ROADCARE (M) SDN BHD TENGKU MUHAMAD KHAZI HAKIMI BIN KU HUSSIN

ROADCARE (M) SDN BHD TENGKU MUHAMAD KHAZI HAKIMI BIN KU HUSSIN

On the total evaluation of evidence the Plaintiff failed to prove the existence of a pothole filled with water at the material time; photographic and maintenance records demonstrated a tar patch had been done before the accident; under the concession agreement clause the concessionaire (Roadcare) bears responsibility and indemnifies the Government entities, therefore the Sessions Court's finding of vicarious liability against Defendants 1-3 was unsustainable; the Sessions Court's quantum awards were properly assessed and are not disturbed.

Citation
DA-12B-56-11/2022 (Mahkamah Tinggi)
Parties
Appellant (rayuan 1); Respondent (rayuan 2 and 3): Roadcare (M) Sdn Bhd; Respondent (rayuan 1); Appellant (rayuan 2); Plaintiff (mahkamah Sesyen): Tengku Muhamad Khazi Hakimi bin Ku Hussin; Appellant (rayuan 3); Defendant (mahkamah Sesyen): Pengarah Jabatan Kerja Raya Negeri Kelantan; Appellant (rayuan 3); Defendant (mahkamah Sesyen): Kementerian Kerja Raya Malaysia; Appellant (rayuan 3); Defendant (mahkamah Sesyen): Kerajaan Malaysia; Respondent (rayuan 3); Defendant (mahkamah Sesyen): Mohd Akhbar bin Ahmad; Respondent (rayuan 3); Defendant (mahkamah Sesyen): Tarisakila binti Mohamed
Court
High Court
Jurisdiction
Malaysia
Judgment Date
7 October 2024
Case Number
DA-12B-56-11/2022 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal / High Court Judgment on Appeals From Sessions Court
Outcome
Appeals allowed in part and dismissed in part: appeals on liability by Roadcare and by Defendants 1-3 allowed (setting aside Sessions Court finding that Defendants 1-3 were vicariously liable); Plaintiff's appeals on quantum dismissed; Sessions Court’s quantum awards upheld.
Legal Topics
Existence of Defect (pothole), Vicarious Liability, Indemnity Clause, Burden of Proof (evidence Act S101), Standard of Appellate Review, Quantum of Damages (loss of Earnings and Prosthesis)
Source Language
Malay/English
Tort Negligence Contract (concession Agreement) Personal Injury Administrative Law Existence of Defect (pothole) Vicarious Liability Indemnity Clause +3 more

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Parties

Roadcare (M) Sdn Bhd

Appellant (rayuan 1); Respondent (rayuan 2 and 3)

Tengku Muhamad Khazi Hakimi bin Ku Hussin

Respondent (rayuan 1); Appellant (rayuan 2); Plaintiff (mahkamah Sesyen)

Pengarah Jabatan Kerja Raya Negeri Kelantan

Appellant (rayuan 3); Defendant (mahkamah Sesyen)

Kementerian Kerja Raya Malaysia

Appellant (rayuan 3); Defendant (mahkamah Sesyen)

Kerajaan Malaysia

Appellant (rayuan 3); Defendant (mahkamah Sesyen)

Mohd Akhbar bin Ahmad

Respondent (rayuan 3); Defendant (mahkamah Sesyen)

Tarisakila binti Mohamed

Respondent (rayuan 3); Defendant (mahkamah Sesyen)

Procedural Posture

Civil Appeal / High Court Judgment on Appeals From Sessions Court

Legal Issues

  1. 1 Whether a pothole filled with rainwater existed at the material time and caused the accident
  2. 2 Whether Defendants 1-3 are vicariously liable for the negligence of the concessionaire (Roadcare)
  3. 3 Whether the concession agreement indemnity/clause absolves the Government entities from liability

Ratio Decidendi

On the total evaluation of evidence the Plaintiff failed to prove the existence of a pothole filled with water at the material time; photographic and maintenance records demonstrated a tar patch had been done before the accident; under the concession agreement clause the concessionaire (Roadcare) bears responsibility and indemnifies the Government entities, therefore the Sessions Court's finding of vicarious liability against Defendants 1-3 was unsustainable; the Sessions Court's quantum awards were properly assessed and are not disturbed.

Court Disposition

Appeals allowed in part and dismissed in part: appeals on liability by Roadcare and by Defendants 1-3 allowed (setting aside Sessions Court finding that Defendants 1-3 were vicariously liable); Plaintiff's appeals on quantum dismissed; Sessions Court’s quantum awards upheld.

Orders

  • Allow appeal of Roadcare (Rayuan 1) on liability; no order as to costs on that issue and Roadcare appeal on quantum dismissed
  • Dismiss Plaintiff's appeal on quantum (Rayuan 2) and uphold Sessions Court's quantum awards