Kaliammah A/P Segaran v Quadrant Elite Force Sdn Bhd (BF-A53-1-01/2020)

This is my grounds of judgment in respect of the Plaintiff’s claims against the Defendant for general and special damages suffered arising from a dog bite incident on 5.9.2018 while in the course of the deceased work as a security guard at Post Guard no 8.

It was the Plaintiff’s case that the incident happened as a result of the Defendant’s negligence in maintaining a duty of care and safety for workers in Kolej Yayasan UEM, Lembah Beringin, Tg Malim, Perak (“KYUEM”). The Defendant denied liability, alleging that the accident was resulted from the deceased’s own negligence. Defendant also contended that the deceased on his own accord had touch the dog while the dog was in the cage and therefore had disregarded instruction given by the dog vendor.

The Plaintiff (acting as widow of the deceased) filed a Writ of Summons and Statement of Claim against the Defendant for negligence after the incident happened that led to the death of the deceased husband named S.Silvaraj A/L Silvarajoo (“the deceased”) and was seeking for the following order:

dependency claim of RM108,000 (RM1000 x 12 x 9 yrs);

bereavement of RM30,000;

funeral costs of RM5,000; Brief facts [4] At all material time, the Plaintiff is a Malaysian citizen, a widow to the deceased and has her address for service at No. 5, Jalan Chamar 2A/14, Lembah Beringin, 44100 Kerling, Selangor Darul Ehsan. Plaintiff was also an employee to the Defendant working as a security guard. At the time of the incident Plaintiff was working at Post Guard no. 13. [5] Defendant is a private limited company incorporated under the Malaysian Companies Act 1965. The Defendant is having a registered address at No 104, Tingkat 1, Jalan Dagangan 4, Pusat Bandar Bertam Perdana, 13200 Kepala Batas, Pulau Pinang and a business address at No. 64A-2, Jalan SM 3A, Taman Sunway Batu Caves, 68100 Batu Caves, Selangor. Defendant is the employer of the deceased and Plaintiff. [6] The deceased husband S.Silvaraj A/L Silvarajoo was married to the Plaintiff on 29.08.2013. The deceased was an employee of the Defendant, working as a security guard at KYUEM since 13.11.2017. At the time of the incident, the deceased was on duty at post guard no 8 when the dog bitten his left hand on 5.9.2018. Later he died on 15.9.2018 in which the cause of death was certified as “septic shock secondary to left upper limb infected wound due to dog bite”. Refer to the death certificate dated 18.9.2018. [7] After the incident, the deceased was brought to the Klinik Kesihatan Tanjung Malim for treatment. The deceased was given injection and four (4) stiches to his left hand. On 6.9.2018 and 7.9.2018, the deceased continuously attending Klinik Kesihatan Kalumpang for dressing as instructed by the attending physician. However, the deceased left hand became swollen and he started to have high fever. Later on 9.9.2018, the deceased health was deteriorating and started to have breathing difficulties and became unconscious. Plaintiff immediately sent the deceased to the Klinik Kesihatan Tanjung Malim and later was referred to Hospital Slim River for emergency treatment. [8] At the Hospital Slim River, Plaintiff was informed by the medical officer that the virus due to the dog bite had spread in which has caused the deceased to undergo an operation to remove suppurating wound. After the operation, the deceased remained unconscious and left in the state of coma until the deceased had passed away on 15.9.2018. [9] At trial, Plaintiff had called three (3) witnesses while Defendant had called three (3) witnesses as follows :- 1) PW1 – Kaliammah A/P Segaran (Plaintiff), 2) PW2 – Dr Nur Hafizatul Izzati Bt Samsudin (medical officer of Hospital Slim River) 3) PW3 – Dr Vikneswary A/P Rajandran (private medical practitioner) 4) DW1 – Kathiravn (dog handler) 5) DW2 – Edmund A/L Kolandasmy (Operationg Manager) 6) DW3 – Kaneson Muthiah (dog trainer & vendor) [10] At the end of the trial, I find that Plaintiff had successfully made out a case against the Defendant and I allowed the claims against the Defendant. I have also awarded the special and general damages as follows :

dependency claim of RM108,000 (RM1000 x 12 x 9 yrs);

bereavement of RM30,000;

funeral costs of RM5,000; Other items for damages are not allowed.

