Lim Gim Seah v.

[2012] 5 CLJ Lokman Talib & Ors 561

A LIM GIM SEAH

v.

LOKMAN TALIB & ORS

B COURT OF APPEAL, PUTRAJAYA
AHMAD MAAROP FCJ
ABDUL MALIK ISHAK JCA
ANANTHAM KASINATHER JCA
[CIVIL APPEAL NO: K-04-248-2008]
C 26 JANUARY 2012

TORT: Vicarious liability - Personal injuries - Injuries sustained by

appellant on 2nd defendant’s worksite - 3rd defendant as main contractor
contracted 2nd defendant for works at site - Sessions and High Court
D judges held no negligence on 3rd respondent’s part - Whether 3rd
respondent should be vicariously liable for negligence - Whether test to
determine negligence based on 2nd respondent as an independent contractor

TORT: Damages - Personal injuries - Appellant injured himself at 2nd

defendant’s worksite - 3rd defendant as main contractor contracted 2nd
E
defendant for works at site - 3rd respondent held to be not negligent -
Whether 3rd respondent should be vicariously liable for negligence -
Whether test to determine negligence based on 2nd respondent as an
independent contractor
F Time Telecommunications Sdn Bhd had awarded a contract to
undertake the construction of manholes, laying of ducts and other
related works (‘the project’) to the 3rd respondent. The 3rd
respondent then had awarded part of the project (‘the contract’)
involving the installation of fibre optic cables to the 2nd
G respondent including the works along Jalan Kanchut in Alor Setar,
Kedah (‘the site’). On 13 June 1995, the appellant had fallen into
a hole at the site and injured himself when he was riding his
motorcycle along Jalan Kanchut. The learned Sessions Court
Judge held the 1st and 2nd respondents to be 70% negligent and
H the appellant to be 30% contributory negligent for the accident
and did not find any negligence on the part of the 3rd
respondent. The appellant’s appeal to the High Court against the
decision was dismissed and therefore, this action. It was argued
by the appellant’s counsel that the learned judges of the Sessions
I and High Court had erred when relying only on cls. 16 and 18 of
562 Current Law Journal [2012] 5 CLJ

the contract in determining who was in control of the site when A

in fact, upon reading of cls. 2.1, 2.2, 2.3, 2.5, 4.4, 13 and 15.2,
it should have been evident that the 2nd respondent was at the
material time undertaking work in accordance with the instructions
of the Superintending Officer (‘S.O.’) and to the extent that the
S.O. was an employee of the 3rd respondent under the terms of B
the contract, the 3rd respondent could be said to be in control
of the site at the material time. Counsel for the respondent
submitted that the test to determine whether the 3rd defendant
was vicariously liable for the acts/omission of the 2nd respondent
depended entirely on whether the 2nd respondent was an C
independent contractor, based on the test set out in Honeywill and
Stein, Limited v. Larkin Brothers (London’s Commercial Photographers
Limited) (‘the test’). The two issues that arose were (i) whether
the 2nd respondent’s 70% negligence should be equally borne by
the 3rd respondent; and (ii) whether the 3rd respondent is strictly D
liable for the negligence of the 2nd respondent based on the test
under the principles of law.

Held (dismissing appeal with costs)

Per Anantham Kasinather JCA delivering the judgment of E
the court:

(1) Based on the evidence before the court, the 1st respondent
was the employee of the 2nd and not of the 3rd respondent.
Furthermore, this court agreed with the learned Sessions
F
Judge that from a plain reading of cl. 16 of the contract, the
site was deemed to be in the control of the 2nd respondent
until the issuance of the taking over order by the S.O. based
on cl. 35 in the contract between the 2nd and 3rd respondents.
(para 13)
G
(2) It was necessary for the S.O. who was appointed by the 3rd
respondent to give instructions to the 2nd respondent since
the works undertaken by the 2nd respondent were
complementary to the works undertaken by the 3rd
respondent as part of the project. Accordingly, the S.O.’s H
instructions were not intended to control the actual
performance of the 2nd respondent as much as to ensure that
the works of the 2nd respondent were in conformity with the
project. (Salsbury v. Woodland and Others and Datuk Bandar
Dewan Bandaraya Kuala Lumpur v. Ong Kok Peng & Anor) I
(paras 14-16)
 Lim Gim Seah v.
[2012] 5 CLJ Lokman Talib & Ors 563

