Dksh Malaysia Sdn. Bhd. v 1. Ho Yuet Choon (Nric No.: 640401-10-6646) (BA-12BNCVC-24-04/2018)

HO YUET CHOON (NRIC No.: 640401-10-6646)

SOO FOOH KHOON (NRIC No.: 610606-02-5383) [Trading under the name and style of Buildsafe Services & Trading Company (Business Registration No. 000725399-P)] … RESPONDENTS JUDGMENT (appeal to High Court against Sessions Court’s decision after trial)

In this judgment, I will refer to the parties as they are in the Sessions Court (SC).

The two plaintiffs are partners in a firm, “Buildsafe Services & Trading Company” (Buildsafe), which, among others, supplies, installs, tests, commissions and maintains water sprinkler systems.

Buildsafe had been appointed by the defendant company (Defendant) to install new water sprinkler points and new rack sprinkler points in the Defendant’s warehouse (Warehouse). 2

The third party company (TP) was Buildsafe’s insurer at the material time.

Buildsafe gave a quotation dated 1.10.2014 to the Defendant to install new sprinkler points and new sprinkler point rack at the Warehouse.

The Defendant issued a Purchase Order dated 13.4.2015 to Buildsafe (PO) for the latter to install new sprinkler points and new sprinkler point racks at the Warehouse.

Buildsafe installed new sprinkler points and new sprinkler point racks at the Warehouse. Buildsafe also provided testing, commissioning and maintenance services of the water sprinkler system at the Warehouse (Water Sprinkler System).

After Buildsafe’s installation of new sprinkler points and new sprinkler point racks at the Warehouse, Buildsafe tested the Water Sprinkler

there was a leak in the coupling joint of the Water Sprinkler System;

Buildsafe’s employee (X) attempted to stop the leak by tightening the coupling joint. However, X failed to reduce the water pressure before tightening the coupling joint and the coupling joint broke;

when the coupling joint broke, high pressure water was discharged into the Warehouse (Incident) which damaged the Defendant’s goods kept in the Warehouse (Defendant’s Goods). The 3 Defendant’s Goods consisted of, among others, drugs, medical equipment and health care products; and

as a result of the Incident, the Defendant has suffered a loss of RM180,990.00 (Defendant’s Loss) as follows -

damage to the Defendant’s Goods amounting to RM175,990.00 (the cost price of the Defendant’s Goods paid by the Defendant to its suppliers); and

a sum of RM5,000.00 was incurred by the Defendant to clean up the Warehouse after the Incident (Cleaning Cost).

Due to the Incident, the Defendant did not pay a sum of RM123,499.54 claimed by Buildsafe to be due from the Defendant for Buildsafe’s work in the installation and maintenance of the Water Sprinkler System (Buildsafe’s Claim).

Buildsafe submitted the Defendant’s Loss to the TP, Buildsafe’s insurer.

The TP appointed Crawford & Company Adjusters (M) Sdn. Bhd. (Loss Adjuster) to investigate the Defendant’s Loss.

According to the Loss Adjuster, the Defendant’s Loss was adjusted to RM48,239.49 (Loss Adjuster’s Adjustment).

Buildsafe accepted the Loss Adjuster’s Adjustment without any dispute and discharged the TP from any claim by Buildsafe under Buildsafe’s insurance policy with the TP (Insurance Policy). 4 C. Proceedings in SC

Buildsafe’s Claim was filed in the SC against the Defendant (Original Action).

The Defendant counterclaimed against Buildsafe for the Defendant’s Loss (Counterclaim).

Buildsafe filed third party proceedings against the TP (TP Proceedings) but the TP Proceedings were subsequently discontinued by Buildsafe.

The Original Action and Counterclaim were tried together and after a trial, the learned SC Judge (SCJ) decided as follows, among others (SC

the Original Action was allowed and the Defendant was ordered to pay Buildsafe’s Claim with interest and costs; and

the Counterclaim was allowed only to the extent that Buildsafe was ordered to pay the Loss Adjuster’s Adjustment to the Defendant (with interest and costs).