scale costs and 5% interest for general damages and 2.5% interest for special damages and post-judgment interest of 5% per annum are allowed. [11] Dissatisfied with the decision made, the Defendant had filed a Notice of Appeal on 1.2.2024 against the decision on 22.1.2024. My reasons to allow the claims are as below. Preliminaries [12] Plaintiff’s main contention was that Defendant is liable for the negligence in maintaining the safety for workers. Defendant had also negligence in instructing the deceased to keep the patrolling dog even though the Defendant knew that the deceased was not trained to handle patrolling dog. Due to this negligence, Plaintiff’s left hand had been bitten which caused fatality to the deceased. [13] In rebuttal, Defendant denied liability. Defendant had submitted inter-alia that the fatality was due to his own negligence when the deceased had touched the dog while the dog was inside the cage. The deceased had disobeyed the instruction given by the DW3 and DW2. Further, the death of the deceased was also due to the underlying health problems of the Plaintiff. Evidence of PW1, PW2, PW3 and DW1, DW2, DW3 Evidence of PW1 [14] PW1 in her testimony verified that at all material time, the deceased was her husband. They had been married for nearly 5 years before the deceased passed away. PW1 and the deceased worked with the Defendant as security guards since November, 2017. At the time of the incident on 5.9.2018, PW1 was on duty at post guard no 13 while the deceased was on duty at post guard no 8,9 and 14. According to PW1, PW1 can view from her place, other posts guard no 8,9 and 14. [15] At about 10.40 am, PW1 heard from her walkie talkie that Mr Faizal, who was the supervisor to PW1 and the deceased, had instructed the deceased to come over to post guard no.7. Later at about 10.45 am, PW1 saw a Hilux together with another car in white had entered the compound of post guard no.8. Mr Edmund/DW2 (Operating Manager), Mr Hairi (Zone Executive) and an Indian guy not known to the PW1 were seen coming out from the vehicles. They had unloaded a cage of a dog. Together with them was the deceased. [16] Later, at about 12.30 pm, the deceased came to PW1 post guard no 13 to use the toilet. At that point of time, the deceased had informed PW1 that DW2 had instructed him to bring the Rotweiler breed dog, black brown in color for a pee and to take care of the Rotweiler breed dog for 3 hours before Mr Karthik (DW1) who is the dog handler to come. After using the toilet, the deceased went back to post guard no 8 to continue his duty. Not long after that, PW1 heard the deceased’s voice and DW1’s voice from PW1’s walkie talkie calling for help from post guard no.1. PW1 heard that the deceased informed the supervisor that he had been bitten by the Rotweiler breed dog. [17] Immediately, PW1 rushed to the deceased at post guard no 8 to look after PW1’s husband. PW1 saw there were bite marks on her husband left hand and the Rotweiler breed dog was inside the cage. The cage was seen by PW1 to be wrapped with an iron chain. PW1 had asked the deceased on what had happened and in short, the deceased had informed PW1 that after the deceased had brought the Rotweiler breed dog for a pee, the deceased had put back the Rotweiler breed dog in the cage. While the deceased putting the iron chain around the cage, suddenly the Rotweiler breed dog barked and had bitten the deceased left hand. DW1 and Mr Fendi had just arrived at the post guard no.8 when the incident happened. Later, Mr Fendi, DW1, Mr Hairi and Mr Zaki had sent the deceased to Klinik Kesihatan Tanjung Malim for treatment. [18] After the deceased was brought to the KKM Tanjung Malim, PW1 had went back to post guard no 13 to continue working. At about 7.30 pm the deceased fetched PW1 and they went home. Later, PW1 informed the Court that the deceased left hand had become swollen and he had a high fever. At home, the deceased again informed PW1 what had happened and it was DW2’s instruction for him to bring out the Rotweiler breed dog for a pee and to take care of the dog before DW1 arrived. The deceased informed PW1 that the had been given injection and four (4) stiches on his left hand. The deceased was asked to come to KKM Tanjung Malim for dressing every day. The deceased was also been prescribed with antibiotics and pain killer. [19] On the 4th day from the date of the incident, the deceased had shortness of breath and become unconscious. PW1 had rushed the deceased to KKM Tanjung Malim and later the deceased was referred to Hospital Slim River for emergency treatment and surgery. After the surgery, the deceased remained in the state of coma and had passed away on 15.9.2018 at 4 pm. PW1 was informed that the cause of death was due to the virus infection after the dog bite. PW1 had lodged a police report against the Defendant at Kerling police station on 5.10.2018. [20] According to PW1, the deceased’s last salary in August, 2018 was RM1,431.11. Both PW1 and the deceased were not been paid with SOCSO and EPF. Being a husband and head of the family, the deceased had contributed RM1000 per month to pay out house rental, utilities, and groceries for the family. The deceased was at the age of 42 years old at the time