Tenaga Nasional Berhad v Jelutong Development Sdn Bhd (PA-22NCvC-200-12/2018)

JELUTONG DEVELOPMENT SDN BHD

SEE SONG & SONS SDN BHD (NO SYARIKAT: 67128-A) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT

The Plaintiff, Tenaga Nasional Berhad (TNB), is Malaysia's national electricity utility. TNB owns and operates a 132kV oil-filled submarine cable (Cable), in the waters between Penang 14/02/2026 12:36:09 PA-22NCvC-200-12/2018 Kand. 166 Page 2 of 58 Island and the mainland, connecting its Gelugor and Prai substations.

The 1st Defendant, Jelutong Development Sdn Bhd (Jelutong), is the developer of a land reclamation project known as Pembangunan Di Atas Parcel A1, A2 dan B1 Sebahagian Tanah Tebusguna Jelutong, Seksyen 8, Bandar Georgetown Daerah Timur Laut Pulau Pinang (Project).

The 2nd Defendant, See Song & Sons Sdn Bhd (See Song), is an independent contractor which Jelutong engaged to conduct the marine reclamation works for the Project.

TNB’s claim against Jelutong and See Song is for negligence for the damage to the Cable. TNB prays for RM11.99 million in special damages, RM1 million in general damages, and costs.

Should TNB’s claim against Jelutong and See Song be allowed?

The trial spanned 27 days. I heard evidence from nine witnesses—five for TNB (PW1 – PW5) and four for Jelutong and See Song (DW1 – DW4). Page 3 of 58

Parties went to trial with six agreed issues to be tried. They are—

Whether Jelutong and See Song, or either of them, owed a non-delegable duty of care to TNB not to cause any damage to the Cable while carrying out reclamation works for the Project.

Whether Jelutong and See Song, or either of them, caused the damage to the Cable, discovered after the 11.12.2012 incident.

Whether TNB can rely on the legal doctrine of res ipsa loquitur (literally, the thing speaks for itself) to establish its claim.

If See Song caused the damage to the Cable, whether Jelutong is vicariously liable to TNB.

Whether Jelutong and See Song, or either of them, are liable to TNB for the damage caused to the Cable under section 41(1) of the Electricity Supply Act 1990 (ESA)

If either or both of them are found liable, the quantum of damages payable by Jelutong or See Song to TNB. Page 4 of 58 PERTINENT FACTS The Cable 8. TNB installed the Cable in 1979. The Cable runs along the seabed between Gelugor and Prai, traversing waters designated as a non-anchoring zone (Zone). The Zone is marked on maritime charts.

The Cable is an oil-filled cable. Oil pressure within the cable is monitored by TNB. A drop in oil pressure below the threshold triggers an alarm. The incident 10. On 11.12.2012 at approximately 4.40 pm, the low oil pressure alarm at the Gelugor substation was triggered. TNB's personnel lodged a police report on 12.12.2012.

Investigation revealed two fault locations: Fault 1 at Kilometre Post (KP) 0.67 and Fault 2 at KP 0.963. Both faults exhibited severe mechanical damage—puncturing, tearing of the lead alloy sheath, and breaking of the paper insulation.

TNB engaged Persistent Engineering Sdn Bhd (Persistent Engineering) to repair the Cable. Persistent Engineering completed repair works in stages, issuing three invoices totalling RM11.99 million. Page 5 of 58 The Project 13. Jelutong commenced the Project—a land reclamation adjacent to the Jelutong shoreline of Penang island. Jelutong engaged See Song as an independent contractor to conduct marine reclamation works.

See Song was appointed to continue reclamation works on 27.4.2011.

The reclamation works required See Song to operate near the Cable. See Song deployed vessels known as Cutter Suction Dredgers (CSD) and Trailing Suction Hopper Dredgers (TSHD) for the works. The approvals process 16. TNB required See Song to obtain approval before commencing works near the Cable. See Song submitted a method statement to TNB on 19.6.2012.

TNB responded on 7.9.2012, finding the technical justifications reasonable but imposing further requirements. TNB demanded a bank guarantee of RM10 million and a letter of undertaking.

See Song replied by letter on 28.9.2012. In this letter, See Song revised its method statement and represented to TNB: "all our reclamation works at the vicinity of submarine cable area will be Page 6 of 58 done by land approach. No vessels or anchors will be used at these area [sic] at all" [emphasis added].

TNB wrote again on 11.10.2012, demanding the bank guarantee and the letter of undertaking.

TNB granted its final approval only on 17.6.2013—seven months after the 11.12.2012 incident. Vessels operating in the Zone 21. Evidence established that See Song's vessels operated within or near the Zone during the material period—

Video footage and photographs taken by the late Mr Palanivelu at 5.00 pm on 11.12.2012 show a TSHD (See Song’s Meisun BSP 2) in proximity to the Cable route in the Western Channel.

Google Earth satellite image dated 20.2.2013 (exhibit PER62A) shows a CSD, with swing anchors deployed very near the southern limit of the Zone, i.e. almost entering the Zone. And Google Earth satellite images dated 18.5.2013, 5.3.2014, and 11.5.2014 (exhibits PER63A, PER64A, PER65A) show a CSD, with swing anchors, deployed within the Zone. Page 7 of 58

See Song's Monthly Report for December 2012 records intensive reclamation works activities and substantial sand volumes discharged during the period.

See Song initially pleaded that its method statement did not require any barge or any other vessel to be anchored or to work within the Zone.

However, four days before the trial concluded, See Song filed a second witness statement for See Chiun Cheut (DW4). In this second witness statement, DW4 "stressed" that "neither Method Statement said that vessels would not operate in the Zone". In other words, See Song never represented that its vessels would not operate in the Zone. Put differently, See Song’s position was that its vessels may be operating in the Zone.

I observe that this belated evidential shift—from "no vessels in the Zone" to "vessels could operate in Zone"—constitutes a material departure from See Song's pleaded defence. TNB recorded its objections during DW4's testimony.

During cross-examination, DW4 admitted that CSDs were, in fact, anchored in the Zone for trimming works. This admission directly contradicts the 28.9.2012 representation that “no vessels or anchors will be used at these area [sic] at all." Page 8 of 58 THE EXPERT EVIDENCE TNB’s expert: PW1 26. Ir Krishnan Raman (PW1) testified as TNB's expert. He holds qualifications in civil engineering with a specialisation in marine and coastal engineering. He has extensive experience in forensic investigation of marine infrastructure failures and has testified as an expert witness in numerous construction and reclamation disputes.

PW1 prepared a detailed expert report examining the Cable damage. His opinion: the damage at Fault 1 and Fault 2 was caused by a dropped or dragged anchor from a large vessel. Only See Song's vessels—CSDs and TSHDs—were in the vicinity at the material time.

PW1's reasoning rested on several pillars:

Nature of damage: The severe puncturing, tearing of the lead alloy sheath, and breaking of the paper insulation indicated high-force mechanical impact. Such damage could only result from a heavy anchor with considerable weight dropping onto or dragging across the Cable.