The Defendant appealed to this court against the entire SC Judgment (This Appeal). D. Issues

This Appeal raises the following questions:

whether Buildsafe was liable in negligence for the Incident to the Defendant. This entails a resolution of the following issues - 5

did Buildsafe owe a duty to the Defendant to take reasonable care in respect of the Testing?;

if Buildsafe owed a duty of care to the Defendant regarding the Testing, had Buildsafe breached such a duty?; and

if Buildsafe has breached its duty of care owed to the Defendant -

was the Defendant’s Loss too remote to be recoverable in law from Buildsafe?;

(ii) whether the Defendant’s Loss was “caused” by Buildsafe’s breach of its duty of care owed to the Defendant; and

(iii) has the Defendant discharged the burden to prove the quantum of the Defendant’s Loss? In this regard, is the Defendant bound by the Loss Adjuster’s Adjustment?;

if Buildsafe is liable in negligence for the Defendant’s Loss, whether Buildsafe’s Claim should be dismissed by SC; and

whether the High Court sitting in an appellate capacity should intervene regarding SC Judgment. E. This court’s approach

In deciding This Appeal, the following approach is adopted:

an appellate court should not intervene regarding a trial court’s findings of fact, especially in respect of findings on credibility of 6 witnesses, unless there is a “plain error of fact” by the trial court which has caused an injustice and which warrants appellate intervention - please see the judgment of Steve Shim CJ (Sabah & Sarawak) in the Federal Court case of Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309, at 317-321. This is because an appellate court has no audio-visual advantage of -

listening to the oral evidence of witnesses given at the trial; and

assessing the demeanour of witnesses; and

an appellate court may intervene regarding -

a trial court’s error of law; or

a wrong inference drawn by the trial court from its findings of fact - please see the judgment of the Federal Court delivered by Mohd. Dzaiddin FCJ (as he then was) in China Airlines Ltd v Maltran Air Corp Sdn Bhd & another appeal [1996] 3 CLJ 163, at 175-176. F. Did SC consider Counterclaim based on negligence?

The Counterclaim is based on Buildsafe’s negligence regarding the Incident (Alleged Negligence). One of the agreed issues to be tried between Buildsafe and the Defendant concerned the Alleged Negligence. The Defendant had adduced evidence regarding the Alleged Negligence. Both Buildsafe and the Defendant had filed written 7 submission on, among others, the Alleged Negligence. Despite all the above, the learned SCJ’s Grounds of Judgment (GOJ) did not decide whether the Defendant had proven the Alleged Negligence. This is a plain omission of fact by the SC (1st Plain Error) which has caused an injustice to the Defendant and which warrants appellate intervention. Accordingly, it now behoves this court to decide whether the Alleged Negligence has been proven by the Defendant. G. Whether Buildsafe was negligent regarding Incident

It is not disputed that the Defendant has the legal and evidential burden to prove on a balance of probabilities the following three elements of the tort of negligence committed by Buildsafe regarding the Incident:

Buildsafe owes a duty under Malaysian case law to take all reasonable care in the conduct of the Testing so as not to cause the Defendant’s Loss (Buildsafe’s Duty);

X, Buildsafe’s employee (for which Buildsafe is vicariously liable), has breached Buildsafe’s Duty to take all reasonable care in respect of the Testing (Buildsafe’s Breach); and

the Defendant’s Loss is not too remote and can be recovered in law because the Defendant’s Loss is reasonably foreseeable as a consequence of Buildsafe’s Breach. G(1). Did Buildsafe owe duty of care to Defendant?

