SRI INAI (PULAU PINANG) SDN BHD V YONG YIT SWEE & 9 ORS

1 SRI INAI (PULAU PINANG) SDN BHD v. YONG YIT SWEE & ORS HIGH COURT MALAYA, PULAU PINANG ABDUL HAMID MOHAMAD J CIVIL APPEAL NO: 12-46-95 8 DECEMBER 1997 [1998] 3 CLJ 893 ENGLISH LAW : Application - Civil Law Act 1956, s. 3 - Application of common law of England - Whether English cases decided after 7 April 1956 can be applied - Tort TORT: Negligence - Landlord's liability - Whether Landlord has duty to comply with by-laws - Whether Landlord's obligations transferred to Tenant - Whether Landlord exempted from liability TORT: Occupier's liability - Duty of occupier - Whether premises were safe for contemplated purpose TORT: Negligence - Duty of care - Whether school owes duty to students - Whether Negligence established The sessions judge had found the first defendant/appella nt ('Sri Inai') and the second defendant ('MPPP') liable on an equal basis for a fire which broke out at the premises of Sri Inai, resulting in the death of four students and injury to five others. Both appealed against the decision. It was the argument of MPPP that the Sessions Court had not dealt with MPPP's liability as landlord per se but as landlord -cum-local authority. It was further argued that the case of Anns & Ors v. London Borough of Merton decided in 1977 should not have been followed by the Sessions Court judge for s. 3 of the Civil Law Act 1956 ('the Act') only permits the application of the common law of England as administered on 7 April 1956. It was also a complaint against the Sessions Court that the cases of Cavalier v. Pope and Bottomlay & Anor v. Parrister & Anor were not followed. A further submission was that s. 95(2) of the Street, Drainage and Building Act 1974 ('SDBA') provided complete immunity to MPPP in the circumstances of the case. Sri Inai contended that the finding of the Sessions Court on the cause of the fire was wrong as MPPP being the landlord had a duty to comply with the requ irements of the Uniform Building By-Laws 1986 ('UBBL') and that MPPP should be liable as the local authority for failure to enforce the provisions of UBBL if not solely, at least to a larger extent than Sri Inai. The issues before the court were: (i) whether MPPP was liable as a landlord and/or liable as a local authority; (ii) whether MPPP was negligent for failing to enforce the provisions of the UBBL; and (iii) whether Sri Inai was liable. Held: 2 [1]Section 3 of the Act provides that the courts shall apply the common law of England and the rules of equity as administered in England on 7 April 1956. The common law on that day on the liability of a landlord was that held in Cavaliar v. Pope and Bottomlay & Anor v. Parrister & Anor which stated that, the general rule was that apart from any express or implied contract, a landlord was under no duty to his tenant or any other person who entered the demised premises during the tenancy, to take care that the premises were safe whether at the commencement of the tenancy or during its continuance. The lease transferred all obligations towards third parties from the landlord to the tenant. As a result, the landlord who could no longer be regarded as the occupier of the demised premises was exempted from liability for any dangers existing on them. [1a] There was no express or implied contract on MPPP as landlord to comply with the requirements of the UBBL. Although MPPP had a discretion to do repairs, on the facts of the case, it only meant restoring to good condition any damage of wear and tear. It could not mean to renovate to comply with the requir ements of the UBBL, regarding fire prevention. MPPP was not liable as a landlord. [2] The common law of England as at 7 April 1956 did not impose a liability for negligence on a local authority for failure to secure compliance with building by -laws. It wou ld be too much a burden to place on the shoulders of a local authority liability for the damage and injury suffered in a building purely on the ground that the local authority had failed to ensure that the house owner or tenant complied with all the by-laws. In the instant case, the MPPP as a local authority was not liable for failing to ensure compliance with the UBBL. [3] Sri Inai was liable on the principle that a teacher owes a duty of care to his students. It was also liable under occupiers' liability. Although Sri Inai could not be held liable for failure to comply with the by -laws for it was MPPP's view that the by -laws were not applicable to the premises, it could not escape the responsibility imposed by MPPP that the use of premises as a hostel for students was subject to approval. In the circumstances, the question of apportionment between Sri Inai and MPPP would not arise. Sri Inai was solely liable. [Sri Inai's appeal dismissed; MPPP's appeal allowed.] Case(s) referred to: AC Billings & Sons v. Riden [1958] AC 240 (refd) Anns & Ors v. London Borough of Meton [1977] 2 All ER 492 (not foll) Bottomley & Anor v. Parrister & Anor [1931] 1 KB 28 (foll) Cavalier v. Pope [1906] AC 428 (foll) Government of Malaysia Ors v. Jumat Mahmud & Anor [1977] 1 LNS 29 [1977] 2 MLJ 103 (foll) Napline Sdn Bhd v. Jones Lang Wooten [1995] 1 CLJ 865 (refd) 3 Northman Barnet Council [1978] 1 WLR 221 (cit) Public Prosecutor v. Sykt Perusahaan Makanan Haiwan Bekerjasama [1969] 1 LNS 138 [1969] 2 MLJ 250 (refd) Tok Jwee Kee V. Tay Ah Hock & Sons Ltd. & Anor. [1973] 1 LNS 168 United Hokkien Cemeteries Penang v. Majlis Perbandaran Pulau Pinang [1979] 1 LNS 122;[1979] 2 MLJ 12 FC (cit) Legislation referred to: Civil Law Act 1956, s. 3(1) Municipal and Town Boards (Amendment) Act 1975, s. 6(1), (2), Street, Drainage and Building Act 1974, ss. 52(2), 95(2) Other source(s) referred to: Negligence, Charlesworth, 1962, 4th edn Negligence, Charlesworth & Percy, 1997, 9th edn, pp 509 - 510 Counsel: For Sri Inai (Pulau Pinang) Sdn Bhd - M/s Karpal Singh & Co For Majlis Perbandaran Pulau Pinang - M/s Presgrave & Matthews For the respondents in both appeals - Mr Thayalan; M/s Meena, Thayalan & PartnerReported by Michele Saw JUDGMENT Abdul Hamid Mohamad J: There were nine connected civil suits in the Sessions Court ie, Summons No: 53 -25-92 to 53- 33-92. The plaintiff in each case was different, but the defendants were the same. 4 All the nine cases were consolidated and tried together. The learned Sessions Court judge gave judgment for each of the plaintiffs against both the defendants, the liability between the two defendants being apportioned equally. Both the defendants appealed separately. The first defendant's (Sri Inai (Pulau Pinang) Sdn. Bhd. which will be referred to as "Sri Inai") appeal was registered as Civil Appeal No: 12 -46-95. The second defendant's (Majlis Perbandaran Pulau Pinang which will be referred to as "MPPP") was registered as Civil Appeal No: 12 - 51-95. Findings Of Facts Of The Learned Sessions Court Judge I will now summarise the findings of facts of the learned Sessions Court judge. (a) MPPP is a local authority under the Local Government Act 1976. It was also the owner of the premises known as No. 1, Jalan Park, Pulau Pinang ("the said premises"). (b) Sri Inai is a company which runs a private school of the same name. (c) MPPP rented the said premises to Sri Inai to be used and was used as a hostel for students attending the school. (d) The tenancy was obtained by w ay of tender. It was for a term of two years and was subsequently further extended for one year on the same terms, until 19 December 1989. (e) The building had been in existence even before 1922. It was a two -storey building. The ground floor was made of b rick with a mortar covering. The first floor was of timber frame and partition walls of brick. (f) During the material time, the top floor was occupied by 13 students attending Form 3 to Form 5 and the ground floor by two wardens. (g) There was only one st aircase leading from the upstairs hall to the ground floor. The only staircase which gave direct access to a final exit was adjacent to the Forms 3 and 4 rooms, but this had been permanently sealed with floorboards. (h) All the windows had been fitted with fixed grilles or BRC mesh except for one on the first floor from which PW2 jumped. There were no other secondary exits although there was no shortage of exits on the ground floor. (i) There were three dry powder fire extinguishers, two on the ground floor and one on the first floor. (j) There was no fire alarm. (k) There was no emergency lighting in the entire building. (1) On 16 February 1989, a fire broke out at the premises, resulting in death of four students and injuring five others. The plaintiffs ar e either the injured students or the personal representatives of the deceased students. (m) The fire had originated from the roof void. The learned Sessions Court judge accepted two possible causes of the fire ie, electrical fault due to dirty or loose con nection in an electrical circuit particularly that of the water heaters and, secondly, stray fireworks (spent 5 fireworks were found on the ground and the fire occurred during the Chinese New Year period). (n) She accepted the evidence of PW3 (a fire expert) that if the staircase adjacent to Forms 3 and 4 had not been sealed off, there might have been no loss of life. (o) She also accepted the opinion of PW3 that except for the one in the kitchen, the fire extinguishers were not placed on exit routes. Further , if there was a fire survey, he (PW3) would have recommended a total of nine fire extinguishers per floor, including water fire extinguishers. (p) She also accepted the evidence of PW3 that there should have been at least two protected staircases from the first floor; there should have been a hose reel with a reliable supply of water and smoke detectors at ceiling level on both floors and in the roof void. Fire drills should have been conducted and the students taught to use fire fighting equipments and be acquainted with escape routes, which was never done. Decision Of The Sessions Court Judge As stated earlier she found both defendants liable on equal basis. As regards Sri Inai her gounds were: First, the learned Sessions Court judge held that fire was a forseeable risk. In the approval letter of the MPPP, condition (e) was that the premises was to be used as a hostel and "subject to approvals from the relevant authorities regarding the change of usage and the requirements regarding prevention of fire, if necessary" (my translation). Sri Inai did nothing to ensure compliance of these conditions. It did not consult the fire department regarding fire prevention measures although it complied with condition (f) by taking out the fire insurance. The wardens were not given any instructions regarding fire safety. She relied on the principle enunciated by the Federal Court in Government of Malaysia Ors v. Jumat Mahmud & Anor [1977] 1 LNS 29 [1977] 2 MLJ 103. That case says that by reason of the special relationship between teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care for the sa fety of the pupil. The duty of care on the part of of the teacher must commensurate with his/her opportunity and ability to protect the pupil from dangers that are known or that should be apprehended and the duty of care required is that which a careful fa ther with a very large family would take care of own children. Applying that principle to the facts of the case she found that Sri Inai, having undertaken to accomodate the students in the premises was under a duty to protect them from known dangers that should be apprehended, eg, fire. On the facts she found Sri Inai negligent and liable to the plaintiffs. Secondly, the learned Sessions Court judge also found that Sri I nai was also liable under the head of "occupiers liability". This is what she said at p. 274: I also accepted the submissions of learned counsel for the plaintiffs that the 1st defendant was liable under the head of occupier's liability. The case of Maclenan v. Segar [1917] 2 KB 325 was relied on. There it was held that 'Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it pr ovides to the contrary) contains an implied warranty that the premises are as safe for that 6 purpose as reasonable care and skill on the part of any one can make them. The rule is subject to the limitation that the defendant is not to be held responsible fo r defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction alteration, repair or maintenance of the premises'. Applying this principle to the facts, the 1st defendant was also liable for breach of the warranty that the premises were as safe for the purpose of a hostel as reasonable care and skill on the part of anyone could make them. Thirdly, the learned Session's Court judge also found that Sri Inai had contravened the provisions of the Uniform Building By-Laws 1986 (UBBL). As regards MPPP she found that MPPP had a dual capacity, first as a local authority and, secondly, as a landlord. The learned Sessions Court judge found that MPPP was liable for failure to enforce the provisions o f UBBL in its capacity as a local authority entrusted with the responsibility to enforce it. She also found MPPP liable in its capacity as landlord. She relied on Tok JweeKee v. Tay Ah Hock & Sons Ltd. & Town Council Johore Baru [1969] 1 MLJ 195 FC and Anns & Ors v. London Borough of Meton [1977] 2 All ER 492. She also disagreed with the submissions of the learned counsel for MPPP that s. 95(2) of the Street, Drainage and Building Act 1974 (SDBA) offered a complete immunity to MPPP. My Judgment General First, let me say that I accept the findings of facts of the learned Sessions Court judge. Besides her finding about the possible causes of the fire which I will discuss in greater detail, I accept her reasons why she found those facts as she did. She had discussed the evidence in great detail, gave her reasons why she accepted the eviden ce of PW3 over other witnesses and why she accepted the evidence which she did. I find no reason why this court, as an appellate court, should differ from her findings. Secondly, I must also point out that I agree with her observation that the defence of S ri Inai was to try to shift the blame to MPPP. Cause Of Fire It was argued that the learned Sessions Court judge was wrong in her finding as to what had caused the fire and, consequently, was wrong in her finding as to the apportionment of liability as between the Sri Inai and MPPP. Learned counsel for Sri Inai submitted that the more probable cause of the fire was a short circuit due to old and faulty state of wiring and resistive system. I think I have to reproduce that part of the judgment of the learned Sessions Court judge. She said at p. 388 of the Appeal Record: According to PW3, since the fire originated from the roof void, there were only two plausible causes. ie, electrical fault or ignition of part of the roof structure by a stray firework. Two po ssible causes were resistive heating or short circuit. He ruled out a short circuit as there was no evidence of a blown fuse. Resistive heating results from a 7 dirty or loose connection in an electrical circuit, and the amount of heat generated would depend on the electrical rating of the appliance connected to the circuit. In the instant case, the only appliances capable of generating this sort of fault were the water heaters, of which only the one in the Form 5 room was working. There is no dispute that sp ent fireworks were found in the grounds and that the fire occurred in the Chinese New Year period. Based on the evidence, PW3's opinion as to the two plausible causes of the fire was reasonable and unchallenged, and I accept it. What I understand from this passage is that, first, according to the evidence of PW3 there are two possible causes of the fire: (i) electrical fault and (ii) stray fireworks. As regards electrical fault there are two possible causes: (i) resistive heating and (ii) short circuit. She accepted the evidence