he died. PW1 had testified that the deceased salary payment by the Defendant was paid to PW1’s bank account since the deceased did not have any bank account. Evidence of PW2 [21] PW2 is a medical officer in Hospital Slim River. PW2 has been working in the Hospital Slim River since 2016. According to PW2, PW2 had attended the deceased when the deceased admitted to the Hospital Slim River on 9.9.2018 until the deceased had passed away. PW2 had attended the deceased together with other colleagues i.e PW3, Dr. Nazleen and Dr Shantini. At the time the deceased was referred to the Hospital Slim River, the deceased was in the state of having shortness of breath, high fever, vomiting and having pain at his left hand due to dog bite. The deceased was then admitted to Intensive Care Unit (ICU) for an intensive treatment intubation and dialysis. [22] Although PW2 did not prepared the official medical report P7, however, PW2 had informed the Court that PW2 was on routing duty to monitor patients in ICU including the deceased. Based on the medical records, the deceased was given i) wound debridement over left hand infection wound ii) routine blood monitoring iii) ECHO (single inotrope) iv) ECG and v) hemodialysis. The deceased had undergone a wound debridement to remove the infected tissues and suppurating wound in his left hand on the next day. The deceased was given the following drugs and medications as follows (refer to the medical report P7) :- [23] According to PW2, PW2 noticed that the deceased health was declining day by day which warrant them to increase antibiotics of meropenem, clindamycin, iv vancomycin and iv fluconazole. Due to low blood pressure of the deceased, PW2 had to extend the medication of inotropes i.e ivi inorad, ivi adrenalin and ivi vasopressin. Later, PW2 had verified that the death of the deceased had been diagnosed as “septic shock secondary alleged dog bite wound complicated with multiorgan involvement with underlying hypertension and diabetic mellitus”. [24] During cross examination, PW2 denied that the cause of death was mainly due to the underlying health problems. In re-examination, PW2 explained that having diabetics alone cannot bring death and the reading of the deceased diabetics was stable at first. PW2 also explained that the wound had developed “ongoing sepsis” which was detected from the blood test and symptom of high fever of 38 degree celsius that the deceased was having. The “fat test” suggested by the defendant counsel was not needed and had never been in the medical practice to treat patient having sepsis. PW2 also did not understand why the defendant counsel had questioned why it was not done. PW2 had also explained that since the cause of death can be detected therefore a post mortem is not needed against the deceased. Evidence of PW3 [25] PW3 was called to verify the official medical report written by PW3. The medical report has been tendered as exhibit P7. PW3 was a medical officer in Hospital Slim River from year 2016 to 2018. At the time the deceased was admitted to the ICU, Hospital Slim River, PW3 was the medical officer who was in charge of preparing the official medical report of the deceased. After 4 years of service with the government hospital, PW3 had resigned and joined a private clinic in Taman Ehsan Kepong until the day PW3 testified in Court. [26] According to PW3, the deceased came to Hospital Slim River to get a treatment after being referred to by KKM Tanjong Malim. PW3 verified that based on the report prepared by PW3, the deceased was having shortness of breath, high fever, vomiting and pain at the left hand due to dog bite. During cross-examination, PW3 had also disagreed that the cause of death is due to underlying health problems but confirmed it was due to allege dog bite. PW3 had also disagreed when the defendant counsel suggested that septic shock was co-related to diabetic mellitus. PW3 had also explained that the word “alleged” was normally use by the medical officers in preparing the report. According to PW3 the report was prepared based on medical notes and records in the deceased’s file. Evidence of DW1 [27] DW1 was called as a subpoenaed witness to the Defendant. In DW1’s testimony, DW1 agreed that on 5.9.2018, DW1 came to KYUEM to report duty to the Defendant as a security guard. DW1 contended that DW1 was assigned to handle the Rotweiler breed dog but had no training and no certificate to handle dog. DW1 worked as a dog handler based on his experience in other site. DW1 in his evidence said that Rotweiler breed dog is not dangerous after one had known and familiar to the dog but can react to strangers. [28] DW1 agreed that he arrived at about 11.30 pm and was at the scene when the accident happened together with Mr Fendi. DW1 saw the deceased had been bitten by the Rotweiler breed dog and had called for help by using walkie talkie to post guard no. 1. DW1 said that DW1had been warned by DW3 Mr Ganeson (the dog owner) that the Rotweiler breed dog must be left alone for 3 days and no one come near the dog. [29] When asked about the dog’s daily feeding and pee during the period of 3 days, DW1 explained that the dog food had been put in the cage earlier by the DW3 and the dog will pee on the cage