In De Tebrau Makmur Sdn Bhd & Anor v Bank Kerjasama Rakyat Malaysia Bhd [2017] MLJU 201, at [50], I have followed Zainun Ali 8 FCJ’s judgment in the Federal Court case of Lok Kok Beng & Anor v Loh Chiak Eong & Anor [2015] 7 CLJ 1008 as follows: “[50] My understanding of Lok Kok Beng is as follows:

liability for negligent misstatement is based on the tort of negligence. In other words, there is no distinction between liability for negligent misstatement and liability for negligent acts/omission; and

in deciding whether a party (X) owes a duty of care to another party (Y), the Court shall consider the following -

whether there is “sufficient legal proximity” between X and Y. It is to be noted that Courts have also applied the test of whether it is reasonably foreseeable that Y will suffer loss or damage arising from X’s misstatement. In this respect, the following considerations are relevant -

the nature of relationship between X and Y;

(ii) whether X has voluntarily assumed responsibility to Y regarding X’s misstatement;

(iii) whether Y has relied on X’s misstatement;

(iv) whether there is physical proximity;

whether there is circumstantial proximity; and

(vi) whether there is causal proximity;

if there is “sufficient legal proximity” between X and Y, X owes a prima facie duty of care to Y. The next question is whether X’s prima facie duty of care is negated by policy consideration. The following matters are pertinent - 9

the factual matrix of the case;

(ii) whether there is a contract between X and Y; and

(iii) the relative bargaining positions of X and Y; … ” (emphasis added). The appeal to the Court of Appeal against De Tebrau Makmur has been withdrawn.

I am of the view that Buildsafe owes a duty under Malaysian case law to take all reasonable care in the conduct of the Testing so as not to cause the Defendant’s Loss. The existence of Buildsafe’s Duty is premised on the following evidence and reasons:

there is “sufficient legal proximity” between Buildsafe and the Defendant in the sense that it is reasonably foreseeable that the Defendant will suffer loss or damage arising from the Testing conducted by Buildsafe. Such a sufficient legal proximity between Buildsafe and the Defendant is clear from the following -

for valuable consideration, the Defendant had appointed Buildsafe to install the Water Sprinkler System at the Warehouse and to conduct the Testing;

the Defendant had relied on Buildsafe’s expertise, skill and competence to conduct the Testing; and 10

there was sufficient physical proximity, circumstantial proximity and causal proximity between Buildsafe and the Defendant in respect of the Testing;

the existence of a contract between Buildsafe and the Defendant does not bar the existence of Buildsafe’s Duty. I rely on the following judgment by Lord Goff in the House of Lords case of Henderson v Merrett Syndicates Ltd (No 1) [1995] 2 AC 145, at 194 - “… given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the parties, I do not find it objectionable that the claimant may be entitled to take advantage of the remedy which is most advantageous to him, subject only to ascertaining whether the tortious duty is so inconsistent with the applicable contract that, in accordance with ordinary principle, the parties must be taken to have agreed that the tortious remedy is to be limited or excluded.” (emphasis added). In this case, the contract between the Defendant and Buildsafe is formed by way of PO and invoices issued by Buildsafe (Invoices). There is no written contract between the Defendant and Buildsafe within the meaning of ss 91 and 92 of the Evidence Act 1950 (EA). The relevant parts of ss 91 and 92 EA provide as follows - “Evidence of terms of contracts, grants and other dispositions of property reduced to form of document s 91. When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent of the parties to the form of a document, and in all cases in which 11 any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. … Exclusion of evidence of oral agreement s 92. When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to section 91, no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to, or subtracting from its terms: …” (emphasis added). There is nothing in the PO and Invoices in this case which excludes Buildsafe’s Duty; and

there is no policy consideration to negate the existence of Buildsafe’s Duty. G(2). Whether Buildsafe had breached duty of care owed to Defendant

There is evidence of Buildsafe’s Breach on a balance of probabilities as follows:

