Giomani Edition Sdn Bhd v Cheng Kow (BA-23NCvC-6-01/2020)

CHENG KOW (No. K/P : 500524-10-5323 / 7968759

LPV FURNITURE SDN BHD (COMPANY NO: 721903-A) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff’s claim is for the loss caused to its goods stored in a warehouse adjoining that which was occupied by the 2nd Defendant. The Plaintiff’s goods were destroyed in a fire which allegedly started from the 2nd Defendant’s warehouse. [2] The 1st Defendant owned both the warehouses occupied by the Plaintiff and the 2nd Defendant. They were tenants pursuant to tenancy agreements executed between the parties. 05/11/2024 09:03:34 BA-23NCvC-6-01/2020 Kand. 99 Salient facts [3] The Plaintiff is in the business of selling furniture. On 11.1.2019, it entered into a tenancy agreement with the 1st Defendant (“D1”) in respect of a warehouse which address was Lot 2733, Jalan Baru, Kg Baru, Sungei Buloh, 47000 Selangor. Although the Plaintiff has several showrooms in Petaling Jaya to display its furniture, its stock in trade was stored in the warehouse. [4] At the material time, the 2nd Defendant (“D2”) was the tenant of the adjoining premises known as Lot 2734. D2 had been a tenant for some years prior commencing with the first tenancy agreement in 2009 which was renewed several times thereafter. [5] On 12.5.2019, at about 4.10 pm, 2 foreign workers noticed fire coming from the Plaintiff’s warehouse and the D2’s warehouse. It was a Sunday. By the time the fire department personnel appeared on the scene, the fire had destroyed almost the entire warehouse occupied by the Plaintiff. All the items stored inside were destroyed. The Plaintiff’s claim [6] The Plaintiff alleged that the fire occurred as a result of the negligence of the Defendants. The fire started from Lot 2734 and spread to the Plaintiff’s premises. As the premises belonged to D1 at the material time, the Plaintiff sued both the occupier as well as the owner of Lot 2734, hence both D1 and D2 were cited as the Defendants in this suit. [7] Save for the fact that it was certain that the fire originated from the D2’s warehouse, the Plaintiff was uncertain at to the manner the fire started. However, in suing both the Defendants as owner and occupier respectively in negligence, it relied heavily on the doctrine of res ipsa loquitor. [8] The losses were substantial. The Plaintiff claims that upon execution of the tenancy agreement with D1 on 11.1.2019, it had moved most of its furniture previously stored in 3 warehouses in several locations in Selangor, to the warehouse in Lot 2733. [9] It therefore claims the following reliefs comprising of inter alia damages, as follows:-

Total loss of stock in trade of RM 530,000.00;

(ii) Loss of profit on the stock in trade amounting to RM 300,000.00;

(iii) Relocation costs of RM 60,000.00 incurred in moving into temporary premises after the fire incident;

(iv) General damages; and

Interest and costs. Defence of D1 [10] D1, the landlord, denies that the fire originated from warehouse Lot 2734. In any event, even if it started from Lot 2734, he had no control and custody over the premise as it was occupied by D2 at the material time. Further, the terms of the tenancy agreements entered into absolves him from liability from losses arising from fire to the tenanted warehouses. Defence of D2 [11] D2 on the other hand, denied all liability sought to be pinned on it. It contends that the Plaintiff and/or D1 were negligent for failing to take care of the respective premises. The Plaintiff failed to install a fire alarm system in its warehouse, failed to have fire prevention tools in the warehouse and failed to take necessary precaution to prevent a fire. As for D1, he was negligent in failing to ensure that all electrical connections were in good and safe condition prior to handing over vacant possession to D2. Alternatively, both the Plaintiff and D1 were contributorily negligent in the damage and loss suffered. Issues for determination [12] Arising from the respective parties’ case, the issues to be decided is confined to the following:-

whether the fire which damaged Lot 2733 was caused by the negligence of either or both the Defendants/or contributed to by the Plaintiff;

