Athi & Seelan

On the court record

The firm's record illustrates how Malaysian courts allocate liability and the burden of proof in highway-concessionaire negligence and running-down claims, including the reach of a non-delegable duty to maintain expressways.

Athi & Seelan appears in the corpus as counsel in tort litigation, with a clear concentration on highway-concessionaire negligence and road-accident claims, argued in the High Court (Mahkamah Tinggi) and the Court of Appeal (Mahkamah Rayuan).

Several of the firm's matters concern the liability of highway concessionaires and their contractors for the condition of expressways. Acting for the appellant in one matter, the firm appeared where Projek Penyelenggaraan Lebuhraya Berhad was sued in negligence over its statutory and common-law duties to maintain and keep a highway in good repair, engaging the Federal Roads (Private Management) Act 1984, the concept of a non-delegable duty and the adequacy of patrol arrangements. In a related appeal against Projek Lebuhraya Usahasama Berhad, the firm acted for the respondent where the court considered whether a plaintiff had identified the object struck or proved the existence of a hazard, whether patrol records were unshaken, and where the burden of proof lay in establishing negligence against the concessionaire.

The firm also appeared in road-accident and running-down litigation more generally. In one matter it acted for the defendant in a claim brought by a Singaporean plaintiff, raising forum non conveniens and whether the Malaysian court was the appropriate forum for a claim in tort arising from a road accident that occurred in Singapore. In another running-down appeal the firm appeared where liability had been assessed at the Sessions Court and a cross-appeal disputed the adequacy of general damages awarded for a severe traumatic brain injury, so that the court had to review contested findings of liability and the quantum of damages.

The firm's record is therefore a focused personal-injury and highway-liability practice, engaging both the substantive duty of care and the evidential burden of proving a road hazard. Appearing at times for the injured party and at times for the concessionaire or insurer, the firm's matters repeatedly test whether a plaintiff can discharge the burden of proving that a specific hazard existed and caused the accident, a question on which many expressway-negligence claims ultimately turn.