Buildsafe had made a written claim to the TP regarding the Defendant’s Loss (Insurance Claim). Attached to the Insurance Claim was a detailed list of all the items of the Defendant’s Loss. If 12 Buildsafe was not negligent in respect of the Testing, Buildsafe would not have submitted the Insurance Claim;

the Loss Adjuster’s “Final Report On Contractor All Risks Policy Claim” dated 20.8.2016 (Loss Adjuster’s Report) stated at page 3, among others - “INVESTIGATION/CAUSE Based on our enquiries with [Buildsafe], [Defendant] and inspection of the site and goods, we are of the view that the damage of the goods was due to water contact and the water originated from the sprinkler pipe during the process of pressure testing. We were also presented with the broken bolt which had caused this loss incident. We are of the view that the most plausible cause of the broken bolt could be due to overtightening by the [Buildsafe’s] workers or defective material. [Buildsafe] also could not tell us when this bolt was purchased or how long ago it was purchased and during their moving activity from one location to the next of their office, newly purchased bolts and previously purchased ones were all mixed up and not possible to segregate. RISK IMPROVEMENT MEASURES We would advise that as soon as a leak is discovered, it would be safer and better that besides shutting the booster pump, the piping system should be drained before the rectification of the joint be carried out.” (emphasis added). 13 Buildsafe did not challenge the correctness of the aforesaid part of the Loss Adjuster’s Report;

Buildsafe accepted the Loss Adjuster’s Adjustment and discharged the TP from any claim by Buildsafe under the Insurance Policy. Such a conduct on Buildsafe’s part is relevant under s 8(2) EA and supports the commission of Buildsafe’s Breach; and

Mr. Yeoh Hin Yew (SP1) from the Loss Adjuster, testified that he had prepared the Loss Adjuster’s Report based on his visit to the Warehouse to investigate the Defendant’s Loss. During cross-examination, SP1 stated that Buildsafe was negligent in carrying out the Testing. SP1 was not re-examined by Buildsafe’s learned counsel on this aspect of SP1’s testimony.

I have not overlooked answer no. 47 in the witness statement of Mr. Alex Soo Fooh Khoon (SP2), the second plaintiff and Managing Partner of Buildsafe, which denied any negligence on Buildsafe’s part. This court cannot accept such self-serving oral evidence from SP2’s in the light of the probable evidence as explained in the above sub-paragraphs 25(1) to (4). G(3). Was Defendant’s Loss too remote to be recoverable in law?

The Defendant’s Loss, in my view, was reasonably foreseeable as a result of Buildsafe’s Breach because -

the Defendant’s Goods were kept in the Warehouse; 14

the Water Sprinkler System was installed in the Warehouse by the Defendant to prevent the destruction of the Defendant’s Goods by fire; and

the Defendant appointed Buildsafe to -

install the Water Sprinkler System in the Warehouse; and

carry out the Testing to ensure that the Water Sprinkler System was able to function properly.

In this case, I cannot find any no policy consideration which compels this court to decide that the Defendant’s Loss is too remote to be recoverable in law. G(4). Alleged Negligence has been proven

Premised on the evidence and reasons explained in the above Parts G(1) to G(3), the Defendant has discharged the legal and evidential burden in this case to prove on a balance of probabilities that Buildsafe has committed a tort of negligence in respect of the Testing (Buildsafe’s Negligence). H. Whether Defendant’s Loss has been proven by Defendant

The Defendant’s Loss can only be claimed against Buildsafe if the Defendant is able to discharge the onus to prove the following matters:

the Defendant’s Loss is “caused” by Buildsafe’s Negligence (the issue of causation) - please see Asia File Products Sdn Bhd v 15 Brillian Achievement Sdn Bhd & Ors [2019] 2 AMR 908, at [22]; and

the Defendant has the burden to prove the amount of the Defendant’s Loss - please see Asia File Products, at [25(5)]. If the Defendant fails to discharge this onus, the Defendant is only entitled to nominal damages - please see Edgar Joseph Jr FCJ’s judgment in the Federal Court case of Tan Sri Khoo Teck Puat & Anor v Plenitude Holdings Sdn Bhd [1994] 3 MLJ 777, at 799. In ascertaining the quantum of the Defendant’s Loss, the court should take into account the following considerations -