floor. DW1 will clean the floor by flushing water to the cage floor for 3 days. After 3 days, DW1 had given dog food and bring out the Rotweiler breed dog for pee and to get rid of monkeys around KYUEM college. [30] However, DW1 informed the Court that the Rotweiler breed dog who had been named “Rocky” had only survived for three (3) months and later “Rocky” been switched with another dog. This can be seen in the notes at pg 71 as follows :- [31] Rocky is a male dog and was at the age of 3 years old when the dog was 1st came to KYUEM college. DW1 had also informed that DW1 also worked as a security guard to the Defendant company since 5.9.2018. DW1 had also agreed that DW1 was not vaccinated before taking the task of handling the dog. DW1 testified that DW1 saw the deceased had put his hand inside the cage and later got bitten by the dog. However, during cross-examination, when was asked why DW1 testimonies was different compared to the report made and signed by him in writing at page 23, Bundle B, DW1 simply answered there was typo error in the report. The report at pg 23 which was referred to by the Plaintiff counsel is as follows :- Evidence of DW2 [32] DW2 is the Operation Manager of the Defendant. DW2 explained that there’s no deduction of EPF and SOCSO in the salary slip of the deceased because the deceased had requested for no deduction made for his monthly salary. According to DW2, a police report lodged by Defendant was due to the claimed made by the Plaintiff to PERKESO during the deceased lifetime. [33] DW2 informed the Court that on the day of the incident, DW2 brought the dog to the premise together with DW3 and Mr. Fendi. DW2 explained that DW1 is to be trained after he report duty on the same day the incident happened. However, DW1 had yet to arrive to handle the dog. DW2 admitted that DW2 had called the deceased and asked the deceased on whether he had interest to be a dog handler and DW2 informed the Court that the deceased agreed to be a become a dog handler. [34] Despite talking to the deceased on interest to become a dog handler, DW2 had informed the Court that DW2 had assigned DW1 as a dog handler and not the deceased or no one else. This can be seen in the Notes of Evidence at pg 90-91 produce as follows :- [35] Further, according to DW2, DW3 had instructed not to touch the dog and do not remove the dog from the cage for 3 days. DW2 denied giving instruction to the deceased to handle the dog while waiting for DW1 to come. DW2 testified that during 3 days period no one was instructed to handle the dog and no feeding and handling is needed because the DW3 had put the dog food for 3 days. DW2 admitted that DW1 has no training before coming on the 5.9.2018 to work as a dog handler. However. DW2 had informed the Court that DW1 will be trained later after he reported duty on 5.9.2018. [36] DW2 confirmed that DW2 and DW3 had left the premise after giving explanation. Prior to that, DW2 confirmed that DW3 had taken the dog for a walk and all of them (DW2, the deceased, Mr Fendi, Mr Hairi) had walked along together with DW3. This can be seen in the Notes of Evidence produce here as follows :- Evidence of DW3 [37] DW3 was called to give evidence as a dog vendor to the Defendant. DW3 is a Manager in Pro One Guard Dog and a dog handler. DW3 had been in the business for 17 years. DW3 informed the Court that the Rotweiler breed dog named Rocky has been vaccinated to prevent Dog Diseases. [38] On 5.9.2018, DW3 went to KYUEM to deliver a dog named Rocky and was welcomed by DW2. DW2 then took DW3 to post guard no 8 to wait for a dog handler. When DW3 arrived at post guard no 8, DW3 met the deceased and another person unknown to DW3. DW3 had explained the incident in the following words produce from PSD-3 : [39] DW3 had given instruction not to touch or disturb the dog until the dog handler is given full training. According to DW3, he had given the instruction to DW2, the deceased and a Malay guy not known to DW3. After giving instruction, DW2 and DW3 left the premise. [40] During cross, DW3 agreed that DW3 not only a dog handler but also is a dog trainer. DW3 had been working in Australia and has a certification from K9 “polis Genting”. DW3 admitted that DW3 is not registered under the Animal Welfare Act A771 as required by the board. However, DW3 contended that DW3 is still a legal dog trainer. DW3 further informed the Court that DW3 is not the owner of the dog but the dog belonged to DW3’s employer Mr S.Yuvaraj. [41] DW3 had also informed the Court that the dog had been locally breed. DW3 had trained the dog while the dog in the kennel in Semenyih. The dog had been trained since the dog was at the age of 8 months. At the time of the incident the dog was 3 years old. However, DW3 did not know previous records of Rocky’s working place but informed the Court that Rocky was in and out from the kennel. DW3 had also agreed that only licensed security guards can handle a guard dog but DW3 was not aware the status of DW1. DW3 also admitted that DW2 requested DW3 to train the deceased to be a dog handler. DW3 had also admitted that DW3 was walking with the dog while the deceased was on DW3’s right. This can be seen in Note of Proceeding at pg 115-116 produce as