1. ) Jabatan Kerja Raya Negeri Selangor v 1. ) Jurumart Sdn. Bhd. (BA-12B-103-10/2024)

DATUK IR RUSLAN BIN ABDUL AZIZ, PENGARAH JABATAN KERJA RAYA

ABDUL LATIF BIN SHARIFF, JURUTERA, JABATAN KERJA RAYA DAERAH PETALING …PERAYU-PERAYU

SULAIMAN BIN MOHAMED

JURUMART SDN. BHD. (NO. SYARIKAT: 199501012523 (341725-T)) …RESPONDEN-RESPONDEN (DALAM MAHKAMAH SESYEN DI SHAH ALAM SAMAN NO: BA-A53-15-08/2021 ANTARA SULAIMAN BIN MOHAMED (NO. K/P: 670520-08-6585) …PLAINTIF

DATUK IR RUSLAN BIN ABDUL AZIZ, PENGARAH JABATAN KERJA RAYA

ABDUL LATIF BIN SHARIFF, JURUTERA, JABATAN KERJA RAYA DAERAH PETALING …DEFENDAN-DEFENDAN DAN JURUMART SDN. BHD. (NO. SYARIKAT: 199501012523 (341725-T)) … PIHAK KE-TIGA)

After trial in the Sessions Court, the Appellants/Defendants were found liable for injuries caused to the 1st Respondent/Plaintiff when he fell from his motorcycle due to a pothole on a public road (“Persiaran Mokhtar Dahari”) in Shah Alam. The maintenance of the road falls under the purview of the Appellants/Defendants.

Referring to the parties as they were in the Court below, the accident happened on 21 January 2021 at about 8.30 am, and the Plaintiff suffered a broken leg and multiple abrasions. The claim was founded on negligence in that the Defendants failed to maintain the road.

The Defendants took out third-party proceedings against a concessionaire who was under a contract to monitor and repair all potholes on the said road for the Defendants.

The Sessions Court Judge apportioned liability between the parties as follows: Plaintiff (40%); Defendants (20%); Third Party (40%). The Third Party did not oppose the Defendants’ appeal, which was premised on the argument that the Plaintiff and Third Party ought to have been found 100% liable, and damages should be reduced.

On 26-2-2025, this Court allowed the appeal in part and in the result, the Plaintiff’s damages were reduced by 40% to reflect his contributory negligence. The Defendants, being 60% liable for the accident, was entitled to full indemnity from the Third Party, who was found wholly responsible to indemnify the Defendant. In consequence, the Defendants bore no ultimate liability.

The Defendants have appealed to the Court of Appeal against the aforesaid Order. Analysis and findings

There were 2 parts to the Defendants’ appeal i.e. against the Plaintiff for his own negligence and against the Third Party on the indemnity. Proof of Plaintiffs’ case

There were no eyewitnesses to the accident which happened on a busy road in broad daylight. Based on the Plaintiff’s oral evidence, his contemporaneous reports, medical records and evidence of the existence of the pothole, the trial Judge was satisfied with the veracity of the Plaintiff’s evidence that he suffered the accident on the date and in the manner described.

The appeal as argued turned on the existence of the pothole in question on Persiaran Mokhtar Dahari. The Defendants argued that the trial Judge was plainly wrong in relying on a photograph of the pothole. The admissibility of the photograph was challenged since the photographer was not called to give evidence and there was no corroborating witness to confirm that the photograph depicted what the Plaintiff said it depicted.

According to the Plaintiff’s evidence, the photograph was taken by his son on the day of accident but the son did not testify at the trial. On this point, the Plaintiff relied on PP v Ramli Shafie [2002] 6 MLJ 153 to allow the photograph to be admitted into evidence. In that case, the court found as follows: “All the photographs had been properly identified by PW2, PW3 and PW4 as an accurate representation of what they depicted without any objection to their authenticity. As such, they can be marked as exhibits. It has been held that although the usual method of proving the relevance of photographs will be by calling the photographer as a witness, this is not essential to their admissibility (see Schmidt v Schmidt (1969) QWN 3; R v Lambert (1967) Crim LR 480). In further elaboration, I refer to a passage from Evidence: Proof and Practice by Graham Roberts at p 545: A question that arises where photographs are to be tendered is whether it is necessary to call the photographer. Generally speaking, there is no need to call the photographer provided that a witness is available who can testify that what is shown on the photograph is a fair and accurate representation of the scene at the relevant time. Calling the photographer will generally only be necessary when no such witness is available or in special cases when technical details of the photographer's art are likely to be in question. In other words, what is required, in the usual case, of a witness through whom a photograph is to be tendered is first-hand knowledge of what is shown in the photograph rather than first-hand knowledge of the taking of the photograph (see JW McElhaney, Trial Notebook (2nd Ed, Litigation Section of the American Bar Association, 1987) pp 202- 203). Similarly, Documentary Evidence in Australia by RA Brown (2nd Ed) says at p 41: There are generally two methods for proving that things, including photographs, are those taken at the scene, either (1) by tracing custody of the film from the moment of taking until production in court, or (2) by identification of the ultimate print, through oral or other evidence, with the scene recorded (see Russell v Russell (1875) 4 QSCR 103 (in banco); Schmidt v Schmidt (1969) QWN 3 at 5 Barron v Valdmanis , unreported, NSW Sup Ct Meares J, 2 May 1978).” [Emphasis added]