Vessel proximity: Google Earth images and vessel positioning data showed See Song's dredging vessels operating within or near the Zone during the relevant Page 9 of 58 period. No other large commercial vessels were seen to be present.

Anchor capabilities: CSDs typically use swing anchors (including flipper delta types) weighing 1.5 tonnes or more. TSHDs use Hall-type anchors of substantial weight. Both types are capable of causing the observed damage.

Temporal correlation: The alarm triggered at 4.40 pm on 11.12.2012. Video footage at 5.00 pm (20 minutes later) showed TSHD Meisun BSP 2 near the Cable route. The temporal proximity supports causation.

I find PW1's evidence methodical and well-reasoned. He acknowledged limitations in his analysis where appropriate—a hallmark of objectivity. He described vessel positions as "proximate" rather than claiming absolute precision. This candour enhances his credibility. Jelutong and See Song’s expert: DW1 30. Ir Tan See Teik (DW1) testified as Jelutong's expert. He also holds engineering qualifications and has acted as an expert witness in construction disputes.

DW1 opined that fishing vessels with small anchors, not See Song's vessels, caused the damage. His reasoning is that:

The Cable had been damaged multiple times in the past (1989, 1992, 1994, 1997, 2002, 2005, 2014), suggesting multiple potential causes, including fishing vessels.

CSDs were positioned approximately 760 metres from Fault 1. CSDs move slowly—approximately 3 metres per 5 minutes, when crawling. Even with tugboat assistance, relocating takes 3 - 4 hours. DW1 contended that CSDs could not have been present over Fault 1 at 4.40 pm.

The anchor types differed from PW1's description. CSDs use Danforth anchors weighing 500kg, not Flipper Delta anchors. TSHD Meisun BSP 2 uses Hall anchors, which DW1 considered less likely to cause the observed serration pattern.

I find DW1's opinion less persuasive for several reasons:

Limited investigation: DW1 did not interview See Song's vessel operators. He relied on the documentation provided by See Song without independent verification. During cross-examination, DW1 admitted these documents contained inaccuracies.

Preliminary opinion formation: DW1 formed his initial opinion even before conducting a thorough investigation. Page 11 of 58 This sequence suggests confirmation bias rather than objective analysis.

Selective focus: DW1 concentrated on CSDs to the exclusion of TSHDs. Yet the video evidence shows TSHD Meisun BSP 2 in proximity to the Cable at 5.00 pm— closer in time to the 4.40 pm alarm than any CSD position.

I note the trite principle: expert evidence assists the court but does not compel it. As the Federal Court, through Raja Azlan Shah CJ (as his Highness then was), observed in Wong Swee Chin v Public Prosecutor [1980] 1 MLJ 212 (FC); [1980] CLJU 138— “Our system of jurisprudence does not, generally speaking, remit the determination of dispute to experts... expert evidence is to be used by the court for the purpose of assisting rather than compelling the formulation of the ultimate judgments. In the ultimate analysis it is the tribunal of fact... which is required to weigh all the evidence and determine the probabilities. It cannot transfer this task to the expert witness, the court must come to its own opinion…” [emphases added]

The Court of Appeal in Batu Kemas Industri Sdn Bhd v Kerajaan Malaysia & Anor [2015] 5 MLJ 52 (CA); [2015] 7 CLJ 849; [2016] 1 MLRA 36, through Justice Vernon Ong JCA, held at paragraph [40]— Page 12 of 58 “…when expert opinions are in conflict with one another the court is obliged to assess the evidence and accept if necessary the most reliable parts in forming its decision." [emphases added]

Applying these principles, I accept PW1's opinion over DW1's. PW1's analysis is more thorough, better corroborated by contemporaneous documentary evidence, and more consistent with the totality of facts proven at trial. The Anchor drop test 36. Norul Rafiq bin Namas Khan (PW5), a forensic expert from Forensic Engineering Group TNBR (FEG TNBR), conducted an anchor drop test to simulate the damage mechanism. FEG TNBR dropped anchors from heights onto cable samples. The test demonstrated that heavy anchors create denting, puncturing, and paper insulation breakage similar to the damage at Fault 1 and Fault 2.

During cross-examination, Jelutong and See Song tried to discredit the test by highlighting that it did not perfectly replicate field conditions. PW5 conceded that the test could not rule out every possible alternative cause with certainty.

I find these concessions do not undermine the test's probative value. The test successfully demonstrated that heavy anchors from large vessels are capable of causing the observed damage Page 13 of 58 pattern. It corroborates PW1's analysis. Perfect replication of field conditions in controlled testing is often not possible; what matters is whether the test yields results sufficiently analogous to support reliable inferences. ANALYSIS AND FINDINGS

I now consider whether Jelutong owed a non-delegable duty of care to TNB, and if so, whether that duty was breached. Legal framework 40. The legal framework for non-delegable duty is authoritatively set out by the Federal Court in Hemraj & Co Sdn Bhd v Tenaga Nasional Bhd [2023] 1 MLJ 785 (FC); [2023] 1 AMR 725; [2023] 1 CLJ 651; [2023] 2 MLRA 25, which adopted the principles from Woodland v Essex County Council [2013] UKSC 66 (UKSC); [2014] AC 537. The Federal Court identified two categories of cases where a non-delegable duty arises: (1) where the work is inherently or extraordinarily hazardous; and

where there exists a special relationship between the principal and the victim. In the present case, TNB relies on the first category. Page 14 of 58

The test for Category 1, as articulated by the Federal Court, is whether the work is "exceptionally dangerous whatever precautions are taken." This does not mean that no precautions are available at all, but rather that even with all known and reasonable precautions in place, a significant and viable risk remains. As the Federal Court stated in Hemraj (supra) at MLJ paragraph [59]— "If there are available precautions, then the activity will not be described as exceptionally hazardous and does not come within Category 1. However, even if, with the known precautions available, the hazard is still a viable risk, then the activity will be considered exceptionally hazardous within Category 1."

Hence, an employer—who commissions work which is exceptionally hazardous, or work which involves a special danger to others, no matter what care is taken in its execution— owes a non-delegable duty to ensure that reasonable care is taken to prevent injury and damage.

"Exceptionally hazardous" means that the activity remains inherently dangerous despite all reasonable precautions. The focus is not on whether precautions exist, but on whether a viable risk persists even with the precautions implemented.

If a non-delegable duty arises, the employer cannot escape liability by delegating work to an independent contractor. The employer remains responsible for the contractor's negligence. Application to the facts 45. I find that Jelutong owes a non-delegable duty to TNB. The reclamation works were exceptionally hazardous (to the Cable). Several factors establish this conclusion.

First, the admissions of Jelutong's own witnesses. Oui Soon Hoe (DW2) and Lee Soon Kwee (DW3), both from Jelutong, conceded during testimony that the works were "extraordinarily hazardous regardless of precautions taken." Even DW1, Jelutong’s expert, admitted that a "potential hazard" and "minute possibility" of cable damage remained, despite precautions.