in accordance with the general principle of restitutio in integrum, the amount of compensatory damages should as nearly as possible put the Defendant in the same position as the Defendant would have been in if Buildsafe’s Negligence has not been committed - please see the judgment of Richard Malanjum CJ (Sabah & Sarawak) (as he then was) in the Federal Court in Taiping Poly (M) Sdn Bhd v Wong Fook Toh & Ors [2011] 3 CLJ 837, at [8] and [19]; and

the court must ensure that the Defendant is not unjustly enriched or overcompensated and at the same time the court should prevent Buildsafe from being financially ruined in an unjust manner - please refer to Motordata Research Consortium Sdn Bhd v Ahmad Shahril bin Abdullah & Ors [2017] 7 AMR 560, at [75(2)]. This is because the object of compensatory damages is to compensate a victim’s loss and damage and not to punish the tortfeasor - please see Lord 16 Wilberforce’s judgment in the House of Lords case of General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd [1975] 2 All ER 173, at 177. H(1). Defendant’s Loss was “caused” by Buildsafe’s Negligence

I have no hesitation to find that the Defendant’s Loss would not have occurred “but for” Buildsafe’s Negligence. I refer to an appeal from New Zealand to the Privy Council, Deloitte Haskins & Sells v National Mutual Life Nominees Ltd [1993] AC 774, at p. 788, wherein Lord Jauncey has applied the “but for” test. H(2). Whether quantum of Defendant’s Loss has been proven by

The learned SCJ found as a fact that the Defendant’s Loss in the sum of RM180,990.00 had not been proven by the Defendant. According to the

Mr. Narayana Rao a/l Narasimmalu (SD2), the Defendant’s Senior Manager of Facility, Safety, Health and Environment, had given evidence regarding his computation of the Defendant’s Loss by inspecting the Defendant’s Goods which had been damaged by Buildsafe’s Negligence (Damaged Goods). The learned SCJ made a finding of fact that SD2 did not state the truth when SD2 testified that SD2 took one month to contact SP1 (the Loss Adjuster’s employee) for a second inspection of the Damaged Goods - paragraphs 44-48 GOJ; 17

the Defendant has a duty to appoint an independent loss adjuster to compute the Defendant’s Loss - paragraph 56 GOJ;

the SC could not accept RM5,000.00 as Cleaning Cost because the cleaning work was done by the Defendant’s own employees - paragraph 59 GOJ; and

the learned SCJ accepted the Loss Adjuster’s Adjustment because the Loss Adjuster was a professional valuer and the TP had paid the Loss Adjuster’s Adjustment to Buildsafe - paragraph 60 GOJ.

I am mindful that the learned SCJ has made a finding of fact regarding SD2's lack of credibility. However, I am of the view that SC has made a plain error of fact in rejecting SD2’s testimony regarding the Damaged Goods (2nd Plain Error). The 2nd Plain Error is committed based on the following evidence and reasons:

the learned SCJ did not consider at all the following undisputed documentary evidence which had proven the Defendant’s Loss (Documentary Evidence) -

tax invoices regarding the Damaged Goods;

debit notes in respect of the Damaged Goods; and

the Defendant’s part payment to the suppliers of the Damaged Goods. It is to be noted that if there is a conflict between oral evidence and documentary evidence, the court should accept the latter - please see Siti Norma Yaakob JCA’s (as she then was) judgment in the 18 Court of Appeal in Guan Teik Sdn Bhd v Hj Mohd Noor Hj Yakob & Ors [2000] 4 CLJ 324, at 330;

the Defendant had brought the Damaged Goods to SC. Section 60(3) EA provides as follows - “60(3) If oral evidence refers to the existence or condition of any material thing including a document, the court may, if it thinks fit, require the production of that material thing or the document for its inspection.” (emphasis added). Even if the learned SCJ had disbelieved SD2, the SC could have inspected the Damaged Goods pursuant to s 60(3) EA so as to ascertain whether the Defendant’s Loss had in fact been incurred by the Defendant; and

