Tm Technology Services Sdn Bhd v Mangkubumi Sdn Bhd (BA-22NCvC-216-06/2023)

This is the Plaintiff’s claim against the Defendant arising from damage to underground telecommunication cables and infrastructure at Jalan SS1/15, Sungai Way, Petaling Jaya, Selangor, on or about 8.6.2017.

The Plaintiff, TM Technology Services Sdn Bhd, sues as the entity which has taken over the rights, assets and liabilities of Telekom Malaysia Berhad pursuant to a court order dated 21.2.2023. The Plaintiff is responsible for the operation, management and 30/07/2026 14:55:07 BA-22NCvC-216-06/2023 Kand. 80 S/N /wHTlNt4zU0Utux4IwdMw maintenance of underground telecommunication infrastructure, including ducts, copper cables, fibre optic cables, manholes, sub-ducts and other associated network facilities.

The Defendant, Mangkubumi Sdn Bhd, was at the material time the contractor carrying out excavation and/or pipe-jacking related works at or near the incident site. The works were connected to a sewerage or pipe-jacking project involving, among others, Indah Water Konsortium. The Plaintiff’s case is that during the course of those works, the Defendant damaged the Plaintiff’s underground telecommunication cables and infrastructure.

The Plaintiff claims the sum of RM1,272,398.50 as repair, replacement and reinstatement costs. The claim is supported by documentary evidence in the Common Bundle, including Purchase Orders, tax invoices, Work Order Completion documents, Goods Issue Notes, Payment Advices, correspondence, photographs, diagrams, the accident report and the Plaintiff’s invoice with breakdown. The Common Bundle index identifies these categories of documents as trial documents relied upon by the parties.

The Defendant does not seriously dispute that an incident occurred on 8.6.2017. Nor does the Defendant seriously dispute that at least one 1,200-pair copper cable was damaged or leaked. However, the Defendant disputes the extent of the damage. The S/N /wHTlNt4zU0Utux4IwdMw Defendant’s position is that the incident was confined only to one 1,200-pair copper cable and that the Plaintiff has wrongfully expanded the claim into a much larger claim involving fibre optic cables, ducts, open-cut works, relocation works, diversion works, overhead charges and other items allegedly unrelated to the original incident.

The central questions before this Court are therefore these: first, whether the Defendant is liable in negligence for the damage caused to the Plaintiff’s underground cables and infrastructure; secondly, whether the damage was confined only to one 1,200- pair copper cable or extended to the Plaintiff’s wider duct and telecommunication infrastructure; thirdly, whether the Plaintiff has proved the full quantum of RM1,272,398.50; and fourthly, whether the Defendant’s failure to respond to the Plaintiff’s demand letters is a relevant evidential factor in determining liability and quantum.

Having considered the pleadings, the agreed facts, the oral evidence of SP1 to SP7 and SD1 to SD2, the contemporaneous documents, the written submissions and reply submissions, and the authorities cited by the parties, this Court finds that the Plaintiff has proved its claim on a balance of probabilities. S/N /wHTlNt4zU0Utux4IwdMw

For the reasons that follow, judgment is entered for the Plaintiff in the full sum of RM1,272,398.50, together with interest and costs.

The incident occurred on 8.6.2017 at Jalan SS1/15, Sungai Way, Petaling Jaya. This was not an undeveloped or remote location. It was a developed urban area where the presence of underground utilities ought reasonably to have been anticipated by any competent contractor undertaking excavation or pipe-jacking works.

The Plaintiff’s underground telecommunication infrastructure at the incident site included duct routes and cables forming part of an operational network. Such infrastructure was part of the Plaintiff’s essential telecommunication system serving customers in the surrounding area.

The Defendant was carrying out excavation works at or near the incident site. The agreed facts referred to in the Plaintiff’s submissions state that damage occurred to the Plaintiff’s cables and infrastructure while the Defendant and/or its subcontractor was carrying out works at the location. The Plaintiff’s submission expressly states that it is not disputed that on 8.6.2017, damage occurred to the Plaintiff’s cables and infrastructure at the Incident S/N /wHTlNt4zU0Utux4IwdMw Site whilst the Defendant, through its employees, agents and/or subcontractors, was carrying out works at the material time.

A police report bearing No. SG.WAY/005772/17 was subsequently lodged by the Plaintiff’s technical officer confirming the occurrence of the damage at the incident site. The Plaintiff’s case is that the police report and subsequent documents show damage to the duct route and main copper cable, and that the damage was not limited to one isolated cable.

The parties also relied on emails exchanged shortly after the incident. Those emails are important. They record that utility mapping was said to have been carried out and allegedly showed that the works would not affect TM’s duct or cable route. However, the same chain of communications also records that during rectifying or pipe-jacking works, Mangkubumi carried out excavation activities which damaged TM’s duct or cable. SP1 explained this contradiction in his evidence: although the mapping was said to show no impact on TM’s route, the cable was in fact damaged during the works.

After the incident, the Plaintiff mobilised emergency restoration works to restore service and prevent further disruption. The Plaintiff’s evidence is that immediate works were necessary because the damaged infrastructure formed part of an operational S/N /wHTlNt4zU0Utux4IwdMw network. The Plaintiff then undertook permanent reinstatement works after the initial emergency restoration.

The Plaintiff appointed several contractors to carry out the works. The documentary record includes Purchase Orders and invoices to Syarikat Bintang, Dhiracomm Enterprise and Pembinaan Mohamed Nazir Meraslam Sdn Bhd. The Common Bundle also includes Work Order Completion documents, Payment Advices and Goods Issue Notes.

