PROJEK LEBUHRAYA USAHASAMA BERHAD v 1. ) ZAKARIA BIN HAMID (Bapa kandung kepada simati, AZIZI BIN ZAKARIA) 2. ) GAYAH BINTI DOCHIK ( Ibu kandung kepada simati, AZIZI BIN ZAKARIA)

Case Significance

Illustrates a highway concessionaire's non-delegable duty under the Federal Roads (Private Management) Act 1984 to keep a highway in safe condition, and appellate restraint towards concurrent findings of negligence liability.

This Court of Appeal decision concerns the liability of a highway concessionaire in negligence for the death of a road user, and was heard together with a related appeal by the concessionaire's maintenance contractor. The appellant, Projek Lebuhraya Usahasama Berhad, the highway concessionaire, appealed against the decision holding it liable to the respondents, the parents of a deceased road user, for negligence in maintaining and keeping the highway in good repair and condition. The claim, which had succeeded in the Sessions Court and been affirmed by the High Court, rested on the concessionaire's duty of care and statutory duty in relation to the safe condition of the highway, framed within the scheme of the Federal Roads (Private Management) Act 1984. A central question was the nature and extent of that duty, including whether it was a non-delegable duty to take reasonable care to keep the highway safe, and whether the measures relied on by the concessionaire, such as the PLUSRonda patrol, were sufficient to discharge it. The appellate court examined whether there was any basis to interfere with the concurrent findings of the courts below on liability, and, applying the principles governing appellate intervention in findings of fact, found none. It also considered the respondents' award for loss of dependency, noting that the increase allowed below arose from a discrepancy between the sum pronounced in open court and that stated in the written grounds, rather than from any view that the Sessions Court's figure was too low, and it declined to interfere with that quantum. The court dismissed the concessionaire's appeal, together with the related appeal, with costs, and affirmed the order of the High Court. The judgment is a useful illustration of a highway concessionaire's non-delegable duty to keep a highway in safe condition and of the restraint appellate courts show towards concurrent findings on liability.