if a witness has lied on one material aspect of the witness’ testimony, this does not mean that the entire testimony of the witness is to be rejected. If a witness lies in court, it is incumbent on the court to scrutinize the witness’ evidence with great care. I rely on the following judgment of Thomson CJ (as he then was) in the Court of Appeal of the Federation of Malaya in Khoon Chye Hin v Public Prosecutor [1961] 1 MLJ 105, at 107 - “If a witness demonstrably tells lies on one or two points then it is clear that he is not a reliable witness and as a matter of prudence the rest of his evidence must be scrutinised with great care and indeed with suspicion. To say, however, that because a witness 19 has been proved a liar on one or two points then the whole of his evidence "must in law be rejected" is to go too far and is wrong.” (emphasis added). Based on Khoon Chye Hin, I have scrutinised SD2’s evidence with great care. I accept SD2’s testimony regarding the Defendant’s Loss because such evidence is supported by Documentary Evidence and the fact that the Defendant has brought the Damaged Goods to SC (for the inspection of SC and Buildsafe).

The learned SCJ has committed an error of law in deciding that the Defendant has a duty to appoint an independent loss adjuster to compute the Defendant’s Loss (1st Legal Error). There is nothing in the EA or Rules of Court 2012 (RC) which imposes any obligation on a party claiming compensatory damages to appoint a loss adjuster to ascertain the party’s loss. It is decided in Syarikat Faiza Sdn Bhd & Anor v Faiz Rice Sdn Bhd & Anor [2019] 1 AMR 180, at [20], as follows: “[20] Firstly, there is nothing in s 45(1) EA or O 40A rr 1 to 3 RC which requires an accountant’s expert evidence to be adduced in support of a plaintiff’s claim for compensatory damages. Nor is there any written law which requires such an expert opinion. My research is unable to show any decided case in Malaysia and the other Commonwealth countries which requires a plaintiff to call an accountant to give expert evidence in support of the plaintiff’s claim for compensatory damages. On the contrary, there are many cases, including Taiping Poly, which have awarded compensatory damages based solely on evidence of “non-experts”. Accordingly, the Plaintiffs are not required to adduce an accountant’s expert opinion to support this Assessment. 20 Despite the above, there is nothing in law to prevent a plaintiff and/or defendant from tendering an accountant’s expert opinion to assist the Court in the assessment of compensatory damages. In an adversarial litigation system, parties in assessment proceedings have a discretion to adduce an accountant’s expert evidence as they see fit. Needless to say, it is a question of fact in each assessment proceedings as to whether the Court may accept an accountant’s expert view and to attach any weight thereto.” (emphasis added).

I am of the view that the SC had erroneously rejected the Cleaning Cost (3rd Plain Error) because -

in accordance with the general principle of restitutio in integrum, the amount of compensatory damages should as nearly as possible put the Defendant in the same position as the Defendant would have been in if Buildsafe’s Negligence has not been committed. The Cleaning Cost is necessary to put the Defendant in a position as if Buildsafe’s Negligence has not been committed;

even though the Defendant’s employees had cleaned the Warehouse after the Incident, the Defendant should still be compensated in respect of the Cleaning Cost. This is because if not for Buildsafe’s Negligence, the Defendant’s employees would be able to devote their time, effort and skill for other profitable, productive or useful purpose for the Defendant; and

in view of the extent of the Defendant’s Loss, the amount of Cleaning Cost is neither excessive nor unreasonable. 21

The learned SCJ has committed an error of law in accepting the Loss Adjuster’s Adjustment (2nd Legal Error). The 2nd Legal Error occurs because the SC has failed to consider that the Insurance Policy is solely between Buildsafe and the TP. The Defendant is not a party to the Insurance Policy and is not legally bound in any manner by the Loss Adjuster’s Adjustment by reason of the doctrine of privity of contract - please see the Privy Council’s judgment delivered by Lord Wilberforce in Kepong Prospecting Ltd & Ors v Schmidt [1968] 1 MLJ 170, at 174 (an appeal from Malaysia).