Second, the nature of the works. See Song operated heavy marine equipment—CSDs and TSHDs—above a 132kV oil-filled submarine cable lying on or beneath the seabed. These vessels deploy multi-tonne anchors. The Cable carries high-voltage electricity. Damage could cause catastrophic consequences: electrocution risk, widespread power outage, environmental contamination from oil leakage, and substantial economic loss.

Third, the precautions implemented—utility mapping 200 metres into the Zone, silt curtains eight metres from the Cable, temporary bunds 22.5 metres away, and restrictions on marine piling—confirm the hazard's severity, but do not eliminate it. Vessels still operated with heavy anchors in proximity to the Cable. Human error, equipment malfunction, or adverse marine conditions could cause anchor contact despite precautions.

Fourth, TNB demanded a bank guarantee of RM10 million before granting approval. TNB refused Jelutong's request to reduce the guarantee to RM1 million. This insistence reflects TNB's assessment that a substantial, viable risk remained even with all the proposed precautions.

Jelutong and See Song argue that Hemraj (supra) should be applied in their favour. The Federal Court held (at CLJ paragraph [58]) that “routine residential construction works carried out by a homeowner through its independent contractors” are not works that meet the "exceptionally hazardous" threshold. And so I should similarly find that there is no non-delegable duty here.

But I find that routine excavation for home extensions is fundamentally different from industrial marine reclamation works done above high-voltage submarine cables. The scale, complexity, and inherent dangers are incomparable. I apply the principles propounded in Hemraj (supra). But the facts in Page 17 of 58 Hemraj (supra) do not assist Jelutong and See Song; they only go to reinforce TNB’s position, i.e. that the reclamation works were exceptionally hazardous, giving rise to a non-delegable duty of care.

I find it just and reasonable to impose a non-delegable duty on Jelutong. Jelutong profited from the Project. Jelutong was best positioned to select a competent contractor and ensure that the contractor: See Song exercised proper care. TNB had no control over the execution of reclamation works. TNB's only protection lay in the approval process and the required bank guarantee—both measures reflecting the gravity of the hazard.

I hold that Jelutong owed TNB a non-delegable duty to ensure reasonable care was taken in conducting reclamation works near the Cable. Breach through See Song's negligence 54. I also find Jelutong’s non-delegable duty was breached through See Song's negligence (which I find under Issue 2 below). Because Jelutong owed TNB a non-delegable duty, Jelutong cannot escape liability by pointing to See Song's status as an independent contractor.

I answer Issue 1 in the affirmative. Jelutong owed and breached a non-delegable duty of care to TNB. Page 18 of 58

I now turn to whether See Song owed and breached a duty of care to TNB. Existence of duty 57. No dispute arises that See Song owed TNB a duty of care. The principles in Donoghue v Stevenson [1932] AC 562 (HL) establish a duty of care where foreseeable harm to a proximate neighbour may result from one's acts or omissions. See Song's marine works directly affected TNB's Cable. Damage was foreseeable. Proximity existed.

The duty is further reinforced by section 37(12)(a) of the Electricity Supply Act 1990 (ESA), which I address under Issue 5. Standard of care 59. The standard is that of a reasonably competent contractor conducting marine reclamation works near high-voltage submarine cables. In Blyth v Birmingham Waterworks (1856) 11 Ex 781, the standard was articulated as "the omission to do something which a reasonable man... would do, or doing something which a prudent and reasonable man would not do." Page 19 of 58 Breaches established 60. I find that See Song breached its duty in multiple respects. Breach 1: Commencing works without approval 61. See Song commenced works after it was appointed on 27.4.2011, but before obtaining TNB's final approval. Approval was granted only on 17.6.2013—seven months after the incident (on 11.12.2012).

PW3 (Subramaniam Govindasamy) testified that on 11.10.2012 (two months before the incident), TNB expressly informed See Song that no approval had been given to them to carry out reclamation works, whether within the Zone or close to the Zone. Yet See Song continued operations.

This constitutes a breach. A reasonable contractor would not commence hazardous works near high-voltage cables without the utility owner's approval. Breach 2: Vessels anchoring in the Zone contrary to representations 64. See Song represented on 28.9.2012 that no vessels or anchors will be used at the pertinent areas “in the vicinity of” the Cable.

Yet DW4 admitted during cross-examination that CSDs were, in fact, anchored in the Zone to perform trimming works. This Page 20 of 58 admission directly contradicts the representation made in the letter and revised method statement dated 28.9.2012, where See Song explicitly promised that its reclamation works near the Cable would be done “by land approach”, and no vessels or anchors would be used in the area. And, in the revised method statement, See Song further represented that all its construction activities in the Cable “vicinity area” would be conducted “by land machineries only”. The representation was unequivocal. Yet DW4 conceded that CSDs anchored within the zone, although allegedly for trimming works at a later stage.

See Song cannot maintain contradictory positions. It represented "no vessels or anchors" would be used in the Zone, then admitted that vessels were deployed and anchored there.

See Song's conduct, which was contradictory to its representation (promise), fatally undermines its credibility. A reasonable contractor does not make representations it does not intend to honour.

Google Earth images of February 2013, May 2013, March 2014, and May 2014—soon after the 11.12.2012 incident and beyond—show CSDs, with swing anchors, deployed for work very near and within the Zone.

PW1 explained that for works to progress to the positions shown in the May 2014 images, vessels must have been operating progressively within the Zone throughout late 2012 and into

Reclamation advances incrementally; it does not leap forward.

Further, PW1, by using two other images taken in May 2012 and February 2013—showing a span of nine months—testified that the reclamation works were already done “well into the sea” and “progressed quite significantly into the non-anchoring zone”.

See Song attempts to argue that the works visible in the Google Earth images post-dated the incident and therefore do not prove that vessels were in the Zone on 11.12.2012. This argument is unpersuasive.

The progression of reclamation works is a gradual process. For the shoreline to have advanced to the positions shown in the May 2014 image, vessels must have been working progressively closer to the cable over the preceding months, including during November and December 2012 (when Fault 1 and Fault 2 occurred). Fault 1 occurred on 11.12.2012. Fault 2 occurred between 11.12.2012 and 7.1.2023 (when the diver survey was done). PW1's evidence on this point was clear and unchallenged.

Also, video footage at 5.00 pm on 11.12.2012 shows See Song’s TSHD Meisun BSP 2 in proximity to the Cable route. Breach 3: Inadequate utility mapping 74. I find that See Song failed to conduct adequate utility mapping to ascertain the exact on-site location and depth of the Cable. Whilst See Song commissioned some utility mapping—up to 200m from the shore—the evidence shows that this was insufficient for the purpose. TNB repeatedly emphasised the need for accurate utility mapping to determine the exact on-site location and depth of the Cable. TNB even rejected an earlier proposed method of utility mapping (by Hydro Mappers Sdn Bhd) on the basis that it failed to provide acceptable utility mapping, i.e. failed to provide sufficient information. Yet See Song proceeded with inadequate mapping, which increased the risk that its vessel operators would inadvertently position anchors too close to the cable.

Also, PW1 opined that the method statement submitted by See Song was "entirely too simple for such intricate works" and did not fit standard operating procedures for marine reclamation.