(ii) whether the Plaintiff’s losses were proven to have resulted from the breach of either or both the Defendants. Analysis and decision of this court [13] It is law well established that the Plaintiff bears the onus of proving its claim and the parties asserting the existence of a fact bears the burden of proving that fact. (See: sections 101 and 102 of the Evidence Act, 1950 and Letchumanan Chettiar Alagapan (as executor to SL Alamelooo Achi (Deceased) & Anor v Secure Plantation Sdn. Bhd.) [2017] 5 CLJ 418). whether the fire which damaged Lot 2733 was caused by the negligence of either or both the Defendants/contributed to by the Plaintiff [14] To establish its case, the Plaintiff called 3 witnesses. The principal witness on liability is PW1, an officer from the Fire Department, Selangor. She tendered a report prepared by her. The report was titled LAPORAN KEBAKARAN/KECEMASAN JABATAN BOMBA DAN PENYELAMAT MALAYSIA (JBPM) 23.7.2019. She stated that her report was based on the information obtained from the report made by personnel from the Fire Department, Sungei Buloh, which prepared the initial report. PW1 further stated that in preparing her report she did not interview any witnesses nor visit the place of the fire. [15] She concluded at paragraph 5 of her report,

KEADAAN KEBAKARAN/KECEMASAN KETIKA PASUKAN BOMBA TIBA DI TEMPAT INSIDEN: SAMPAI DI LOKASI DIDAPATI API SEDANG MARAK DI BAHAGIAN TEPI KILANG LPV FURNITURE LOT 2734. ANGGARAN KELUASAN KILANG BERUKURAN 80 X150 KAKI. API JUGA SEDANG MEREBAK KE SEBUAH KILANG BERKEMBAR BERKELUASAN 80 X 150 KAKI IAITU DI LOT 2733. [16] The report made by the Fire Department, Sungei Buloh is contained in B2-138 of the Agreed Bundle of Documents. It is a single page report containing information pertaining to the incident. The following information therein is relevant,