A (3) The facts of the instant appeal did not fall within the
exception to the general rule, ie, either the first or second
class of cases cited in Salsbury v. Woodland and Others. In that
case first class referred to “extra-hazardous acts” and the
second class concerned the dangers created on highways.
B Even if this was wrong, the appeal must still fail since it was
neither the appellant’s pleaded case nor was there any
evidence that the nature of the work undertaken by the 3rd
respondent resulted in the creation of a direct duty of care to
the appellant on the 3rd respondent. (paras 17-19)
C
Bahasa Malaysia Translation Of Headnotes

Time Telecommunications Sdn Bhd telah mengawadkan satu

kontrak untuk menjalankan pembinaan lurang pembetungan,
pemasangan saluran dan kerja-kerja lain yang berkaitan (‘projek
D
tersebut’) kepada responden ketiga. Responden ketiga
kemudiannya telah mengawadkan sebahagian projek tersebut
(‘kontrak tersebut’) kepada responden kedua yang melibatkan
pemasangan kabel gentian optik termasuk kerja-kerja di sepanjang
Jalan Kanchut di Alor Setar, Kedah (‘tapak tersebut’). Pada
E
13 Jun 1995, perayu telah terjatuh ke dalam lubang di tapak
tersebut dan telah mengalami kecederaan apabila beliau sedang
menunggang motosikalnya di Jalan Kanchut. Yang Arif Hakim
Mahkamah Sesyen telah memutuskan bahawa responden pertama
dan kedua adalah 70% cuai dan perayu adalah 30% menyumbang
F
kecuaian atas kemalangan itu dan memutuskan bahawa responden
ketiga tidak melakukan apa-apa kecuaian. Rayuan perayu ke
Mahkamah Tinggi terhadap keputusan tersebut ditolak dan maka,
tindakan ini. Ia dihujahkan oleh peguam perayu bahawa Yang Arif
Hakim-hakim Mahkamah Sesyen dan Mahkamah Tinggi telah khilaf
G
apabila bergantung hanya pada kl. 16 dan 18 kontrak tersebut
bagi menentukan siapakah yang mempunyai kawalan ke atas tapak
tersebut sedangkan pada hakikatnya, dengan pembacaan kl. 2.1,
2.2, 2.3, 2.5, 4.4, 13 dan 5.2, ia sepatutnya jelas bahawa
responden kedua pada masa material sedang melakukan kerja-kerja
H
mengikut arahan dari Pegawai Penguasa (‘S.O.’) dan oleh kerana
S.O. merupakan pekerja responden ketiga menurut terma-terma
kontrak tersebut, responden ketiga boleh dikatakan mempunyai
kawalan ke atas tapak tersebut pada masa material. Peguam bagi
responden telah menghujahkan bahawa ujian bagi menentukan
I
564 Current Law Journal [2012] 5 CLJ

sama ada responden ketiga adalah bertanggungan secara vikarius A

ke atas perbuatan atau peninggalan responden kedua bergantung
sepenuhnya sama ada responden kedua adalah kontraktor bebas,
berdasarkan ujian yang dinyatakan di dalam kes Honeywill and Stein,
Limited v. Larkin Brothers (London’s Commercial Photographers
Limited) (‘ujian tersebut’). Dua isu yang berbangkit adalah (i) sama B
ada 70% kecuaian responden kedua sepatutnya ditanggung
bersama oleh responden ketiga; dan (ii) sama ada responden ketiga
adalah benar-benar bertanggungjawab atas kecuaian responden
kedua berdasarkan ujian di bawah prinsip undang-undang.
C
Diputuskan (menolak rayuan dengan kos)
Oleh Anantham Kasinather HMR menyampaikan penghakiman
mahkamah:

(1) Berdasarkan keterangan di hadapan mahkamah, responden

D
pertama adalah pekerja responden kedua dan bukan responden
ketiga. Tambahan, mahkamah ini bersetuju dengan Yang Arif
Hakim Mahkamah Sesyen bahawa dengan pembacaan biasa
kl. 16 kontrak itu, tapak tersebut dianggap di bawah kawalan
responden kedua sehinggalah pengeluaran perintah untuk
E
mengambil alih oleh S.O berdasarkan kl. 35 kontrak di antara
responden kedua dan ketiga.

