THE issue of poor maintenance of public roads involving potholes in Malaysia is not new.
The recent incident involving Science, Technology and Innovation Minister Khairy Jamaluddin attracted much attention, not the incident itself but the response from the authority whose purview the matter supposedly fell under – the Public Works Department.
The Kuala Langat division had apologised to the minister and pledged to take necessary action. This response caused public uproar regarding double standards in relation to incidents involving VVIPs in contrast to regular Malaysians.
The unfortunate incident in any event gives rise to several interesting legal issues that can be explored.
Section 5 and Section 7 of the Government Proceedings Act 1956 (Act 359) focuses on the liability of the government in tort as well civil claims for damages or compensation arising out of negligence.
The government may and can be held accountable for an action of negligence in maintaining railways, roads, bridle-paths or bridges.
In the landmark case of Raymond Cheah Choon Sing v Jurutera Daerah, Jabatan Kerja Raya Seberang Prai Tengah & Ors [2018] 1 MLJ 362 the Court of Appeal had the occasion to interpret the above mentioned provisions.
The appellant had sued JKR for damages when he was involved in a motorcycle accident whilst riding his motorcycle along Jalan Perusahaan, Bukit Minyak, Pulau Pinang, when he suddenly fell into two contiguous potholes.
The appellant was thrown off his motorcycle and sustained injuries. The appellant filed a claim for damages for negligence against district engineer, JKR Seberang Prai Tengah (first defendant), director of Penang JKR (second defendant) and the Penang state government (third defendant).
The Court of Appeal decided that JKR was negligent in failing to carry out timely repairs to the potholes in question despite having prior knowledge of the same.
In the upshot, any person who sustains injury in an accident due to potholes may sue the relevant authority for negligence and breach of statutory duty in not maintaining such public roads.
Whether the claim will succeed or otherwise is a different matter altogether. Of course, the relevant authority responsible for road maintenance must first be determined, whether it is local, state or federal governments respectively.
This short article is intended for the purposes of sieving through any legal mode or action that course may be employed as a check and balance mechanism against the public authorities responsible for public road maintenance. – The Vibes, December 29, 2020
Muhammad Rafique Rashid Ali is a lawyer