Kemerebakkan kebakaran (Nyatakan tempat mana lokasi) Bahagian tepi D/B box

Punca insiden (Dipercayai) Tidak Pasti [17] It is significant that even the first information report stated the cause of the fire as indeterminate or “Tidak Pasti.” [18] In her oral evidence, PW1 stated unequivocally when asked, that she was unable to determine the cause of the fire. I find her to be truthful and candid about the fact that she was unable to ascertain the cause of the fire. This is not surprising as she did not even visit the place of the incident to conduct any investigation on the matter. [19] In addition, she relied on the information in the report from the Fire Department, Sungei Buloh which was inconclusive as to the cause of the fire. [20] Apart from this witness, there were no other witnesses called by the Plaintiff on the probable cause of the fire. The closest evidence as to the cause of the fire to warehouse Lot 2733 is that fire was seen raging from the left side of warehouse Lot 2734 at which was located the Distribution Board box. [21] In the Agreed Bundle of Documents, a report titled LAPORAN MENGENAI PUNCA KEBAKARAN prepared by the Penguasa Bomba, Negeri Selangor was included which appeared to suggest how the fire could have started. The relevant portion states as follows, Sumber Nyatakan (Source of Ignition): Elektrik-Berlaku arcing pada soket 13 Amp akibat daripada penyambungan longgar pada connector wayar soket di bahagian tepi kilang di antara Lot 2733 and Lot 2734 menyebabkan berlaku kebakaran dan merebak ke bahagian lain. [22] However, I would give scant weight to this piece of evidence. For one, PW1 was asked as to her knowledge of this report to which she replied in the negative. The maker of the report was not called to testify, whose evidence might throw some light on the contents, and the technical aspects stated therein. No other witnesses for the Plaintiff was referred to this report. At best, the contents merely state the cause and source of the fire without attributing it to any party responsible for it. It is then for the Plaintiff, to adduce by credible evidence a nexus between this source of the fire to the defendants. As matters stand, on the available evidence, there is an absence of evidence on the issue of negligence and the liability of either of the Defendants. [23] It is trite law that to maintain a cause of action in negligence, the essential elements to prove are duty of care, breach of the duty and damage resulting from the breach. On the evidence adduced, I do not find negligence to have been established as the ingredient on breach of duty on the part of the defendants have not been made out. [24] The Plaintiff must have realized the evidence it had, presented some difficulty in proving its case of negligence against the Defendants. For that reason, it did not plead any particulars of negligence as would usually be expected of a plaintiff whose case is founded on negligence. Instead, it pleaded as follows in paragraph 15 of its Statement of Claim, “The said fire was caused by the negligence of the 1st Defendant and/or the 2nd Defendant. The Plaintiff will rely on the doctrine of res ipsa loquitor.” [25] Res ipsa loquitor is a Latin term which means the thing speaks for itself. It represents a rule of evidence, rather than a principle of law. Clerk & Lindsell on Torts (20th Ed): states that '… It is only a convenient label to apply to a set of circumstances in which a claimant proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result.’ [26] The term has its origins in the judgment of Erie CJ in Scott v London and St Katherine Docks (1865) 3 H & C 596. There, it was held that the term applies where (1) the occurrence is such that it would not have happened without negligence, (2) the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control. If these two conditions are satisfied it follows, on a balance of probability that the defendant, or the person for whom he is responsible, must have been negligent. (3) there must be no evidence as to why or how the occurrence took place. If there is, then an appeal to res ipsa loquitur is inappropriate for the question of the defendant's negligence must be determined on that evidence. [27] In Ahmad Jaafar bin Abdul Latiff v Dato’ Bandar Kuala Lumpur [2014] MLJU 1913 the Federal Court held, [39] …the ‘fundamental basis of the maxim (res ipsa loquitor) is that the rule that it is for the plaintiff to prove negligence and not for the defendant to disprove it, may cause hardship to the plaintiff if it is impossible for him to know what precise acts of omission led to his damage, and this is most obviously so where the cause of the damage is peculiarly within the means of knowledge of the defendant who caused it. This hardship can sometimes be avoided by the application of the maxim res ipsa loquitur’. (See: Ma Clyde v Wong Ah Mei & Anor [supra]). It should also be noted that the doctrine is not a rule of substantive law but rather a principle of evidence. The doctrine of res ipsa loquitur does not prove negligence. It only infers the negligence. And the doctrine does not apply when a defendant did not have exclusive control over the property or object that alleged to have caused the damage or injury. Indeed it is insufficient for a plaintiff merely to present evidence of defendant’s negligence. A plaintiff must show that the type of injury suffered would not ordinarily occur unless the defendant was negligent. (See also: Sabah Shell Petroleum Co Ltd & Anor v The Owners of and/or Any Other Persons Interested in the Ship or Vessel the ' Borcos Takdir' [2012] 5 MLJ 515, Teoh Guat Looi v. Ng Hong Guan [1998] 4 MLJ 525, (Court of Appeal)). [28] To reiterate, in order for the Plaintiff to rely on res ipsa loquitor, it must show that:-

the damage to Lot 2733 could not have happened without negligence of the Defendants;

(ii) the damage was caused by something under the sole management and control of D1/D2; and

