Harrisons Trading (Sarawak) Sendirian Berhad v Eastern Pillars Sdn Bhd & 1 Lagi (Q-02(NCVC)(W)-3-01/2016)

The appellant were tenants of premises initially owned by the $ 1^{\mathrm{st}} $ respondent and then the $ 2^{\mathrm{nd}} $ respondent. A fire broke out on the premises which destroyed almost all the stocks and the building located on the premises. The respondents claimed that the fire was due to the negligence of the appellant, its servants or agents and it sued the appellant for losses allegedly sustained by reason of the fire. After a full trial, the learned Judge found the allegations of negligence made out and allowed the losses, as claimed. The learned Judge dismissed the counterclaim of the appellant for losses it had sustained in the fire.

The appeal was allowed by this Court after due and proper consideration of both written and oral submissions from learned counsel for the respective parties and after careful examination of the records of appeal.

The factual background have been well set out by the learned Judge in her grounds of decision. We adopt them substantially but set out the following facts for easier and better appreciation of the reasons for our decision.

The $ 1^{\mathrm{st}} $ respondent owned a piece of land located at Upper Lanang, Sibu upon which a 3-storey concrete building was built [the premises]. The $ 1^{\mathrm{st}} $ respondent used the $ 2^{\mathrm{nd}} $ floor of the building as its store. Pursuant to two tenancy agreements, the $ 1^{\mathrm{st}} $ respondent rented out different portions of the premises to the appellant at different rates of rentals and for over a total period of 10 years. The appellant used the rented space for its warehouse and office. Subsequent to the tenancy agreements, the appellant is said to have expressed interest in renting a further portion of the premises. A rental was proposed by the $ 1^{\mathrm{st}} $ respondent who proceeded to construct a roof over this area [extended portion] to meet the appellant's interest. On 3.1.2012, the $ 2^{\mathrm{nd}} $ respondent became the new landlord to the appellant. A notice of change of landlord was given to the appellant. The appellant consented to this change.

At about 12 noon of 20.5.2013, the appellant's assistant storekeeper [DW4] started to charge a forklift, also known as a 'reach truck' in the charging bay of the appellant's warehouse. When DW4 went for his lunch with a few other staff members at 12.30 p.m., he decided to leave the reach truck to continue charging. Fifteen minutes later, DW4 received a call from a staff in the office telling him that a fire out in the warehouse. DW4 rushed back to the warehouse with his lunch-mates. Upon arrival at the warehouse, they saw fire on some wires on the wall behind the charging area. They also saw diapers, stocked in the warehouse and stored on racks near the wall, already burning heavily. Each tried to put out the fire with fire extinguishers but they gave up after a while as the heat and fire were too intense, and the fire had spread fast.

The warehouse, the building where the office was located, and the extended portion of the premises were completely destroyed by the fire. By letter dated 26.6.2013, the appellant served the $ 2^{nd} $ respondent with a notice of termination of both tenancy agreements. The appellant claimed that by virtue of clause 5(b) of the tenancy agreements, it was entitled to terminate the tenancies as the fire had rendered the premises unfit for occupation. Consequently, the $ 2^{nd} $ respondent was obliged to return its total deposits of RM102,230.00.

The respondents refused. It instead filed a suit claiming that the fire was caused by the negligence of the appellant, its servants, employees or agents. The respondents claimed for the losses sustained including costs of construction of the extended portion, costs of restoration of the building, loss of vehicles and goods, loss of use of the store, and loss of rentals.

The appellant denied that it was negligent and that it owed a duty of care to the $ 1^{\mathrm{st}} $ respondent. It claimed that the cause of the fire was purely accidental and unforeseen; and that at all material times, reasonable care following standard industrial and safety practices in the work place had been exercised. The losses were also denied.

Ten issues were agreed for determination which the learned Judge condensed to five. The central issue to the claim was whether the fire was caused by the negligence of the appellant, its servants or agents. Both sides called witnesses to prove their claim and counterclaim.

At the end of the trial, the learned Judge found for the respondents, allowed the claim as prayed and dismissed the counterclaim.

It was the view of the learned Judge that before the Court could decide the issue of negligence, the Court needed to address the question of the "source of ignition" and "cause of fire". The respondents had claimed that the fire was ignited by electrical arching in the extension cable that was connected to the reach truck which was being charged at the material time. The appellant, on the other hand, claimed that the fire was caused by a short circuit in the wire with the broken end hanging on the concrete wall behind the charging area.

After evaluating the evidence, the learned Judge preferred the evidence of PW1 who was from the Fire Investigation and Prosecution Department of the Sarawak Bomba Headquarters and who had prepared two reports of his investigations, the second being the final report and which was marked exhibit P1.

The learned Judge accepted the evidence of PW1 and concluded that the place of origin of the fire was the charging area of the appellant located on the floor or ground of the warehouse close to the partition concrete wall between the warehouse and the appellant's office: "This areas was the most severely burnt and damaged in the fire compared to other places; and the concrete behind the charging area had seriated lines and discoloration and parts of it had cracked...steel beams of the roof above this area had buckled in. All these indicated that this area was the seat of the fire and subjected to intense heat and extreme temperature the longest."

