Applied Industrial Engineering Sdn Bhd (No. Syarikat: 357353-A) v Tokio Marine Insurans (M) Berhad (No. Syarikat: 149520-U) (M-02(NCVC)(W)-1768-08/2017)

1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: M-02(NCVC)(W)-1768-08/2017 ANTARA APPLIED INDUSTRIAL ENGINEERING SDN BHD (NO. SYARIKAT: 357353-A) ... PERAYU DAN TOKIO MARINE INSURANS (M) BERHAD (NO. SYARIKAT: 149520-U) ... RESPONDEN [Dalam Perkara Mengenai Dalam Mahkamah Tinggi Di Malaya Di Melaka, Negeri Melaka Malaysia Writ No: 22 NCVC-73-11/2015 Antara Tokio Marine Insurans (M) Berhad (No. Syarikat: 149520-U) ... Plaintif Dan

1. WCT Construction Sdn Bhd (No Syarikat: 140381-U)

2. Applied Industrial Engineering Sdn Bhd (No. Syarikat: 357353-A) ... Defendan/ Defendan] 2 CORAM: KAMARDIN BIN HASHIM, JCA YEW JEN KIE, JCA HAS ZANAH BINTI MEHAT, JCA GROUNDS OF JUDGMENT

1. This is an appeal by the Appellant/2nd Defendant against the decision of the High Court, given on 14th November 2017 after a full trial, in allowing the Respondent/Plaintiff’s claim for damages against the Appellant /2nd Defendant.

2. The parties will be referred to as in the High Court action.

3. The 1st Defendant was the main contractor appointed by AEON to construct and complete a shopping complex complete with infrastructure works on a property in Malacca ["the project"].

4. The 1st Defendant appointed the 2nd Defendant as a sub-contractor for the installation of the liquefied petroleum gas ["LPG"] system to the project which, inter alia, included the following works: a. Installation of LPG bulk tank and the main gas pipelines from the LPG bulk tank to the distribution pipelines; 3 b. Installation of pipelines from the distribution pipeline to the “tap off” point situated within each of the food & beverage tenant’s outlets ["F & B outlets"]; c. Supply and installation of safety valves, gas detectors and gas meters to the tenants of the F & B outlets.

5. Work commenced on or around 15.5.2009 and was to be completed on 14.12.2009. The grand opening of the shopping mall was scheduled on 17.12.2009.

6. The installations were completed in late November 2009.

7. The final inspections of the LPG piping system in all the F & B outlets were carried out on 10.12.2009. All the valves and equipment were properly shut off.

8. The final installation of the LPG system [also referred to as commissioning the supply of LPG] was scheduled on 14.12.2009 which included the following works: a) The meters were to be installed and the gas detectors were to be connected; b) The connection of the main gas supply pipeline from the meter to the tenants’ tapping point; c) The LPG were to be released to each tenant’s stove in stages.

9. The commissioning of the LPG was fixed on 14.12.2009. The 2nd Defendant issued notices to all the tenants of the F & B Outlets informing 4 them of the commissioning date and requesting for their presence on 14.12.2009.

10. On 10.12.2009, the management of AEON instructed all the tenants to cease works and vacate the premises. The tenants were not allowed access to their respective outlets until 14.12.2009.

11. On 14.12.2009, the employees of the 2nd Defendant carried out another round of inspection within all the F & B outlets except an outlet known as the Food & Tea Outlet at Lots G48 and G49 [“Lots G48 and G49”] . This is because the tenant of said Outlet was not present at the premise and the said outlet was closed.

12. DW1 [Managing Director of the 2nd Defendant] contacted the representative of Lots G48 and G49 and was informed that the representative was on the way. After discussion with the representative of the 1st Defendant, the late Mr Ooi Kok On, it was decided that the commissioning should take place in the other outlets first and this would give the representative of Lots G48 and G49 sufficient time to arrive for the testing.

13. The commissioning were to begin at the Kenny Rogers Outlet which was at the other end of Lots G48 and G49.

14. When commissioning was taking place in the Kenny Rogers Outlet, there was smell of gas and sound of gas being released was heard within Lots G48 and G49 followed by a fire and explosion resulting in damage to property and injury to persons including two fatalities. 5 15. A criminal charge was brought against DW1 but he was subsequently acquitted.