Further, See Song’s utility mapping was to 200m from the shore. But Fault 1 was at 670m from shore, and Fault 2 was at 920m from shore. In other words, See Song did not know the location of the Cable at 670m and 920m from shore. Page 23 of 58 Breach 4: Failure to brief vessel operators and to call them to testify 77. There is no evidence to show that See Song ensured that its vessel operators had accurate information about the Cable's location. Without providing vessel operators with precise coordinates and clear instructions, the risk of accidental anchor-strikes was substantially elevated. A prudent and reasonable contractor would have ensured that every vessel operator was fully briefed on the exact location of the Cable and the boundaries of the Zone, and would have implemented systems to verify compliance. There is no evidence that See Song did so.

Further, DW1 admitted that he did not interview the vessel operators. Nor were the vessel operators called to testify. This omission by See Song’s expert, and the failure to call its vessel operators to give evidence suggest that the operators could not or would not support the defence case.

Under section 114(g) of the Evidence Act 1950, adverse inferences may be drawn when a party fails to call material witnesses. The vessel operators possessed direct knowledge of vessel positions, anchor deployments, and any incidents on 11.12.2012. Their absence from the witness box speaks against See Song. Page 24 of 58 Breach 5: Belated pleading change 80. See Song's filing of DW4’s additional witness statement—a few days before trial concluded—constituted a material departure from its pleaded defence. The Federal Court in Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 6 MLJ 449 (FC); [2015] 6 AMR 765; [2015] 9 CLJ 537; [2015] 6 MLRA 686 held: "The plaintiff is not permitted to improve its pleading in any other manner other than by way of an application to amend. Otherwise it would be unfair and prejudicial to the defendants if the plaintiff could now be allowed to raise an issue that was not within the contemplation of the parties in the first place."

See Song attempted to "stress" in DW4’s additional witness statement that its method statement did not prohibit vessels operating in the Zone—directly contradicting its pleaded position and its 28.9.2012 representation. No amendment application was filed. This eleventh-hour manoeuvre cannot save See Song's defence.

I find that See Song breached its duty of care to TNB in multiple material respects. Page 25 of 58

I turn now to Issue 3: whether See Song caused the damage to the Cable. Legal principles 84. Causation requires proof on the balance of probabilities. TNB must establish that, more likely than not, See Song’s breach caused the damage.

Causation need not be proven with absolute certainty. Civil litigation does not demand scientific precision. The test is whether the evidence, viewed cumulatively, makes a plaintiff’s case more probable than alternative explanations. TNB’s case 86. TNB's case rests on multiple strands of evidence. Forensic evidence 87. The FEG TNBR Final Report dated 21.12.2015 concluded that the damage resulted from a dropped or dragged anchor from a large vessel. The report documented severe mechanical damage: denting, puncturing, tearing of the lead alloy sheath, and breaking of the paper insulation.

PW1 explained that such damage could only result from high-force mechanical impact. A heavy anchor with considerable weight, dropping onto or dragging across the Cable, produces precisely this damage pattern.

PW5’s anchor drop test corroborated this conclusion. Dropping a heavy anchor from height onto the cable sample created denting and paper insulation breakage similar to Fault 1 and Fault 2. Temporal evidence 90. The alarm triggered at 4.40 pm on 11.12.2012. Video footage at 5.00 pm—merely 20 minutes later—shows TSHD Meisun BSP 2 near the Cable route. Vessel positioning evidence 91. I reiterate that Google Earth images dated 20.2.2013 shows a CSD, with swing anchors, deployed very near the Zone. And Google Earth images dated 18.5.2013, 5.3.2014, and 11.5.2014 show a CSD, with swing anchors, deployed within the Zone.

PW1 testified that for reclamation to advance to these positions by May 2014, vessels must have been working progressively within the Zone in late 2012. Reclamation does not occur Page 27 of 58 instantaneously. Sand must be dredged, transported, and discharged incrementally. The shoreline advances day by day.

Jelutong and See Song offer no plausible explanation for how works advanced so far eastward into the Zone by May 2014 without vessels operating in the Zone during the interim period, including December 2012. Jelutong and See Song’s alternative theory 94. Jelutong and See Song posit that fishing vessels with small anchors caused the damage. I reject this theory for several reasons. Speculation without evidence 95. No evidence establishes that fishing vessels were present at the material time. The Defendants produced no witness testimony, no maritime records, and no photographic evidence of fishing activity near Fault 1 on 11.12.2012.

Speculation, however plausible in the abstract, does not discharge an evidential burden. Jelutong and See Song must adduce evidence, not merely raise possibilities. Inconsistency with damage severity 97. PW1 testified that the severe puncturing, tearing, and serration at Fault 2 required a heavy anchor with considerable force. Page 28 of 58 Small fishing anchors—typically weighing 20-50kg—lack the mass and penetrative capability to cause such damage.

The anchor drop test supports this conclusion. Small anchors produce minimal surface indentation. Heavy anchors create the deep punctures and tears observed at the fault locations. Temporal implausibility 99. A fishing vessel would need to be at the exact Fault 1 location at or shortly before 4.40 pm to cause the damage that triggered the alarm. No evidence places any fishing vessel there.

Video footage at 5.00 pm shows no fishing vessels in the vicinity. Only See Song's TSHD Meisun BSP 2 is visible near the Cable route. The Cable's damage history does not assist Jelutong and See

Song Jelutong and See Song note that the Cable was damaged previously in 1989, 1992, 1994, 1997, 2002, and 2005. They argue that this history suggests multiple potential causes.

I find this argument unpersuasive. PW3 testified that all previous damage resulted from anchors during construction activities—Penang Bridge construction in the 1980s, reclamation for highways and condominiums in the 2000s. Page 29 of 58 Previous damage from construction vessel anchors supports, rather than undermines, the conclusion that this damage also resulted from construction vessel anchors.

Past instances of anchor damage do not create a presumption that fishing vessels caused subsequent damage. Each incident must be assessed on its own evidence.

Anchor type argument Jelutong and See Song emphasise that PW1 referenced Flipper Delta anchors in his report, but See Song's CSDs use Danforth anchors, and TSHD Meisun BSP 2 uses Halls anchors.

This argument misses the point. PW1's reference to Flipper Delta anchors reflected typical CSD anchor configurations. He lacked detailed specifications for See Song's specific vessels. When confronted with the Halls anchor information during cross-examination, PW1 conceded that Halls anchors are "less likely" than flipper delta types to have caused the damage, but they remain capable of causing the observed damage.

More significantly, DW1 acknowledged that See Song’s CSDs: the Meisun C3 and C9 are equipped with modified Danforth anchors. The modified Danforth anchors bear a striking resemblance to the Flipper Delta anchors. The modified Page 30 of 58 Danforth anchors used by See Song’s CSDs look very much like the Flipper Delta anchors used in the anchor-drop test.

Halls anchors are substantial marine anchors designed for large vessels. They weigh hundreds of kilograms. Dropped with sufficient force or dragged across the seabed, they can puncture and tear submarine cables.