Of particular significance are documents expressly linking the works to the Defendant’s excavation. One Purchase Order refers to “RWO/BREAKDOWN KABEL ES, FIBER & DUCT ROS” and expressly states that the cable was damaged by excavation by the Mangkubumi contractor under the IWK sewerage project at Jalan

Another Purchase Order to Dhiracomm similarly refers to “BREAKDOWN KABEL ROSAK KENA KOREK OLEH KONTRAKTOR MANGKUBUMI / PROJEK PEMBENTUNGAN IWK / JLN SS1/15 PJ”. This is a clear documentary link between the works performed and the damage caused during the Defendant’s excavation works. S/N /wHTlNt4zU0Utux4IwdMw

The Defendant nevertheless argues that some of the later documents use descriptions such as “relocation”, “diversion”, “open cut” and “VO diversion”. The Defendant says these descriptions prove that the works were unrelated to the incident or amounted to upgrading works. The Plaintiff’s answer is that such expressions were internal work descriptions within TM’s system and did not mean that the works were unrelated to the damage. SP7 expressly disagreed with the suggestion that those Purchase Orders, invoices and as-built documents were unrelated to the incident.

The Plaintiff also issued demand documents to the Defendant. The Plaintiff issued a letter dated 14.3.2018 informing the Defendant of the damage caused and seeking recovery of the losses incurred. On 7.4.2021, the Plaintiff issued a tax invoice together with supporting documents demanding payment of RM1,272,398.50. Thereafter, through its solicitors, the Plaintiff issued a Notice of Demand dated 25.10.2021. The Defendant failed, neglected and/or refused to respond to the Plaintiff’s demands and/or settle the outstanding sum.

The following issues arise for determination:

Whether the Defendant owed the Plaintiff a duty of care; S/N /wHTlNt4zU0Utux4IwdMw

Whether the Defendant breached that duty of care;

Whether the Defendant’s excavation works caused damage to the Plaintiff’s cables and infrastructure;

Whether the doctrine of res ipsa loquitur applies or assists the Plaintiff;

Whether the Defendant’s failure to respond to the Plaintiff’s demand letters supports an inference against the Defendant;

Whether the damage was confined only to one 1,200-pair copper cable, or extended to the Plaintiff’s duct route, fibre optic cables and wider telecommunication infrastructure;

Whether the Plaintiff has proved the full quantum of RM1,272,398.50;

Whether the Defendant has raised any sufficient defence on liability or quantum; and

What final orders ought to be made. D.

The Plaintiff’s case is that the Defendant owed a duty of care as a contractor carrying out underground excavation works in an urban area. The Plaintiff submits that the Defendant ought reasonably to have foreseen the existence of underground utilities and ought to have taken adequate precautions before commencing excavation. S/N /wHTlNt4zU0Utux4IwdMw

The Plaintiff relies on The Fordeco Nos 12 and 17 v Shanghai Hai Xing Shipping Co Ltd [2000] 1 MLJ 449 for the fundamental elements of negligence, namely duty, breach and damage. The Plaintiff’s submission records the principle that an action in negligence lies where the plaintiff suffers damage by reason of the negligent performance of a duty owed by the defendant, and that the plaintiff bears the burden of proving duty, breach and damage.

The Plaintiff also relies on Lok Kok Beng & 49 Ors v Loh Chiak Eong & Anor [2015] 4 MLJ 734 and Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 CLJ 1 for the threefold test of foreseeability, proximity and policy consideration, or whether it is fair, just and reasonable to impose a duty of care.

The Plaintiff submits that all three elements are satisfied. First, it was reasonably foreseeable that excavation works in Petaling Jaya could damage underground telecommunication infrastructure. Secondly, there was proximity because the Defendant’s works physically affected the area where the Plaintiff’s infrastructure was installed. Thirdly, it is fair, just and reasonable to impose a duty on contractors to avoid damaging existing utilities.

The Plaintiff further relies on Puncak Niaga Construction Sdn Bhd v TM Technology Services Sdn Bhd [2026] MLJU 562, where the Court held that it was reasonably foreseeable that S/N /wHTlNt4zU0Utux4IwdMw underground excavation and piloting works in an area with existing utility infrastructure could damage buried cables if reasonable precautions were not taken. The Court also held that contractors undertaking such works should anticipate the presence of underground utilities.

The Plaintiff also relies on Telekom Malaysia Berhad v Daya Timur Construction Sdn Bhd [2012] MLJU 1342, where the High Court held that a reasonable contractor carrying out piling or drilling works in an urban area ought to foresee the presence of underground cables and make enquiries with the relevant utility bodies before commencing works.

The Plaintiff’s pleaded and evidential case is that the Defendant failed to take the reasonable precautions expected of such a contractor. These precautions included proper utility mapping, proper verification of underground utilities, proper liaison with the utility owner, and proper safeguards before excavation.

The Plaintiff emphasises that the Defendant failed to produce the actual utility mapping document. Although the Defendant relied on an email stating that utility mapping had been carried out, the actual mapping report, plan, drawing, survey or technical document was not produced before the Court. S/N /wHTlNt4zU0Utux4IwdMw

The Plaintiff says this failure is significant because the Defendant’s defence rests heavily on the assertion that utility mapping had been done. If that was so, the document should have been produced. Without it, the Court cannot assess whether the mapping was properly carried out, whether it covered the correct location, whether it identified TM’s infrastructure, or whether the Defendant took any adequate follow-up measures.

The Plaintiff also relies on the doctrine of res ipsa loquitur. The Plaintiff says underground telecommunication cables and ducts do not ordinarily become damaged during excavation works if reasonable precautions are taken. The Defendant controlled the excavation works. The damage occurred during those works. In the absence of a satisfactory explanation, an inference of negligence arises.

