HARIS ARMAN V BERJAYA TS SDN BHD Case Report

FAKULTI UNDANG-UNDANG
UUUK2093 UNDANG-UNDANG TORT I
CASE SUMMARY
HARIS ARMAN V. BERJAYA TS

MANAGEMENT SDN BHD & ANOR
[2013] 7 CLJ 68
Lecturer:
PROF. MADYA DR. TENGKU NOOR AZIRA BT TENGKU
ZAINUDIN
Prepared by:
NURUL IMAN BINTI KHAIRUL ANWAR
(A168591)
HARIS ARMAN V. BERJAYA TS MANAGEMENT SDN BHD & ANOR
[2013] 7 CLJ 68
This case was held in High Court Malaya, Kuala Lumpur and was decided by Lau Bee
Lan J. It was held on 31 May 2013.
The facts of this case was that the Plaintiff’s son (‘the deceased’) and his girlfriend were
at the Berjaya Times Square Mall. The deceased desperately wanted to pass urine. Both of
them were looking for the toilet on the 7th floor of the building and followed the signboards
pointing towards the toilet. But the deceased entered an exhaust room, despite it being pitch
black, and fell to his death. The plaintiff claimed for damages against the defendants.
The issue in this case is whether the defendants were negligent resulting in the death of
the deceased at the defendant’s premises. The plaintiff claimed that the area entered by the
deceased was dangerous. Furthermore, the plaintiff stated that the defendants were negligent
in making sure that the exhaust room door was locked and was inaccesible by anyone other
than the staff on behalf of the defendant. It was also claimed that they were negligent in
ensuring the safety of all visitors to the premise as where the deceased has been, providing
notice that the deceased was in a dangerous area and should have taken precautions in order to
prevent any incidents from happening.
The defendants defence was that the deceased had trespassed into a room on the 7th
floor of the premise which has been clearly labeled as “SALURAN EKZOS DAPUR”. The
door was also secured and locked by the defendant. The deceased also failed to adhere strictly
to the directional signboards to the toilet and the signage on the entrance of the exhaust room,
despite having knowledge of the signboards and signages. Hence, the defence of volenti non
fit injuria shall apply in this case. Furthermore, The deceased act of trespass is was negligent
and unforeseeable at all material times. The act of trespass was an illegal act which allows the
defendant to rely on the maxim ex turpi cause non oritur actio, therefore no cause of action
will arise from the deceased illegal act.
According to Lau Bee Lan JC, the defendants were entitled to rely on the defence of
volenti non fit injuria. The judge cited the case of Lee Geok Theng v. Ngee Tai Hoo & Anor
[2000] 4 MLJ 42, where KN Segara stated that if a defendant wishes to rely on volenti non fit
injuria, the defendant must plead: (i) the facts of which the plaintiff was fully appraised giving
rise to the risk of injury; (ii) the plaintiff understood the risk and injury; and (iii) the plaintiff
voluntarily undertook to be responsible for the risk.
In this present case, the deceased was a trespasser for entering the exhaust room which
was a restricted area. The deceased had also acted recklessly when he entered the exhaust room
knowing that he was on the 7th floor and despite the presence of clear directional signboards
pointing to the direction of the toilet, and the room being pitch black. Therefore, applying the
principles in the case of Lee Geok Theng into this case, the defence of volenti non injuria was
accepted as the judge agreed that the deceased was fully appraised of and understood the risk
of injury that may result in trespassing the exhaust room and assumed responsibility of the risk.
Hence, absolving the liability of the defendant.
The judge also stated that the defendants cannot be liable for the conduct of the
deceased which is unforeseeable. This is based on the case of McKew v. Holland & Hannen &
Cubitts (Scotland) Ltd [1969] 3 ALL ER 1621, where Lord Reid stated that the defendant
cannot be held liable for a man’s injury caused by his own unreasonable conduct. The chain of
causation has broken and all consequences that follows is regarded as caused by his own fault.
A defendant is also not liable for consequences that are unforeseeable. In this case, the
deceased’s action of entering the exhaust room despite the presence of visible directional signs
along the walkway of the 7th floor pointing to the toilet and the signage on the door of the
exhaust room is negligent and unforeseeable. No reasonable person would have acted as what
the deceased did based on the facts of this case. Therefore, applying the principle of the McKew
v. Holland case, the defendants are not liable.
Furthermore, the judge also agreed that the deceased’s action was an illegal act of
trespassing. This allows the defendants to rely on the maxim ex turpi cause non oritur actio,
therefore no cause of action will arise from the deceased illegal act.
In conclusion, on the balance of probabilities, the plaintiff’s claim was dismissed with
costs. By consent the plaintiff had to pay the defendants costs of RM5,000. Despite failure of
claiming the liability of the defendant, the court agreed on the special damages of RM1,002
claimed by the plaintiff.

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FAKULTI UNDANG-UNDANG

UUUK2093 UNDANG-UNDANG TORT I

HARIS ARMAN V. BERJAYA TS

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