PW5's anchor drop test demonstrated that heavy anchors can cause damage similar to Fault 1 and Fault 2. The specific anchor model matters less than the anchor's weight and the force applied.

CSD movement argument Jelutong and See Song contend that CSDs positioned about 760 metres from Fault 1 (as Fault 1 is 760m from shore) could not reach the fault location by 4.40 pm because CSDs move slowly (it seems, only 3 metres in a 5-minute crawl).

This argument suffers from three flaws. First, it assumes that CSDs exclusively caused the damage. Yet the evidence points more strongly to TSHD Meisun BSP 2 (visible at 5.00 pm near the Cable route). Second, 20 minutes is substantial time for a CSD to move, especially with tugboat assistance. Third, there is a likelihood that damage may have occurred before 4.40 pm, Page 31 of 58 with the alarm triggering only after the oil pressure dropped sufficiently.

Conclusion on causation I find, on the balance of probabilities, that an anchor from a See Song vessel caused the damage at Fault 1 and Fault 2. The probable scenarios are: either See Song’s CSDs Meisun C3 and C9, or, even more probable: See Song’s TSHD Meisun BSP 2—operating in the vicinity of the Cable on 11.12.2012, dropped or dragged its anchor, striking the Cable at one or both fault locations. The impact punctured and tore the Cable's lead alloy sheath and broke the paper insulation. Oil leaked. Pressure dropped. The alarm triggered at 4.40 pm.

This conclusion rests on the cumulative force of forensic evidence, expert opinion, temporal correlation, vessel positioning data, operational patterns, and the absence of a credible alternative explanation.

I answer Issue 3 in the affirmative. See Song caused the damage to the Cable on 11.12.2012.

I turn to Issue 4: whether TNB can rely on the doctrine of res ipsa loquitur.

Legal principles I find that the doctrine of res ipsa loquitur applies here, and provides an additional basis for TNB's claim, although my findings on the evidence of causation are sufficient to decide the case in TNB's favour. The doctrine is an evidential principle which allows the court to infer negligence from the circumstances of an accident where the accident is of a kind that does not ordinarily happen without negligence, and the instrumentality causing the damage was under the defendant's control.

Res ipsa loquitur permits an inference of negligence where three conditions are satisfied: (1) the thing causing damage was under the defendant's sole management and control; (2) the occurrence would not ordinarily happen without negligence; and

no direct evidence explains how the occurrence took place.

The Federal Court articulated the test in Ahmad Jaafar bin Abdul Latiff v Dato' Bandar Kuala Lumpur [2015] 1 AMR 521 (FC); [2014] 9 CLJ 861; [2015] 1 MLRA 87, at paragraph [68], and Mahari bin Endut v Dato' Hj Mat Razali bin Kassim & Ors [2009] 5 MLJ 153 (FC); [2009] 5 AMR 793; [2009] 4 CLJ 488; [2009] 1 MLRA 629, at paragraph [40].

The doctrine's purpose is to bridge evidential gaps. Where a plaintiff cannot prove the precise act or omission causing injury, but the circumstances make negligence more probable than not, the law permits an inference.

Condition 1: Sole management and control The first condition is that See Song was in sole management and control of "the thing" that caused the damage. Here, "the thing" is the anchor that struck the Cable.

Jelutong and See Song contend that the doctrine cannot apply because the Cable lay in navigable waters open to multiple vessels, not under See Song’s exclusive control.

I reject this argument. The doctrine requires control of the instrumentality causing damage, not control of the entire environment. TNB cannot identify with absolute precision which specific vessel or which specific anchor struck the Cable, or the exact sequence of movements. This evidential gap is precisely what res ipsa loquitur bridges.

All large vessels with heavy anchors operating in the vicinity at the material time were See Song's dredging vessels. See Song deployed them. See Song managed them. See Song controlled them. No evidence establishes that other large commercial vessels were present.

I find condition 1 satisfied.

Condition 2: Would not ordinarily happen Submarine cables beneath the seabed do not spontaneously suffer severe puncturing and tearing. Such damage occurs only from external mechanical force, such as anchor strikes.

Anchors do not drop onto or drag across buried cables without negligent vessel operation. Negligence may take various forms: anchoring in a prohibited zone, failing to ascertain cable location, failing to control vessel movements, or equipment malfunction.

The very occurrence of anchor-cable contact bespeaks negligence.

I find Condition 2 satisfied.

Condition 3: No direct evidence Some authorities suggest that if any evidence is adduced, the doctrine cannot apply. This has been the subject of some judicial interpretation. I am not inclined to accept this rigid interpretation.

Modern case law recognises that the doctrine can co-exist with evidence. The question is whether the evidence suffices to determine negligence without resort to the res ipsa loquitur presumption.

Here, TNB adduced substantial evidence—forensic reports, expert testimony, vessel positioning data, video footage, and witness statements. Yet gaps remain. TNB cannot answer with precision: Did the anchor drop deliberately whilst anchoring? Was it dragged inadvertently? Was it deployed during dredging operations? The exact mechanics remain unclear.

TNB establishes that an anchor from a large vessel caused the damage; See Song's vessels were the only large vessels with heavy anchors in the area at the material time. Res ipsa loquitur appropriately fills the residual evidential gap by permitting an inference of negligence.

I find Condition 3 satisfied.

Effect of doctrine The doctrine creates an evidential presumption of negligence. The burden shifts to Jelutong and See Song to rebut this presumption by providing a plausible explanation, showing either that due care was exercised or that a more probable non-negligent cause exists.

Failure to rebut Jelutong and See Song fail to rebut the presumption.

See Song's evidence—the CSDs were 760m away, moved slowly, used different anchor types—does not provide a plausible alternative explanation. It merely creates doubt about one specific scenario (a CSD at Fault 1 at 4.40 pm), whilst ignoring the more probable scenario (the TSHD Meisun BSP 2 operating near the Cable before, during, or shortly after the material time).

I reiterate that See Song's failure to call vessel operators as witnesses attracts an adverse inference under section 114(g) of the Evidence Act 1950. The operators possessed the most direct and material knowledge of vessel positions, anchor deployments, and incidents on 11.12.2012. Their absence suggests their testimony would not assist the defence—indeed, would likely undermine it.

This adverse inference reinforces the res ipsa loquitur presumption.

I answer Issue 4 in the affirmative. The doctrine applies, and Jelutong and See Song fail to rebut the presumption of negligence. Page 37 of 58 ISSUE 5: STATUTORY LIABILITY UNDER SECTION 41(1) OF THE

I turn to Issue 5: whether Jelutong and See Song are liable under section 41(1) of the ESA.

