Muhammad Amirul Ashwad Bin Nazrul Ishsam v 1. ) CCP Builders Sdn Bhd 2. ) Malaysia Airports (Sepang) Sdn Bhd 3. ) Malaysia Airports Holdings Berhad PIHAK KETIGA Mohamad Zhafran Bin Mohamad Taufik BUKAN PIHAK-PIHAK Jabatan Peguam Negara

Case Significance

Illustrates the liability of a contractor and a site owner for a road hazard created by construction works where a barrier is placed without adequate warning, and the assessment of damages for a traumatic brain injury resulting in permanent disability.

This High Court decision concerns a negligence claim by a motorcycle pillion rider who suffered permanent disability in an accident with a road barrier at a construction site near an airport perimeter road. On the evening of the accident, the plaintiff was a pillion passenger on a motorcycle ridden by the person later named as a third party; as they travelled along the perimeter road, the motorcycle struck a road barrier and the plaintiff was seriously injured, leaving him with permanent disability and registered as a person with a disability. The first defendant was a contractor authorised by the second defendant, a wholly owned subsidiary of the third defendant, to carry out excavation and earth-moving works on land beside the road, and had placed the barrier across the road to allow its lorries to enter and leave the site. The plaintiff claimed that the accident was caused by the sudden encounter with the barrier placed on the road without adequate warning. The court examined whether the first defendant owed and breached a duty of care to road users near the works, whether the second and third defendants had direct or indirect control and supervision over the works so as to be liable for the contractor's negligence, and whether the third-party rider was contributorily negligent. It held the first and second defendants liable in negligence for placing or managing the road barrier without adequate warning, and dismissed the defendants' claim against the third-party rider. On damages, given the plaintiff's brain injury and permanent disability, which were not in dispute, the court awarded general damages of RM424,000, together with future treatment costs and costs of the action. The judgment is a useful illustration of a contractor's and site owner's liability for a road hazard created by construction works, and of the assessment of damages for a traumatic brain injury resulting in permanent disability.