As for the source of ignition, the learned Judge also accepted the evidence of PW1 that "the fire was electrical in origin and caused by the function failure of electrical appliance which caused arching on the electric wire. He categorized the fire as accidental, that is to say, caused as a result of failure of machine or human negligence."

The learned Judge rejected the evidence led by the appellant that fire was caused by a short circuit in the wire on the concrete wall behind the charging area. Amongst the flaws that the learned Judge found in the appellant's case was the failure of the appellant to call "so-called eye witnesses" to prove that the fire did not start from the floor; that the evidence of the appellant's witnesses could not be accepted because "when they arrived at the warehouse, the fire was already burning heavily for some time and spreading fast"; that the evidence of DW3 and DW4 that they saw the fire on the wall was in fact evidence which was consistent with PW1's evidence as set out in his report marked as exhibit P1; that if the fire had started along the wall, then it did not make sense that DW4 did not rescue and drive away the reach truck that was on the ground (or floor) undergoing charging but had instead rescued and driven away another reach truck that was parked near the exit.

The learned Judge further found the appellant's suggestion that the cause of the fire was short circuit in the wire hanging on the wall above the charging area to be unsubstantiated by any forensic analysis, unlike PW1's testimony. PW1 had told the Court that he had taken a sample of the wire and upon analyzing it, found a globule on the wire. According to him, the globule was caused by extreme external heat. Because PW1's finding was based on scientific analysis, the learned Judge ruled that it was "not difficult for me to prefer it over that of DW5, who was merely theorizing based on the presence of the globule." DW5 was the loss adjuster upon whose views and report, the insurance company had paid the appellant's claims under policies that the appellant had taken. The $ 2 ^{n d} $ respondent had also received certain payments from its insurance company in respect of damage and/or loss to the building, warehouse, guardhouse and a car shed located on the premises.

The learned Judge added that even if the fire was caused by the short circuit, it was still due to the process of charging the reach truck. In either case, it was to do with the appellant's act or process of charging of the reach truck that was the cause of the fire.

Despite finding that the fire was not "commenced" of any act of negligence of the appellant, the learned Judge concluded that the fire was caused by the negligence of the appellant, its servants and/or agents in the terms as alleged in the Statement of Claim. The learned Judge "rejected as fallacious the assertions of the defendant's witnesses that it was safe to leave the reach truck with built in charger charging unsupervised or unattended." It was also the learned Judge's view that "the claims of the defendant's witnesses that it was safe to leave the charging unattended or unsupervised had been completely debunked by the very fact that the fire broke out within that very brief period during lunch break that they deserted the warehouse." According to the learned Judge, "the consequences of the defendant's workers leaving the charging unattended and unsupervised meant that when the fire ignited, there was not a single person there to put it out."

In the appeal before us, learned counsel for the appellant submitted that while the learned Judge accepted quite categorically that "In our present case, I did not think there was any material upon which a finding could properly be made that there was any negligence on the part of the defendant here in the commencement of the fire"; the learned Judge erred when her ladyship proceeded to find "that in all the circumstances of this case, the failure of the defendant to have someone in the warehouse during lunch break to deal with any outbreak of fire and take action to abate it or prevent its spread to the adjoining premises was sufficient evidence of negligence." In other words, the appellant submitted that the learned Judge erred in finding the appellant negligent in leaving a reach truck battery to charge unattended.

Learned counsel argued that the learned Judge had erroneously applied the principles enunciated in Sheikh bin Salleh v Chop Hup Seng [1974] 1 LNS 152 and several other cases to come to the conclusion that the Court ultimately reached, that the appellant was negligent. What the learned Judge had failed to appreciate was that in cases such as Sheikh bin Salleh v Chop Hup Seng, the fire and thereby the negligence was occasioned by the inherently dangerous hazard itself. For instance, in Sheikh bin Salleh v Chop Hup Seng, it was inherently dangerous to leave the fire in the oven on without anyone in attendance as compared to the facts and circumstances in the present appeal where there is no evidence whatsoever to say that it is inherently dangerous to leave the reach truck or reach truck to charge unattended. The appellant had led evidence to the effect that it was an industrial norm to do the charging overnight and this evidence was neither challenged nor controverted by the respondents. The appellant submitted that the effect of the learned Judge's ruling is to hold that there is a duty to have someone present whenever a reach truck is being charged; this suggestion is said to be untenable in the face of industrial practice and norms.

The respondents submitted that although the danger was unexpected in that while the ignition of the fire was accidental, the subsequent spread of the fire was not; the latter was due to negligence by omission. The respondents' case was that the appellant was negligent in causing the fire as well as in the spread of the fire; that the appellant had negligently omitted precautions by charging the reach truck during lunch break with no one left in the warehouse. The cases of Lembaga Kemajuan Tanah Persekutuan v Tenaga Nasional Berhad [1997] 1 LNS 423 and Musgrove v Pandelis [1919] 2 KB 43 were cited in support.

