TENAGA NASIONAL MALAYSIA v. BATU KEMAS INDUSTRI SDN BHD & ANOTHER APPEAL

[2018] 4 MLRA 1

TENAGA NASIONAL MALAYSIA v. BATU KEMAS INDUSTRI SDN BHD & ANOTHER APPEAL
Federal Court, Putrajaya
Hasan Lah, Azahar Mohamed, Zaharah Ibrahim, Balia Yusof Wahi, Jeffrey Tan FCJJ
[Civil Appeals Nos: 01-60-12-2015 & 01-1-01-2016]
26 April 2018

JUDGMENT

Jeffrey Tan FCJ:

[1] These appeals arose from the decision of the Court of Appeal dated 2 July 2015 which reversed the decision of the trial court and allowed all claims by the plaintiff. For ease of reference, we would refer to the parties as plaintiff (Batu Kemas Industri Sdn Bhd), 1st defendant (Kerajaan Malaysia) and 2nd defendant (Tenaga Nasional Berhad).

[2] The plaintiff's factory (factory) at Lot 2795, Jalan Tanjong Malim - Slim River, Perak used automated hydraulic presses and other electronically controlled machinery to produce calcium silicate bricks. The 2nd defendant supplied electricity to the factory whereat was a power substation.

[3] The Public Works Department (PWD) had appointed Markas Perdana Sdn Bhd (Markas) to execute works at the rest and recreation area at the 106km Ipoh to Kuala Lumpur highway. On 13 October 1997, the PWD handed the project site to Markas. On 31 October 1997, 9 January 1998, and 27 February 1998, the PWD requested the 2nd defendant to remove and relocate the electrical lines and cables from the project site. But the underground cable was not removed or relocated. Then disaster struck. On 5 August 1998, in the course of its installation at the R&R area, a guard rail column struck and ruptured the 1st defendant's 11KV cable. Power to the factory was disrupted. The plaintiff claimed that the power disruption damaged its manufacturing equipment and processes and caused general, special and exemplary damages.

[4] Both the plaintiff and 2nd defendant summoned 'experts':

(PW8 for plaintiff, DW5 and DW7 for 2nd defendant) to testify on the probable cause for the damage. But insofar as the trial court was concerned, the singular issue that would dispose of the entire case was whether there was a "protective scheme... to protect the state-of-the-art machines imported from Germany". In relation to that singular issue, the trial court held: (a) the plaintiff omitted to install "a comprehensive and credible protection system... against any foreseeable electricity breakdown or faults which would include over-voltage and under-voltage"; (b) that omission "totally cancelled out and annulled any breach by the 2nd defendant"; (c) "the plaintiff's contributory negligence was absolute"; (d) "the 2nd defendant was not informed of piling works at the location of the underground cable";

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