The Plaintiff also relies on the Defendant’s failure to respond to demand letters. The Plaintiff issued demands by letter dated 14.3.2018, tax invoice dated 7.4.2021, and Notice of Demand dated 25.10.2021. Despite these demands, the Defendant did not issue any formal written denial or response. The Plaintiff relies on% to submit that a failure to respond to demands in a business context may support an inference against the party who remains silent. S/N /wHTlNt4zU0Utux4IwdMw

On the extent of damage, the Plaintiff rejects the Defendant’s attempt to confine the incident to one 1,200-pair copper cable. The Plaintiff relies on the police report, emails, photographs, Purchase Orders, Work Order Completion records, Goods Issue Notes, invoices and oral evidence to show that the damage affected the duct route, fibre/copper infrastructure and associated underground facilities.

On quantum, the Plaintiff submits that it has proved the full claim of RM1,272,398.50. The Plaintiff produced a documentary trail showing that works were carried out, contractors were appointed, materials were issued, invoices were raised and payments were made.

The Plaintiff relies on Guan Soon Tin Mining Co v Wong Fook Kum [1969] 1 MLJ 99 for the principle that special damages must be proved, but submits that the principle has been satisfied because the Plaintiff produced real documentary and oral evidence.

The Plaintiff also relies on Chua Seng Sam Realty Sdn Bhd v Say Chong Sdn Bhd [2013] 2 MLJ 29 for causation and the “but for” test. The Plaintiff submits that but for the Defendant’s excavation damage, the Plaintiff would not have had to incur the repair and reinstatement costs. S/N /wHTlNt4zU0Utux4IwdMw

On warehouse and handling charges, the Plaintiff relies on Puncak Niaga Construction v TM Technology Services [2026] MLJU 562, where the Court accepted TM’s internal warehouse costing system and recognised that TM maintains large stocks of materials to enable rapid response to service disruptions. The Court in that case held that TM should not be penalised for maintaining emergency stock and that warehouse charges reflect actual overhead costs incurred in maintaining inventory and distribution systems.

The Plaintiff also relies on Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd [2010] 1 LNS 980 and Lembaga Kemajuan Tanah Persekutuan (FELDA) v Awang Soh Mat & Ors [2009] 5 CLJ 1 to submit that if a defendant wishes to challenge repair costs as excessive, it must adduce sufficient evidence. A bare assertion that the costs are excessive is not enough.

The Defendant’s case is that the Plaintiff has failed to prove negligence, causation and quantum.

The Defendant accepts that an incident occurred and that one 1,200-pair copper cable was damaged or leaked. However, it S/N /wHTlNt4zU0Utux4IwdMw denies that the Plaintiff proved wider duct damage, fibre optic damage or substantial infrastructure damage.

The Defendant submits that the mere occurrence of damage does not prove negligence. It says the Plaintiff must prove duty, breach, causation and damage on a balance of probabilities.

The Defendant further submits that the Plaintiff’s case on utility mapping was not properly pleaded. It relies on authorities such as Tan Sri Norian Mai & Anor v Suzana Md Aris [2011] 1 LNS 1912 (CA) and Yew Wan Leong v Lai Kok Chye [1990] 1 MLJ 330 for the proposition that parties are bound by their pleadings and that the Court cannot decide a case on an unpleaded basis.

The Defendant also submits that utility mapping was in fact done. It relies on contemporaneous emails stating that utility mapping had been carried out and had shown that the works would not affect TM’s duct or cable route.

The Defendant says the absence of the actual mapping document does not necessarily mean that mapping was not done. It submits that the Court should not infer negligence merely because the document itself was not produced.

The Defendant denies that res ipsa loquitur applies. It relies on Lai Kuit Seng v Public Prosecutor [1969] 1 MLJ 182 for the S/N /wHTlNt4zU0Utux4IwdMw proposition that res ipsa does not apply where the cause of the incident is known or explained. According to the Defendant, the incident was explained: it occurred unintentionally during excavation works.

As to the Plaintiff’s demand letters, the Defendant’s position is that the mere absence of a reply cannot, by itself, establish liability or quantum. The Defendant contends that the Plaintiff still bears the burden of proving its claim.

On quantum, the Defendant submits that the Plaintiff failed to strictly prove the full sum claimed. The Defendant says invoices and Purchase Orders may show that certain payments were made, but do not prove that the works were caused by the incident.

The Defendant argues that the earliest documents mention only one 1,200-pair copper cable. The Defendant says that if fibre optic cables or extensive duct infrastructure had truly been damaged, the contemporaneous documents would have said so clearly.

The Defendant also relies on later documents describing works as “relocation”, “diversion”, “open cut” and “VO diversion”. The Defendant submits that those descriptions indicate subsequent independent works, not repairs caused by the incident. S/N /wHTlNt4zU0Utux4IwdMw

The Defendant further challenges management charges, administrative charges, warehouse and handling charges, mileage, labour costs and materials. It submits that some items were system-generated and were not supported by sufficient detailed breakdowns.

The Defendant relies on Guan Soon Tin Mining Co v Wong Fook Kum [1969] 1 MLJ 99, Tetuan Bahari Choy & Nongchik v Harta Megajaya Sdn Bhd [2019] 6 MLJ 491, and Keruntum Sdn Bhd v Director of Forests & Ors [2017] 3 MLJ 281 for the proposition that special damages must be strictly proved by real and factual evidence.

I begin with the question of duty. In my judgment, the Defendant plainly owed the Plaintiff a duty of care.