16. AEON had initiated claims for the loss and damage and the Plaintiff had indemnified AEON under the policies of insurance. In turn, AEON assigned to the Plaintiff all their rights and benefits to seek recovery of the sums paid under the insurance policies from any third party including the Defendant. The Plaintiff brought this subrogated claim against the 1st and 2nd Defendants.

17. The Plaintiff appointed Maphilindo International Sdn Bhd as the Loss Adjusters to investigate and to assess the loss and damage. The Loss Adjustor then appointed Forensic Services (M) Sdn Bhd to carry out an investigation into the cause of the fire and explosion.

18. Besides, the Energy Commission and the Fire Brigade also carried out investigations into the cause of fire and explosion.

19. The investigations revealed that the valve within Lots G48 and G49 was not closed before and/or at the time of the final installation by the Defendants causing the gas to be released and resulting in the incident.

20. The Plaintiff’s cause of action against the 2nd Defendants is founded in negligence and/or breach of statutory duties. The particulars of breach of statutory duties/negligence were pleaded in paragraph 13 of the Statement of Claim1. 1 [pages 11-36 Rekod Rayuan [RR] (Jilid 1/12)]. 6 21. In gist, the Defendant’s defences to the claim are as follows: a. works were carried out in accordance with industry standards; b. the area where the incident took place has outlets with tenants and their workers had access to the general area; c. the Defendant had been acquitted in the criminal prosecution by the Occupation Safety and Health Department [this ground of defence was not pursued at the trial]. High Court’s Decision 22. After a full trial, the learned trial Judge found that the Plaintiff had on a balance of probability established liability in negligence against the 2nd Defendant. However, the learned trial Judge held that the cause of action in breach of statutory duty under Gas Supply Act 1993 and the Gas Supply Regulation 1997 is unsustainable on the ground that it is not the intention of Parliament to provide private law remedy to persons aggrieved by the actions or omission of any “competent person” licensed under the Act. a) Duty of care 23. Based on the evidence before him and applying the test of proximity and foreseeability, the learned trial Judge found that the 2nd Defendant owed the Plaintiff a duty of care. b) Breach of Duty of Care 24. The learned trial Judge found that the installation and commissioning of LPG piping system are specialized and technical and categorized the 2nd Defendant as a professionally skilled contractor. 7 25. Accordingly, the standard of care expected of the 2nd Defendant who held out as having professional skill would be one of competence and diligence expected of a reasonably skilled professional in the field of installing and commissioning such LPG system.

26. The learned trial Judge held that the 2nd Defendant had breached its duty of care in the following regard:

(ii) Failing to check or re-check the condition and status of the solenoid valve [Gas Detection System], the ball valve and pipe plug especially at Lots G48 and G49 prior to commissioning the supply of the gas [“2nd Breach”];

(iii) Failing to carry out the commissioning of the gas supply by way of sectional basis especially since Lots G48 and G49 was at the material time closed and locked [“3rd Breach”]; and

(iv) Carrying out the commissioning of the gas supply on 14.12.2009 without ensuring the condition and status of the solenoid valve, ball valve and pipe plug especially in Lots G48 and G49 despite having knowledge that works had been carried out at these premises after the 2nd Defendant’s inspection of the LPG system on 10.12.2009 [“4th Breach”]. 8 1st Breach: Failing to provide or ensure that the F & B outlet tenants were made aware of the precautionary and safety steps or measures prior to the commissioning of the gas

27. In arriving at the finding of the 1st Breach2, the learned trial Judge had relied on the following evidence:

27.1 DW1 in his evidence had agreed that commissioning of gas supply was quite dangerous. Yet there had been no instruction or guidelines issued to the tenants with regard to the precautions and safety measures that needed to be taken prior to the commissioning of the gas supply;

27.2 DW4, Mechanical & Electrical Manager of the 1st Defendant, who confirmed in cross-examination that no instructions were given by the 2nd Defendant, its servant or agents, about the precautions that needed to be taken during the final installation; and

