.4 of the “Prosedur Pengurusan Penerimaan Panggilan Kecemasan” explained that the emergency calls can be made in the form of call card, text, telephone call, walk in, radio call or any kind of emergency information received as states in the Procedure 3.4 as follows :- [140] In this case, it is clear that the 2nd and 3rd Defendants failed to appropriately attend the call made by PW2 as prescribed by the Procedure 5.2. The call can be considered as telephone call which was made to the control room (“Bilik Kawalan Bomba/BKB”) of the Fire and Rescue Department of Kuala Kubu Bharu Station. [141]DW4 was aware and well informed that the premise was on fire on 1.4.2018 but chose not to proceed with the emergency procedure because the fire had been extinguished and alleged that the call was an inquiry call. Even if it is true that PW2 had called and asked on the procedure to make an insurance claim due to fire and informed him about the fire, as a Fire and Rescue officer with a three (3) years of experience DW4 must have knowledge that there’s a need to go down to the fire scene in order to verify or to investigate the fire on the same. [142] I also find the call made by PW2 was right after the fire had been extinguished. It was impossible for PW2 to make a call during the fire since PW2 was busy to put down the fire. According to PW1, the whole family were in a state of panicky and fear after seeing the fire. The excuse given by DW4 that there was no need for them to go down to the fire scene since the fire had been extinguished is insensible because DW4 had knew that PW2 intended to make an insurance claim. At least DW4 had informed his superior to come down to the location and verify the fire on the same date. [143] On 2.4.2018, having receipt of the report made by PW1, DW5 admitted that the Fire and Rescue team of Kuala Kubu Bharu Station had to undergo the procedure of verifying the fire at the Plaintiffs’ premise in order to assist PW1 in making insurance claim. DW5 knew that to issue the SLKK report, a call has to be made and recorded in the system so that the 2nd and 3rd Defendant together with the team can proceed to the premise. DW6 and DW7 denied that the incident on 2.4.2018 was a reenactment but they went to the Plaintiffs’ premise in order to verify the fire. However, I find that the whole procedure suggested by the DW5 is a procedure that they should have done on 1.4.2018 which they have negligently missed. [144]In furtherance, DW6 in his evidence had also informed the Court that it is the duty of any Fire and Rescue Department to attend any affected premise when there is a call of fire incident even though the fire had been extinguished by the public or the caller. This can be seen in DW6’s evidence at pg 35 and 36 and the form of SLKK and SPKK at pg 142 and 153, Bundle B as follows :- [145] Duties of the Fire and Rescue Department can be found in Section 5 of the Fire Service Act 1988. It is a statutory duty that have to be exercised by the Fire and Rescue Department. Failure to exercise the duty would amount to breach of the statutory duty by the 2nd to 5th Defendants. Among others, it is the duty of the Fire and Rescue Department to conduct investigation into the cause, origin and circumstances of the fire. Section 5 of the FSA 1988 reads as follows :- “(1) The duties of the Fire Services Department shall include-

the taking of lawful measures for-

extinguishing, fighting, preventing, and controlling fires;

(ii) protecting life and property in the event of a fire;

(iii) securing the provision, maintenance, and proper regulation of fire-escapes; and

(iv) securing the provision of adequate means of exit in the event of fire from all designated premises;

the making of investigations into the cause, origin, and circumstances of fires; and

performing humanitarian services, including the protection of life and property in any calamity.

