JUDGMENT
[1] The appeal before us turns on the decision of the Courts below which found liability against the appellant for negligence premised upon the breach of non-delegable duty of care of the respondent.
[2] Leave to appeal was granted by this Court to the appellant upon the following questions of law:
"Question 1: Whether as a matter of policy, routine residential construction work carried out by a homeowner through its independent contractors is so extraordinarily hazardous as to impose a non-delegable duty of care on the homeowner to a public utilities company, namely TNB for the negligence of those independent contractors?
Question 2: If the answer to the 1st question is in the negative, whether there is a special relationship between the homeowner and TNB which satisfies the criteria of the "2nd category" described in Woodland v. Essex County Council [2014] 1 All ER 482 such as to impose a non-delegable duty of care on the homeowner in respect of the negligence of its independent contractors?
Question 3: Whether non-delegable duty of care is a cause of action that must be expressly pleaded particularizing the basis on which the duty is said to arise or whether it is a matter of law which may be raised during submissions?
[3] The appellant is the 1st defendant (D1) and the respondent is the plaintiff in the High Court below. In this judgment, parties will be referred to, as they were in the High Court.
[4] The 2nd defendant (D2) and the third parties are not parties in the appeal before us.
Background
[5] The facts are uncomplicated, but the application of the law in the imposition of a non-delegable duty of care in the present appeal is of much concern. The plaintiff, Tenaga Nasional Berhad claims for costs and expenses incurred for emergency repairs and replacement of its underground cable, which was damaged due to excavation works carried out by third-party contractors hired by the defendants, in front of a house belonging to the defendants. The excavation works were to connect the septic tank of the house to the main public sewerage system.