27.3 the opinion report [Exhibit P133] prepared by PW6 [a forensic expert from Forensic Services (M) Sdn Bhd] wherein PW6 noted that the 2nd Defendant had sent a letter to all tenants notifying them of the commissioning of the gas supply on 14.12.2009 but did not include any instruction/guidelines on the precautions that needed to be taken during the final installation and commissioning. All the tenants were only instructed to be present at their respective outlets. PW6 opined: 2 Rekod Rayuan Tambahan pages 24-26. 3 Rekod Rayuan Jilid 1 Pg 736-872. 9 As a good practice, after the valves were closed, they should be tagged to indicate that the valves can only be opened by the designated person…

28. The learned trial Judge was of the view that after the last inspection of the valves (in their closed position) at the respective F & B outlets on 10.12.2009, a warning notice should have been tagged to indicate that the valves could only be opened by a designated person prior to or during the final installation and commissioning of the system on 14.12.2009. 2nd Breach: Failing to check or re-check the condition and status of the solenoid valve [Gas Detection System], the ball valve and pipe plug especially in Lots G48 and G49 prior to commissioning the supply of LPG

29. In arriving at the finding of the 2nd Breach4, the learned trial Judge had relied on the following evidence:

29.1 PW1, the Pengarah, Jabatan Kawal Selia dan Penggunaan Gas, Suruhanjaya Tenaga [whom the learned trial Judge regarded as an independent witness], who investigated the incident and prepared a summary of report dated 10.2.20105. In his report, PW1 stated, inter alia, as follows: a) according to the Fire and Rescue Department’s early investigation on the cause of the explosion, the ball valve was in an open position and the end of the pipe was not sealed off with pipe plug (stopper) in the Food and Tea 4 Rekod Rayuan Tambahan pages 27 – 36. 5 Exhibit P1 at pages 183-192 Bundle B] 10 Outlet at Lots G48 and G49. This open position of the valve had allowed gas to flow out and escape into the atmosphere when the final installation and commissioning was being done. b) there was a four day delay between the 2nd Defendant’s installation and inspection of the LPG system on 10.12.2009, and commissioning of gas supply on 14.12.2009, any “competent person before supplying the gas must ensure all valves are closed, the valve ends are closed in all outlets to be supplied with gas. The competent person must re-check, it is his responsibility”. c) at the material time, the roller shutter to Lots G48 and G49 was closed and locked.

29.2 PW6 in his opinion report stated:

29.4 DW1’s concession in cross-examination that: a. for the period from 10.12.2009 to at least 13.12.2009 evening or night, no inspection had been carried out at the premises; b. during the period from 10.12.2009 to 13.12.2009, there were works being carried out in the general area; c. as at 10.12.2009, the Wet Chemical System for Lots G48 and G49 had not been completed and for the installation and functioning of the Wet Chemical System the wiring to the solenoid valve has to be connected; and d. he was fully aware of the danger in meddling with the gas valves when he advised the tenants who were present not to meddle with the gas valves and had allegedly inspected all the outlets on 14.12.2009 except Lots G48 and G49.

29.5 DW1 agreeing in cross-examination that: a. As a gas specialist he needs to exercise caution in commissioning the gas supply; 12 b. Withholding the commissioning of the gas supply until the tenant for Lots G48 and G49 arrived to open the outlet would have been the best in the circumstances but started it because they were supposed to finish the commissioning by 2.00 p.m. and they were delayed. Therefore, DW1 proceeded to start the commissioning notwithstanding the risk of danger posed by the unverified condition of the valves in Lots G48 and G49. c. As a gas specialist, although time is of the essence to complete the commissioning by 2.00 p.m., he had the authority to override AEON in the event that they had pressurized DW1 to complete the work on an urgent basis. d. Even assuming that there was tempering, the incident could have been avoided if he had waited for the tenant of Lots G48 and G49 to be present and inspected that outlet before commissioning the gas supply.

30. The learned trial Judge was of the view that the 2nd Defendant who was fully aware of the danger in meddling with the gas valves ought to have waited for the arrival of the tenant of Lots G48 and G49 to open the outlet and inspected the same before running gas to that section of F & B outlets. That would have been the most prudent and reasonable course of action for DW1 to take. It was incumbent upon DW1 to ensure that all the gas valves were closed in all the outlets before turning on the gas flow from the main tanks. The reason of delay in meeting the deadline set by AEON in commissioning the LPG system for starting the commissioning of gas supply without inspection of the gas valves and gas detection system in Lots G48 and G49 does not exonerate the 2nd Defendant of its duty of care. 13 It is the onus and responsibility of the 2nd Defendant to take reasonable precaution against risk of injury to persons and property damage to others. 3rd Breach: Failing to carry out the commissioning of the gas supply by way of sectional basis especially since Lots G48 and G49 was at the material time closed and locked

