TM TECHNOLOGY SERVICES SDN BHD v PESTECH SDN BHD

Case Significance

Illustrates the proof required to recover the full cost of rectifying negligently caused damage to buried utility infrastructure, including itemised substantiation of labour, overtime and materials, and the treatment of an allegation that the utility owner contributed to the loss by not marking its cables.

This High Court decision at Kuala Lumpur concerns a negligence claim by a telecommunications infrastructure company against a contractor for damage to underground cables. The plaintiff, TM Technology Services Sdn Bhd, which by a vesting order dated 21 February 2023 had taken over the assets and liabilities previously vested in Telekom Malaysia Berhad, sued the defendant, Pestech Sdn Bhd, in respect of drilling works carried out at Jalan Enggang, Ampang, which it said had damaged its underground cables and disrupted the telecommunications services supplied to its customers. The issues at trial were whether the defendant had negligently caused the damage on 1 October 2020, whether it had admitted liability for that damage, whether the plaintiff had itself been negligent in failing to label the location of the cables and so contributed to the loss, and whether the defendant was liable to pay the full sum of RM1,170,654.85 claimed as the cost of rectification works. After a full trial the court was satisfied that the plaintiff had proved its claim on the balance of probabilities: the cables had to be replaced because they were damaged by the defendant's negligent acts, and the plaintiff had adduced sufficient oral and documentary evidence, including detail of the employees, working hours, overtime and total labour costs, to establish each item of the rectification claim. The court allowed the claim in the full sum of RM1,170,654.85, with interest at 5 per cent per annum on the judgment sum from the date the writ was filed on 29 August 2023 until full settlement, and ordered the defendant to pay costs of RM80,000 subject to allocatur. The court also addressed the contention that the plaintiff had contributed to the loss by failing to label the location of the cables, finding on the evidence that it did not defeat the plaintiff's recovery of the rectification cost. The judgment is a useful illustration of the proof required to recover the full cost of rectifying negligently caused damage to buried utility infrastructure, including the itemised substantiation of labour and materials.