We agree with the submissions of the appellant. We agree that it was erroneous on the part of the learned Judge to find the appellant negligent on the basis that the appellant "failed to have someone in the warehouse during lunch break to deal with any outbreak of fire and take action to abate it or prevent its spread to the adjoining premises." We are of the view that it was not open to the learned Judge to make this finding and draw this conclusion for several reasons.

First, contrary to the view of the learned Judge, the failure to take action to abate or prevent the fire is not the pleaded case of the respondent. The pleaded case of negligence can be found at paragraph 7 of the Statement of Claim:

On 20 May 2013 a fire originating from the premises occupied by the defendant completely destroyed the Building, the Extended Portion and the Warehouse premises. The fire was caused by the negligence of the defendant, its servants, employees or agents and the plaintiffs claim damages for their losses as a result of the said fire.

Charging the battery of defendant's fork lift without proper and adequate supervision;

(ii) Leaving unattended the charging of the fork lift;

(iii) Failing to keep or maintain any fire extinguisher or such other firefighting equipment their premises where the charging took place;

(iv) Failing to ensure that the electrical power source is adequate or could be safely used for charging. [24] To this, the appellant responded at paragraphs 3, 4 and 5 of their Defence as follows:

With regard to paragraph 7 of the Statement of Claim, the defendant strenuously denies that the fire was caused by the negligence of the defendant, its servants, employees or agents.

The defendant further states that the cause of the fire was purely accidental and unforeseen and that it had at all material time exercised all reasonable care by following standard industrial and safety practices in the work place.