The Fire Services Department may, in addition to its duties under subsection (1), perform such other duties as may be imposed on it by law or as the Minister may direct it to perform.” [146]Based on the principle laid down in the cases above and the circumstances of this case, I am agreeable with the submission made by the Plaintiffs’ counsel that the 2nd to 4th Defendants had breached his statutory duties under the Section 5 of the Fire Service Act 1988. Whether the 5th and 6th Defendants vicariously liable to the negligence and statutory breach by the 2nd to 4th Defendants ? [147] As regards to the issue (e), I find that the 5th and the 6th Defendants are liable for any wrongful act done or any neglect or default committed by 2nd and 4th Defendants pursuant to Section 5 and 6 of the Government Proceeding Act 1956. At all material time, DW2, the 2nd to 4th Defendants was employed by the Government and paid in respect of his duties as an officer of the Government wholly out of the revenues of the Government. It is undisputed fact that the incident happened was in the course of performing the 2nd to 4th Defendants’ duties. I must say the requirements under Section 5 & 6 of the Government Proceeding Act 1956 had been fulfilled. Quantum of damages [147] As regards to the quantum of damages, Plaintiffs in this case are claiming for the general damages, special damages, aggravated damages as well as for exemplary damages. The Court of Appeal in Poratha Corporation Sdn Bhd v. Technofit Sdn Bhd [2019] CLJU 941; [2019] 1 LNS 941; [2018] AMEJ 0214; [2020] 1 MLJ 74, reiterated the principle in claiming quantum. It held that the party claiming damages bears the burden of proving the fact and the quantum of the damages suffered and that if the claimant only succeeds in proving the fact and not the quantum, it will only be entitled to nominal damages. Y.A Hasnah Hashim JCA (as she then was) in delivering the decision of the Court of Appeal held - "[44] It is trite law that the party claiming damages bears the burden of proving the fact and quantum of damages suffered. [45] The defendant bears the burden of proving both the fact and the amount of damages suffered as a result of the breach by the plaintiff. Special damages unlike general damages must be specifically pleaded and strictly proved, and recoverable only where they can be included in the proper measure of damages...". [148]PW1 agreed that there were no physical injuries suffered by PW1, PW2 and the family due to the fire. Despite the fact that Plaintiffs had gone through hassle in making their claims against the Defendants, nevertheless PW1 had also agreed that there was no medical report or medical document to support the contention of mental illness suffered by PW1 and PW2 due to the fire. Therefore, I find the claim for the general damages is untenable and not proven. [149] Coming to the special damages, it is a trite law that special damages must be specifically, pleaded and strictly proven. This principle of law was stated by the Federal Court in Ong Ah Long v. Dr. S. Underwood [1983] CLJ Rep 300; [1983] 2 CLJ 198; [1983] 1 MLRA 154. In that case, the Federal Court explained the rationale why special damages must be specifically pleaded, viz the exact loss must be pleaded, and strictly proven. It is to comply with the object of pleadings, which is to crystallize the issue and to enable both parties to prepare for trial. It is also because the precise amount of this item of damages has become clear before the trial either because the loss has already occurred and so the amount of the loss has crystallized or because the amount of the loss can be measured with complete accuracy. At pg. 157, the Federal Court said as follows: "It is a well-established principle that special damages in contrast to general damages, have to be specifically pleaded and strictly proved. They are recoverable only where they can be included in the proper measure of damages and are not too remote (see Halsbury's Laws of England 4th Edn., Vol. 11 p. 218 para. 386). ... The reason that special damages have to be specifically pleaded is to comply with its object which is to crystallize the issue and to enable both parties to prepare for trial (per Edmund Davies LJ in Domsalla v. Barr [1969] WLR 630, 634). In special damages claims the exact loss must be pleaded where the precise amount of item of damages has become clear before the trial either because it has already occurred and so become crystallized or because it can be measured with complete accuracy (MacGregor on Damages 14th Edn., p. 1012 para. 1498)." [150] Special damages are quantifiable, out of pocket expenses. The Plaintiffs are obliged to adduce evidence to support the claim. Although Plaintiffs had pleaded specifically the amount and items for the special damages, however there is no documentary evidence such as receipts or invoices or cash bill to support the items that have been pleaded. Therefore, I dismissed the claim for special damages as prayed by the Plaintiffs. [151] Nevertheless, I allow the aggravated damages to the Plaintiffs against the 1st Defendant. The aggravated damages can be awarded separately and it does not depend on the general and special damages. I am guided by the Federal Court case of Dr Hari Krishnan & Anor v. Megat Noor Ishak Megat Ibrahim & Anor And Another Appeal [2018] 3 CLJ 