The Defendant was carrying out excavation works in a developed urban area. It is common knowledge, and in any event supported by the evidence in this case, that such areas often contain underground utilities. These may include telecommunication cables, electricity cables, water pipes, sewerage pipes, gas lines and other infrastructure. S/N /wHTlNt4zU0Utux4IwdMw

A contractor undertaking excavation works in such an area must reasonably anticipate the possible presence of underground utilities. The risk of damage is not remote, fanciful or unforeseeable. It is precisely the kind of risk which utility mapping and other precautionary measures are designed to prevent.

The test of foreseeability is therefore satisfied. It was reasonably foreseeable that careless or inadequately verified excavation works could damage underground telecommunication infrastructure.

The element of proximity is also satisfied. The Defendant’s activities took place at or near the site where the Plaintiff’s underground infrastructure was installed. The Defendant’s works physically affected the area in which the Plaintiff’s infrastructure lay. This is not a case of remote economic loss or an indeterminate class of claimants. The Plaintiff was the utility provider whose physical infrastructure lay beneath the work area.

It is also fair, just and reasonable to impose such a duty. Contractors carrying out underground works should not be permitted to excavate without adequate precautions and then avoid liability when underground infrastructure is damaged. Such a duty promotes responsible construction practice and protects public utility infrastructure. S/N /wHTlNt4zU0Utux4IwdMw

The authorities relied on by the Plaintiff support this conclusion. The Fordeco Nos 12 and 17 v Shanghai Hai Xing Shipping Co Ltd [2000] 1 MLJ 449 identifies the elements of negligence. Lok Kok Beng & 49 Ors v Loh Chiak Eong & Anor [2015] 4 MLJ 734 and Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 CLJ 1 support the foreseeability, proximity and policy analysis. Puncak Niaga Construction v TM Technology Services [2026] MLJU 562 is particularly relevant because it concerns excavation works and damage to underground utility infrastructure.

I therefore find that the Defendant owed the Plaintiff a duty of care.

The next issue is breach. The Plaintiff’s complaint is that the Defendant failed to take reasonable precautions before and during the excavation works.

In a case involving underground utilities, reasonable precautions are not abstract. They include proper utility mapping, proper verification of underground services, liaison with relevant utility providers and careful execution of the excavation works. S/N /wHTlNt4zU0Utux4IwdMw

The evidence shows that utility mapping was mandatory or at least expected for such works. SD1 accepted that utility mapping had to be done by the contractor. This supports the Plaintiff’s position that utility mapping was not optional. It was a necessary precaution.

The Defendant’s answer is that utility mapping was done. However, the actual utility mapping document was never produced.

This Court considers that omission significant. Where a party relies on a technical document to prove that reasonable precautions were taken, it is not sufficient merely to refer to an email stating that the exercise was done. The technical document itself is the best evidence of what was done.

Without the document, the Court cannot determine whether the mapping covered the correct area, whether TM’s infrastructure was identified, whether the mapping was carried out by a competent person, whether the results were communicated to the excavation team, or whether the actual excavation method was consistent with the mapping results.

The email relied upon by the Defendant also does not assist it as much as it contends. The email states that utility mapping was said to show that the works would not affect TM’s route. Yet the same chain records that during the works, Mangkubumi’s excavation S/N /wHTlNt4zU0Utux4IwdMw damaged TM’s duct or cable. SP1 explained that contradiction. The mapping allegedly showed no impact, but the work in fact hit or damaged TM infrastructure.

The Court is therefore not satisfied that adequate utility mapping and verification were undertaken. At the very least, the Defendant has failed to prove the adequacy of the precautions on which it relies.

I also reject the Defendant’s argument that utility mapping was an unpleaded issue. The Plaintiff pleaded negligence and failure to take reasonable precautions. Utility mapping is not a new cause of action. It is a factual and technical example of the reasonable precautions expected in the circumstances of underground excavation works.

The Defendant’s authorities on pleadings are correct as statements of principle. A party is bound by its pleadings. However, those authorities do not prevent the Court from considering evidence of utility mapping when the pleaded case concerns negligent excavation and failure to take precautions.

Further, the issue was fully ventilated at trial. The Defendant cross-examined on utility mapping and relied on it in its defence. There was no unfair surprise. S/N /wHTlNt4zU0Utux4IwdMw

The Defendant’s repeated reliance on the word “unintentional” is also misplaced. Negligence is not concerned only with intentional wrongdoing. A defendant may cause damage unintentionally but still be liable if it failed to take reasonable care.

I therefore find that the Defendant breached its duty of care.

I next consider causation.

The agreed facts and contemporaneous documents show that damage occurred to the Plaintiff’s cables and infrastructure while the Defendant was carrying out works at the incident site. The Defendant itself accepts damage to at least one 1,200-pair copper cable.

The Plaintiff’s evidence goes further and shows that the damage affected the duct route and related telecommunication infrastructure. The emails, photographs and work documents support this broader view.

Applying the “but for” test as discussed in Chua Seng Sam Realty Sdn Bhd v Say Chong Sdn Bhd [2013] 2 MLJ 29, the Plaintiff would not have incurred the repair and reinstatement costs but for S/N /wHTlNt4zU0Utux4IwdMw the Defendant’s excavation works damaging the Plaintiff’s infrastructure.

The Defendant’s contention that some later works were not caused by the incident is considered under quantum. For present purposes, I am satisfied that the Defendant’s negligent excavation caused damage requiring repair and reinstatement.

I therefore find that causation is established.

The Plaintiff also relies on res ipsa loquitur.

The Court accepts that the doctrine assists the Plaintiff. Underground telecommunication infrastructure does not ordinarily become damaged during excavation works if proper precautions are taken. The Defendant controlled the excavation works. Damage occurred during those works. The Defendant did not produce the alleged mapping document or any satisfactory technical explanation demonstrating that reasonable precautions were properly implemented.