31. In arriving at the finding of the 3rd Breach7, the learned trial Judge had noted from the diagram on the scope of works for the LPG System that there are five ceiling valves in the gas pipeline situated at different locations from Lot G92 and G93 (Kenny Rogers). It is an agreed fact that the 2nd Defendant intended to carry out the commissioning of gas supply in stages but did not do so. DW1 agreed that these isolated valves can be used if needed for commissioning of gas supply on a sectional basis.

32. The learned trial Judge also relied on the following evidence of PW1 and PW6.

32.1 PW1 stated that the Project was on a large scale and the role of the said ceiling valves was for isolation purposes in case of maintenance or other events. He further stated: ….there were 5 ceiling valves and the commissioning can be done by sectional basis. After one part is settled, go to second part. It is good for safety practice and as a competent person, they must know. They cannot simply open all the gas and flow the gas all the way from starting to end of the valve. 7 Rekod Rayuan Tambahan pg 36 – 38. 14 This is safety work and safety practice. This is standard operating procedure, which the competent person is always asked to do.

32.2. PW6 in his opinion report opined: We would also expect that the final installation and testing of the LPG system in a large complex such as this would be carried out by opening the valves in stages. The manner in which the progress of the exercise, starting with Jusco then followed by Kenny Rogers indicated that was indeed the intention. However, events that had occurred later indicated that it had not been the case. If the final installation was intended to be carried out in stages, we would expect that Mr Tan or Mohamad Faizul would stop work once they received the call from Mr Elvis indicating that LPG was gushing out from Locales café in Food Avenue. Outlets within Food Avenue were at the end of the pipeline system and there were two ball valves between Locales café and Kenny Rogers (i.e. the 100mm and 65mm valves). The two valves were not supposed to be opened when the final installation team was still at the Kenny Rogers outlet. When Mohamad Faizul received the call from Mr Elvis Lim, he should have known that someone had already open the 100mm and 65mm valves. The failure to act implied that releasing the LPG in stages was not the intention or priority of the people who were carrying out the final installation. 15 32.3. PW6’s opinion that for the final installation of the LPG system to the Kenny Rogers lot, only the 150mm ball valve needed to be opened. It is not necessary for the other smaller valves in the pipeline to be opened; the main valves can be used to sectionalize or compartmentalize the commissioning and the said valves are not just for maintenance. 4th Breach: Carrying out the commissioning of the gas supply on 14.12.2009 without ensuring the condition and status of the solenoid valve, ball valve and pipe plug especially in Lots G48 and G49 despite having knowledge that works had been carried out at these premises after the 2nd Defendant’s inspection of the LPG system on 10.12.2009.

33. In arriving at the finding of the 4th Breach8, the learned trial Judge had considered the evidence of DW1’s awareness of solenoid valve, ball valve and pipe plug being extremely important safety components in the LPG system. Coupled that with DW1’s knowledge of works being carried out in the general and kitchen area of the F & B outlets during the period from 10.12.2009 and 14.12.2009 and DW4’s knowledge that the Wet Chemical System contractor did not complete the Wet Chemical System works in Lots G48 and G49 on 13.12.2009 as scheduled. The learned trial Judge opined that prior to commissioning of the gas supply, the 2nd Defendant, as any prudent competent professional in the field would have done, ought to have ensured that these safety mechanism were in place. Such prior inspection is warranted to ensure that there was no tampering of the LPG system since its last inspection on 10.12.2009. 8 Rekod Rayuan Tambahan pg 39 -44. 16 34. The learned trial Judge had considered the evidence showing that the 2nd Defendant had assumed that the risk of gas release due to open valves within Lots G48 and G49 was quite unlikely to occur and had therefore proceeded to commission the gas supply. In so doing, the 2nd Defendant had failed to appreciate that such a risk is plainly foreseeable and had further failed to ensure that steps be taken to avert such risk especially in light of the fact that Lots G48 and G49 were closed and locked. c. Causal link between the incident and the damages suffered by the Plaintiff

35. The learned trial Judge found that causation and damage are not disputed in the case. The Appeal

36. The 2nd Defendant raised three main grounds in this appeal, namely:

37. Learned counsel for the 2nd Defendant contended that the 2nd Defendant is a company of certified gas engineers and that the learned trial Judge had correctly identified, categorized the 2nd Defendant as a professional skill 17 contractor and that the installation and commissioning of LPG piping systems are specialized and technical.