(2) Ianya adalah perlu bagi S.O yang telah dilantik oleh responden
ketiga untuk memberi arahan kepada responden kedua
memandangkan kerja-kerja yang dijalankan oleh responden F
kedua saling melengkapi kerja-kerja responden ketiga yang
merupakan sebahagian daripada projek tersebut. Sewajarnya,
arahan-arahan S.O. adalah tidak bermaksud untuk mengawal
prestasi kerja responden kedua sebagaimana untuk memastikan
kerja-kerja responden kedua adalah selaras dengan projek G
tersebut. (Salsbury v. Woodland and Others dan Datuk Bandar
Dewan Bandaraya Kuala Lumpur v. Ong Kok Peng & Anor)

(3) Fakta di dalam rayuan ini tidak terangkum dalam pengecualian

kepada kaedah am, iaitu, kes-kes kelas pertama atau kedua H
yang dinyatakan di dalam Salsbury v. Woodland and Others.
Dalam kes itu kelas pertama merujuk kepada “extra-hazardous
act” dan kelas kedua berkaitan dengan bahaya yang wujud di
lebuhraya. Jika ia salah sekalipun, rayuan ini masih gagal
I
 Lim Gim Seah v.
[2012] 5 CLJ Lokman Talib & Ors 565

A kerana perayu tidak memplid dan tidak ada keterangan bahawa

sifat kerja yang dilakukan oleh responden ketiga mengakibatkan
kewujudan kewajipan berjaga-jaga secara langsung terhadap
perayu kepada responden ketiga.

B Case(s) referred to:

Datuk Bandar Dewan Bandaraya Kuala Lumpur v. Ong Kok Peng & Anor
[1993] 3 CLJ 205 FC (refd)
Holliday v. National Telephone Company [1899] 2 QB 392 (dist)
Honeywill and Stein, Limited v. Larkin Brothers (London’s Commercial
Photographers Limited [1934] 1 KB 191 (dist)
C Salsbury v. Woodland And Others [1970] 1 QB 324 (dist)
Walsh v. Holst & Co Ltd And Others [1958] 1 WLR 800 (refd)

For the appellant - Brijnandan Singh Bhar; M/s Brijnandan Singh Bhar &
Co
For the respondent - K Sivabalan; M/s Shahrizat Rashid & Lee
D
[Appeal from High Court, Alor Setar; Civil Appeal No: 12-21-2005]

Reported by Baizura Abd Razak

E
JUDGMENT

Anantham Kasinather JCA:

Background Facts
F
[1] From the evidence before the court, it appears that Time
Telecommunications Sdn Bhd awarded a contract to undertake
the construction of manholes, laying of ducts and other related
works to the 3rd respondent (‘the project’). The 3rd respondent
G awarded that part of the project involving the installation of fibre
optic cables below the highway to the 2nd respondent (‘the
works’). The works undertaken by the 2nd respondent included
undertaking the works along Jalan Kanchut in Alor Setar (the site).
The terms of the contract between the 2nd and 3rd respondents
H can be found from pp. 5 to 354 of the 3rd respondent’s core
bundle of documents vol. 1.

[2] According to the unchallenged evidence of Encik Ghazali bin

Mohamad Noor (SP3), JKR is responsible for the maintainance of
I
the site. It is his evidence that a permit had been granted to Time
Telecommunications Sdn Bhd to undertake the said project
566 Current Law Journal [2012] 5 CLJ

commencing July 1995 (see p. 472 of the 3rd respondent’s core A

bundle vol. 2). It is therefore reasonable to conclude that the
owner of the site is JKR, the employer of the project is Time
Telecommunications Sdn Bhd, the 3rd respondent is the
contractor and the 2nd respondent the sub-contractor in respect
of the works being conducted at the site. B

[3] On 13 June 1995 at about 2.30am, the plaintiff (appellant)

was riding motorcycle No. KT 2268 along Jalan Kanchut in Alor
Setar and in the direction of Anak Bukit in Alor Setar when he
fell into a hole in the site and as a result of which he was injured. C
According to the investigating officer, the workers at the site when
he visited the site shortly after the accident were employees of the
2nd respondent and he interviewed the 1st respondent in his
capacity as the supervisor of the 2nd respondent (see the evidence
of SP2 at p. 465 of core bundle). It is the appellant’s pleaded D
case that the 1st respondent was the servant/agent of either the
2nd or 3rd respondent when acting as the supervisor of the
project. Hence, the inclusion of the 3rd respondent as a defendant
in this suit. However, it is not in dispute that the Superintending
Officer (‘S.O’) under the contract between the 2nd and 3rd E
respondents was one Encik Shamsul Anuar bin Mohd Don (SD1)
an employee of the 3rd respondent.