(iii) the exact cause of the damage is not known. [29] On the factual matrix of this case, I am of the view that the evidential rule of res ipsa loquitor does not apply. As to the first requirement, I am not convinced that the occurrence of the fire is such that it could not have happened without negligence. Fire can occur for a myriad of reasons, some of which may not necessarily be due to the defendants’ negligence. [30] Where D1 is concerned, there is an additional reason why res ipsa loquitor does not apply. The second requirement is not fulfilled. D1 does not have sole control over the premises as it has been rented to both the Plaintiff and D2. As for D2, the evidence that the fire appeared to have come from the Distribution Box located at the left of Lot 2734 in itself does not establish that the source of it was under the sole management and control of D2. [31] I therefore find there to be non-fulfilment of the conditions to warrant invoking res ipsa loquitor. Accordingly, the Plaintiff is not entitled to rely on the principle to exempt itself from proof of negligence. Consequently, on the evidence presented, I am unable to conclude that negligence has been established on a balance of probabilities, against both Defendants. [32] Apart from the reasons aforementioned, there is a further reason to absolve D1 in particular. The tenancy agreements entered into between the parties and the contractual obligations stated therein are relevant. [33] The tenancy agreement between the Plaintiff and D1 stipulates that the Plaintiff is obliged to install the necessary firefighting equipment as may be required by the fire-fighting authority (clause 4(v)). PW1 in cross examination conceded that none was installed in the warehouse on Lot 2733. In addition, the Plaintiff is required to at its own costs and expense provide, arrange and take all precaution against fire for all its goods against anyone and agrees not to hold D1 responsible or liable for the same. (clause 4(o)). This clause thus imposes an obligation on the Plaintiff to purchase insurance to safeguard the value of its goods in the event of a fire. PW1 admitted that no such indemnity was purchased. [34] The defence of D2 is two-pronged. Apart from defending the negligent claim by the Plaintiff, D2 also seeks to assign blame to D1. It claims that D1 was negligent in renting out a warehouse which was not safe for occupation. It relies on the admission by D1 that both the warehouses have no certificate of fitness. [35] The answer to the defence approach by D2 is this. The mere fact that there is no certificate of fitness for occupation does not answer the question of negligence in causing the fire to Lot 2733. Also, the tenancy agreement between D1 and D2 stipulated that the warehouse Lot 2734 was rented out on an “AS IS WHERE IS” basis (recital B). D2 was to keep the warehouse in good and tenantable repair including taking precautions against fire. (clause 5 (e), (v) and (z).) D2 is not to hold D1 for any losses occasioned by fire (clause 7 (d) and (e).) In addition, D2 is to indemnify D1 in the event of any losses suffered by D1 arising from the fire. [36] All the clauses taken cumulatively has the effect of absolving D1 in the event of a fire. I therefore agree with the submission of counsel for D1 that no liability can be sought to be attached to it by either the Plaintiff or D2. whether the Plaintiff’s losses were proven to have resulted from the breach of either or both the Defendants [37] Notwithstanding the fact that I do not find liability established, nonetheless for the sake of completeness, I shall deal with the issue of damages. [38] It is a principle well recognised that the onus to prove loss lies on the party claiming. In Tan Sri Khoo Teck Puat v Plenitude Holdings Sdn Bhd [1994] 3 MLJ 777, the Federal Court held, “… plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, so to speak, throw them at the head of the court, saying: 'This is what I have lost, I ask you to give me these damages'. They have to prove it.” [39] It is therefore incumbent on the Plaintiff to prove its losses if liability is found against the D1/D2. The Statement of Claim at paragraph 20 expressly quantified the loss as follows:-

RM 530,000.00 being the total loss of the Plaintiff’s stock in the warehouse;

(ii) RM 300,000.00 as loss of profit on the stock in trade destroyed in the fire;

(iii) RM 60,000.00 being relocation costs of moving to a new warehouse; and

(iv) Other incidental expenses. [40] The Plaintiff is clearly making a claim for special damages by quantifying the losses. The principle in relation to special damages was enunciated in Damansara Realty (Pahang) Sdn Bhd v Om Cahaya Mineral Asia Bhd. [2021] 5 ML 1 where the Court of Appeal held, [156] The principle in relation to special damages is trite, ie it must be specifically pleaded (and particularised) and strictly proven. In Ong Ah Long, Justice Syed Agil Barakbah FCJ (pp 327–328 (MLJ)) speaking for the Federal Court explained the principle in the following words: 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 Ed) Vol 11 p 218 para 386). That in our view is the cardinal principle adopted by all courts both in England and this country. The same principle was adopted by Ong Hock Thye, FJ (as he then was) in Yee Hup Transport & Co and Anor v Wong Kong [1967] 2 MLJ 93 which was an appeal on quantum of damages. Quoting an excerpt from the judgment of Wilmer LJ in Ilkiw v Samuels [1963] 1 WLR 991; [1963] 2 All ER 879 he held that the general damages should not be awarded as though they were special damages properly pleaded and proved. Similarly Chang Min Tat, FJ (as he then was) in Murtadza bin Mohamed Hassan v Chong Swee Pian [1980]1 MLJ 216 applied the principle in Ilkiw v Samuels ( supra) that special damages if pleaded as in that case could be recovered. The principle was also adopted by Mohamed Azmi J (as he then was) in Sam Wun Hoang v Kader Ibramshah [1981]1 MLJ 295 in the Federal Court. [41] Evidence on the losses incurred was adduced through PW3, the store manager employed by the Plaintiff. She made a list of the items stored at the warehouse together with the value of these items. Her list was found in the Agreed Bundle of Documents. The list comprises of information pertaining to the delivery date, suppliers’ names, invoice number and amount stated in the invoices. She arrived at a final figure of RM 407,347.67 which she conceded included the renovation costs to the warehouse and other fittings. The actual cost of the stocks damaged in the fire was only RM 375,861.67. [42] However, I could not find any corresponding documents to support both the list of items and the cost. If the witness was able to give a specific figure on the value of the items, there ought to have been documentary evidence that she cross referenced to in order to arrive at this figure. Whilst she did refer to some invoices, the figures therein did not tally with the amount of RM 375,861.67. It is not for the court to plough through the entire bundles of documents to find evidence in support. [43] The written submission of counsel for the Plaintiff listed items which were referred to as Table A and Table B. Table A comprises of goods delivered to the warehouse at Lot 2733. Table B, on the other hand is a list of goods which were originally delivered to the Plaintiff’s other warehouses, but were subsequently moved to Lot

