TENGKU MUHAMAD KHAZI HAKIMI BIN KU HUSSIN 1. ) Pengarah Jabatan Kerja Raya Negeri Kelantan 2. ) KEMENTERIAN KERJA RAYA MALAYSIA 3. ) Kerajaan Malaysia 4. ) ROADCARE (M) SDN BHD

TENGKU MUHAMAD KHAZI HAKIMI BIN KU HUSSIN 1. ) Pengarah Jabatan Kerja Raya Negeri Kelantan 2. ) KEMENTERIAN KERJA RAYA MALAYSIA 3. ) Kerajaan Malaysia 4. ) ROADCARE (M) SDN BHD

Plaintiff failed to prove on the balance of probabilities that a pothole filled with water existed at the material time and caused the accident; therefore the Sessions Court finding that Roadcare was 100% liable and that the Government defendants were vicariously liable was incorrect. Where maintenance has been contracted to Roadcare under the concession agreement (clause 21.1), the contractor bears the risk and indemnifies the Government. The Sessions Court awards on quantum were properly assessed and are upheld.

Citation
DA-12B-57-11/2022 (Mahkamah Tinggi)
Parties
Appellant/respondent: ROADCARE (M) SDN BHD; Plaintiff/appellant/respondent: TENGKU MUHAMAD KHAZI HAKIMI BIN KU HUSSIN; Appellant/respondent: PENGARAH JABATAN KERJA RAYA NEGERI KELANTAN; Appellant/respondent: KEMENTERIAN KERJA RAYA MALAYSIA; Appellant/respondent: KERAJAAN MALAYSIA; Respondent/defendant: MOHD AKHBAR BIN AHMAD; Respondent/defendant: TARISAKILA BINTI MOHAMED
Court
High Court
Jurisdiction
Malaysia
Judgment Date
7 October 2024
Case Number
DA-12B-57-11/2022 (Mahkamah Tinggi)
Procedural Posture
Civil Appeal (consolidated Appeals From Sessions Court) / High Court Judgment on Appeals
Outcome
Appeals allowed in part on issues of liability; Sessions Court findings that Roadcare was solely liable and that the Government defendants were vicariously liable set aside; appeals on quantum dismissed and quantum awards by Sessions Court upheld; plaintiff ordered to pay costs to certain respondents.
Legal Topics
Negligence, Vicarious Liability, Concession Agreement Indemnity, Quantum of Damages, Pleadings and Burden of Proof
Source Language
Malay/English
Tort Contract Administrative Law Evidence Negligence Vicarious Liability Concession Agreement Indemnity Quantum of Damages +1 more

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Parties

ROADCARE (M) SDN BHD

Appellant/respondent

TENGKU MUHAMAD KHAZI HAKIMI BIN KU HUSSIN

Plaintiff/appellant/respondent

PENGARAH JABATAN KERJA RAYA NEGERI KELANTAN

Appellant/respondent

KEMENTERIAN KERJA RAYA MALAYSIA

Appellant/respondent

KERAJAAN MALAYSIA

Appellant/respondent

MOHD AKHBAR BIN AHMAD

Respondent/defendant

TARISAKILA BINTI MOHAMED

Respondent/defendant

Procedural Posture

Civil Appeal (consolidated Appeals From Sessions Court) / High Court Judgment on Appeals

Legal Issues

  1. 1 Whether a pothole filled with rainwater existed at the material time and caused the plaintiff's accident
  2. 2 Whether the Government defendants are vicariously liable for negligence of the concessionaire/contractor
  3. 3 Whether the quantum awarded for loss of earnings and cost of prosthesis was excessive or unsupported by evidence

Ratio Decidendi

Plaintiff failed to prove on the balance of probabilities that a pothole filled with water existed at the material time and caused the accident; therefore the Sessions Court finding that Roadcare was 100% liable and that the Government defendants were vicariously liable was incorrect. Where maintenance has been contracted to Roadcare under the concession agreement (clause 21.1), the contractor bears the risk and indemnifies the Government. The Sessions Court awards on quantum were properly assessed and are upheld.

Court Disposition

Appeals allowed in part on issues of liability; Sessions Court findings that Roadcare was solely liable and that the Government defendants were vicariously liable set aside; appeals on quantum dismissed and quantum awards by Sessions Court upheld; plaintiff ordered to pay costs to certain respondents.

Orders

  • Set aside Sessions Court finding that PENGARAH JABATAN KERJA RAYA NEGERI KELANTAN, KEMENTERIAN KERJA RAYA MALAYSIA and KERAJAAN MALAYSIA were vicariously liable for Roadcare (M) Sdn Bhd
  • Affirm the principle that where a concession agreement (clause 21.1) places maintenance risk on the contractor the contractor is liable and the Government is indemnified