Statutory provisions Section 37(12)(a) of the ESA provides: "No person shall without lawful authority... undertake any work or engage in any activity in the vicinity of any electrical installation... in a manner likely to interfere with any electrical installation or cause danger to any person or property." [emphases added]

Section 41(1) provides: "Any person who... damages whether wilfully or otherwise, any installation... shall, in addition to any penalty to which he may be liable under this Act, be liable to pay full compensation for the damage he has done and the compensation shall be recoverable by civil action or suit before any court." [emphases added]

Jelutong and See Song’s argument Jelutong and See Song contend that section 41(1) does not apply because they were not charged or convicted under the ESA. They cite (i) System Engineering & Construction Sdn Bhd v Tenaga Nasional Bhd [2020] MLJU 631 (HC); [2020] AMEJ Page 38 of 58 0494; [2020] CLJU 546; [2020] MLRHU 461, and (ii) Tenaga Nasional Bhd v Ee-Lian Plastic Industries Sdn Bhd [2013] 8 MLJ 683; [2013] 2 AMR 548; [2013] 2 CLJ 697; [2013] MLRHU 913, for the proposition that section 41(1) is triggered only where a person is first charged, convicted, and punished for an offence under the ESA.

TNB's argument TNB submits that section 41(1) imposes strict civil liability once damage to an installation is proven. TNB relies on Tenaga Nasional Bhd v Trans Resources Corporation Sdn Bhd [2009] 5 MLJ 673 (HC); [2009] 9 MLRH 296; [2009] AMEJ 0063; [2009]

Analysis I must interpret the statute. Statutory interpretation begins with the plain words.

Section 41(1) states that compensation is payable "in addition to” any penalty to which the person may be liable. The phrase "in addition to" suggests compensation is cumulative with, and not dependent upon, criminal penalties.

If Parliament intended compensation only after criminal conviction, the section would state words to this effect: "following conviction under this Act" or "upon being held liable for an offence." But it does not.

"The words: “in addition to any penalty to which he may be liable" indicate that the person may face criminal penalties, but compensation is payable regardless. The word “may" denotes a possibility, not a prerequisite.

"Recoverable by civil action or suit before any court" employs broad language. It suggests civil compensation proceedings operate independently of criminal prosecution.

I respectfully disagree with the interpretation in System Engineering (supra) and Ee-Lian Plastic (supra). Those cases effectively create a two-stage process: first criminal prosecution, then civil compensation. This interpretation is inconsistent with the statutory language and creates practical difficulties. It unduly restricts the utility company's civil remedy by requiring it first to pursue criminal proceedings to conviction—a process the utility does not control, and which may not serve the utility's interests.

The better reading is that section 41(1) creates a strict liability regime for civil compensation whilst preserving the possibility of criminal penalties. Paying civil compensation does not immunise from criminal liability. Conversely, criminal liability is not a prerequisite for civil compensation.

This interpretation is supported by Trans Resources (supra). Justice Harminder Singh (later FCJ) held at paragraph [9]— "…once the plaintiff was able to prove that it was the defendants who caused the damage to the installation of the plaintiff, they would become liable to compensate the plaintiff for the damage sustained.”

Section 37(12)(a) imposes a statutory duty: no one is permitted, without authority, to perform work near TNB’s electrical installation (like the Cable) in such a way as to interfere with the installation, or cause any danger to anyone or any property. This provision creates both a criminal sanction for breach and a foundation for civil liability.

Application to the facts Jelutong and See Song breached section 37(12)(a). They undertook reclamation works in the vicinity of the Cable without lawful authority—commencing before obtaining TNB's approval (granted only on 17.6.2013, seven months post-incident). They conducted works in a manner likely to interfere with the Cable— Page 41 of 58 deploying vessels with heavy anchors in dangerous proximity to the Cable, despite See Song’s representations to the contrary.

I have found that See Song caused damage to the Cable. Breach plus causation engages section 41(1). Strict liability attaches. See Song, and hence Jelutong are liable to pay full compensation.

The ESA is designed to protect critical electricity infrastructure and ensure those who cause damage bear the full cost. Interpreting section 41(1) as requiring prior criminal conviction undermines this policy objective by creating unnecessary procedural hurdles for utility companies seeking compensation.

I answer Issue 5 in the affirmative. Jelutong and See Song are liable to TNB under section 41(1) of the ESA to pay full compensation.

I now consider Issue 6: the quantum of damages. Page 42 of 58 Special damages

The claim TNB claims RM11.99 million in special damages. This sum comprises three Persistent Engineering invoices:

Invoice dated 21.2.2013: RM2,730,000.00;

Invoice dated 29.7.2013: RM2,386,876.00;

Invoice dated 30.4.2014: RM6,873,124.00.

Jelutong and See Song’s objection Jelutong and See Song contend that TNB failed to prove quantum because the invoices do not specify which fault locations they cover. By August 2013, four fault points existed: Fault 1, Fault 2, Fault 3, and an Over-All Defect (OAD). Jelutong and See Song argue that the invoices may cover all four fault points, not merely Fault 1 and Fault 2.

The evidence PW3, Persistent Engineering’s representative, testified clearly on this issue. His evidence is dispositive.

PW3 explained that Persistent Engineering's work was divided into stages based on activity nature, not individual fault points: Stage 1: Investigation, cable removal, "cut and cap" Stage 2: Rectification works, including the supply of cable connections, spare parts, and refurbishment Stage 3: Rectification works, including supply of cable connections, spare parts, refurbishment, plus mobilisation, personnel, special cable barge, tug boats, tools, equipment, and general expenses

Persistent Engineering's billing process is for progress payments as work advances. Stage 1 completed → invoiced (first invoice) → paid. Materials delivered → invoiced (second invoice). Repair completed, Certificate of Completion executed → invoiced for completed work (third invoice).

During re-examination, PW3 stated categorically: "The work done, the amount totalling RM11,990,000, is for Stage 1 and 2, to repair two faults only, Fault 1 and 2, ok... First, cut and cap, we invoice them, they pay us, done. Then we deliver material, cables and joints, etc for repair, then they ask us to bill them. So that is Stage 2... Then, when you finally repair it, once you've completed it, then we sign sijil akuan selesai, both parties, and then we bill for work done to repair it. That is Stage 3."

PW3 clarified the distinction between the Roman numerals (I, II, III) in the technical report—which denote phases of work—and the numerical stages (1, 2, 3) in invoicing, which denote billing milestones. Roman Phases I and II correspond to numerical Stages 1, 2, and 3 for invoicing purposes.

Certificates of Completion dated 30.7.2013 and 20.8.2013 confirm that Stage 2 works for Fault 1 and Fault 2 were completed before Fault 3 was discovered in August 2013.

The chronology is clear: the three invoices totalling RM11.99 million relate to works completed on Fault 1 and Fault 2 before Fault 3 was discovered and repaired.

Analysis PW3's testimony was clear, unequivocal, and unchallenged during cross-examination. Jelutong and See Song raised no contemporaneous objection to PW3's evidence at trial. They attack it now only in written submissions—which is too late.

Jelutong and See Song’s suggestion that the invoices might cover all four fault points is pure speculation, unsupported by evidence. If the invoices covered Fault 3 and OAD repairs as well, one would expect additional or amended invoices after those faults were discovered and repaired. No such invoices were produced.

I accept PW3's evidence. The sum of RM11.99 million relates solely to the investigation, removal, and repair of Fault 1 and Fault 2.