The Defendant relies on Lai Kuit Seng v Public Prosecutor [1969] 1 MLJ 182 to submit that res ipsa does not apply where the S/N /wHTlNt4zU0Utux4IwdMw cause is known. The Court accepts the legal principle, but it does not assist the Defendant on the facts.

The explanation offered by the Defendant is incomplete. Saying that the damage occurred unintentionally during excavation is not a full explanation. Saying that mapping was done, without producing the mapping, is also not a sufficient explanation. The very purpose of the doctrine is to permit the Court to infer negligence where the circumstances point to a failure of care and the defendant has not satisfactorily explained how the accident occurred despite proper precautions.

In any event, the Court’s finding of liability is not based solely on res ipsa. It is based on the totality of the evidence: the nature of the works, the absence of the mapping document, the occurrence of damage during the works, the contemporaneous records and the admissions regarding the need for utility mapping.

I now deal with the Plaintiff’s submission concerning the Defendant’s failure to respond to the Plaintiff’s demand letters. This issue is not the sole basis of liability, but it is a relevant evidential circumstance which supports the Plaintiff’s case when considered with the totality of the evidence. S/N /wHTlNt4zU0Utux4IwdMw

The Plaintiff’s evidence shows that after the damage occurred, the Plaintiff issued a letter dated 14.3.2018 informing the Defendant of the damage caused and seeking recovery of the losses incurred. Subsequently, on 7.4.2021, the Plaintiff issued a tax invoice together with supporting documents, including the police report, photographs and sketches, demanding payment of RM1,272,398.50 from the Defendant. Thereafter, the Plaintiff, through its solicitors, issued a Notice of Demand dated 25.10.2021 to the Defendant for the same sum. These documents were specifically relied upon in the Plaintiff’s written submission.

The Plaintiff submits that despite these demands, the Defendant failed, neglected and/or refused to issue any formal written reply or response. The Plaintiff did not receive any correspondence or official denial from the Defendant in response to the demands.

I accept that a failure to respond to a letter of demand does not automatically establish liability in every case. A court must still evaluate the pleadings, the oral evidence, the documentary evidence and the probabilities of the case. Silence alone is not conclusive proof of negligence or debt. However, in a commercial and operational dispute of this nature, silence may be a relevant factor. S/N /wHTlNt4zU0Utux4IwdMw

Where a substantial demand is made and the demand is supported by documents such as police reports, photographs, invoices and breakdowns, a party who genuinely disputes liability or quantum would ordinarily be expected to respond promptly and clearly. A prompt denial would be expected if the Defendant’s position at the material time was that the damage was limited only to one 1,200-pair copper cable or that the later repair works were unrelated.

The Plaintiff relies on Pos Logistics Bhd (formerly known as Konsortium Logistic Bhd) v Kumpulan Perubatan Smarthealth Sdn Bhd [2020] 9 MLJ 389, where the High Court considered the effect of a party’s failure to respond to demands. In that case, the Court referred to Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283, where the Court of Appeal observed that if an allegation made in a business context was untrue, one would reasonably expect a prompt and vigorous denial.

The Plaintiff’s submission on this point is well founded. The authorities do not mean that every unanswered demand letter creates automatic liability. They mean that, in an appropriate case, failure to deny a demand may be evidentially significant, particularly where the demand is specific, supported by documents, and made in a commercial or business setting. S/N /wHTlNt4zU0Utux4IwdMw

In the present case, the Plaintiff’s demands were not bare assertions. They were supported by contemporaneous documentary evidence, including the police report, photographs, invoices and supporting breakdown. The Plaintiff’s written submission expressly identifies these supporting documents.

The Defendant did not, at the material time, provide a written denial that the damage was confined to one copper cable only. It did not state that the Plaintiff’s invoices were unrelated. It did not assert that the Plaintiff’s permanent reinstatement works were independent upgrading works. It did not produce any contrary technical report. It did not respond with any alternative factual account.

The Defendant’s later trial position was that the Plaintiff’s claim was excessive and that many of the claimed works were unrelated. However, the absence of any contemporaneous written protest or denial weakens that later position. If the Defendant genuinely maintained from the beginning that the Plaintiff’s claim was fundamentally exaggerated, a prompt response to the demand letters would reasonably have been expected.

I therefore treat the Defendant’s failure to respond as an additional evidential factor supporting the Plaintiff’s case. It is consistent with the Plaintiff’s submission that the Defendant did not genuinely dispute liability or the basis of the demand at the material time. S/N /wHTlNt4zU0Utux4IwdMw

This finding must be understood in context. The Court does not impose liability merely because the Defendant did not reply to a demand letter. Liability is founded on the Defendant’s duty of care, breach, causation and damage. However, the Defendant’s silence strengthens the inference arising from the other evidence, namely that the damage occurred during the Defendant’s works, that no utility mapping document was produced, and that the Plaintiff incurred documented repair and reinstatement costs.

Accordingly, I take the Defendant’s failure to respond to the Plaintiff’s demands as a relevant factor supporting the Plaintiff’s claim on liability and as undermining the Defendant’s later attempt to characterise the Plaintiff’s claim as wholly exaggerated or unrelated.

I now turn to the extent of the physical damage. A major dispute concerns whether the damage was limited to one 1,200-pair copper cable.

The Defendant says yes. The Plaintiff says no.

Having considered the evidence, I reject the Defendant’s narrow characterisation. S/N /wHTlNt4zU0Utux4IwdMw

The fact that one 1,200-pair copper cable was identified as leaking or requiring immediate replacement does not mean that the damage was confined to that cable alone. In a ducted underground telecommunication network, damage to one component can affect surrounding ducts, sub-ducts, cable routes and associated infrastructure.

The documents relied upon by the Plaintiff do not support the view that this was merely a minor isolated cable leak. The Purchase Order to Syarikat Bintang refers to “RWO/BREAKDOWN KABEL ES, FIBER & DUCT ROS” and states that the cable was damaged due to excavation by Mangkubumi in connection with the IWK sewerage project at Jalan SS1/15.

The Dhiracomm Purchase Order also contains a direct description of the breakdown cable being damaged by excavation by the Mangkubumi contractor at Jalan SS1/15.

These are not documents prepared for litigation years later. They are operational documents generated in the course of repair and reinstatement works. Their descriptions are important and probative.

The photographs also support the Plaintiff’s case that the damage involved duct and underground infrastructure. The Court is not S/N /wHTlNt4zU0Utux4IwdMw persuaded that the photographs are consistent only with damage to a single cable.

The Plaintiff’s technical witnesses explained that ducts protect and house cables. Where ducts are damaged, displaced or exposed, it may not be technically sufficient merely to patch one cable. The surrounding infrastructure may need to be restored to ensure network integrity, service continuity and future maintainability.

I accept the Plaintiff’s explanation that emergency restoration and permanent reinstatement are different. Emergency works are carried out to restore services quickly. Permanent works are carried out to restore infrastructure to a proper operational condition.

The Defendant’s submission appears to assume that if customers were temporarily restored, no further substantial work could be necessary. That assumption is incorrect. A temporary repair may solve immediate service disruption but does not necessarily restore the physical infrastructure to its proper condition.

I therefore find that the damage extended beyond one 1,200-pair copper cable and involved the Plaintiff’s duct route and related telecommunication infrastructure, including fibre-related infrastructure requiring permanent reinstatement. S/N /wHTlNt4zU0Utux4IwdMw I. Evaluation of Witnesses

SP1, Muhammad Khir bin Ahmad, gave evidence on the incident and the emails exchanged after the damage. He explained the contradiction between the statement that utility mapping showed no impact on TM’s route and the fact that Mangkubumi’s works nevertheless damaged TM’s cable or duct.

SP1 also explained that a 1,200-pair copper cable could affect a significant number of customers. This was relevant to the urgency of immediate restoration.

The Defendant criticised SP1 on the basis that he was not personally present at every meeting and relied on documents. The Court has considered this. However, his evidence was consistent with the contemporaneous documentary record. The fact that he relied on company records does not render his evidence unreliable, especially where those records were before the Court.

SP2, Muhammad Faruz bin Ahmad Zaharuddin, provided technical evidence regarding the repair process. His evidence supported the distinction between temporary repair and permanent reinstatement. S/N /wHTlNt4zU0Utux4IwdMw

SP2’s evidence was significant because the Defendant repeatedly argued that later works must be unrelated. SP2 explained why later permanent works could still be connected to the initial damage.

The Court accepts SP2’s evidence as consistent with the practical realities of telecommunication infrastructure repair.

SP3’s evidence was mainly corroborative. His evidence supported the Plaintiff’s operational response and the fact that restoration works were undertaken. Although he was not the central witness on liability or quantum, his evidence formed part of the overall evidential picture.

SP4, Muhammad bin Ibrahim, was one of the most important witnesses. He explained the Plaintiff’s internal documentation, the role of TM personnel, labour costs, management costs, administrative charges, warehouse and handling charges and the process by which restoration works were coordinated.

The Defendant relied on parts of SP4’s cross-examination where he accepted that certain standalone documents or breakdowns S/N /wHTlNt4zU0Utux4IwdMw were not separately included in the Common Bundle. However, the Plaintiff’s reply submission correctly points out that SP4 did not admit that the costs were false, fabricated, unrelated or not incurred. At most, his answers showed that certain additional breakdowns were not separately included in the bundle.

The Court accepts SP4’s explanation that labour costs related to TM personnel involved in supervising rectification works, and that management, administrative, warehouse and handling charges were generated through TM’s internal system as part of operational costs incurred in restoring the damaged infrastructure.

SP5’s evidence was relevant on reasonable precautions. He explained that Utility Detection Mapping, or UDM, should be carried out before excavation to identify underground infrastructure such as TM, TNB, gas and other utilities. He stated that if such mapping had been properly carried out and acted upon, the breakdown would not have occurred.

The Court accepts SP5’s evidence as consistent with ordinary prudence in underground works. S/N /wHTlNt4zU0Utux4IwdMw

SP6 and SP7 were important contractor and documentary witnesses. Their evidence supported the fact that repair and reinstatement works were actually carried out, invoices were issued and payments were made.

SP7 was cross-examined extensively on the descriptions “open cut”, “diversion”, “relocation” and “VO diversion”. He disagreed that those descriptions meant that the works were unrelated to the incident.

The Court accepts that internal descriptions in Purchase Orders are not conclusive of legal causation. A work may be described administratively as relocation or diversion but still form part of reinstatement required by earlier damage.

The Defendant also relied on cross-examination concerning 12- way and 18-way ducts. SP7 accepted references to 18-way duct installation in some documents. However, the Court is not satisfied that this proves unrelated upgrading.

In underground infrastructure reinstatement, actual replacement or reinstatement configuration may differ depending on site constraints, engineering requirements, safety requirements, planning requirements and the need to restore a stable network. S/N /wHTlNt4zU0Utux4IwdMw The Defendant did not adduce persuasive technical evidence showing that the configuration was unnecessary, excessive or unrelated.

SD1, Rosnani binti Abdul Samad, was a defence witness. Her evidence was important because she accepted that utility mapping was required to be done by the contractor. This admission supports the Plaintiff’s case that mapping was a necessary precaution.