[4] On the conclusion of the trial the learned Sessions Court

Judge held the 1st and 2nd respondents to be 70% negligent and
F
the appellant to be 30% contributory negligent for the accident.
The learned Sessions Court Judge did not find any negligence on
the part of the 3rd respondent. The appeal by the appellant
against the whole of the said decision of the learned Sessions
Court Judge was dismissed by the High Court on 24 January
G
2008.

Issues

[5] The two issues raised in this appeal are first, whether the
2nd respondent’s 70% negligence should be equally borne by the H
3rd respondent. Secondly, whether the 3rd respondent is strictly
liable for the negligence of the 2nd respondent under the principles
of law pronounced by the English Court of Appeal in the case of
Holliday v. National Telephone Company [1899] 2 QB 392.
I
 Lim Gim Seah v.
[2012] 5 CLJ Lokman Talib & Ors 567

A [6] On the first issue, counsel for the appellant submitted that,
in law, liability for negligence for works undertaken in the highway
is imputed to the person ‘in control’ of the work site and not
determined by any categorization of whether that person is a
contractor or sub-contractor. Counsel for the appellant then
B contended that to the extent the 3rd respondent was ‘in control’
of the site, the learned Sessions Court Judge ought to have made
a finding that the 3rd respondent was contributory negligent
together with the 2nd respondent (see the submission of counsel
for the appellant before the High Court at p. 3 of vol. 11). The
C basis for counsel’s submission was that the learned judges of the
Sessions and High Court had erroneously relied on cls. 16 and 18
of the contract in determining who was in control of the site,
when, according to counsel the relevant clauses were cls. 2.1, 2.2,
2.3, 2.5, 4.4, 13 and 15.2. Learned counsel for the respondent
D on the other hand contended that apart from cls. 16 and 18, the
Lower Courts decision can also be justified by reference to cls.
30.1, 30.5 and 35.1.

[7] The relevant clauses read as follows:

E
Clause 2.1

Duties and Powers of S.O

The S.O shall be the representative and agent of the

F Contractor in carrying out any and all of his duties (including
without limitation thereto the issue of any certificate) under
the contract and shall act solely on behalf of the Contractor,
and shall not have any independent role whatsoever.

Clause 2.2
G
The S.O’s duties are to watch and supervise the works, to
test and examine any materials to be used, for workmanship
employed in connection with the works, to issue instructions
to the sub-contractor and to be the on-site representative of
H the contractor.

Clause 2.3

The S.O may appoint any number of persons to assist the S.O
in the exercise of his functions. The names and functions of
I
such persons shall be notified to the sub-contractor. The said
568 Current Law Journal [2012] 5 CLJ

assistants shall have no power to issue any instructions to the A

sub-contractor save insofar as such instructions may be
necessary to enable them to discharge their functions in
accordance with this contract. Any instructions given by any
such assistants shall be deemed to have been given by the
S.O. B

Clause 2.5

If the Sub-Contractor shall be dissatisfied by reason of any

act of any assistant of the S.O or other person duly
C
authorized by the S.O under sub-clause 2.4 above, he shall be
entitled to refer the matter to the S.O for his decision.

Clause 4.4

The sub-contractor shall provide sufficient superintendence D

whether on the site or elsewhere to ensure that the work to
be carried out by a sub-contractor or supplier will comply with
the requirements of the contract. The S.O may, by written
notification order that the sub-contractor terminate the sub-
contract or supply contract as the case may be, of any sub- E
contractor or supplier and the sub-contractor shall, at his own
expense, within 21 days after the receipt of such notification
so terminate such sub-contract or supply contract.

Clause 13
F
Work to the satisfaction of S.O

Work to be to the satisfaction of the S.O.

Save insofar as it is legally possible the sub-contractor shall

G
execute the works in strict accordance with the contract to
the satisfaction of the S.O and shall comply with (but without
any prejudice to the sub-contractor’s obligations hereunder)
and adhere strictly to the S.O’s instructions and directions on
any matter (whether mentioned in the contract or not).
H
Clause 15.2

The S.O shall be at liberty to object to and require the sub-

contractor to remove forthwith from the works at the sub-
contractor’s expense any person employed by the sub- I
contractor or his sub-contractors in or about the execution of
 Lim Gim Seah v.
[2012] 5 CLJ Lokman Talib & Ors 569

A the works and such person shall not be employed again upon
the works without the written permission of the S.O. The S.O
shall not be required to justify his reasons for requiring a
person to be removed from the works. Any person so
removed from the works shall be replaced at the sub-
B contractor’s expense as soon as possible by a competent
substitute approved by the S.O.

