AMAN SELAMA SDN BHD v 1. ) JURUTERA JAJAHAN JKR BACHOK 2. ) ROSLAN BIN ABDOL RASHID 3. ) PENGARAH JABATAN KERJA RAYA NEGERI KELANTAN 4. ) KERAJAAN NEGERI KELANTAN 5. ) SELENGGARA TIMUR SDN BHD

Case Significance

Illustrates the interaction of liability apportionment and third-party indemnity in a road-defect negligence claim, with an indemnity claim failing where the defect could not be shown to lie within the third party's area of works.

This High Court decision at Kota Bharu, Kelantan concerns a civil appeal against a Sessions Court decision in a road-accident negligence claim, and in particular the apportionment of liability and a third-party indemnity. The plaintiff's cause of action arose from an allegation that the defendant had been negligent in maintaining a road, causing the plaintiff to fall into a pothole on the road surface. The Sessions Court had apportioned liability at 25% against the plaintiff and 75% against the defendant, and had allowed the defendant's third-party indemnity claim to the extent of 25% against each of the two third parties joined to the proceedings. The two third parties occupied different positions: the first was the concession company responsible for maintaining the road, while the second was a contractor appointed by the Government in connection with a hospital project at Bachok. On appeal the court examined whether each third party could properly be held liable to indemnify the defendant, which turned on whether the location of the pothole fell within that party's area of responsibility. The court held that the second third party, the hospital-project contractor, was not liable to indemnify the defendant, because it had not been proved that the pothole lay within the second third party's work area. That failure of proof was fatal to the indemnity claim against it, consistent with the principle that a party seeking to shift liability by way of indemnity must establish that the loss fell within the counterparty's sphere of responsibility. The judgment illustrates how apportionment of liability in a road-defect negligence claim interacts with third-party indemnity, and how an indemnity claim fails where the claimant cannot locate the defect within the third party's area of works. The decision confirms that apportionment of fault against the primary tortfeasor is a separate question from whether a third party can be made to bear that liability by way of indemnity, the latter depending on affirmative proof that the defect fell within the third party's sphere of works.