MOOT QUESTION
The following is a copy of Haryanti Mansuri J’s judgment in the case of Toopie Aduslalu v Mamak Shy’s Bistro Sdn Bhd (Civil Suit No: 210-2009) (Transcript 23 July 2010)
IN THE HIGH COURT OF MALAYA, SHAH ALAM
CIVIL SUIT NO: 210-2009
BETWEEN
TOOPIE ADUSLALU … PLAINTIFF
AND
MAMAK SHY’S BISTRO SDN BHD … DEFENDANT
JUDGMENT
HARYANTI MANSURI J
The Facts
[1] Mr Toopie Aduslalu, a citizen of the Federated Republic of Cheapmonk, was on holiday in Malaysia early last year. He had just attended a conference in Kuala Lumpur and presented his paper on ‘The True Nature of Gravity: A Study of Falling Acorns and Why Einstein General Theory of Relativity is Wrong’ at the International Theoretical Physics Conference 2009. Whilst visiting Shah Alam, he stopped at Mamak Shy’s Bistro for lunch.
[2] Mamak Shy’s Bistro is owned by Mamak Shy’s Bistro Sdn Bhd. The majority shareholder of this enterprise is Miss Shyla Funhaha Rusa. She is known to her customers as being very introverted and frequently too embarrassed to do anything in public. Her famous quip is: ‘I let my food do the talking’. Mamak Shy’s signature dish is venison curry, made from a recipe that Miss Shyla learnt from her father but she has had to water down his recipe for commercial purposes as the original was just too darn hot for most Malaysians.
[3] I would like to thank both the Plaintiff and the Defendant for contributing to the cost of a ‘bungkus’ of Mamak Shy’s famous ‘nasi briyani’ with venison curry and pickled vegetables. It is important for a judge to put the dispute in context by getting the experiencing the actual taste and smell where the incident complained of took place.
[4] When Mr Toopie Aduslalu had lunch at Mamak Shy’s Bistro, he ordered its signature dish and a cup of coffee. It was prepared by the head chef, Mr Lazat Babab, who brought the plate personally to Mr Toopie Aduslalu. As he was tucking into the juicy and tasty morsels on his plate, he noticed a sign just behind the cashier’s counter which stated: ‘Free wi-fi at Mamak Shy’s Bistro. Subject to the restaurant’s usual terms, conditions and exclusions’. When Mr Toopie Aduslalu asked the cashier, Mr Mazin Laidan, about the service, he was told: ‘Just read the instructions and then log in. The ID is Arif Qafir, and the password is Ojanda666. You can find the terms and conditions on our website after you log in’.
[5] As Mr Toopie Aduslalu launched his Safari browser, he was directed straight to the log in page at
[6] Ten minutes later, Miss Aini Lambat served the coffee, and a complimentary cup of ‘Teh Alia’, Mamak Shy’s signature ‘spicy ginger tea’. Mr Toopie scowled at her and said: ‘You cannot even get my order right. I ordered coffee and you also have to bring along a cup of smelly tea’. Miss Aini Lambat lost her temper and emptied both cups onto his laptop. Mr Toopie Aduslalu then left the bistro in a huff and threw an RM100 note on the table.
[6] Later that night, Mr Toopie Aduslalu carefully dried the laptop with a hair-dryer at Hotel Immu. When was working on his laptop, he discovered that it kept shutting down and rebooting itself. He could not get access to important data stored inside which was needed to present a second paper to fellow physicists at the conference. He called the hotel’s concierge for help and was directed to a company, Decoder Sdn Bhd, that provided 24 hours services for those with laptops in distress. Miss Codee, a technician from the company dropped by the hotel to examine the laptop. After running diagnostics, with the ‘Para Amore’ programme, Miss Codee concluded: ‘Your laptop is sticky. There is a lot of dried up liquid all over the place. I have tried to remove all the relevant parts and clean it. I cannot guarantee that it is going to work properly again. By the way, you probably also picked up a Myhali-hali Trojan when you logged into the bistro’s wi-fi system. Your system is now compromised’. When the laptop was switched on, it would not reboot.
[7] Miss Codee then charged Mr Toopie Aduslalu RM5,000 for her services. He fainted when he saw the bill and knocked his head as he fell to the ground. The doctor on duty at Hotel Immu, Dr Honey Berry, treated Mr Toopie Aduslalu for concussion and stitched a gash on the back of his head. The medical bill was RM1,500.
[8] In order to get a copy of the data stored on the laptop, Mr Toopie Aduslalu had to use a special courier to send the laptop to its manufacturer so that the information stored on the hard disk could be read and copied after a forensic process was carried out on the data storage system. I understand that the bill was in US dollars but I believe that the equivalent cost here is RM7,000.