Following the above authority, this Court found no reason to disturb the finding of the Sessions Court that the photograph could be safely admitted into evidence. The Plaintiff confirmed what was depicted in the photograph, as did the Investigating Officer who testified as SP1. Although there was confusion about whether he went to the scene with the Plaintiff or not, his evidence was that he did go to the scene and did not dispute the photograph. In fact, he testified that the entire left lane of Persiaran Mokhtar Dahari was full of potholes.

Further, the Third Party admitted that Persiaran Mokhtar Dahari was under its purview and the Third Party also never disputed the existence of the pothole. Admittedly, the Third Party said that no one reported the pothole and no repairs were done. However, it did not say that there was no pothole or that there could not have been a pothole.

It is not clear if the pothole was ever fixed, because the accident only came to the knowledge of the Defendants much later when a demand was made. By then, the Third Party’s contract had expired. In fact, the contract expired on 31 January 2021, just 10 days after the accident. If the Third Party did not fix it, it would have to be assumed that the Defendants either fixed it themselves, or continued to be oblivious as to its existence.

More importantly, the Defendants did not advance a case that there was no pothole, and it was entirely within their power to verify this and discredit the Plaintiff’s evidence when the onus of proof shifted to the Defendants in the course of the trial. It was thus reasonable to assume that they would have established the existence or non-existence of the pothole at some point in time. The former must be true in the light of this letter from the Defendants dated 14 October 2021 to the State Legal Advisor:

The letter did not say that following investigations at the accident site, there was no sign of any pothole. The existence of the pothole on Persiaran Mokhtar Dahari was thus satisfactorily proven. If so, this Court was given no good reason to override the trial Judge’s evaluation of the Plaintiff’s testimony on how he sustained his injuries.

There were other minor factual inconsistencies relied on by the Defendants that were explained at the trial i.e. the results of the police investigation that was wrongly dated due to a clerical error. Nothing turned on this as the Investigating Officer explained that he made the clerical error and the trial Judge accepted this explanation.

The Defendants also advanced a substantive defence that it is immune from liability according to sections 7(1) and (2) of the Government Proceedings Act 1956 (“GPA”) and because maintenance of Persiaran Mokhtar Dahari had been delegated by the Selangor State Government to the Third Party under a long term maintenance contract for roads in Selangor (Zone 2) dated 7- 3-2016.

Sections 7(1) and (2) of the GPA provides: “(1) Notwithstanding any other provisions of this Act to the contrary no proceedings, other than proceedings for breach of contract, shall lie against the Government on account of anything done or omitted to be done or refused to be done by the Government or any public officer in exercise of the public duties of the Government.

For the purposes of subsection (1) the expression “exercise of the public duties” includes –

the construction, maintenance, diversion and abandonment of railways, roads, bridle-paths or bridges; …”

The Defendant referred to section 7(3) of the Government Proceedings Act 1956 (“GPA”) that provides: “(3) Nothing in this section shall prevent the bringing of any suit for damages or compensation arising out of negligence or trespass in the execution of any works of construction or maintenance undertaken by the Government in the exercise of the said public duties.” and interpreted it to mean that a suit for damages can only be brought for negligence a) during the execution of construction works and b) during the execution of maintenance works.

This Court found that the Sessions Court Judge had correctly applied the Court of Appeal decision in Raymond Cheah Choon Sing v Jurutera Daerah Jabatan Kerja Raya Seberang Perai Tengah & Ors [2017] 9 CLJ 543 that held that the statutory immunity in sections 7(1) and (2) of the GPA is not absolute. It is subject to sub-section (3) in case of negligence. Further, negligence in section 7(3) of the GPA refers to negligence in the maintenance of roads, and that includes both acts and omissions. Thus, it was found that: “[23]…Accordingly, the maintenance of public roads incudes the regular inspection of public roads and the act of carrying out timeous and prompt repair and maintenance works to keep the public roads in good repair and condition. It follows that where, as in this case, notwithstanding the defendants’ knowledge of the existence of potholes, the defendants failed to promptly repair the potholes and thereby left the public road in a state of disrepair…..As such, the defendants in failing to maintain the public road in question have failed to discharge their statutory duty under sub-s 7(2) of the GPA 1956” [Emphasis added]

Similarly, the Defendants were primarily liable for breach of their statutory duty to maintain Persiaran Mokhtar Dahari because there were potholes, one of which caused the Plaintiff to fall and seriously injure himself.

