RAVINDRAN A/L KUNJI KUTTAN

v.
TENAGA NASIONAL BERHAD
[1996] 2 CLJ 1060

KENYIR HYDROELECTRIC POWER STATION

GROUP MEMBERS:
AZRAAI BIN ABDULLAH GP00008
MOHD FADZLEY BIN MOHD NAZRI GP00025
NURRUL HAFEEZAH BINTI SAHAK GP00298
SHAHROL HALIM BIN SHUKOR GP00044
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Stage of Court:
HIGH COURT MALAYA, KUALA TERENGGANU
High Court Judge:
DATUK MOHD. SAARI YUSOFF
Plaintiff:
Ravindran A/L Kunji Kuttan, Surveyor Grade 2, Snowy Mountain
Engineering Corporation
Defendant:
Tenaga Nasional Berhad
Location:
Construction of Kenyir
Hydroelectric Power Station, Terengganu
Owner of Project:
Tenaga Nasional Berhad
Contractor of Project:
Hyundai Construction Co. Ltd.
Consultant of Project:
Snowy Mountain Engineering Corporation
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On 8 February 1984, plaintiff was assigned to check the

measurement of intake structure block C level 148 to
ascertain whether the contractor had complied with the
specifications as stated in the contract between the
defendant and Hyundai.

The said formwork was built

by Hyundai, and apparently, no
workers of the defendant were
involved in its construction.

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On the date and time of the accident, the

defendant claimed that no workers of the
defendant were involved in its construction. This
is also confirmed and agreed by the plaintiff
where he did not see any person working on level
148 which as then the highest level completed.
On the evidence, it would appear that none of
the defendants workers was directly involved in
the construction of formwork.
The defendant asserted that the defendant was
not directly involved in the construction of the
project. However, the defendant agreed that as
project manager, apart from his duty was to
check the work done for purpose of progress
payment; the defendant was also responsible in
issuing security pass which enables a worker to
enter the work site.
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The court held that;

(1) As none of the defendant's workers was involved in the
construction of the formwork, the defendant could not be
held vicariously liable for the mishap that befell the plaintiff.
(2) The defendant, being an occupier, was negligent in failing
to ensure that the plywood was safe and properly secured.

Ratio Decidendi;
To be an occupier it is not necessary that a person should have entire
control over the premises. Suffice if he has some degree of control. Thus,
when an owner employs an independent contractor to do work on the
premises, such owner is still regarded as sufficiently in control of the
place as to be under a duty towards persons coming lawfully to the
premises.
In law, there is nothing wrong in having more than one occupier in
respect of one site or premises. In this case, the defendant had joint
control of the intake structure with Hyundai, and hence, was an
occupier of the place where the accident occurred.

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It was reasonably foreseeable that the plywood would fall off

and hit the plaintiff using the ladder if plywood used in the
construction of formwork, as was evident here, was not
properly secured. Then there was no scaffold around the
ladder. Res ipsa loquitur therefore applies as the plywood used
in the construction of formwork must have been unsafe.

1.

2.
3.
4.

The details of the plaintiffs claim that had been approved and
awarded are as follows:
Special damages = RM 2,570.30 (Only two items out of
eight items thereunder were agreed by the Judge due to
no evidence or proof had been given by the plaintiff)
Pre-Trial Loss of Earnings = RM 21,630.00
Loss of Future Earnings = RM 32,729.25
Pain, suffering and loss of amenities = RM 18,000.00

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On the first issue, when we refer to the meaning of

vicarious liability in the tort law;
Vicarious liability is a form of strict, secondary liability
that arises under the common law doctrine of agency.
It is clearly indicate that during the day of incident
happen, none of the defendant's workers was
involved in the construction of the formwork,
therefore straight away we can say that the
dependant is not secondarily liable on the first issue.
GLOSSARY: RATIO DECIDENDI

The ratio decidendi is the point in a case which

determines the judgment (Black's Law Dictionary,
page 1135 -5th ed. 1979) or the principle which the
case establishes (Barron's Law Dictionary, page 385
-2d ed. 1984). In other words, it is also defined as
"the reason" or "the rationale for the decision.
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On the second issue, the Judge was applying stare decisis in order
to make his decision. For instance, he was referring to Lembaga
Kemajuan Tanah Persekutuan v. Mariam & Ors. [1984] 1 MLJ
283, to determine whether the defendant was in law an occupier
or vice versa. In that case, Salleh Abas - CJ (Malaya), was
elucidated further the definition of occupier.
GLOSSARY: STARE DECISIS &
PRECEDENT

The stare decisis is the legal principle under which

judges are obligated to follow the precedents
established in prior decisions.
The precedent meant a legal case establishing a
principle or rule that a court or other judicial body
utilizes when deciding subsequent cases with similar
issues or facts.
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DEFINITION OF OCCUPIER

On definition of occupier, in Wheat v. E. Lacon & Co. Ltd. [1966 AC 552]

at page 578, Lord Denning states inter alia:
In order to be an occupier it is not necessary for a person to have entire control
over the premises. He need not have exclusive occupation. Suffice it that he has
some degree of control. He may share the control with others. Two or more may
be occupier and whenever this happens, each is under a duty to use care
towards persons coming lawfully on to the premises, dependent on his degree of
control. If each fails in his duty, each is liable to the visitor who is injured in
consequence of his failure, but each may have a claim to contribution from the
other.
DEFINITION
OF
NEGLIGENCE

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Negligence (Lat. negligentia, from negligere, to neglect,

literally "not to pick up") is a legal concept in the
common law legal systems usually used to achieve
compensation for injuries (not accidents). "Negligence"
is not the same as "carelessness", because someone
might be exercising as much care as they are capable of,
yet still fall below the level of competence expected of
them. It is the opposite of "diligence".
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GLOSSARY: RES
IPSA LOQUITOR

Therefore, based on the above, once it is

established that a person has sufficient
control over the premises, he will be
considered as an occupier, and was liable
for negligence and may be sued for any
injuries sustained on the premises.
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Res ipsa loquitor is a

legal term from Latin
meaning, "the thing
itself speaks" but is
more often translated
"the thing speaks for
itself." It signifies that
further details are
unnecessary; the facts
of the case are selfevident.

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Generally, the Judge was adequately made

acceptable court judgment based on the
common law system. The case was clearly
demonstrated that occupier or employer is
responsible to strictly ensure safety in the
workplace and liable for any negligence
occurred.

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