I have not overlooked SP1’s evidence regarding the Loss Adjuster’s Adjustment (SP1’s Evidence). I am not able to accept SP1’s Evidence due to the following evidence and reasons:

I accept the Documentary Evidence in preference to SP1’s Evidence;

during cross-examination, SP1 gave evidence that he had only investigated 3 pallets of the Damaged Goods. It is clear that SP1 did not thoroughly investigate the full extent of the Defendant’s Loss;

SP1 admitted during cross-examination that most of the Damaged Goods (which consisted of drugs and medical equipment) had to be written off (due to Buildsafe’s Negligence) because the drugs and medical equipment had to be kept in a sterilized environment; and

SP1 agreed with the Defendant’s learned counsel that SP1 had no document to support SP1’s assessment of the Defendant’s Loss.

I do not find the amount of the Defendant’s Loss to - 22

have unjustly enriched the Defendant. This is a case of genuine loss suffered by the Defendant as a direct consequence of Buildsafe’s Negligence; and

have a financially crippling effect on Buildsafe.

Based on the above evidence and reasons, the Defendant has succeeded to discharge the burden to prove on a balance of probabilities that the Defendant’s Loss amounts to RM180,990.00. I. Could SC allow Buildsafe’s Claim in view of Buildsafe’s Negligence?

As the Defendant has proven Buildsafe’s Negligence and the quantum of the Defendant’s Loss [please see the above Parts G(1) to G(4), H(1) and H(2)], the SC has committed an error of law in allowing Buildsafe’s Claim (3rd Legal Error). The 3rd Legal Error has been committed by the learned SCJ as follows:

if a contractor has been negligent in providing a product and/or service to a consumer and such a negligence has caused loss to the consumer, the contractor cannot claim for the price of the product and/or service from the consumer until the contractor has rectified the effect of the negligence and the product and/or service can therefore be used by the consumer; and

Buildsafe’s Claim can only be considered once Buildsafe has proven that the Water Sprinkling System can function properly in the Warehouse. 23

All the cases cited by Buildsafe’s learned counsel can be easily distinguished from this case because of Buildsafe’s Negligence and the fact that there was no evidence regarding the proper functioning of the Water Sprinkling System in the Warehouse.

In view of -

the 1st to 3rd Legal Errors; and

the 1st to 3rd Plain Errors - appellate intervention is warranted in the interest of justice in this case. Hence, the following order and judgment, among others, is pronounced -

This Appeal is allowed with costs of This Appeal to be paid by

the entire SC Judgment is set aside;

judgment in respect of the Counterclaim is entered in favour of the Defendant against Buildsafe as follows -

Buildsafe shall pay RM180,990.00 (1st Sum) to the Defendant; and

(ii) Buildsafe shall pay interest at the rate of 5% per annum on the 1st Sum from 16.5.2015 (the date of the Incident) until the date of full payment of the 1st Sum; 24

Buildsafe’s Claim is dismissed with costs;

scale costs of Buildsafe’s Claim and Counterclaim in the SC shall be paid by Buildsafe to the Defendant;

a sum of RM75,925.96 (2nd Sum) (paid by the Defendant to Buildsafe pursuant to SC Judgment) shall be refunded by Buildsafe to the Defendant; and

Buildsafe shall pay interest at the rate of 5% per annum on the 2nd Sum from 11.10.2018 (the date of delivery of the oral decision of This Appeal) until the date of Buildsafe’s full refund of the 2nd Sum.

If Buildsafe had not have accepted the Loss Adjuster’s Adjustment and had not discharged the TP from any claim by Buildsafe under the Insurance Policy, Buildsafe could have claimed for a full indemnity from the TP in respect of the Defendant’s Loss. Sadly, this is not the case. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 26 AUGUST 2019 Counsel for Appellant: Mr. Liew Seong Yee (Messrs Shearn Delamore & Co.) Counsel for Respondents: