Sajid Dilwarkhan 1. Ketua Pengarah Jabatan Kerja Raya 2. Kerajaan Malaysia 3. Unik Sejati Sdn Bhd 4. Salam Dutamas Sdn Bhd

Sajid Dilwarkhan 1. Ketua Pengarah Jabatan Kerja Raya 2. Kerajaan Malaysia 3. Unik Sejati Sdn Bhd 4. Salam Dutamas Sdn Bhd

The High Court upheld the trial court's factual finding that a pothole caused the accident and held that the defendants, having a statutory duty to maintain the public road, could not escape liability by delegating maintenance to contractors; accordingly the plaintiff's appeal on liability succeeded, and contractual indemnity claims were allowed (defendants against third party; third party against fourth party).

Citation
11B-1-01/2019 (Mahkamah Tinggi)
Parties
Appellant / Plaintiff: Sajid Dilwarkhan; First Respondent / Defendant: Ketua Pengarah Jabatan Kerja Raya; Second Respondent / Defendant: Kerajaan Malaysia; Third Respondent / Third Party (developer / Contractor): Unik Sejati Sdn Bhd; Fourth Respondent / Fourth Party (subcontractor): Salam Dutamas Sdn Bhd
Court
High Court
Jurisdiction
Malaysia
Judgment Date
21 February 2020
Case Number
11B-1-01/2019 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (tort Negligence; Road Accident) / Appeal to High Court From Magistrate/sessions Court Judgment on Liability and Indemnity
Outcome
Appeal allowed on liability; judgment entered for plaintiff against the defendants for agreed damages; defendants' indemnity claim against third party allowed; third party's indemnity claim against fourth party allowed; lower court orders set aside.
Legal Topics
Negligence, Statutory Duty to Maintain Public Roads, Vicarious Liability, Government Proceedings Act 1956, Indemnity Under Contract, Appellate Review of Findings of Fact
Source Language
Malay/English
Tort Public Law Contract Law Civil Procedure Negligence Statutory Duty to Maintain Public Roads Vicarious Liability Government Proceedings Act 1956 +2 more

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Parties

Sajid Dilwarkhan

Appellant / Plaintiff

Ketua Pengarah Jabatan Kerja Raya

First Respondent / Defendant

Kerajaan Malaysia

Second Respondent / Defendant

Unik Sejati Sdn Bhd

Third Respondent / Third Party (developer / Contractor)

Salam Dutamas Sdn Bhd

Fourth Respondent / Fourth Party (subcontractor)

Procedural Posture

Civil Appeal (tort Negligence; Road Accident) / Appeal to High Court From Magistrate/sessions Court Judgment on Liability and Indemnity

Legal Issues

  1. 1 Whether the accident was caused by a pothole and the fourth party's negligence
  2. 2 Whether the defendants (public authority) remain liable for statutory duty despite employing contractors
  3. 3 Whether section 7 of the Government Proceedings Act 1956 immunises the defendants from liability

Ratio Decidendi

The High Court upheld the trial court's factual finding that a pothole caused the accident and held that the defendants, having a statutory duty to maintain the public road, could not escape liability by delegating maintenance to contractors; accordingly the plaintiff's appeal on liability succeeded, and contractual indemnity claims were allowed (defendants against third party; third party against fourth party).

Court Disposition

Appeal allowed on liability; judgment entered for plaintiff against the defendants for agreed damages; defendants' indemnity claim against third party allowed; third party's indemnity claim against fourth party allowed; lower court orders set aside.

Orders

  • Judgment for plaintiff against the defendants in the sum of RM48,700.00
  • Defendants' claim for indemnity from the third party (Unik Sejati Sdn Bhd) allowed