“Can a homeowner/employer be deemed liable for the torts committed by his independent contractors?”
HEMRAJ & CO SDN BHD V TENAGA NASIONAL BHD  1 LNS 2918
- The Appellant (‘Hemraj & Co’), owned a bungalow and had hired third-party contractors to carry out excavation works to connect the septic tank of the house to the main public sewerage system.
- The excavation works carried out by third-party contractors had damaged a 132KV underground cable belonging to the Respondent (‘Tenaga Nasional Berhad, herein after referred to as ‘TNB’).
- Hence, TNB sued Hemraj & Co to claim for costs and expenses incurred for emergency repairs and replacement of its underground cable.
- The High Court found that the Appellant, as the homeowner and employer, owes a non-delegable duty of care to TNB.
- Therefore, the homeowner/employer is liable for the loss and expense incurred by TNB, despite of the fact that the third-party is the immediate tortfeasor and was blatantly negligent.
COURT OF APPEAL
- The Court of Appeal affirmed the findings of the High Court, and found that homeowner/employer has a positive duty to protect TNB underground cables, and subsequently to the public, who are users of electricity distributed.
FEDERAL COURT – APPEAL ALLOWED!
- The Federal Court held that the Court of Appeal has erred and failed to appreciate the correct principle of non-delegable duty of care.
- Non-delegable duty is the principle of which, a defendant who delegates the performance of its integral duty to an independent contractor, will invariably be held liable for the negligence of the independent contractor.
- The imposition of the non-delegable duty of care on the homeowners/employers only happens where the work delegated to independent contractors is “extraordinarily hazardous”.
- In determining whether the work delegated is “extraordinarily hazardous”, the Court is required to make an assessment of the activity and whether there are precautions available to remove or mitigate the hazard.
- If there are available precautions, then the activity will not be described as exceptionally hazardous. However, even if, with the known precautions available, the hazard is still a viable risk, then the activity will be considered exceptionally hazardous.
- Based on our current facts, the Federal Court held that the excavation works undertaken by the homeowner/employer does not attract the imposition of the non-delegable duty of care, for the following reasons:
(a) if proper precautions had been taken, the activity of excavation works for the sewage connection
is not extraordinarily hazardous;
(b) the persistence of risk to damage to TNB cables in the course of sewage connection works is
very rare; and
(c) it would not be fair, just and reasonable to hold that routine residential construction works are
subject to non-delegable duty as this would expose homeowners to an indeterminate liability for
the tortious acts of their independent contractors, whose manner of work are beyond their