I find special damages proven in the sum of RM11.99 million. General damages

The claim TNB claims RM1 million in general damages for negligence and breach of statutory duty.

Jelutong and See Song’s objection Jelutong and See Song contend that this sum is unsubstantiated. They cite Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360 (HC); [1990] 2 CLJ Rep 635; [1989] 2 MLRH 705, MLJ at p367, and Guan Soon Tin Mining Co Sdn Bhd v Wong Fook Kum [1969] 1 MLJ 99 (FC); [1968] 1 MLRA 757 for the proposition that damages must be supported by evidence.

Jelutong and See Song argue that PW4's witness statement merely states that the "additional costs incurred internally" are "estimated at RM1 million", without documentary evidence or a detailed breakdown. Page 46 of 58 Legal principles

General damages are damages the law presumes to flow naturally and probably from the defendant's act. The Court of Appeal in MGG Pillai v Tan Sri Vincent Tan Chee Yioun [1995] 2 MLJ 493 (CA); [1995] 2 AMR 1776; [1995] 2 CLJ 912 held— "general damages are damages which the law presumes to flow from, and as if it were the natural and probable consequence of the defendant's act. Therefore general damages need not be pleaded specifically nor need any evidence to be produced to prove them as such."

Justice Nantha Balan in Shen & Sons Development Sdn Bhd v Jutawarna Development Sdn Bhd [2016] 7 MLJ 183 (HC), [2015] 8 CLJ 125, [2015] 3 MLRH 479, adopted this principle.

In Tenaga Nasional Bhd v Panareno Construction Sdn Bhd [2019] 11 MLJ 795 (HC); [2019] 4 CLJ 239; [2018] AMEJ 1799; [2018 MLRHU 792, Justice Ahmad Shahrir held at paragraph [63], that general damages for "administrative and operational disruptions" during repair processes may be assessed at 25% of replacement costs, consistent with industry practice. There, the replacement costs were RM7.6 million; 25% of RM7.6 million yielded RM1.9 million in general damages.

Application to the facts Here, the replacement costs (special damages) total RM11.99 million. Applying 25%, general damages would be

I find RM2,997,500.00—nearly RM3 million—exceeds what is fair and reasonable in the circumstances.

TNB claims only RM1 million in general damages. RM1 million represents approximately one-third of the 25% benchmark (RM2,997,500.00)—or about 8.3% of the replacement costs.

Muhammad Irfan bin Norazman (PW4), TNB's Assistant Manager (Network Assets), testified that TNB incurred "additional costs internally" as a result of the Cable damage. These costs include:

TNB personnel mobilisation to the site for investigation;

Emergency response operations;

Equipment mobilisation;

Supervision of Persistent Engineering's repair works;

Ancillary costs of overseeing the repair process; Page 48 of 58

Administrative expenses, processing claims and documentation;

Operational disruptions in managing electricity supply during repairs.

PW4 estimated these costs at approximately RM1 million. His evidence was not challenged in cross-examination.

I find PW4's verbal evidence sufficient. Damages of this nature—unquantifiable administrative and operational costs flowing naturally from the need to investigate, respond to, and oversee the repair of catastrophic cable damage—are precisely the type of losses for which general damages exist. Requiring documentary proof of every telephone call, every personnel hour, and every administrative expense would impose an unreasonable evidential burden for losses that are inherently difficult to quantify with precision.

The principles in MGG Pillai (supra) establish that general damages need not be proven with documentary evidence where the loss naturally flows from the defendant's act.

Moreover, the quantum claimed—RM1 million—is reasonable. It represents only 8.3% of the replacement costs, well below the 25% benchmark propounded in Panareno (supra). I find this Page 49 of 58 sum adequately compensates TNB for the disruption, emergency response, investigation, and the administrative burdens imposed and necessitated by Jelutong and See Song’s negligence.

I assess general damages at RM1 million as claimed.

Interest TNB prays for interest on special damages from the date of the incident (11.12.2012) until full and final settlement. During submissions on costs and damages, TNB's counsel clarified that interest on special damages should commence on 20.8.2013—the date Persistent Engineering completed repair works and TNB paid the final invoice.

I find this appropriate. Special damages represent TNB's out-of-pocket expenditure. TNB paid Persistent Engineering progressively as works were completed, with the final payment on 20.8.2013. TNB has been deprived of these funds since that date, due to Jelutong and See Song’s negligence. Interest compensates TNB for this deprivation.

TNB prays for interest on general damages from the date of the Writ (7.12.2018). I find this appropriate too. General damages compensate for losses that accrued over time during the Page 50 of 58 investigation and repair period. The Writ date is a reasonable reference point.

However, I note Jelutong and See Song’s submission during oral arguments on costs that interest on damages should commence from the date of judgment, not from earlier dates, because they were not liable until judgment was entered on 1.12.2025. Counsel for Jelutong argued: "Interest should run from today (judgment date) until full settlement. It should not run from whenever the Plaintiff pays their expenses, because they were not awarded costs yet, i.e. they have not won yet."

I do not accept this submission. Interest on damages is compensatory, not punitive. It compensates the plaintiff for being kept out of money to which the plaintiff is entitled. TNB was entitled to compensation from the moment Jelutong and See Song’s negligence caused quantifiable loss. That entitlement crystallised when TNB paid Persistent Engineering (special damages) and when TNB incurred unquantifiable losses (general damages). The fact that a court had not yet adjudicated liability does not mean TNB was not entitled to compensation during the intervening period.

I find the appropriate rate is 5% per annum, reflecting current practice.

Costs TNB filed a Bill of Costs claiming RM672,617.13 (pursuant to Order 59 Rule 7(2) of the Rules of Court 2012).

The Bill comprises two main categories:

Section A (Getting up): TNB claims RM221,000.00;

Section B (Out-of-Pocket expenses): TNB claims RM451,617.13.

Under Order 59 Rule 16 of the Rules of Court 2012, the Court may fix costs without requiring taxation.

Section A: Getting Up TNB's claim of RM221,000.00 for Getting Up comprises:

Items (1) to (5) and (7): RM140,000.00;

Item (6) (Attending Court at RM3,000 per day for 27 days): RM81,000.00

Jelutong submits that RM221,000.00 is excessive. Jelutong argues that the sum should not exceed RM100,000.00 because: (i) the case involves no novel legal issue; (ii) Items (1) to (5) (perusing documents, preparing witnesses, legal Page 52 of 58 research, drafting submissions, conferences) involve overlapping work; (iii) Item (7) (general care and conduct) overlaps with Items (1) to (5) and should be disallowed.

See Song suggests that RM200,000.00 is appropriate.

I find Item (6)—attending Court at RM3,000 per day for 27 days (RM81,000.00)—is reasonable. Trial spanned 27 hearing days. RM3,000 per day is within the acceptable range for High Court litigation of this complexity.

However, I find that Items (1) to (5) and (7) totalling RM140,000.00 are high. Whilst the case involved substantial documentation, expert evidence, and complex factual issues, the work involved contains overlaps. Legal research for submissions (Item 3) overlaps with drafting submissions (Item 4). Perusing documents (Item 1) overlaps with preparing witnesses (Item 2). General care and conduct (Item 7) is a catch-all that overlaps with all other items.