SD1’s evidence also did not displace the fact that damage occurred during the works and that repairs were required.

SD2, Chia Chin Peng, was the Defendant’s main quantum witness. His evidence attempted to reduce the Plaintiff’s claim to a much lower figure.

The Court has considered SD2’s evidence carefully. However, his analysis is premised substantially on the Defendant’s view that the damage was limited to one 1,200-pair copper cable. Since the Court has rejected that narrow factual premise, the Court is unable to accept SD2’s reduced quantum analysis. S/N /wHTlNt4zU0Utux4IwdMw

The Court also notes that the Defendant did not adduce sufficiently persuasive expert technical evidence to show what precise works were reasonably necessary if the Plaintiff’s works were said to be excessive. The Defendant’s challenge was therefore insufficient to displace the Plaintiff’s documentary and oral evidence.

The Plaintiff claims RM1,272,398.50.

The Court accepts the principle that special damages must be specifically pleaded and strictly proved. This principle is not disputed. It appears in Guan Soon Tin Mining Co v Wong Fook Kum [1969] 1 MLJ 99 and is reinforced by Tetuan Bahari Choy & Nongchik v Harta Megajaya Sdn Bhd [2019] 6 MLJ 491 and Keruntum Sdn Bhd v Director of Forests & Ors [2017] 3 MLJ

281.

However, strict proof must be understood in context. It does not mean that a plaintiff must prove each operational cost in a manner divorced from commercial reality. A utility provider such as TM operates through internal systems, work orders, purchase orders, inventory records, goods issue records, contractor invoices, payment advices and technical documentation. S/N /wHTlNt4zU0Utux4IwdMw

The Plaintiff produced such documents. The Common Bundle contains extensive documentary proof: Purchase Orders, invoices, Work Completion Records, Goods Issue Notes, Payment Advices, accident reports, emails, diagrams and photographs.

The documents were supported by oral evidence from TM personnel and contractors. SP2 and SP4 explained the technical and operational aspects of the works. SP6 and SP7 supported the contractor side of the works, including invoices and payments.

The Court finds that the documentary and oral evidence, when read together, proves the full quantum claimed.

The Defendant argues that invoices and Purchase Orders prove only payment, not causation. The Court does not accept that argument in the circumstances of this case.

The relevant documents do not merely record payment. They identify the location, the nature of the work and, in several instances, expressly state that the breakdown was caused by excavation by Mangkubumi under the IWK sewerage project at Jalan SS1/15.

Those descriptions provide a clear causal link between the works and the incident. S/N /wHTlNt4zU0Utux4IwdMw

The Defendant argues that some works were later in time. The Court accepts that some permanent reinstatement works occurred after the immediate emergency works. However, the Court does not accept that later timing alone breaks causation.

The Plaintiff explained that emergency restoration was required first to restore services. Permanent reinstatement was then carried out after further planning, contractor mobilisation, internal approvals, technical assessment and site arrangements.

This explanation is reasonable. Telecommunication infrastructure repair is not necessarily completed in a single step. A temporary fix may restore service, but permanent reinstatement may require additional works to restore the physical network to a proper condition.

The Defendant argues that words such as relocation, diversion and open cut indicate unrelated works. The Court does not accept that these administrative descriptions are conclusive. SP7’s evidence was that such documents were connected to the damage at SS1/15, and he disagreed that they were unrelated.

The Court also considers that certain works necessarily involve open-cut or diversion techniques because of site conditions. The description of the technique or work category does not by itself prove absence of causation. S/N /wHTlNt4zU0Utux4IwdMw

As to warehouse and handling charges, the Court accepts the Plaintiff’s reliance on Puncak Niaga Construction v TM Technology Services [2026] MLJU 562. The reasoning in that case is directly applicable. TM maintains emergency stock to respond to disruptions. The use of materials from internal stock has an associated cost. Warehouse charges reflect the cost of maintaining and distributing such inventory.

The Defendant did not adduce sufficient accounting or technical evidence to show that those charges were fictitious or unreasonable. Mere cross-examination suggesting that more breakdowns could have been produced is not enough to defeat the claim.

The same applies to labour, management and administrative costs. The evidence shows that TM personnel were required to supervise, coordinate and monitor rectification and reinstatement works. Such internal costs are recoverable where they are part of the actual cost of responding to the damage.

The Court also rejects the Defendant’s attempt to reduce the claim to the cost of replacing one cable. That position is inconsistent with the Court’s finding on the extent of damage.

The Plaintiff has proved that works were carried out. The Plaintiff has proved that materials were issued. The Plaintiff has proved S/N /wHTlNt4zU0Utux4IwdMw that contractors were appointed. The Plaintiff has proved that invoices were issued. The Plaintiff has proved that payments were made. The Plaintiff has proved that the works related to the incident.

The Defendant has not adduced a sufficiently cogent alternative technical analysis showing that the Plaintiff’s works were unnecessary, excessive or unrelated. It has raised challenges, but those challenges do not outweigh the Plaintiff’s documentary and oral evidence.

In Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd [2010] 1 LNS 980, the Court recognised that a defendant who wishes to challenge rectification costs as excessive ought to adduce sufficient evidence. The principle applies here. The Defendant’s bare or insufficiently supported allegations of excessiveness do not defeat the Plaintiff’s proof.

Accordingly, the Court finds that the Plaintiff has proved the full sum of RM1,272,398.50.

In The Fordeco Nos 12 and 17 v Shanghai Hai Xing Shipping Co Ltd [2000] 1 MLJ 449, the Federal Court restated the settled elements of negligence, namely the existence of a duty of care, S/N /wHTlNt4zU0Utux4IwdMw breach of that duty, and resulting damage. On the facts of the present case, the Plaintiff has established all three elements.