For reasons aforesaid, the defendant strenuously denies that it had been negligent as particularized by the $ 1^{\mathrm{st}} $ plaintiffs in their Statement of Claim or at all. [25] From these pleas, it is evident that the respondents' case is that the fire which originated in the premises occupied by the appellant and which destroyed not just those premises but also the building and the extended portion of the premises, were caused by the negligent acts of the appellant. The negligent acts being the matters particularized. We do not see it proper to impute into those pleas an allegation that the negligent acts complained of caused the spread of the fire from premises occupied by the appellant to the other parts of the premises. Even if we were to read into those pleas an allegation that the appellant was negligent in not taking precautions such as supervised charging or charging of reach truck with staff in attendance, such a plea nevertheless relates to a cause of the fire and not, to the spread of the fire after it had been ignited by accident. [26] Before us, learned counsel for the respondents have maintained their position, that the respondents' claim is that the appellant is negligent in causing and in the spread of the fire. We are of the view that these are two separate and material pleas that must be specifically pleaded. It is not a matter for imputation. [27] If the respondents' claim and allegation concerns both the cause and spread of the fire, that plea must be made specifically and in clear terms. All that the opening sentence in paragraph 7 seeks to plead is that a fire had occurred on 20.5.2013, that the fire originated from the premises occupied by the appellant and that the fire "completely destroyed the Building, the Extended Portion and the Warehouse premises." Paragraph 7 relates to the matters complained of, including acts of omission, as being the cause of the fire, and not the spread of the fire. That plea read together with the particulars does not say that the appellant is negligent in allowing a fire that started on its premises to spread to the respondents' premises or property. Such a plea or intended meaning must be clear and specific; and we do not see paragraph 7 and the particulars set out therein as meeting such a plea. [28] This is quite apparent when we see the pleas and allegations in the cases relied on by the respondents. Although the authorities were cited for other reasons, we found the status of their pleadings instructive and supports our views expressed here. In Leong Bee & Co v Ling Nam Rubber Works [1970] 1 LNS 59, a claim for damage by the appellant whose building were destroyed in a fire that started in the respondent's premises and which had spread to the appellant's premises. The fire destroyed both premises. The claim was founded on negligence and nuisance, that the respondent was guilty of some negligent act or omission which was a cause either of the commencement of the fire or of its spreading to the appellant's premises; or that the respondent had caused or permitted to exist on its premises a source of fire danger constituting a material injury to the appellant's property. The trial judge found for negligence only, not finding any evidence for nuisance. The decision on the claim based on nuisance was affirmed by the Federal Court although for slightly different reasons of foreseeability. The decision on negligence was set aside for want of evidence. On appeal to the Privy Council, the decision of the Federal Court was affirmed. [29] We can see the same in the case of Musgrove v Pandelis [supra]; a case where a car which was being cleaned, caught fire and burnt down not only the garage which housed the car but also the building or hotel where the garage was located. The defendant's servant who was sent to clean the car found the car pushed against a wall. The servant decided to start the engine to move the car. The petrol in the carburetor caught fire. If the servant had turned off the tap of the pipe leading from the petrol tank to the carburetor, he would have stopped the flow of petrol, the small quantity of petrol in the carburetor would have burnt itself out. The servant did not do this and as a result, the petrol continued to flow from the tank into the carburetor. The fire spread to the body of the car and eventually destroyed both the garage and the building. The allegation of negligence here was very specific that the defendant did not, at once, turn off the petrol tap and so stop the further flow of petrol into the carburetor. If that had been done, the fire would have exhausted itself without doing any damage. [30] In Shimizu Corporation v Lim Tiang Chuan & Anor (The Tai Ping Insurance Company Ltd) [1993] SLR 77, we noticed that the rules on specific pleadings were also adhered to. Both the plaintiff and the defendant were contractors of apartment blocks in housing estates engaged by the Housing and Development Board although the plaintiff are also developers. Both had built temporary timber buildings on their respective sites, one as a store for its building materials, the other as living quarters for its workers. A fire broke out in the defendant's building which partially damaged the plaintiff's building. The pleadings here were specific that the fire was caused by the negligence in overheating of food left unattended on a kerosene stove or alternatively in allowing cooking by use of a kerosene stove to be carried on in the building and allowed the fire to escape therefrom and damaging the plaintiff's property. [31] The learned Judge in the instant appeal found that the respondents had proved that the appellant was negligent when it caused the fire by charging the battery without proper and adequate supervision; and when the appellant left that charging, unattended. With these findings, the learned Judge did not find it necessary to deal with the remaining two allegations of negligence. [32] It is our view that both these findings of the learned Judge were in respect of the spread [or not being around to put out the fire] and not, in the cause or commencement of the fire. This is evident from paragraph 61 of the grounds. When dealing with the question of negligence, the learned Judge had quite clearly concluded, and rightly so in the light of the evidence before the Court, that there was no material upon which to find the appellant negligent in the commencement of the fire. The learned Judge, however, was not perturbed by this because according to the learned Judge, it was not the pleaded case of the respondent that the appellant was negligent in starting or in the "commencement" of the fire. [33] It is our respectful view that this is where the learned Judge has misapprehended the pleaded case of the respondents. The learned Judge understood the respondents' case to be about the failure of the appellant to abate or put out the fire or to prevent the fire from spreading; not about the cause of the fire. As we have just pointed out, even in the submissions before us, learned counsel for the respondents have made it clear that the respondents' case was about both the cause and the spread of the fire. But, as we have shown, that is in fact not the pleaded case. [34] It was with that misapprehension that the learned Judge proceeded, quite erroneously in our estimation, to find that the appellant was negligent when there was no one present to abate or put out the fire, after it had started, and prevent the fire from spreading. [35] In our view, the respondents' pleaded case is clearly that the appellant has been negligent in the cause of the fire, and not, in the spread of the fire. The respondent's case is not about the 'escape' of a hazard or nuisance from its premises to the respondent's premises, thereby causing or destroying the respondent's property; after all the respondents are the landlords in occupation. The pleaded case is not capable of the construction suggested by the respondents and interpreted by the learned Judge. [36] Pleading in the opening terms of paragraph 7 of the Statement of Claim, that the fire originated from the appellant's premises, does not alter the fact that the claim is still about the appellant's negligence in causing the fire, with details of the allegations of negligence as particularized in paragraph 7. The respondent's case is that because the appellant had not supervised the charging or had allowed the charging to take place unattended or had left the charging unattended, a fire was thereby caused. Put another way, it is not the respondent's pleaded case that the appellant was negligent in not supervising or attending to the charging of the reach truck; and that such omission caused the fire to spread and destroy property in its path. The respondent's case is that the omission in the manner alleged caused the fire. We can neither amend nor improve on that pleading. That would be a serious and gross violation of the rules of fair play. [37] Had that been the respondent's case, it must be readily discernible from the Statement of Claim. Having looked at the particular paragraphs in the Statement of Claim and the Defence, it is plain to us that the respondent's pleaded case is far from one about the spread of the fire; it was a case of the cause of fire. Evidently, the learned Judge's conclusions do not accord with the pleaded case. [38] As far as the cause or commencement of the fire is concerned, the learned Judge had already found that the appellant's act of charging the reach truck was not negligent. What was negligent was doing it unsupervised and unattended, and in leaving it to charge unattended because in so doing, there was no one there to abate or put out the fire or, stop the fire from spreading. Because that is not the pleaded case of the respondents, this decision of the learned Judge is clearly erroneous. [39] On the assumption that the pleaded case is capable of incorporating the allegation of negligence in the spread of the fire and in not putting out the fire, we still find the decision of the learned Judge erroneous and not supported by the evidence led. [40] We found that the learned Judge had overlooked the fact that the burden of proof was with the respondents to discharge. The respondents were required to prove that charging unattended or without proper and adequate supervision or any of the matters particularized, was a negligent act or evidence of negligence. We do not find any deliberations by the learned Judge on this. We are aware that the learned Judge had remarked that the defence of the appellant that it was safe to charge in the circumstances had been "debunked" by the very fact that the fire broke out during that very brief period of lunch break that "they had deserted the warehouse"; and that "the consequences of the defendant's workers leaving the charging unattended and unsupervised meant that when the fire ignited, there was not a single person there to put it out." With respect, we find ourselves unable to agree with the learned Judge that the conditions and circumstances just described by the learned Judge amount to negligence. [41] In coming to her conclusion that there was negligence in the terms alleged, the learned Judge found the appellant's submissions that there was no necessity for its staff to be around when the battery was being charged "flawed" and consequently the pleaded defence of no negligence, unsustainable. The learned Judge found the submission flawed because her ladyship was not convinced by the testimonies of the defendant's witnesses, DW1 and DW5. DW1 had testified that the charging of the battery of the reach truck with a built-in charger unattended for long hours was a very safe process and that there was no necessity for any staff to be around when the battery was being charged. DW5 supported that testimony. [42] Both testimonies were rejected because the learned Judge did not find them to be persons knowledgeable in the charging of reach trucks with built-in chargers. DW1 was a dealer in reach trucks with stationary charges and not built-in chargers while DW5 was a loss adjuster and there was no indication that he had the expertise or knowledge in the field of charging of reach trucks with built-in chargers. As far as the learned Judge was concerned, "all we had was the say-so of DW1, DW4 and DW5 that it was safe practice to leave the charging unattended and unsupervised." The learned Judge found their evidence wanting because no instruction manual or guide or standard operating procedure in the industry was produced to back up the appellant's assertions. [43] In our view, it was erroneous for the learned Judge to have rejected the evidence and submissions of the appellant. The burden of proof was always with the respondent to prove negligence in the terms pleaded, and not with the appellant to prove the matters alluded to above. Before the learned Judge could properly say that the allegations as pleaded have been proved, the learned Judge must be satisfied that the allegations are in fact proved in law and on the facts. In this regard, we were concerned with the manner in which the learned Judge had approached the question. The issue is dealt with from paragraphs 49 to 60 of the judgment. [44] Although the learned Judge is to evaluate all evidence presented, regardless the parties, the learned Judge must always be conscious of the question of the burden of proof, that there must be credible evidence led by the respondent to prove its allegations on a balance of probabilities. With respect, we find that the learned Judge had failed to have that in her proper consideration. What the respondent offered in support of its allegations was really the evidence of its principal witness, PW1, and no other. When PW1's evidence on this issue is examined, we can find no suggestion whatsoever even from this witness that-i. the fire was caused by the negligence of the appellant; ii. it was inherently dangerous to charge a reach truck unsupervised; iii. the charging of a reach truck is inherently dangerous activity that requires constant supervision; iv. it was unsafe to charge the reach truck in the manner that the appellant did, or v. the charging of a reach truck must be supervised, properly and adequately. [45] PW1 in fact, admitted that he did not have the necessary or appropriate expertise to testify on how charging of reach trucks ought to be done. Other than PW1, the respondents had no other witness to testify on the safety or correctness of charging of reach trucks. Both PW2 [Lena Ling Swee Yee, a director of the $ 1^{\mathrm{st}} $ respondent] and PW3 [Ngu Liong Yii, Managing Director of the $ 2^{\mathrm{nd}} $ respondent] had even less knowledge or expertise on the matter. Hence, the only evidence before the learned Judge was really that offered by the appellant which the learned Judge was in no position to reject. [46] We agree with the appellant that the testimonies of the two witnesses called by the appellant to testify on the safety and industrial practice ought to have been accepted by the learned Judge. [47] First was DW1 [Cham Goh Bok @ Chiam Goh Bok, proprietor of JAC Resources Company]. He testified that he supplied some of the battery operated reach trucks, batteries and chargers used by the appellant. DW1 had been in this business since 1998 and according to him, he had never heard "that the charging of a reach truck battery can cause fire." He added that: "The charging of the reach truck battery is a very safe activity that does not require supervision." Further, as charging generally takes up to eight hours, it is actually not possible to supervise the charging and the generally accepted industry practice is to carry out charging overnight and even over weekend unsupervised. To prolong the life of the battery, it is in fact recommended to leave the charging on over weekend once in a while. This practice is called equalizing charge." [48] DW1 further explained why he said that charging was considered a very safe activity: that there were safety features in the form of fuses built into the sockets and the chargers. These fuses blow to cut off the electricity supply. DW1 also testified that the batteries were in fact charged at a very low voltage and that the battery is designed to be charged over long hours with very little heat emission. As for the transformer, there was also a circuit breaker and fuses located in the sockets used. In all these conditions, the batteries were meant to be charged unsupervised and over a long period of time. [49] DW1's testimony was rejected by the learned Judge because he did not supply the particular reach trucks in question. The reach trucks under examination had built-in chargers as opposed to the reach trucks with external stationary chargers that DW1 supplied the appellant. The learned Judge felt that this witness therefore was not a person knowledgeable in the relevant reach trucks. [50] With respect, the rejection and dismissal of DW1's testimony is erroneous, certainly for the reason set out by the learned Judge. There was no explanation from the respondents as to how the difference in the model or make of the reach truck impacted on DW1's ability to testify from his long experience in the industry of supplying reach trucks. DW1 supplied mostly, and not only, reach trucks with external stationary chargers. The respondents had also not offered evidence to show how the mechanics or physics of charging would be different in the two types of reach trucks. In the absence of such relevant explanation or even evidence from some other witness, we are of the view that the learned Judge was clearly wrong in rejecting DW1's evidence. DW1 was both an experienced and competent witness who gave relevant, material and credible evidence which ought to have been accepted by the learned Judge. [51] The other witness was DW5 [Tan Chong Chee, Senior Manager of Maphilindo International Sdn Bhd, loss adjuster] who was subpoenaed. He had testified that battery operated reach trucks were commonly used in warehouses and in the industry; that it was generally accepted that the charging of these trucks was considered to be "very safe activity with no supervision required." He also testified that "given that charging generally takes long hour and usually carried out overnight and even over weekends, it is actually not quite possible to supervise the charging. For a completely drained battery, the standard charging time would be eight hours." The learned Judge similarly rejected DW5's evidence on the basis that he did not have the necessary knowledge or expertise. [52] Again, we find ourselves in disagreement with the learned Judge. DW5 too, was a loss adjuster of some considerable experience. His job was to give impartial advice and recommendations on claims by the insured. It was his business to determine whether the appellant was in compliance of warranties of not keeping hazardous goods in the warehouse. Again, in the absence of any evidence to the contrary, we find that the learned Judge ought to have accepted his evidence. He was a subpoenaed witness and his testimony was consistent with that of DW1. Furthermore, neither of these witnesses had any vested interest in the matter. [53] Then, there was the evidence of DW4 [Faizal bin Edid, truck operator at the material time]. DW4 testified that it was his duty to charge the reach trucks and he had been doing this task since 2009. He testified that the trucks would normally have to be charged for eight hours in order to have them operate for four hours; and such charging was normally done overnight as well as during lunch breaks. It would appear that this was the first time a fire had broken out under DW4's watch. [54] The testimonies of each of these witnesses were rejected with the learned Judge observing that none of them had the knowledge or the expertise "in the field." Unlike PW1 who the learned Judge found had "the gumption" to admit his lack of knowledge, the learned Judge viewed with disfavor these witnesses whose testimonies were based on their "say-so" without an instruction manual, guide or standard operating procedure in the industry to back up their assertions. [55] Although instruction manuals and guides may have been useful and be of some corroborative value, the lack of such evidence is not crippling let alone damaging in this instance. This is because the witnesses are not strangers to the matters that they were testifying on; they had the appropriate experience and competence. Once again, when pitched against the respondents' case, it is obvious that the appellant's case was the more inherently credible and proved and that consequently, the burden of proof had not been discharged by the respondents. [56] A further reason why we disagreed with the learned Judge was in respect of how the learned Judge treated the respondents' contention that the fire spread fast because of the presence of flammable goods, like stacks of papers, lubricant, aerosol and paint in the premises. The appellant had protested on this line of submission to no avail with the learned Judge taking the position that this was a matter of evidence which need not be pleaded. [57] We disagree. This was a specific allegation of how the appellant are said to be negligent; that the appellant stored flammable goods which the appellant should not have, and which sped up the spread of the fire. Such allegation must be specifically pleaded; and since it was not, this line of submission ought to have been rejected by the learned Judge who instead took the position that because it was not objected to at the time