I find that RM100,000.00 is a fair and reasonable sum for Items

to (5) and (7) collectively, considering the case's complexity, the volume of documents, the expert evidence, and the 27-day trial.

I award RM181,000.00 for Getting Up.

Section B: Out-of-Pocket expenses TNB's claim of RM451,617.13 includes:

Item (6) (Plaintiff's expert's fees): RM361,117.00

Item

(Miscellaneous expenses—telephone calls, postage, stationery): RM8,000.00

Other items: Various filing fees, service charges, photocopying

Jelutong and See Song both object to Item (6), arguing that RM361,117.00 for the expert's fees is excessive. They contend that the expert attended Court for 17 days at RM5,000 per day (RM85,000), which exceeds even counsel's rate of RM3,000 per day. They suggest that RM150,000.00 is reasonable for expert fees.

TNB responds that it is entirely reasonable for the expert to attend Court for 17 days. PW1 needed to be present when DW1 testified, to advise counsel on technical matters. He ceased attendance after DW1 finished testifying on 8.3.2024.

I have examined the two invoices from PW1 in the Bill of Costs. The fees of RM361,117.00 cover:

Preparation of a detailed expert report Page 54 of 58

PW-1's expertise and professional standing

Attending Court for 17 days

I find that RM361,117.00 is reasonable. This is complex litigation involving marine engineering, submarine cable infrastructure, and forensic analysis of mechanical damage. PW1's expertise was essential to TNB's case. His attendance for 17 days, whilst substantial, was necessary, given the technical nature of the evidence. Expert rates typically exceed counsel rates because experts bill for specialised technical knowledge, which counsel and solicitors do not possess.

I reduce Item (7) (Miscellaneous expenses) from RM8,000.00 to RM2,000.00. TNB has not particularised these expenses. A nominal sum of RM2,000.00 adequately covers reasonable telephone calls, postage, and stationery for a 27-day trial.

With this reduction, the out-of-pocket expenses total approximately RM445,617.13.

I award a rounded-down figure of RM445,000.00 for out-of-pocket expenses.

Total costs Total costs awarded to TNB: RM181,000.00 (Getting Up) + RM445,000.00 (Out-of-Pocket) = RM626,000.00.

This sum is payable by Jelutong and See Song jointly and severally. Given their joint liability, I apportion costs as follows: RM313,000.00 to be paid by Jelutong to TNB, and RM313,000.00 to be paid by See Song to TNB.

For these reasons, I enter judgment in TNB’s favour, jointly and severally against Jelutong and See Song, as follows—

Special Damages: RM11.99 million;

General Damages: RM1 million;

Interest on Special Damages: 5% per annum from 20.8.2013 until full and final settlement;

Interest on General Damages: 5% per annum from 7.12.2018 until full and final settlement; Page 56 of 58

Costs: RM313,000.00 to be paid by Jelutong to TNB; RM313,000.00 to be paid by See Song to TNB. Dated: 10th February 2026 KENNETH ST JAMES HAKIM MAHKAMAH TINGGI MALAYA GEORGETOWN PULAU PINANG Solicitors for the Plaintiff : Balvinder Singh Kenth, Sarveesvari Kumarasamy, Mohamad Hakim Faharmi Hassan, Rishipal Singh & Chew Yen Lin Messrs. Kenth Partnership Solicitors for the 1st Defendant : Gopal Sreenevasan & Leong Phaik Leng Messrs. Leong Phaik Leng Page 57 of 58 Solicitors for the 2nd Defendant : Kenny Chan Yew Hoong, Yatiswara Ramachandran, Nur Izyan Binti Azimi & Amanda Sonia Mathew Messrs. Raj & Sach Legislation referred to:

Section 41(1) of the Electricity Supply Act 1990.

Section 37(12)(a) of the Electricity Supply Act 1990.

Section 114(g) of the Evidence Act 1950. Cases referred to:

Wong Swee Chin v Public Prosecutor [1980] 1 MLJ 212 (FC); [1980] CLJU 138.

Batu Kemas Industri Sdn Bhd v Kerajaan Malaysia & Anor [2015] 5 MLJ 52 (CA); [2015] 7 CLJ 849; [2016] 1 MLRA 36.

Hemraj & Co Sdn Bhd v Tenaga Nasional Bhd [2023] 1 MLJ 785 (FC); [2023] 1 AMR 725; [2023] 1 CLJ 651; [2023] 2 MLRA

25.

Woodland v Essex County Council [2013] UKSC 66 (UKSC); [2014] AC 537.

Donoghue v Stevenson [1932] AC 562 (HL).

Blyth v Birmingham Waterworks (1856) 11 Ex 781.

Giga Engineering & Construction Sdn Bhd v Yip Chee Seng & Sons Sdn Bhd & Anor [2015] 6 MLJ 449 (FC); [2015] 6 AMR 765; [2015] 9 CLJ 537; [2015] 6 MLRA 686.

Ahmad Jaafar bin Abdul Latiff v Dato' Bandar Kuala Lumpur [2015] 1 AMR 521 (FC); [2014] 9 CLJ 861; [2015] 1 MLRA 87.

Mahari bin Endut v Dato' Hj Mat Razali bin Kassim & Ors [2009] 5 MLJ 153 (FC); [2009] 5 AMR 793; [2009] 4 CLJ 488; [2009] 1 MLRA 629.

System Engineering & Construction Sdn Bhd v Tenaga Nasional Bhd [2020] MLJU 631 (HC); [2020] AMEJ 0494; [2020] CLJU 546; [2020] MLRHU 461.

Tenaga Nasional Bhd v Ee-Lian Plastic Industries Sdn Bhd [2013] 8 MLJ 683; [2013] 2 AMR 548; [2013] 2 CLJ 697; [2013]

Tenaga Nasional Bhd v Trans Resources Corporation Sdn Bhd [2009] 5 MLJ 673 (HC); [2009] 9 MLRH 296; [2009] AMEJ 0063; [2009] CLJU 516.

Popular Industries Ltd v Eastern Garment Manufacturing Sdn Bhd [1989] 3 MLJ 360 (HC); [1990] 2 CLJ Rep 635; [1989] 2

Guan Soon Tin Mining Co Sdn Bhd v Wong Fook Kum [1969] 1 MLJ 99 (FC); [1968] 1 MLRA 757.

MGG Pillai v Tan Sri Vincent Tan Chee Yioun [1995] 2 MLJ 493 (CA); [1995] 2 AMR 1776; [1995] 2 CLJ 912.

Shen & Sons Development Sdn Bhd v Jutawarna Development Sdn Bhd [2016] 7 MLJ 183 (HC), [2015] 8 CLJ 125, [2015] 3 MLRH 479.

Tenaga Nasional Bhd v Panareno Construction Sdn Bhd [2019] 11 MLJ 795 (HC); [2019] 4 CLJ 239; [2018] AMEJ 1799; [2018 MLRHU 792.