The principles in Lok Kok Beng & 49 Ors v Loh Chiak Eong & Anor [2015] 4 MLJ 734 and Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 CLJ 1 are relevant to the issue of duty of care. The evidence shows that damage to underground telecommunication infrastructure was reasonably foreseeable, that there was sufficient proximity between the Defendant as contractor and the Plaintiff as utility owner, and that it is fair, just and reasonable to impose a duty of care on the Defendant.

Puncak Niaga Construction Sdn Bhd v TM Technology Services Sdn Bhd [2026] MLJU 562 is directly relevant to excavation works involving underground utility infrastructure. The decision supports the proposition that a contractor carrying out underground works must anticipate the presence of buried utilities and take reasonable precautions. In the present case, the Defendant failed to satisfy the Court that such precautions, including proper utility mapping and verification, were adequately undertaken.

In Telekom Malaysia Berhad v Daya Timur Construction Sdn Bhd [2012] MLJU 1342, the Court recognised that a reasonable contractor carrying out works in an urban area ought to make S/N /wHTlNt4zU0Utux4IwdMw proper enquiries with utility bodies before commencing works that may affect underground cables. The same reasoning applies here, as the Defendant was carrying out excavation works in a developed area where underground telecommunication infrastructure could reasonably be expected.

The decision in David Chelliah @ Kovilpillai Chelliah David v Monorail Malaysia Technology Sdn Bhd & Ors [2009] 4 MLJ 253 explains the evidential doctrine of res ipsa loquitur. The circumstances of the present case support an inference of negligence because underground telecommunication cables and ducts do not ordinarily become damaged during excavation works if proper care is taken. Nevertheless, the Court’s finding on liability is not based solely on this doctrine, but also on the documentary evidence, witness testimony, and the Defendant’s failure to prove adequate precautions.

Pos Logistics Bhd v Kumpulan Perubatan Smarthealth Sdn Bhd [2020] 9 MLJ 389 and Wong Hon Leong David v Noorazman bin Adnan [1995] 3 MLJ 283 are relevant to the Defendant’s failure to respond to the Plaintiff’s demand letters. The Court accepts that silence does not automatically create liability. However, in a commercial context, the absence of any prompt written denial or rebuttal is a relevant evidential circumstance supporting the inference that the Defendant did not S/N /wHTlNt4zU0Utux4IwdMw contemporaneously dispute the Plaintiff’s claim when the demands were made.

Guan Soon Tin Mining Co v Wong Fook Kum [1969] 1 MLJ 99, Tetuan Bahari Choy & Nongchik v Harta Megajaya Sdn Bhd [2019] 6 MLJ 491, and Keruntum Sdn Bhd v Director of Forests & Ors [2017] 3 MLJ 281 emphasise that special damages must be proved by real and factual evidence. The Plaintiff has satisfied this requirement through Purchase Orders, invoices, Work Completion Records, Goods Issue Notes, Payment Advices, internal records and oral evidence from its technical and contractor witnesses.

The “but for” test discussed in Chua Seng Sam Realty Sdn Bhd v Say Chong Sdn Bhd [2013] 2 MLJ 29 is satisfied on the facts. But for the Defendant’s negligent excavation works, the Plaintiff would not have incurred the repair, replacement and reinstatement costs claimed in this action.

Finally, Cheong Fatt Tze Mansion Sdn Bhd v Hotel Continental Sdn Bhd [2010] 1 LNS 980 and Lembaga Kemajuan Tanah Persekutuan (FELDA) & Anor v Awang Soh Mat & Ors [2009] 5 CLJ 1 support the proposition that a defendant who challenges repair or reinstatement costs as excessive must adduce sufficient evidence to rebut the plaintiff’s proof. In this case, the Defendant’s challenge was not supported by cogent technical, expert or S/N /wHTlNt4zU0Utux4IwdMw accounting evidence sufficient to displace the Plaintiff’s substantial documentary and oral evidence.

For all the reasons stated, the Court finds that the Plaintiff has proved its claim against the Defendant on a balance of probabilities.

The Court finds that:

The Defendant owed the Plaintiff a duty of care;

The Defendant breached that duty;

The Plaintiff’s underground cables and infrastructure were damaged during the Defendant’s excavation works;

The damage was not confined to one 1,200-pair copper cable;

The damage involved the Plaintiff’s duct route and related telecommunication infrastructure;

The Defendant failed to produce the utility mapping document relied upon as proof of reasonable precautions;

The doctrine of res ipsa loquitur supports the Plaintiff’s case;

The Defendant’s failure to respond to the Plaintiff’s demand letters is a relevant evidential factor supporting the Plaintiff’s case;

The Plaintiff reasonably undertook temporary emergency S/N /wHTlNt4zU0Utux4IwdMw works and permanent reinstatement works;

The Plaintiff proved that the works were carried out;

The Plaintiff proved that contractors were appointed and paid;

The Plaintiff proved that materials were issued and used;

The Plaintiff proved that internal and external costs were incurred; and

The Plaintiff proved the full quantum of RM1,272,398.50.

The Defendant’s attempt to characterise the matter as a small one-cable incident is inconsistent with the totality of the documentary and oral evidence.

The Court therefore allows the Plaintiff’s claim in full.

Judgment is entered for the Plaintiff against the Defendant as follows:

The Defendant shall pay the Plaintiff the sum of RM1,272,398.50;

Interest on the said sum at the rate of 5% per annum from the date of filing of the Writ until the date of full realisation;

Costs of RM40,000.00, subject to allocatur; S/N /wHTlNt4zU0Utux4IwdMw

All other claims, if any, shall stand disposed of in terms consistent with these findings.