Clause 16.1

Care of Works
C
From the commencement of the works until the date stated
in the Taking Over Certificate for the whole of the works
issued pursuant to cl. 35 (Taking Over), the sub-contractor
shall take full responsibility for the care thereof. Provided that
D if the S.O shall issue a Taking Over Certificate in respect of
any section, the sub-contractor shall cease to be liable for the
care of that section from the date stated in the Taking Over
Certificate in respect of that section and the responsibility for
the care of that section shall pass to the contractor. Provided
E further that the sub-contractor shall take full responsibility for
the care of any outstanding work which he shall have
undertaken to carry out during the defects liability period after
taking over until such outstanding work is completed.

F Clause 16.2

In case any damage, loss or injury shall happen to the works

or to any part thereof from any cause whatsoever (save and
except the excepted risk) including any negligence or default
of the contractor his servants or agents while the sub-
G
contractor shall be responsible for the care thereof, the sub-
contractor shall at his own expense repair and make good the
same so that at completion the works shall be in good order
and condition and in conformity in every respect with the
requirements of the contract and the S.O’s instructions. In the
H
event of any such damage, loss or injury happening from any
of the Excepted Risks, the sub-contractor shall, if and to the
extent required by the S.O. repair and make good the same
as aforesaid and the additional Costs of so doing shall be
added to the contract sum subject to and in accordance with
I
cl. 47 (claims). The sub-contractor shall also be liable for any
570 Current Law Journal [2012] 5 CLJ

damage to the works occasioned by him in the course of any A

operations carried out by him for the purpose of completing
any outstanding work or complying with his obligations under
cl. 31 (defects liability period).

Clause 18.1 B

Indemnity For Negligent Acts And For Personal Injury

The sub-contractor shall be liable for and shall indemnify the

employer and the contractor against any expense, liability, loss,
claim or proceedings whatsoever arising under any statute or C
at common law in respect of personal injury to or the death
of any person whomsoever arising out of, in the course of or
caused by the carrying out of the works, unless and to the
extent that the same is due to any act or neglect of the
contractor. D

Clause 18.2

The sub-contractor shall be liable for, and shall indemnify the

employer and the contractor against, any expense, liability,
E
loss, claim or proceedings in respect of any injury or damage
whatsoever to any property real or personal insofar as such
injury or damage arises out of or in the course of or by
reason of the carrying out of the works and provided always
and to the extent that the same is due to any negligence,
F
omission, default or act of the sub-contractor his servants or
agents.

Clause 30.1

Tests On Completion G

The sub-contractor shall give to the S.O in writing 28 days

prior notice of the date upon which he will be ready to make
the tests on completion. Unless otherwise agreed, the tests
shall take place within 28 days after the said date on such day
H
or days as the S.O shall in writing notify the sub-contractor.

Clause 30.5

If the works or any section shall fail to pass the tests, such
tests shall if required by S.O or by the sub-contractor be I
repeated within a reasonable time upon the same terms and
 Lim Gim Seah v.
[2012] 5 CLJ Lokman Talib & Ors 571

A conditions save that any expense to which the S.O may be

put by the repetition of the tests shall be ascertained by the
contractor and deducted from the contract sum.

Clause 35.1
B
Taking Over

As soon as the whole of the works or any section have been

completed in accordance with the contract (except in minor
respects that do not affect their use for the purpose for which
C they are intended and save for the obligations of the sub-
contractor under cl. 31 (defects liability period) and have
passed the tests on completion, the S.O shall issue a taking
over certificate in which he shall certify the date on which the
works or any section as the case may be have been so
D completed and have passed the tests on completion and the
contractor shall be deemed to have taken over the works or
any section on the date so certified but the issue of a taking
over certificate shall not operate as an admission that the
works or any section have been completed in every respect.
E
[8] According to counsel for the appellant it is evident from a
reading of cls. 2.1, 2.2, 2.3, 2.5, 4.4, 13 and 15.2 that the 2nd
respondent was at the material time undertaking work in
accordance with the instructions of the S.O and to the extent that
F the S.O was an employee of the 3rd respondent under the terms
of the contract, the 3rd respondent can be said to be in control
of the site at the material time.