of PW1's testimony, the appellant had waived its right to protest. We cannot agree with the learned Judge as this is a material plea that deals with the very central issue of negligence. The same would hold for the allegations of a failure to regularly maintain the charging components, that the socket used for charging was installed by the appellant and not by the respondents, that all of the fire extinguishers owned by the appellant ought to have been deployed to put out the fire instead of only the three that were used. All these matters are not matters of evidence but material facts and allegations of negligence which must be disregarded since there were no pleas. [58] In any event, we agree with the appellant that the respondents knew what the appellant was using the premises for; that the appellant used the premises as a warehouse for the storage of its fast moving consumer goods. It was for this reason that under the two tenancy agreements, the respondents required the appellant to insure the premises against any loss occasioned by fire - see clause 10(e) of the tenancy agreements; and the insurance companies have paid both the appellant and the respondents under the relevant policies. Further, clause 9(e) of the tenancy agreements specifically provided that the appellant was to use the premises for industrial and/or commercial purposes: e) Use of Demised Premises Not to use or suffer or permit to be used the demised premises other than as industrial and/or commercial purposes [59] There are also no allegations in the respondents' Statement of Claim that the appellant is in breach of the tenancy agreements for having stored or used the premises in the manner that it had done. With such knowledge and consent as to the use of the premises, the respondents knew that it could not make its case of negligence for the reasons stated in PW1's report; that the fire spread because of the presence of flammable materials. Hence, those allegations could not have been pleaded in the Statement of Claim; as such, the allegations should not have been accepted by the learned Judge. [60] Finally, the respondents' claim ought to have been dismissed as not only was the cause of fire not proved to be due to the negligence of the appellant, neither was the spread of the fire due to such negligence. [61] For this, the evidence of PW1 as stated in his report, exhibit "P1" does not appear to have been properly considered by the learned Judge. That report explained amongst others, why and how the fire actually ignited and how it spread. PW1 was in Court to explain his two reports, prepared after he and his team had investigated the cause of the fire. The parties were at odds over where the fire started, was it at the wires on the concrete walls behind the charging area; or was it in the electrical cable connected to the reach truck which was being charged at the time of the fire. In the first scenario, it would have been a short circuit while in the latter it would have been an electrical arching in the cable. PW1 concluded that the source of ignition was the latter. [62] In PW1's first report dated 5.6.2013 prepared just under a month after the fire on 20.5.2013, PW1 had already recorded that the "source of ignition" was "SM7: arcing pada kabel extension wire" and that the cause of the fire was "kemalangan (Accidental fire)" - see page 93 of the Record of Appeal Part C Vol. 1. In his full report tendered as 'P1', PW1 elaborated not just on his findings of why globules were found on the cable, he offered his reasons: "3) ...disebabkan oleh kepanasan melampau di dalam wayar tersebut yang berpunca daripada kerosakan atau overload, atau saiz wayar yang tidak betul atau fius yang digunakan atau berlakunya litar pintas seperti di dalam Laporan Ujian Makmal Penyiasatan Kebakaran di Lampiran B. 4) Sumber nyalaan bagi kebakaran tersebut adalah dari arus elektrik (Arcing). Arus elektrik tersebut telah berlaku "arcing" dan mengeluarkan api yang kemudiannya telah membakar timbunan kertas, kayu dan bahan-bahan cecair yang mudah terbakar di tempat api bermula. 5) "Electric arcing can have detrimental effects on electric power transmission, distribution systems and electronic equipment. Devices which may cause arcing include switches, circuit breakers, relay contacts, fuses and poor cable terminations. When an inductive circuit is switched off the current cannot instantaneously jump to zero, a transient arc will be formed across the separating contacts. If a circuit has enough current and voltage to sustain an arc formed outside of a switching device, the arc can cause damage to equipment such as melting of conductors, destruction of insulation, and fire. An arc flash describes an explosive electrical event that presents a hazard to people and equipment." 6) Api yang telah tercetus seterusnya merebak dengan cepat kerana terdapat banyak bahan bakar (fire load) di lokasi tempat kebakaran bermula seperti kertas, kayu, cat, dan bahan-bahan cecair mudah terbakar. Kemerebakan api berlaku dengan pantas disebabkan kedudukan bahan-bahan tersebut adalah sangat rapat dan berdekatan. Tambahan lagi apabila bahan-bahan cecair mudah terbakar tersebut mencetuskan kemerebakan api dengan lebih cepat. Rekabentuk gudang yang tertutup telah membantu meningkatkan haba dengan cepat dan mengalir ke seluruh bahagian gudang secara bahangan dan olakan. Api kemudiannya merebak ke seluruh bangunan." [63] At page 283, PW1 further reported that- 2) Punca kebakaran ini dikategorikan sebagai "kemalangan" di mana terdapat tanda-tanda berlakunya Arcing. Hasil laporan ujikaji dari Makmal Penyiasatan Kebakaran juga mendapati ada unsur-unsur kegagalan pendawaian elektrik yang berlaku. [64] PW1 did not offer a certain reason as to why the fire ignited; he offered a few: "kerosakan atau overload, atau saiz wayar yang tidak betul atau fius yang digunakan atau berlakunya litar pintas." Further, he explained how and why an electric arcing takes place, that it is "When an inductive circuit is switched off the current cannot instantaneously jump to zero, a transient arc will be formed across the separating contacts. If a circuit has enough current and voltage to sustain an arc formed outside of a switching device, the arc can cause damage to equipment such as melting of conductors, destruction of insulation, and fire." [65] From PW1's explanation, he could not even be certain how the fire ignited. All that appears to be certain was the source of ignition. Several reasons were offered but those reasons were not tested. PW1 also explained how electric arcing takes place, that it is "When an inductive circuit is switched off." Since the allegations concern the charging of the reach truck and the activity of charging is necessarily one which requires the inductive circuit to be switched on, it makes no sense how electric arcing can then happened; save that the safety mechanisms as explained by DW1 had actually taken effect. Furthermore, from PW1's testimony, the fire spread not because of the charging being left unattended or unsupervised; it was the presence of the flammable materials. As explained, that reason was not pleaded and could not possibly be pleaded by reason of the terms of the