Mr Toopie Aduslalu’s claim for breach of contract
[9] Customers expect to be treated properly when they visit a bistro or restaurant, just like a visit to the hotel when one is on holiday. Miss Aini Lambat’s behaviour as an employee of the Mamak Shy’s Bistro was unforgivable. A person in the service industry is not allowed to insult a customer by telling him not to complaint. This country is a democracy, everybody has the right to make their displeasure known, especially when Mamak Shy’s Bistro is charging an exorbitant sum of RM50 for its famous ‘nasi briyani’ with venison curry and pickled vegetables. The higher the price payable for a meal, the greater is the expectation of the customer. Mr Toopie is entitled to a quantum of damages which reflects the failure of Mamak Shy’s Bistro to discharge its contractual duty of providing a pleasurable dining experience to its customer. This is the core contractual obligation of a restaurateur to its customers. The quantum of damages for this is to be assessed by the Senior Registrar, Mr Hadee Yahkop after this trial.
[10] A diner who uses the wi-fi services at a restaurant or bistro is also entitled to expect that the service is safe for use. Although this is not the primary business of the bistro or restaurant, it is under a contractual duty to provide a service that is free from viruses and trojans. A customer is attracted to a restaurant because of such services and had a contractual right to expect that the service is safe for use. For this breach, I am allowing Decoder Sdn Bhd’s bill for RM5,000 and any other losses that flow from the damage caused by the Myhali-hali Trojan to the laptop, such as the cost of purchasing an equivalent new laptop at RM7,000 as well as the technical forensics bill for that same amount.
Mr Toopie Aduslalu’s claim for trespass to goods
[11] No person is allowed to violate goods that belong to another. When Miss Aini Lambat lost her temper and emptied both cups onto the laptop, this was a legal wrong commit towards goods belonging to Mr Toopie Aduslalu. There is no legal justification for this act, not even if a customer was rude to a waitress. Miss Aini Lambat should not act like a prima donna and learn to act more courteously towards people who are in fact ensuring that she still has a job at the restaurant. Even though she did not physically touch the laptop, the drinks that she poured were an extension of her arms that unlawfully trespassed on the laptop.
[12] I have awarded the cost of the laptop, the technical forensic’s bill and Decoder Sdn Bhd’s bill under the above head of contractual damages, so I will not allow the plaintiff to profit twice over from this. Even if the Mr Toopie Aduslalu’s contractual claim against Mamak Shy’s Bistro is in the unlikely event defeated, both those items of damages can also be claim as damages for this tort. However, I will award the medical bill of RM1,500 under this claim as this was a foreseeable loss that was inflicted on Mr Toopie Aduslalu. There is a clear chain of causation here. If the drinks were not poured over the laptop, then he would have had to engage Miss Codee’s services. Then if Miss Codee did not have a bill to show him, he would not have fainted and gashed his head, thus leading to the medical treatment.
Conclusion
[13] The Defendant is liable for all of the Plaintiff’s losses and injuries either in contract or in tort. I hereby dismiss the Defendant’s defence and award cost to the Plaintiff. If the Defendant is not satisfied with my decision, I suggest that it appeals directly to the geniuses who sit on the Moot Court of Appeal UiTM.
[14] For the record, the court also likes to takes judicial notice of the fact that Given Chee Shoes worn by Miss Aini Lambat are very nice and should nominated for an award.
Advocates appearing in court:
For the Plaintiff … Miss Khaleeda Kholid (Khaleeda, Shake, Lind and Partners)
For the Defendant … Mr Rus Alan (Van Neeson, Syabas and Associates)
______________________________________________________________________________
On 30 July 2010, Mamak Shy’s Bistro Sdn Bhd filed an appeal with the Moot Court of Appeal UiTM. The Moot Court of Appeal UiTM has jurisdiction to hear appeals from the High Court of Malaya under the Moot Court of Judicature Act 1964.
IN THE MOOT COURT OF APPEAL UITM
CIVIL APPEAL NO: 30-07-2010-10
BETWEEN
MAMAK SHY’S BISTRO SDN BHD … APPELLANT
AND
TOOPIE ADUSLALU … RESPONDENT
The following were the Appellant’s grounds of appeal:
1. There is no contractual duty on a bistro or restaurant to be courteous to its client. A dining contract is not like a holiday contract. The purpose of the dining contract is to get food. We have provided food which the customer has paid for.
2. A customer who uses wi-fi services at a bistro or restaurant should use his own anti-virus programmes for protection. There is no contractual duty to beef up the wi-fi system for a customer who has an anti-virus system that cannot even give proper protection against the common Myhali-hali Trojan.
3. There was no trespass to Mr Toopie Aduslalu’s goods. Miss Aini Lambat did not even touch the laptop. Drinks that were poured cannot be said to be an extension of her arms. Even if it were, she was entitled to protect her honour after being insulted by a nasty customer. Her actions were completely justifiable.
4. Even if there was trespass to goods, the medical bill could not be claimed as damages because it was too remote.
Further Instructions to the Participants:
1. Please send you written request for clarifications to:
Conventional mail:
Assoc Prof Dr. Irwin U.J. Ooi
Malaysia Institute of Transport (MITRANS),
Level 1, Old Engineering Building,
MARA University of Technology (UiTM),
40450 Shah Alam.
E-mail:
dr_irwinooi_uitm@yahoo.co.uk
2. Clarifications will be published within three days after the receipt for a request for clarifications on the UiTM Moot Club Blog and/or Facebook.
3. The last date for clarifications is Friday, 13 August 2010.
4. Memorials must be submitted by Friday, 20 August 2010.
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