follows :- [42] DW3 had also testified that DW3 was aware that the deceased had no experienced in handling guard dog and never been a dog handler but confirmed that DW3 was asked by DW2 to teach the deceased on how to handle the dog. DW3 had also admitted that DW3 while walking together with the deceased with the dog, DW3 had tried to hand over the dog to the deceased even though DW3 had knew the deceased was not trained as a dog handler. DW3 had also informed the Court that DW3 had told everybody at the scene for not to touch or go near the dog after DW3 had chained the dog in the cage. [43] DW3 was only told by others that the deceased was bitten when he put his hand inside. DW3 said Rocky did not react to dog handler but will only react to strangers. DW3 had also informed the dog last for more than five (5) months at KYUEM because Rocky was not eating well and DW3 had to switch Rocky with another dog. This can be seen in the notes below at pg 131 as follows :- Findings [44] Having heard the evidence of PW1, PW2, PW3 and DW1, DW2, DW3 I find that the main issues in this case are as follows:- a) whether the incident was caused by the Defendant’s negligence or by the deceased own negligence? b) whether Defendant owes duty of care towards the deceased? c) whether the incident of dog bite is foreseeable? d) whether the cause of death of the deceased was due to the dog bite? e) whether the Plaintiff has proven dependency claim of RM1000 per month? [45] To start with, it is clear that from the evidence that it is undisputed facts that the deceased was not a dog handler nor a dog trainer. This can be seen from the evidence of PW1, DW1, DW2 and DW3. The deceased was working as a security guard at the time of the incident. It is the Plaintiff’s case that the deceased was instructed by DW2 to take care of the Rotweiler breed dog before DW1 came. However, DW2 denied giving instruction for the deceased to look after the dog until DW1 arrived. DW2 persistent informing the Court that no one is to touch the dog and the dog should be left alone for 3 days. [46] As regards to this issue, I find that the evidence given by DW2 is contradicted with the evidence given by DW3 and PW1. According to DW3, DW2 requested DW3 to teach the deceased on how to handle the dog. It is the evidence of DW3 that on 5.9.2018, DW3 had brought the dog for a walk together with the deceased on DW3’s right side. At all time, DW3 hold the dog chain and later attempted to hand over the chain to the deceased. [47] This evidence of DW3 is also consistent with the evidence of PW1 when the deceased informed PW1 after using using the toilet at post guard 13, that DW2 had instructed the deceased to bring the Rotweiler breed dog for a pee and to take care of the Rotweiler breed dog for 3 hours before DW1 came. [48] It is the evidence of DW2 that DW2 had called the deceased and inquired interest of the deceased to become a dog handler. It is clear that the intention of DW2 is to assign the dog to be handled by the deceased while waiting for DW1 to report duty since DW1 was not present at that time when the dog arrived. Even though, DW2 knew that the deceased was not trained and had no experience as a dog handler, DW2 left the dog at the premise of post guard no 8, in which the premise was under the deceased’s surveillance. [49] If DW2 had instructed that the dog not to be touched or to left alone for 3 days, DW2 would have left the dog remained in the cage after they unloaded the dog. DW2 would not have called the deceased and inquired interest to be a dog handler. Nevertheless, this was not happened. Instead, DW2 had called the deceased and asked DW3 to train the deceased to be a dog handler. [50] Due to DW2’s request, DW3 had invited the deceased to walk together with DW3 side by side together with the dog. Furthermore, if the dog not to be touched for 3 days and the dog food had been put for 3 days by DW3 inside the cage, there was no need for DW3 left the food bottle near the cage. During cross, DW3 agreed that anyone can feed the dog from outside because DW3 had left the dog bottle near the cage. Therefore, I find that the denial made by the DW2 that DW2 did not give any instruction to the deceased to handle the dog while waiting for DW1 to come is unsustainable. The evidence of DW2 is unsupported and uncorroborated. [51] Coming back to the issue of negligence, I find that the Defendant was negligence based on the following reasons :- a) it is important to appreciate what constitutes duty of care. For this, I am guided by Federal Court case of Tenaga Nasional Berhad v Batu Kemas Industri Sdn Bhd and another appeal [2018] 5 MLJ 561, where Jeffrey Tan FCJ in delivering the judgment of the panel held: “[33] The first matter that must be established to proceed with a claim based on the tort of negligence is that the defendant owed a duty of care to the plaintiff. “The tort of negligence requires first of all that there be a duty of care on the part of the [defendant] not to do any act or omit to do any act the doing of which or the omission of which could foreseeably affect other persons resulting in damage or loss to such other persons” (Siew Yaw Jen v Majlis Perbandaran Kajang and another appeal [2015] 4 MLJ 411 per Zaharah Ibrahim JCA, as she then was, delivering the judgment of the court). “Tortious liability arises from a wrongful act where the common law imposes a duty to take reasonable care” (Lok Kok Beng & 49 Ors v Loh Chiak Eong & Anor per Zainun Ali FCJ delivering the judgment of the court). Once a duty existed, the plaintiff must show that the defendant breached it.” b) It is a trite law that three ingredients must be fulfilled by Plaintiff in order to establish the existence of duty of care between the parties. In the case of Bodibasixs Manufacturing Sdn Bhd v Entogenex Industries Sdn Bhd [2018] 9 MLJ 417) where the Azizul Azmi Adnan J held that : “Three ingredients must be fulfilled in order to establish the existence of a duty of care between the parties:

the damage must have reasonably foreseeable;

there must have been relationship of proximity between the parties; and

It must be just, fair and reasonable to impose a duty of care on the Plaintiff here (as the defendant in the counterclaim).” Whether the damage and/or incident of dog bite was foreseeable ? [52] It is the evidence of DW3 that DW3 knew the deceased was not trained and never had experience to handle the dog. DW2 was aware that the deceased had no training to handle the dog because DW2 had requested DW3 to teach the deceased. Therefore, I find that the deceased was untrained, had no knowledge and never been a dog handler. [53] Further, DW1 who has been assigned by the Defendant to be a dog handler has no certificate and not registered under the Animal Welfare Act A771. In fact, DW1 will only start training after he report duty. Worst still, according to DW3 the training was done via handphone for 3 days. It is obvious that Defendant had failed to provide a safe working place for the deceased when Defendant had left Rocky a Rotweiler breed at the premise without any surveillance by certified dog handler or a security guard who had certification or had been trained as a dog handler. Are Rotweilers dangerous? [54] Rottweilers are popular for their powerful and protective nature. They are loyal, and so they can prove to be dangerous when they show aggression to intruders. Based on Manfred Schanzle, Studies in The Breed History of The Rottweiler. DVM thesis, University of Munich, 1969 and the "Rottweiler breed standard" FCI. Retrieved 7 April 2019, the Rotweilers are known as follows :- BRIEF HISTORICAL SUMMARY: The Rottweiler is considered to be one of the oldest dog breeds. Its origin goes back to Roman times. These dogs were kept as herder or driving dogs. They marched over the Alps with the Roman legions, protecting the humans and driving their cattle. In the region of Rottweil, these dogs met and mixed with the native dogs in a natural crossing. The main task of the Rottweiler now became the driving and guarding of the herds of cattle and the defense of their masters and their property. This breed acquired its name from the old free city of Rottweil and was known as the « Rottweil butcher’s dog’ ». The butchers bred this type of dog purely for performance and usefulness. In due course, a first rate watch and driving dog evolved which could also be used as a draught dog. When, at the beginning of the twentieth century, various breeds were needed for police service, the Rottweiler was amongst those tested. It soon became evident that the breed was highly suitable for the tasks set by police service and therefore they were officially recognized as police dogs in 1910. Rottweiler breeders aim at a dog of abundant strength, black coated with clearly defined rich tan markings, whose powerful appearance does not lack nobility, and which is exceptionally well suited to being a companion, service, rescue and working dog. BEHAVIOUR / TEMPERAMENT: The Rottweiler is good natured, placid in basic disposition, very devoted, obedient, biddable and eager to work. His appearance is natural and rustic, his behaviour self-assured, steady and fearless. He reacts to his surroundings with great alertness and at the same time even tempered. [55] It can be summarized that Rotweilers have a reputation of aggressive behavior. Being a working and rescued dog Rotweilers react to his surroundings with great alertness and at the same time tempered. In this case, Rocky was new to the environment and thus it is foreseeable that Rocky will react to the deceased and others. This is in accordance to DW1’s evidence that Rotweiler is not dangerous to dog handler but reacts to strangers. In this case, the deceased was not a dog handler. DW3 had also agreed that the deceased and DW1 were strangers to the dog. This can be seen in the Notes of Evidence at pg 131 as follows :- [56] Therefore, the act of leaving the dog alone with the deceased by the Defendant without any surveillance from a trained dog handler is unacceptable. It is such an irresponsible arrangement by the DW2 to left the dog unattended and relied on the deceased to look after the dog until DW1 came. I find that the incident of getting bit by the dog is foreseeable by the Defendant because the dog reacts to strangers. It was safer if the Defendant provide a certified dog handler to be present before the handing over of the dog was made. Hence, I have no doubt that Defendant