tenancy agreements and the respondents' obvious knowledge and tacit consent to the presence of those materials on the premises. [66] These and other material contradictions and inconsistencies were not cleared up at the trial and it leaves PW1's evidence, upon whom the respondents built their case, and the learned Judge relied on for coming to her decision, quite unreliable and unsafe. These evidence show ultimately that the burden of proof had not been discharged by the respondents in which case, the claim ought to have been dismissed. [67] There was no evidence put forth by the respondents that it was unsafe to charge the reach truck or reach truck in the manner that the appellant did; or that it was unsafe to charge reach trucks in the premises. The appellant had led sufficient evidence to establish industrial norms, and such norms can come from the appellant themselves given their own long-standing use of the premises and from people like DW1 who are familiar with the industry and the particular equipment under scrutiny; and from DW4 who had extensive use of the reach truck and how it has been charged all this time without incident. [68] On the particular facts and circumstances of this appeal, we agree with the submissions of the appellant that with the industrial norms as to how reach trucks are charged; how the chargers and other related equipment have inbuilt safety features, and these are not controverted by the respondents; that the appellant had been carrying out the same activity for a substantial period; there is not established in law and certainly not on the facts, the existence of any duty of care owed to the respondents. The learned Judge further failed to have regard to so many material facts which point to exercise of adequate care and competency on the part of the appellant when charging the reach trucks. Such facts include the fact that the charging had started at 12 noon and that it was without incident; that it was not until 12.30 p.m. that the appellant's staff left for their lunch break; that the staff did not desert the premises but were legitimately on their lunch break; that from PW1's evidence, there were still others in the premises at the time of the fire as the alarm was raised by these persons; that these staff rushed back within minutes to the premises; that they attempted to put out the fire but were unable to do so because of the speed at which the fire spread. Most significantly, we did not see any evidence adduced by the respondents to prove that the matters complained of by them, if taken, would have prevented the fire from commencing or spreading. [69] We further found that the learned Judge had erred in the interpretation and application of the decision in Sheikh bin Salleh v Chop Hup Seng [supra]. In that case, the fire and thereby the negligence was indeed occasioned by the inherently dangerous hazard itself. It cannot be denied that it was inherently dangerous to leave the fire in the oven on without anyone in attendance. The same cannot be said of the present appeal where there is no evidence whatsoever to say that it is inherently dangerous to leave the reach truck or to charge the reach truck unattended. The appellant had led firm evidence of an industrial norm of charging overnight and this evidence was neither challenged nor controverted by the respondents. We agree with the submissions of the appellant that the effect of the learned Judge's ruling of requiring supervised charging is untenable in the face of industrial practice and norms. To use the words expressed by the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 605, it would not be fair, just or even reasonable to impose any duty of care in these particular conditions and circumstances. [70] For all the reasons adumbrated above, we allow the appeal. [71] For the sake of completeness, we will deal with the issue of damages. The appellant's complaint here is that RM244,000.00 and a further sum of RM2,794,058.20 were erroneously awarded to the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ respondents. These sums were without basis and were excessive. [72] We note that in respect of the $ 1^{\mathrm{st}} $ respondent, the complaint was really only in respect of two sums, RM94,000.00 which was awarded for the loss of the antique furniture and RM20,000.00 for the vases. The complaint is that the furniture had already been moved out before the fire while the invoices tendered were not for the vases allegedly damaged. These grounds are justified and were not addressed by the learned Judge. Consequently, these claims ought to have been dismissed. [73] As for the claim of the $ 2 ^{nd} $ respondent, a sum of RM1,709,774 was claimed as loss of future rental and a sum of RM654,918.20 being costs of restoration. We agree with the submissions of the appellant that clause 10(e) of the tenancy agreements required the $ 2 ^{nd} $ respondent to insure the premises and to be responsible for the payment of related premiums. That agreed term does not provide that the appellant is to be liable for any shortfall in any claims made by the $ 2 ^{nd} $ respondent against the insurers, which is what the restoration costs are about. Consequently, we cannot find any basis for the learned Judge to have made this award. [74] On the matter of future rentals, the appellant was entitled to terminate the tenancy agreement and had given due notice to that effect. The appellant is mathematically correct in their submissions that the sum awarded here exceeded the actual full rental that the $ 2 ^{nd} $ respondent would ever been able to receive from the appellant but for the fire. We further agree with the appellant that since the $ 2 ^{nd} $ respondent had already received the sum of RM2,139,657.20 from the insurance company between December 2013 and January 2014, the $ 2 ^{nd} $ respondent did nothing to restore the premises such that the premises could be rented out. We agree that it was erroneous for the learned Judge to not consider this lack of mitigation by the $ 2 ^{nd} $ respondent, a principle which will impact directly on the total sum recovered. Finally, on the issue of the deposit, in view of our findings in this appeal, we agree with the appellant that this sum ought to have been taken into account when awarding any damages; or to be returned in the event of a dismissal of the claim. Conclusion [75] For all the reasons set out above, we are unanimous in our decision that this appeal has merits. This is indeed an appropriate case for the exercise of appellate powers as the decision of the learned Judge is plainly wrong and unsupported in law and on the facts. The appeal is therefore allowed. The decision of the High Court is set aside with costs of RM50,000.00 for proceedings here and below; such costs being subject to the payment of allocator fee. Dated: 22 December 2017 Signed (MARY LIM THIAM SUAN) Judge Court of Appeal, Putrajaya Malaysia Counsel/Solicitors For the appellant: Tony Ling Lee Tom Messrs H.C. Lee & Partners Lot 10513, 2nd & 3rd Floors Wang Commercial Centre Jalan Tun Jugah 93350 Kuching Sarawak For the respondents: Wee Wui Kiat Messrs Battenberg & Talma Level One 12-14 Chew Geok Lin Street 96000 Sibu