Shah Alam High Court rules government cannot escape liability by delegating road maintenance to a third party.

SHAH ALAM: The High Court here has allowed a foreigner’s appeal to claim RM48,700 for negligence against the government for injuries sustained after his motorcycle hit a pothole six years ago.

Pakistani Sajid Dilwarkhan had argued that the accident occurred due to the failure of the director-general of the Public Works Department (JKR) to ensure the road was in good condition for road users.

He said the government was vicariously liable for the negligence of the JKR director-general.

Sajid filed the action against the JKR director-general and the government for injuries he sustained when he was thrown off his motorcycle after it hit a pothole along Jalan Kuala Selangor (Jalan FT54) on a rainy day at about 10am on Oct 27, 2014.

Two years ago, a Magistrates’ Court dismissed Sajid’s claim against the JKR director-general and the government, saying the accident had occurred as a result of a fourth party’s negligence to keep the road in good condition.

The government had earlier filed a third-party claim against Unik Sejati Sdn Bhd to seek indemnity and contribution in the event Sajid was successful in his suit in the lower court.

Unik Sejati, which was appointed by the government to build and maintain the FT54 stretch where the accident took place, had maintained there was no pothole.

Unik Sejati had in turn brought in Salam Dutamas Sdn Bhd as the fourth party to seek indemnity and contribution in the event it was found liable.

The fourth party was the subcontractor appointed by the third party to carry out the maintenance of the road.

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Salam Dutamas had argued that Sajid’s machine had skidded and he had fallen elsewhere but that he had attempted to link it to Jalan FT54 to help his case as there were roadworks at the site at that time.

Judge S M Komathy Suppiah in her written judgment said the government was not protected by statutory immunity under Section 7 of the Government Proceedings Act 1956.

“They have a statutory duty to the plaintiff to keep the road in good condition. They cannot escape liability by delegating it to a third party,” she said.

Komathy said the JKR director-general and the government did not see to it that the third party covered the pothole or put up warning signs or cones near the pothole to warn road users of the pothole.

She said that it was not part of the government’s case that the third and fourth parties were independent contractors.

The court also allowed the government’s claim for indemnity from the third party and the third party’s claim for indemnity from the fourth party.



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