The Federal Court in Mahari bin Endut
explained that if conditions in sub-paragraphs (a) and (b) above are satisfied, it follows, on a balance of probability, that the defendant, or a person for whom he is responsible, must have been negligent. The apex court added that the negative condition in sub-paragraph (c) must also be satisfied. If there is evidence as to why or how the occurrence took place, it would be inappropriate to apply the doctrine of res ipsa loquitor
and the question of the defendant’s negligence must be determined on that evidence.
The Court was satisfied that it had been established that the sewerage pipe was unquestionably under the sole management and control of the defendant. It was common ground that the cause of the discharge from the sewerage pipe was due to the elbow cap having dislodged. What caused it to dislodge was unknown. However, the Court held that such an outcome should have been anticipated by the defendant even without periodic inspections being done.1
Therefore, there was a clear case of failure by the defendant to discharge its statutory duty to maintain and service the sewerage pipe running through the entire condominium. In view of the facts clearly disclosing failure or neglect by the defendant to check the pipe resulting in the dislodgement of the elbow cap from unknown causes, the doctrine of res ipsa loquitor
was invoked to impute liability on the defendant.
The learned Judge was satisfied that the evidence clearly supported the finding that the defendant had been negligent through its omission to properly perform it statutory functions and duties which resulted in damage to the plaintiff’s properties in the Unit.
The Court accepted the evidence of professional loss adjusters appointed by agreement and consent of the parties and awarded damages of RM348,930.00 in favour of the plaintiff.