On the second point of the Defendants’ substantive defence, this Court agreed that they could not avoid their statutory duty to keep the road in good condition by delegating it to a third party, as determined in Sajid Dilwarkhan v Ketua Pengarah Jabatan Kerja Raya & Ors [2020] MLJU 2324 and the cases cited therein: “[18] The foregoing cases illustrate that the defendants are not protected by statutory immunity under section 7 of the Government Proceedings Act 1956. They have a statutory duty to the plaintiff to keep the road in good condition. They cannot escape liability by delegating it to a third party. The defendants have not performed that duty. They did not see to it that the third party covered the pothole or put up warning signs or cones near the pothole to warn road users of the pothole. The defendants are consequently liable.” [Emphasis added] See also Mohd Hakeem Haniff & Anor v Datuk Bandar Kuala Lumpur & Ors [2024] 7 CLJ 604.

On the question of contributory liability between the Plaintiff and the Defendants, Sepang Omnibus Sdn Bhd v Christina Loh Soo Pang & Ors [1970] 2 MLJ 234 held that an appellate court should not intervene in respect of a trial court’s apportionment of liability unless there is “plain error of fact” or legal error by the trial Judge which has caused an injustice. This Court was in no position to disturb the 40% contributory liability attributed to the Plaintiff based on the available material in the record of appeal.

However, it is noted that the Plaintiff only sued the Defendants in the main action. The Third Party is not a co-defendant sued in the main action such that liability for may be apportioned between the parties in the main action and the Third Party for contributory negligence. It followed that as the negligent parties in the main action, the Defendants bore 60% of the liability. Third party indemnity

To recapitulate, the Defendants have a primary duty of care to the Plaintiff and that duty was breached because Persiaran Mokhtar Dahari was not maintained and this caused the Plaintiff’s injuries. How the Defendants chose to undertake that responsibility does not concern Plaintiff. In this case, it was delegated to the Third Party. The Defendants claimed an indemnity and that is precisely the purpose of the third party proceedings.

The Third Party’s road maintenance contract was a substantial contract worth RM26,758,914.29 and it ran from 7-3-2016 until 31- 1-2021 when it expired and therefore covered the period when the Plaintiff’s accident happened.

This Court noted that the standard form PWD Form 203A (Rev 1/2010) JKR construction contract used seemed inappropriate for maintenance works, but the scope of works under the contract was clear. The Third Party admitted that it was obliged to carry out routine inspection and implement pothole repair works where any are found, and to provide all labour, equipment, tools, materials, transports and whatever necessary to patch up potholes.

It was also not disputed that Persiaran Mokhtar Dahari was previously known as Jalan Shah Alam Batu Arang and fell within the Third Party’s jurisdiction in Zone 2. The only defence by the Third Party was a technical one on the interpretation of the indemnity clause:

The Third Party’s defence was that the indemnity clause was not applicable as the injury did not arise from the carrying out of any “work”. This Court had no difficulty concluding that based on the Third Party’s scope of work – “work” in Clause 14 included routine inspection and maintenance, and “carrying out of the work” included any omission in “carrying out the work”.

There were no particulars of contributory negligence between Defendants and the Third Party and as noted, the Third Party did not oppose the Defendants’ appeal. Based on contract, the Third Party should be 100% liable to indemnify the Defendants in the third party proceedings. Assessment of damages

The Sessions Court Judgment set out her analysis to arrive at the quantum of damages assessed in great detail and no submissions were put forward by the Defendants to highlight any appealable error despite the appeal lodged on the question of damages. The assessment was accordingly upheld.

For the reasons set out above, the following Orders were made on the Defendants’ appeal:

The Sessions Court Judgement was affirmed in the main action but varied to the following extent i.e. the Defendants were liable for negligence, with the Plaintiff sharing 40% of that liability for contributory negligence;

The Sessions Court Judgment in the third party action was varied in that the Third Party was found liable to fully indemnify the Defendants for their loss from the Third Party’s breach of contract;

The Sessions Court’s assessment of damages is affirmed; and

Costs of the appeal to be paid by the Defendants to pay the Plaintiff in the sum of RM5,000.00; and to be paid by the Third Party to the Defendants in the sum RM2,500.00 Bertarikh : 13 November 2025 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak Perayu-Perayu: Nor Fariza binti Ridzuan Pejabat Penasihat Undang-Undang Negeri Selangor Peguam bagi pihak Responden Pertama: Rhupashree Magendran Messrs Sumitra Devi & Partners Peguam bagi pihak Responden Kedua: Messrs Ali & Fariz A