The value of goods in Table A totalled RM 102,814.10 and Table B totalled RM 173,049.25. The Plaintiff therefore claims the total value of goods in both Table A and B. [44] It is surprising that the submission of counsel was not to be found from PW3’s evidence. The amount claimed from both tables differ from her evidence. [45] In any event, the list of goods stored in Lot 2733 prepared by PW3 is also questionable. Some of the items included stock already sold prior to the fire. The invoices she referred to also included goods delivered to another company called Giomani Collection Sdn Bhd and not the Plaintiff. This company was located in a different location. The Plaintiff had warehouses which were located at Kampung Sungai Kayu Ara and Damansara Petaling Jaya. In view of this, it is all the more imperative for the Plaintiff to show by credible documentary evidence, that the goods were delivered from these warehouses to Lot 2733. [46] The documents relied on by the Plaintiff to substantiate its claim on the value of the goods that were destroyed pertained to invoices only, and not delivery orders. In the circumstances, there is no cogent evidence of the goods actually delivered to Lot 2733 for storage. When PW3 was cross examined, she conceded that she had no evidence as to the actual stocks that were destroyed. [47] I therefore am not convinced that the Plaintiff had sufficiently proven that RM 530,000.00 or RM 375,861.67 was the actual value of the goods stored in warehouse Lot 2733. [48] As for the claim of RM 300,000.00 for loss of profit on the goods that were destroyed, I find the claim unsubstantiated. PW3 stated that a net profit of 30% is usually made on the furniture sold. I fail to see how the sum of RM 300,000.00 is arrived at based on the projected profit. In any event, without any actual figures as a basis for the profit margin, the amount is merely speculative. [49] Finally, the claim of RM 60,000.00 as relocation costs, is unsubstantiated and inconsistent with documentary evidence referenced. PW3 tendered 3 payment vouchers totalling RM 7,310.00 as relocation costs. The transportation charges appear to be the delivery charges for the Plaintiff’s usual course of business. [50] To conclude on the issue of damages, I find the evidence unsatisfactory. In the circumstances, the loss claimed is not proven. Conclusion [51] Premised on the foregoing reasons, I make the following orders:-

Plaintiff’s claim is dismissed against both Defendants;

(ii) The Plaintiff is to pay costs of RM 20,000.00 to each of the Defendants. Dated : 5th of November 2024 -sgd- ....………………..….... Alice Loke Yee Ching Judge High Court in Malaya at Shah Alam Counsel for the Plaintiff : Mr. Perumal Sunderan Messrs. Y.S Woo & Proctor Counsel for First Defendant : Mr. Lee Che Wah (Miss Patricia Cheng May Li with him Messrs. CW Lee, Cheng & Partners Counsel for Second Defendant : Miss Vinoshini Saminathan Messrs. Isharidah Ho, Chong & Menon