38. It was contended that in a case of professional negligence, unlike a case of negligence simpliciter, there are two specific elements which must be addressed in a trial process, namely, the element of specific pleadings and specific burden of proof upon the Plaintiff.

39. In terms of pleading, in addition to the usual three elements normally pleaded in cases of negligence simpliciter, that is, duty of care, breach of the duty of care and damages [referred to as the “trilogy” by counsel for the 2nd Defendant], in the case of professional negligence, the relevant standard of care of the profession has to be pleaded.

40. In this case, the Plaintiff merely pleaded the “trilogy” and did not specifically plead the appropriate standard of care applicable to the 2nd Defendant being professional gas engineers. The Plaintiff merely pleaded that the 2nd Defendant was negligent and particularised the alleged breaches of negligent in paragraph 13 of the Statement of Claim.

41. Learned counsel also submitted, in the alternative, that the “standard of care” pleaded by the plaintiff is insufficient and not in accordance with the rules of pleading in relation to professional negligence as it does not identify the actual standard of care which is required of the 2nd Defendant in respect of gas installation works. On this point alone, the appeal ought to be dismissed.

42. It was submitted that the Plaintiff’s fatal omission was not addressed and/or considered by the learned trial Judge. 18 43. In support of the above contention, reliance was placed on the Court of Appeal’s case of Shearn Delamore & Co v Sadacharamani A/L Govindasamy9 and Shalini A/P Kanagaratnam v Pusat Perubatan Universiti Malaya (formerly known as University Hospital) & Anor10.

44. The case of Shearn Delamore, supra, involved an appeal from the decision of the High Court. The appellant was a professional firm of Advocates and Solicitors and had been found liable in negligence in respect of opinion given by the appellant relating to intellectual property rights to the respondent. The issues before the court were (a) the applicable standard of care in cases of professional negligence; (b) whether the standard of care was to be pleaded; (c) whether the respondent pleaded the standard of care correctly; and (d) whether the learned trial Judge addressed the issue of the applicable standard of care. The Court of Appeal held as follows: [12] In negligence case, there are, inter alia, three elements which need to be pleaded and established. However, in professional negligence case there is a fourth element which must be pleaded and proved and that is related to standard of care. …………. On the issue of pleadings, the learned counsel for the appellant says:

15. The learned authors of Bullen and Leake, in Volume 2 of its 18th Edition, 2016, at p 677, state that: 9 [2017] 1 MLJ 486 [CA] 10 [2016] 3 MLJ 742 19 Proper particulars need to be given of breach, setting out the respects in which it is said the defendant has fallen short of the standard to be expected of a reasonably competent professional in the relevant field of expertise.

16. Whether the respondent pleaded the standard of care correctly The alleged breach of duty of care and the particulars thereof are provided in paragraph 18 of the Statement of Claim.

17. As has been submitted, the particulars of breach of duty in paragraph 18 of the Statement of Claim do not set out with any degree of specificity or certainty the respects in which it is to be said that the Appellant had fallen short of the standard of care expected of a reasonably competent professional in the Appellant’s position.

18. Suffice to say that the finding of the learned Trial Judge that the Appellant had failed to advise the Respondent of the financial and litigation risks associated with the statement ‘start exploiting your invention’ was not a complaint pleaded or indeed, as submitted, made by the Respondent.

45. The appeal in Shearn Delamore was allowed on the ground as follows; [15] In the instant case, the failure of the learned trial judge to take cognisance of the pleading rules as to ‘standard of care’ and failing to appreciate the respondent has not satisfied the requirement of the elements of standard of care 20 principles by way of evidence at the stage of the plaintiff case warrants the judgment to be set aside as of right.

46. At page 677 under “Statements of case” at paragraph 85-08 of Bullen & Leake & Jacob’s Precedents of Pleadings11, it states: ……Where particular facts are relied upon as relevant to the standard of care, these should also be pleaded. For example, possession of a particular specialist skill or the fact that the circumstances were such that the consequences of a breach would be particularly serious: “If the skill that is warranted is a specialist skill, the client is entitled to the standard of work reasonably to be expected of a specialist professional possessed of that skill….the standard of care is further to be measured by reference to the purpose for which the client required the advice. The magnitude of the loss that the client might suffer if the advice given turned out to be wrong is a material factor in setting the standard of professional care to be expected”: Nederlandse Reassurantie Greop Holding NV v Bacon & Woodrow [1997] LRL.R. 678. Proper particulars need to be given of breach, setting out the respect in which it is said the defendant has fallen short of the 11 Volume 2, 18th edition 21 standard to be expected of a reasonably competent professional in the relevant field of expertise… Pleadings of the Plaintiff

47. A close perusal of the pleadings in the Statement of Claim 12 shows that under the heading “PARTICULARS OF BREACH OF CONTRACT AND/OR BREACH OF DUTY OF CARE”, the Plaintiff had sufficiently pleaded in paragraph 13 of the Statement of Claim and set out under item (a) to (t) the breach in respect of which it is said that the Defendant has fallen short of the standard of care.

48. We are unable to agree that the learned trial Judge did not deal with the element of standard of care. It is to be noted from page 17 of the “ALASAN PENGHAKIMAN”13 that the learned trial Judge was mindful to apply the correct standard of care to the 2nd Defendant where he said: Thus, the standard of care required of the 2nd Defendant would be of competence and diligence expected of a reasonably skilled professional in the field of installing and commissioning such LPG systems.

49. For all the reasons aforesaid, we find no merit in ground (a) of the appeal. a) Failure to establish the correct standard of proof b) Failure to discharge the burden of proof 12 pages 26 to 36 of Rekod Rayuan (Jilid 1/2) 13 page 35 of the core bundle (Jilid 1/3) 22 2nd Defendant’s Contentions 50. Learned counsel for the 2nd Defendant submitted that the learned trial Judge had omitted the element of standard of care of a professional similar to the 2nd Defendant. It was submitted that learned Judge relied on the wrong “sources” to establish the standard of care, namely: a. The authoritative textbook entitled Winfiled & Jolowicz on Torts (18th Edition); and b. Oral evidence of the following witnesses:

(ii) PW6, who is an incident manager or forensic expert who caried out investigations after the incident;

(iii) DW1, who is the managing director of the 2nd Defendant;

(iv) DW2, who is the site supervisor of the 2nd Defendant; and

51. Learned counsel for the 2nd Defendant submitted that PW1 and PW6 are investigating officers or at best, forensic experts in respect of the matters ex post facto. They are witnesses of fact. Their reports contained their findings of what caused the explosion. They are not expert nor are they professional similar to the 2nd Defendant. Thus, their evidence cannot be relied upon to establish the standard of care and skill as expected of a similar professional as the 2nd Defendant. 23 52. It was submitted that the Plaintiff ought to call an expert gas contractor as to what is the applicable standard, what is the bare minimum accepted in undertaking that sort of work.

53. To support the above contention, reliance is placed on Ngan Siong Hong v RHB Bank Bhd [2014] 2 MLJ 449. In that case, by way of a letter of instruction or retainer [“LOI], the respondent [“the bank”] instructed the appellant [a legal firm] to prepare the loan security documents in respect of the facilities granted to the borrower. Upon default by the borrowers, the bank discovered that the borrower had a fictitious identity. The bank sued the appellant for losses and damages it had suffered as a result of the firm’s breach of contractual obligation and alternatively, in the tort of negligence for its failure to discharge the duty of care it owned to the bank. It is the bank’s case that the appellant had failed to exercise the skill required of a prudent conveyancing Solicitors. The High Court allowed the bank’s claim. The appellant appealed. In allowing the appeal, the Court of Appeal in its majority decision held, inter alia: [29] In the instant case it must not be forgotten the respondent has fueled the tort or crime when it approved the loan and the tort or crime continued until it caused loss or damage to the respondent (Emphasis added). The duty of care and breach complained of relates to professional conduct of the appellant. And to determine whether the appellant had breached the duty, whether in contract or tort, the opinion of the expert of the profession plays a major role to determine the issue according to their professional standards or obligations (see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) (Emphasis added.) 24

54. Reliance was also placed on U Television Sdn Bhd & Anor v Comintel Sdn Bhd [2017] 5 MLJ 292, in which the Federal Court approved and applied the case of PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd [2009] 7 MLJ 681at p 702, Ramli Ali J (as he then was) held that: Opinions of experts are admissible to furnish the court with scientific information which is unlikely to be within the experience and knowledge of a judge (s 45(1) of the Evidence Act 1950). Where expert testimony is required on certain matters including technical matters relevant in allegations of professional negligence (in this case, against a consulting engineer), it is not open to the court to decide on such matters in the absence of such evidence. (Emphasis added.)

55. Learned counsel for the 2nd Defendant submitted that in terms of the burden of proof, the application of a wrong standard of proof by the learned trial Judge resulted in the Plaintiff failing to discharge the correct burden of proof. It was submitted that this grave misdirection of law warranted the intervention of the appellate court. On this ground alone, the appeal ought to be allowed.

56. In respect of the 1st Breach, it was submitted that the evidence of PW6 in respect of “good practice” is confined to matters after the event and does not establish the standard of care of a professional similar to the 2nd Defendant. His recommendation of what is “good practice” to be employed is 25 distinguishable from an obligation/duty within the standard of care of a professional similar to the 2nd Defendant.

57. In respect of the 2nd Breach, learned counsel for the 2nd Defendant submitted that the learned trial Judge had failed to consider that the open ball valve as found in Lots G48 and G49 is in contrast to the close position as it was left in by DW1 during the final inspection on 10.12.2009. This indicated that there was tampering of the ball valve by a third party without the knowledge of the 2nd Defendant. The log book of AEON is therefore important as it would show that AEON had actually allowed entry by third party despite the standing instruction that entry was prohibited.

58. It was also submitted that the learned trial Judge failed to consider that the 2nd Defendant and the late Mr Ooi jointly made the decision to start the commissioning at Kenny Rogers as it would give approximately additional hour for the tenant of Lots G48 and G49 before commissioning was to take place at the said outlet.

59. It was submitted that the learned trial Judge failed to consider that there is no evidence to suggest that the 2nd Defendant had knowledge that works had been carried out at Lots G48 and G49 between 10.12.2009 and 14.12.2009 bearing in mind that DW4 was not the employee of the 2nd Defendant and he was not present at the shopping mall and/or was not with DW1 on 14.12.2009.

60. Based on the reasons aforesaid, submitted learned counsel for the 2nd Defendant, there was no foreseeable risk of the incident happening but for the acts by the tenant of Lots G48 and G49 and AEON, which was not in the knowledge of the 2nd Defendant. 26

61. In respect of the 3rd Breach, learned counsel for the 2nd Defendant submitted that the learned trial Judge had erred in accepting the ex post facta evidence of PW1 and PW6 as their evidence does not indicate the standard of care of a professional similar to the 2nd Defendant.

62. In respect of the 4th Breach, learned counsel for the 2nd Defendant submitted that the learned trial Judge had fallen into error by finding that DW1 knew that works had been carried out in the Food & Tea Outlet after 10.12.2009 as there is no evidence to suggest the same.

63. Learned counsel for the 2nd Defendant submitted that the standard of care expected of the 2nd Defendant under the given circumstance at the material time is the standard of care reasonably expected of a professional gas engineer and this burden can only be discharged by calling an expert witness who are also a professional gas engineer as to whether under the given circumstance at the material time, it was reasonably expected of a reasonably gas specialist to commission the gas supply on sectional basis or to include in their letters to the tenants of F & B Outlets the precautionary statement not to meddle with the valves.

64. Our Decision It is our considered view that there is no merit in these two grounds of appeal. Here are our reasons.

65. At the foremost of our mind is the settled law that in professional negligence, the burden is on the plaintiff to establish the breach of standard of care expected of a reasonably competent professional or ordinary skilled man professing to have special skill or expertise in the relevant field of expertise. 27

66. In this connection, the opinion of the expert of the profession plays a major role to determine the issue according to their professional standard or obligation.

67. The opinion of the expert of the profession cannot be over emphasised where the matters involved are technical or scientific in nature or “use of language which involves the idea of an occupation requiring either purely intellectual skill or of manual skill controlled, as in painting and sculpture, or surgery, by the intellectual skill of the operator”. See, Commissioners of Inland Revenue v Maxse 14.