427, Md Raus Sharif CJ in delivering the judgment of the Court held that : “(6) Aggravated damages could and had been awarded as a separate head of damage in tort (Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor; refd ). Aggravated damages are frequently awarded in defamation cases for injury to a person's reputation; hence there was no reason to exclude this kind of damages from medical negligence cases, which involve real injury to a person's body. In the circumstances, the second question was answered in the negative. As such, the doctors' appeal on quantum was dismissed. (para 99)” [152]Whilst in the case of Nur Syarafina Sa'ari v. Kerajaan Malaysia & Ors [2019] 9 CLJ 246, Faizah Jamaludin JC (as Herladyship then was) had awarded the aggravated damages of RM200,000 due to the defendant's actions in the case which were delay in providing the plaintiff's medical report. The Court held : “(9) The aggravating factors in this case was the defendants' suppression of the plaintiff's medical records and the internal inquiry report in breach of the consent judgment entered by the parties in the pre-action discovery proceedings. The defendant's conduct had caused the plaintiff to incur avoidable costs and expenses and time in filing the pre-action discovery, this present action and the application for judgment (encl. 11). The withholding of information and the filing of the various proceedings in court would have also caused the plaintiff unnecessary distress. The defendants' conduct was well below the standard expected of government hospitals and physicians. By their conduct, the defendants had (i) deliberately ignored the advice given by the High Court to government hospitals and physicians in the case of Nurul Husna; (ii) deliberately refused to disclose the internal inquiry report and its findings and instead filed a defence denying negligence; and (iii) deliberately refused and/or failed to comply with the terms of the consent judgment. It was thus reasonable and appropriate for this court to award the plaintiff aggravated damages in the sum of RM200,000. (paras 69, 74, 75 & 77)” [153] I also refer to the principle in the case of Yap Sao Leong & Anor v. Kerajaan Malaysia & Ors [2021] CLJU 33 where See Mee Chun HCJ (as Herladyship then was) awarded aggravated damages due to the defendant's actions in blaming the victim's mother, concealing the true facts, engaging in acts of obstruction and pressure, pleading false facts, prolonged trial and delay in admitting guilt. [154] In the case before me, it is obvious that there was a negligence made by the 1st Defendant when the burnt wire had been disposed of before the cause of fire is identified. This has caused difficulties and deprived the Plaintiffs right in making claims against the insurance company. The Plaintiffs had also endured a prolonged period of suffering, including delays in taking action and a lack of empathy by the Defendants in the handling of Plaintiffs’ case, which contributed to Plaintiffs’ mental anguish. [155] There are several cases which I have also referred to in quantifying the award for the aggravated damages as follows :- i) Gan Chon Tat & Satu Lagi v Gan Jin Sim @ Gan Gim Sim & Satu Lagi [2017] CLJU 870 – the Court awarded aggravated damages of RM50,000 to the 1st Defendant dan RM50,000 to the 2nd Defendant for the abuse of the process of the Court; ii) Sambaga Valli K R Ponnusamy v. Datuk Bandar Kuala Lumpur & Ors & Another [2018] 1 MLJ 784 – the Court awarded aggravated damages of RM300,000 for liable to trespass, conversion and detinue on the Plaintiff’s goods that were seized by the respondents. iii) Dr Hari Krishnan & Anor v. Megat Noor Ishak Megat Ibrahim & Anor And Another Appeal [2018] 3 CLJ 427 [2018] 3 CLJ 427 – the Court had awarded RM1,000,000 as aggravated damages when the appellant had wrongly advised the plaintiff to undergo the second operation, thereby subjecting the plaintiff to unnecessary risks including the instance of bucking which led to blindness in the plaintiff's right eye. iv) L/Kpl Nayaraanan Nair Subramaniam v. Kerajaan Malaysia & Ors [2025] CLJU 66 – the Court awarded RM200,000 as aggravated damages for plaintiff attempted to access his medical records, but the defendants initially refused to provide them, adding to his frustration and distress. v) Zuasnita Baharuddin & Ors v. Government Malaysia & Ors [2025] CLJU 922, the Court awarded RM300,000 as aggravated damages for failure to take timely action, neglected to implement a proper treatment plan, withheld critical medical records, and unnecessarily prolonged the litigation process. [156] Therefore, based on the cited cases above, I awarded a sum of RM50,000 to the Plaintiffs as reasonable sum for aggravated damages against the 1st Defendant. As regards to the claims against the 2nd to 6th Defendants, I awarded RM100,000 as a reasonable sum of aggravated and exemplary damages in breach of the statutory duties pursuant to Section 5 of the Fire Services Act 1988. I hereby order so. Nurulmardhiah NURUL MARDHIAH BINTI MOHAMMED REDZA JUDGE MAHKAMAH SESYEN & MAJISTRET KUALA KUBU BHARU Date: 23th June 2025 For the Plaintiffs: M/s Mohaji Hazury & Ismail, Shah Alam, Selangor. For the 1st Defendant: M/s Jayadeep Hari & Jamil, Bukit Damansara, Kuala Lumpur. For the 2nd to 6th Defendants: M/s Pejabat Penasihat Undang-undang, Shah Alam, Selangor.