of PW3 who ruled out short circuit as the cause of "electrical fault". That left her with only one possible cause of "electrical fault" which was "resistive heating". Then she went on to explain that resistive heating "results from a dirty or loose connection n an electrical circuit, and the amount of heat generated would depend on the electrical rating of the appliance connected to the circuit. In the instant case, the only appliances capable of generating this sort of fault were the water heaters, of which only the one in Form 5 room was working". The only difference I can see between the finding of the learned Sessions Court judge as to the cause of the fire (other then stray fireworks) and that submitted by learned counsel for Sri Inai is that, the learned Sessions Court judge ruled out short circuit but found that it was due to "resistive heating" resulting from "dirty or loose connection in an electrical circuit". Learned counsel for Sri Inai submitted that it was due to "a short circuit due to old and faulty state of wiring and resistance system". I find the ground as submitted by the leaned counsel for Sri Inai rather confusing. PW3, whose expert evidence was accepted by the learned Sessions Court judge, with whom, on this point I have no reason to disagree, explained very clearly about "short circuit" and "resistive heating". He said at p. 321 of Part A of the Appeal Record (12-51-95). There are 2 basic types of electrical faults which can give rise to fire. The first involves da mage to cable insulations resulting in he conductors coming into contact with each other and causing arcing which will eventually lead to a short circuit which blows the fuse. The 2nd type is known as resistive heating. When we use electrical appliances, t he electricity is used by the elements in the appliance to generate heat. In a working electrical appliance that heat is generated by using a property of electricity which is to do with the fact that if one applies resistance to the circuit ie, make it more difficult for the electricity to flow, that resistance causes that part of the circuit to become hot. Normally, all parts of the electricity leading up to the working applianced are provided with usually copper conductors with have little or no resistance to the passage of electrical current. It is very rare for an electrical installation for the appliance to be connected directly to the 8 supply. There are usually many connections eg, at the distribution board, at the outlet socket in the plug itself and at the appliance. In addition, it is normal to find in electrical installations that the distribution wiring is made up of a number of different lengths of cable joined together at junction boxes. All of those connection points are potential weak each points in an electrical circuit. If the conductors are in good condition and if the connecting terminals are tight, there is very little resistance to the flow of electricity an those parts will act almost in the same way as a continuous length of cable. In practice, those joints can sometimes become loose and with atmospheric oxidation can also become dirty. Either of these conditions imposes a resistance to the flow of electricity and in a way analogous to the workings of the element in a working appliance, heating will occur at these weak points. It is called resistive heating. The amount of heat generated at such a fault is related to the amount of current trying to pass through the fault. It is related to the electrical rating of the appliance connected to t he circuit because the amount of heat generated is proportional to the square of the size of current. It means heavily rated appliances have a much more severe effect at these faults then an appliance which draws little current such as a lighting circuit or a fan. In this building the only potential appliances I found capable of generating this sort of fault were the water heaters in the 2 bathrooms, although I understand 1 of them was inoperable. In short, "short circuit" and "resistive heating" are two different things. They are two different types of "electrical fault". "Resistive heating" does not cause a "short circuit", as submitted by learned counsel for Sri Inai. The learned Sessions Court judge had given her reasons why she preferred the evidence of PW3 and why she accepted his evidence which I do not wish to repeat. I have no reason to disagree either with her reasons or her finding. In any event, whether the fire was caused by resistive heating or short circuit or stray fireworks makes no difference to the plaintiff's case. This is because the plaintiffs are not alleging negligence against the defendants for causing the fire, but for failure to provide reasonable fire safety measures and safeguards. Negligence Of MPPP The main thrust of the argument of learned counsel for Sri Inai was that MPPP was negligent. Therefore, Sri Inai was not or even if negligent, it was only to a lesser extent. That being the case I have to discuss and decide on the negligence of MPPP first. The Approach The learned Session's Court judge found MPPP negligent as a local authority and also as a landlord. This is what she said at p. 282 of the Record of Appeal, Part A: I accept the submission for the plaintiffs that the 2nd defendant (MPPP - added) was