68. The evidence on the appeal record shows that after the incident, PW1 [as well as the Bomba Department] and PW6 had carried out separate investigations into the cause of the incident and their common finding is that the ball valve was in an open position and the end of the pipe was not sealed off with pipe plug (stopper) in Lots G48 and G49. This open position of the valve had allowed gas to flow out and escape into the atmosphere during the commissioning. Given that DW1 could not enter the said outlet to re-check that the position of the solenoid valve, ball valve and pipe plug as the said Outlet was closed, they opined that before the commissioning of the gas, DW1 ought to have commissioned the gas section by section or in stages to isolate the area. As PW1 put it, “They cannot simply open all the gas and flow the gas all the way from starting to end of the valve.”15 According to PW6, for the final installation of the LPG system to the Kenny Rogers lot, only the 150mm ball valve needed to be opened. It was not necessary for the 14 [1919] 1 K.B. 647, at page 657. 15 Page 11 notes of evidence dated 15.3.2017/Alasan Penghakiman, para [40] page 37 of Rekod Rayuan Tambahan 28 other smaller valves in the pipeline to be opened.16 Even DW1 conceded that had the 2nd Defendant undertaken the commissioning of the gas supply on a sectional basis, the risk of the explosion would have been averted.

69. It is abundantly clear from the investigations carried out by PW1 and PW6 that the cause of explosion had to do with the manner in which the gas was release during the commissioning, that is, gas was fully released instead of on sectional basis. To put in another way, the explosion was not due to substandard installation works or defective pipelines. The integrity of installation of the pipelines, an area which falls within the specialized knowledge and skill of the 2nd Defendant, was not called into question and unrelated to the incident.

70. Regards being had to the circumstances under which the 2nd Defendant decided to start commissioning the gas at Kenny Roger, that is, a gap of four days from the 2nd Defendant’s final testing conducted on 10.12.2009 and the commissioning on 14.12.2000 [regardless whether the 2nd Defendant was aware or otherwise of 3rd party having access to the outlets despite AEON’s prohibition], without the benefit of re-checking the gas valves in Lots G48 and G49 and knowledge of the extra caution required in commissioning the gas, we are of the view that it is not necessary for the Plaintiff to call an expert witness who is a professional gas contractor like the 2nd Defendant to tell the Court the standard of care expected of the 2nd Defendant as a competent and prudent professional. 16 Alasan Penghakiman, 2nd paragraph of page 38 Rekod Rayuan Tambahan. 29

71. The combustive nature of the gas which makes it inherently hazardous is a common knowledge which we take judicial notice of. As gas if combustive, it explained why DW1 agreed in his evidence that commissioning of gas supply is quite dangerous and as a gas specialist he needs to exercise caution in commissioning the gas.

72. As stated earlier, the cause of the incident is unrelated to the integrity of the installation of the LNG piping system, but rather it is due to the manner of commissioning the gas under the given circumstances as described above. There is no involvement of technical or scientific matter.

73. Although PW6 is not a professional gas contractor, it is noteworthy that PW6 holds a Master in Industrial Safety Management and has worked as Manager-Incident Management at Petronas Carigali Sdn Bhd since August

2012. PW6 testified that in Petronas, he was involved in the big gas installation, from Sabah to Sarawak, of 375 KM. 17 With his wealth of experience and knowledge in the area of gas installation and commissioning, our view is that PW6’s evidence should be given weight to establish the standard of the duty of care expected of the 2nd Defendant. We therefore find that the learned trail Judge had not erred in accepting and relying on PW6’s evidence to arrive at his finding of the duty of care and the breach of that duty. 17 Rekod Rayuan (Jilid 1/12) page 131 iines 24-26. 30 Conclusion

74. For all the reasons aforesaid, it is our unanimous decision that there is no appealable grounds to warrant the appellate intervention. The appeal is therefore dismissed with costs and the decision of the High Court is affirmed. Dated: 12th July 2019 Sgd YEW JEN KIE (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellants : Robert Low, Ahmad Shahrizal Abdul Aziz & Khong Mei-Yan [Ranjit Ooi & Robert Low] For Respondents : En. T. Sagadaven & Pn V. Sharveena Thevy [Shearn Delamore & Co.] Notice: This copy of the court’s reasons for judgment is subject to editorial revision.