1. ) JABATAN KERJA RAYA NEGERI SELANGOR 2. ) JABATAN KERJA RAYA DAERAH PETALING JAYA v 1. ) JURUMART SDN. BHD. 2. ) SULAIMAN BIN MOHAMED

Case Significance

Illustrates the interaction between contributory negligence and a contractual third-party indemnity in a road-accident claim against public-works authorities: apportionment for contributory negligence is worked out between the main-action parties (here reducing the plaintiff's damages by 40%), while a third party may be liable to fully indemnify the defendants for breach of contract.

This High Court decision at Shah Alam, delivered by Judicial Commissioner Elaine Yap Chin Gaik, is an appeal arising from a road-accident claim brought against public-works authorities, raising questions of negligence, statutory duty, third-party indemnity and the apportionment of liability. The plaintiff had sued officers of the Jabatan Kerja Raya (the Public Works Department) — the appellants — alleging negligence in the maintenance of the road on which his accident occurred, and the defendants had in turn brought in a company as a third party to indemnify them. The Sessions Court found the defendants liable to the plaintiff and dealt with the third-party claim and the assessment of damages. On appeal, issues arose as to the admissibility of a photograph tendered without calling the photographer, the apportionment of liability including the plaintiff's own contributory negligence, and the basis of the third party's liability to indemnify the defendants.

The court allowed the appeal in part. On apportionment, it reasoned that the third party was not a co-defendant sued in the main action, so that liability in the main action could not be apportioned between the main-action parties and the third party for contributory negligence in the ordinary way; the apportionment of fault fell to be worked out between the plaintiff and the defendants as the parties to the main action. Reflecting the plaintiff's own share of responsibility for the accident, the court reduced the plaintiff's damages by 40% to reflect his contributory negligence. It varied the Sessions Court's judgment in the third-party action so that the third party was found liable to fully indemnify the defendants for their loss flowing from the third party's breach of contract. It ordered the defendants to pay the plaintiff costs of RM5,000 and the third party to pay the defendants costs of RM2,500. The judgment illustrates the interaction between contributory negligence in the main action and a third party's full contractual indemnity of the defendants.