APRIL 2 — In a recent case decided in February, Tenaga Nasional Berhad (TNB) sued a young individual (the Defendant) who was alleged by TNB as the registered user for the electricity account linked to an industrial property in Puchong, Selangor (the Premises).
TNB’s claim against the Defendant was for a sum of RM 43,242.00 related to alleged meter tampering at the Premises. The Plaintiff asserted that the Defendant was the registered user for the electricity account at the premises and was liable for the claimed amount.
The Defendant denied any involvement in the meter tampering and contended that he did not occupy or rent the Premises. He also claimed that the relevant documents were forged and made without his knowledge or consent.
Defendant sought for the following reliefs from the court, namely: (a) dismissal of TNB’s claim with costs; (b) declaration that the electricity account in the Defendant’s name was invalid; and (c) removal of the Defendant’s name from TNB’s records.
The Defendant also counterclaimed against TNB for general, exemplary, and aggravated damages for negligence and injury caused by TNB’s actions.
The Defendant brought in a third party (the Third Party) into the proceedings, seeking indemnity and/or contribution for TNB’s claim. The Defendant alleged that the Third Party, as the landlord, was involved in a conspiracy with an unknown individual who impersonated the Defendant.
The Third Party denied all allegations, asserting that it was neither the owner nor the landlord of the Premises and that it had no dealings with the Defendant.
Subsequently during trial, the Defendant withdrew his claims for indemnity and contribution against the Third Party to which the Third Party had no objection.
At the conclusion of the trial, the court dismissed both TNB’s claim and the Defendant’s counterclaim.
The court was of the considered view that TNB failed to discharge the onus on it to prove that the Defendant was the person who applied for electricity supply. The authenticity of the supporting documents was suspect, and the flaws were obvious.
The court was also of the considered view that the Defendant had successfully discharged his burden on the balance of probabilities that he was not the person who applied for the electricity supply in the Premises.
As for the Defendant’s counterclaim for damages for TNB’s negligence, the court said that to establish a claim for negligence, the Defendant must first prove that TNB owed him a duty of care.
In Low Kean Giap & Ors v Shaik Alawdeen Shaik Dawood & Anor [1999] High Court judge Abdul Malik Ishak emphasised that the existence of a duty of care was a question of law. The failure to establish such a duty rendered any negligence claim unsustainable. The learned judge said:
“lt is purely a question of law whether or not there exists a duty of care. An action in negligence must necessarily fail if the plaintiff fails to establish the existence of a duty of care, indeed, negligence is also said to be a failure to exercise due care where a duty to take care exists.
“Four separate steps emerged to determine the issue of the duty of care.
“Firstly, it must be reasonably foreseeable that the conduct of the defendant will cause damage to the plaintiff.
“Secondly, there must be sufficient proximity between the parties.
“Thirdly, as Lord Bridge in Caparo industries Pic v Dickman and others [1990] said: the situation (must) be one in which the court considers it fair, just and reasonable that the law should impose a duty of care of a given scope on the one party to the benefit of the other.
“Fourthly, there must not be a ground of public policy to exclude the duty of care.”
In the current case, the court considered TNB itself as a victim of a fraudulent act. Hence it was not fair to impose a duty of care on TNB.
The court must balance the policy concern of TNB against the pecuniary loss of an individual due to the fraudulent act of a third party. The court embarked on a public interest concern as the imposition of a duty of care would open a floodgate of litigation against TNB.
The court must be cautious of the tendency of a willing victim in cases of this kind and a real victim. It was not fair, just and reasonable to impose a common law duty of care on TNB to ensure that the Defendant’s identity card would not be misused, particularly so when there was no statutory or regulatory obligation to verify account registration documents.
‘Damnum absque injuria’ is Latin for loss without wrong. It is a loss suffered by a party for which the law provides no means of recovery. — Reuters file pic
The trial judge said:
“I am of the view that the imposition of liability would inappropriately expand TNB’s role beyond its statutory framework, particularly in instances involving third-party fraud or document falsification. This could result in undue burdens being placed on public utility providers in cases where fraud or misrepresentation by third parties occurs.
“Whether or not TNB should exercise more due diligence in processing and approving an application for supply of electricity is an operational decision which the court is not bound to interfere. In Hill v Chief Constable of West Yorkshire Police [1988], Lord Keith felt that a court was not equipped to judge the reasonableness of discretionary policing.
“In my view, this is not an appropriate case where duty of care should be imposed as asserted by the Defendant.”
As for damages prayed by the Defendant, it is trite that damages are only awarded when there is proof of a wrongful act, such as a breach of contract or tort.
In Lee Nyan Hon & Brothers Sdn Bhd v. Metro Charm Sdn Bhd [2009], the Court of Appeal emphasised that even if a loss had occurred, damages could not be awarded unless there was a corresponding breach of duty or wrongdoing by the Defendant.
In that case, Court of Appeal judge Abdul Malik Ishak said:
“[B]efore damages can be recovered in an action there must be a wrong committed and that wrong may be in tort or … for breach of contract. Even if a loss has been incurred, damages cannot be awarded in the absence of a wrong.
“Lord Wright aptly said in Hay or Bourhill v. Young [1943]: Damage due to the legitimate exercise of a right is not actionable, even if the actor contemplates the damage. It is damnum absque injuria. The damage must be attributable to the breach by the defendant of some duty owing to the plaintiff.”
Damnum absque injuria is Latin for loss without wrong. It is a loss suffered by a party for which the law provides no means of recovery.
Accordingly, Prime Minister Datuk Seri Anwar Ibrahim must be commended for assuring the residents in residential areas affected by the gas line fire incident at Putra Heights that compensation for their losses will be borne by the government and Petroliam Nasional Bhd (Petronas).
“The responsibility of restoring, fixing and replacing the affected residential areas, we (federal government, state government and Petronas) will take full responsibility.
“With that, please do not worry, but it will take time,” he told reporters after a site visit yesterday (April 1).
* This is the personal opinion of the writers or publications and does not necessarily represent the views of Malay Mail.