is negligence and had breach the duty of care towards the deceased. Defendant failed to appreciate and observe the danger put to the deceased. [57] I am guided by the case of Cummings v. Granger [1977] 1 All ER 104, where Lord Denning MR observed, at p. 107: “This brings me to the law. At common law when a dog bit a man, the owner or keeper of the dog was strictly liable if he knew that it had a propensity to bite or attack human beings. Apart from this, however, he was liable for negligence if the circumstances were such as to impose on him a duty of care towards the injured plaintiff, which he had failed to observe: see Fardon v. Harcourt-Rivington ( [1932] All ER Rep 81) by Lord Atkin and Draper v. Hodder [1972] 2 All ER 210. Now so far as strict liability is concerned, the common law has been replaced by the Animals Act 1971. But the common law as to negligence remains.” [58] I also referred to the case of Whippey v Jones [1995] 1 MLUK 421, the issue was whether the owner of a Great Dane was liable in negligence for the injury caused by his dog. The Court of Appeal observed that the dog owner of a Great Dane owed a duty of care to Plaintiff in regard to the way the dogs was handled. [59] In the case of Birch v Mills [1995] 1 MLUK 421, where the Plaintiff was attacked by a suckler herd of Charolais cows whilst walking his dogs on leads down a public road. The road, which ran through Defendant’s farmland, had gates at either end. Motorists and other users of the road had to open these to pass, closing them behind them. At some time no more than three weeks prior to the attack on Plaintiff, the daughter-in-law of Defendant’s farm manager had been chased and badly frightened by the same herd of cows while walking her dogs. She reported the incident to Defendant’s farm manager. Plaintiff suffered severe injuries which, but for the intervention of a passer-by, might well have proved fatal. It was held that Defendant, and in particular Defendant’s farm manager, were negligent in keeping the herd in a field from which the gated road was not fenced off after the first incident. If a human being is attached to a dog, as Plaintiff was, then if it is foreseeable that cows would attack the dog, then it is foreseeable that a human attached to the dog is likely to get hurt. Judgment for Plaintiff was given in the agreed sum of GBP 45,794.86. [60] While it can be seen in the case of Veeramani Chettiar S/o Kanthaswamy Chettiar v Davis S/o Thekkumpuram Vettil Johny and others 2012 Indlaw KER 3215; ; 2014 (4) ACC 167, it was alleged that while Plaintiff was walking through footpath, elephant of Defendant no.1 moved towards footpath and attacked Plaintiff and another person and plaintiff sustained grievous injuries - Plaintiff filed suit for recovery of damages. The issue arose whether Defendant no.1 is liable to pay damages to Plaintiff. Kerala High Court dismissed the appeal and held that: “Madras HC in Vedapuratti alias Valiya Thampuratti and Seven Others v. Koppan Nair observed that if person keeps an animal belonging to class which is dangerous, he takes risk of any damage it may do. Elephants as a class are dangerous though individuals may be tamed and perhaps domesticated. Defence version pleaded in written statement, even if accepted and proved, that will not absolve the defendant from the clutches of strict liability to compensate plaintiff, even if he is not negligent or careless in keeping animal, as elephant is a dangerous animal. On evaluation of evidence on record, it could be seen that incident as alleged by plaintiff is proved by evidence given by PW1 and PW3. PW3 is none other than person who sustained injury in very same incident. PW4 has also given evidence supporting the plaintiff as independent witness. Thus, evidence of PW1 was corroborated by PWs.3 and 4. It is proved that the plaintiff was an inpatient in the hospital he had undergone three surgeries. Plaintiff’s case is proved by cogent evidence.” [61] In Donoghue v Stevenson, Lord Atkin stated the ‘neighbour’ principle which came to be accepted as establishing the general concept of reasonable foresight as the criterion of negligence: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, ‘Who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” [62] As negligence had been denied by Defendant, it is necessary to consider what it means. Lord Macmillan in Donoghue Stevenson [1932] AC 562 618 said:– "The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence…. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty." [63] The principle had been followed in the case of Jaswant Singh v Central Electricity Board And Anor [1967] 1 MLJ 272, where Gill J explained as follows :- “Thus, the criterion is the foresight of the reasonable man, that is, was injury to the plaintiff the reasonably foreseeable consequence of the defendant's acts or omissions in all the circumstances of the case? If it was not, then the decision will be that no duty of care was owed by the defendant to the plaintiff. This does not mean, of course, that the plaintiff must be a person identifiable by the defendant. What is required is that he should be one of a class within the area of foreseeable injury. As regards what exactly must be foreseen, it is not necessary to show that the particular accident which has happened was foreseeable, any more than it is necessary to show that the particular damage was foreseeable; it is enough if it was reasonable in a general way to foresee the kind of thing that occurred (see Stewart West African Terminals Limited [1964] 2 Lloyd's Rep 371 375).” [64] In reliance on the principles above, it is clear that the deceased must not necessarily be a person identifiable by the Defendant. What is required is that the deceased should be one of a class within the area of foreseeable injury. It is also enough if it was reasonable in a general way to foresee the kind of thing occurring. Furthermore, with the available facts, knowledge that Rotweilers are aggressive in nature and react to strangers are undeniable. There were needs to maintain a safe working arrangements and to upgrade Defendant awareness as to danger and to provide a trained and certified handler. Proximity, just, reasonable & fair [65] In all circumstances of this case, I find proximity between parties are clear. At all material time, Defendant did not deny that the deceased was Defendant’s employee. Defendant did not object nor raise any defence or submission that the place of the incident is not within the Defendant’s control and custody. Thus, having a relationship as an employer and an employee, I find that the relationship between Plaintiff and Defendant is in a higher degree of proximity. Based on the above, there is no doubt that it is fair and reasonable for this Court to impose a duty of care on the Defendant in which the Defendant had breached and failed to observe. Whether the cause of death of the deceased was due to the dog bite ? [66] As regards to this issue, PW2 verified that the cause of the death of the deceased is due to“septic shock secondary alleged dog bite wound complicated with multiorgan involvement with underlying hypertension and diabetic mellitus”. This evidence of PW2 is consistent to the documentary evidence of P7 and evidence by PW3. Both PW2 and PW3 denied that the cause of death was due to the underlying health problems of the deceased and diabetics problem had by the deceased was not the cause of death. According to PW2 sepsis had spread and ongoing which caused the health of the deceased deteriorating after he had been undergone a surgery and admitted to the ICU. Therefore, I find the evidence of PW2 and PW3 on the cause of death of the deceased are corroborated and unrebutted. Quantum – General & Special Damages [67] On the issue of general damages, Plaintiff has produced the salary slip of the deceased which had been marked as P8. The last salary received by the deceased was on for the month of August, 2018. According to PW1, every month the deceased would contribute RM1000 for rental payment, utilities bills, groceries and others. [68] PW1 had testified that the deceased salary payment by the Defendant was paid to PW1’s bank account since the deceased did not have any bank account. I find there was no serious rebuttal as to issue of contribution by the deceased to PW1. The only issue raised by the Defendant was the payment of SOCSO received by PW1 every month during the deceased life time where I find it is non-issue to this case. [69] I find the deceased had contributed his all of his salary but Plaintiff only claimed RM1000 per month which is reasonable. The calculation made by the Plaintiff is justified and in accordance to S.7(3)(iv)(d) of Civil Law Act 1956. Plaintiff is also entitled to bereavement of RM30,000 pursuant to S.7(3A) and 3B) of the same Act. [70] In assessing damages I am guided by the case of Laksmana Realty Sdn Bhd v Goh Eng Hwa [200]) 4 CLJ 871, it was held as follows: “General damages are awarded for harm that is not quantifiable. Special damages are awarded where the damage suffered is readily quantifiable in monetary terms” Further, in assessing damages, I am guided by the case of Yang Salbiah & Anor v Jamil Harun [1981] 1 MLJ 292, where the FC held that: “damages must be fair, adequate and not excessive” While in On Ah Long v. Dr. S. Underwood [1983] 2 MLJ 324 at page 327 and 328, the court said: “It is well established principle that special damages in contrast to general damages have to be specifically pleaded and strictly proved (Emphasis added). They are recoverable only where they can be included in the proper measure of damages and are not too remote.” While, in Macgregor on Damages 14th Edition page 1012 para 1498 it is stated as follows:- “In special damages claims the exact loss must be pleaded where the precise amount of item of damages had become clear before the trial either because it has already occurred and so become crystallized or because it can be measured with complete accuracy.” Conclusion [71] Based on the above reasons, I allowed the Plaintiff’s claim against the Defendant with liability of 100% against Defendant with general damages and special damages as the above. I hereby order so. Prepared by: NurulMardhiah NURUL MARDHIAH BINTI MOHAMMED REDZA HAKIM MAHKAMAH SESYEN & MAJISTRET KUALA KUBU BHARU Date: 8th Oktober 2024 For the Plaintiff: M/s Nazrin Nasir T.Anand & Co, Selangor For the Defendant: M/s Kingsley & Co, Melaka