[9] Learned counsel for the respondent, on the other hand,

submitted that the test to determine whether the 3rd defendant
G
was vicariously liable for the acts/omission of the 2nd respondent
depended entirely on whether the 2nd respondent was an
independent contractor. According to him, this test is the one set
out by Lord Slesser LJ in the case of Honeywill and Stein, Limited
v. Larkin Brothers (London’s Commercial Photographers Limited [1934],
H
1 KB 191. His Lordship summarised the test in this manner:
The determination whether the actual wrongdoer is a servant or
agent on the one hand or an independent contractor on the other
depends on whether or not the employer not only determines
I what is to be done, but retains the control of the actual
572 Current Law Journal [2012] 5 CLJ

performance, in which case the doer is a servant or agent; but if A

the employer, while prescribing the work to be done, leaves the
manner of doing it to the control of the doer, the latter is an
independent contractor.

(See p. 196 of the report)

B
[10] Counsel for the respondent also submitted that it is evident
from cls. 16, 30.1, 30.5 and 35.1 that the 2nd respondent was in
full control of the site and the works during the period of the
contract as the contract involved the specialised task of installing
fibre optic cables below the highway. Furthermore, the 3rd C
respondent could only recover possession of the site upon the
issuance of a certificate by the S.O and which certificate could
only be issued after the successful completion of various tests to
be conducted by the S.O. In other words, according to counsel
for the respondent, on the facts of this case, the 3rd respondent D
only prescribed the work to be undertaken whilst leaving the
manner of doing it entirely in the hands of the 2nd respondent so
as to render the 2nd respondent to be an independent contractor,
applying the test propounded by Justice Slesser. This, according
to counsel for the respondent, explains why the only persons at E
the site at the time of the accident were the employees of the 2nd
respondent and its supervisor, the 1st respondent (see the
evidence of SP2 at p. 465 of the core bundle).

[11] As regards the second issue, it was the submission of F

counsel for the appellant that the main contractor may be liable
in negligence even though work was being undertaken by an
independent contractor at the time of the accident. For this
proposition, counsel for the appellant invited us to have regard to
the following passages in the judgments of Earl of Halsbury LC G
and AL Smith LJ in the case of Holliday v. National Telephone
Company. Earl of Halsbury LC opined to this effect:
There was clearly evidence to the effect that work, in the course
of which the accident happened, was being done, not by the
person whom the Defendants call an independent contractor alone, H
but by that person and the Defendants jointly; and I think the
evidence justified the view that they were both engaged in the
joint operation under such circumstances that both of them would
be responsible if there were negligence in the performance of it
such as that which occasioned the accident in this case. There is I
a further ground for holding that the Plaintiff is entitled to
 Lim Gim Seah v.
[2012] 5 CLJ Lokman Talib & Ors 573

A succeed. There was here an interference with a public highway,

which would have been unlawful but for the fact that it was
authorized by the proper authority. The telephone company so
authorized to interfere with a public highway are, in my opinion,
bound, whether they do the work themselves or by a contractor,
to take care that the public lawfully using the highway are
B
protected against any act of negligence by a person acting for
them in the execution of the works.

If the lamp were in good order, the operation would be harmless;

but, if the safety-valve of the lamp were out of order, an
C explosion must ensue. Therefore, works were being executed in
proximity to a highway, in which in the ordinary course of things
an explosion might take place. It appears to me that the telephone
company, by whose authority alone these works were done, were,
whether the works were done by the company’s servants or by a
contractor, under an obligation to the public to take care that
D persons passing along the highway were not injured by the
negligent performance of the work. For these reasons, the appeal
must be allowed.

(See pp. 398 to 399 of the report)

E
AL Smith LJ on his part opined:
The Defendants were a telephone company who were engaged in
the execution on a highway of works which were clearly
dangerous. It obviously involves a certain amount of danger to
F
have a caldron of molten lead on a highway. The Defendants,
therefore, on the hypothesis that Highmore was an independent
contractor, were delegating to him the execution of dangerous
work upon a highway. The deputy judge finds that in making the
joints between the pipes it was a proper thing for the purpose of
getting the necessary flare to dip the benzoline lamp into the
G molten metal. The safety-valve of the lamp being out of order,
the result of doing that was that the lamp exploded, and the
molten lead was scattered about, some falling on the Plaintiff who
was passing by upon the highway. The defence is that the
Defendants are not liable in respect of the injury sustained by the
H
Plaintiff, because it was occasioned by the negligence of an
independent contractor for whom they are not responsible. In my
opinion, since the decision of the House of Lords in Hughes v.
Percival 8 App. Cas. 443 and that of the Privy Council in Black
v. Christchurch Finance Co. [1894] AC 48, it is very difficult for a
person who is engaged in the execution of dangerous works near
I a highway to avoid liability by saying that he has employed an
574 Current Law Journal [2012] 5 CLJ

independent contractor, because it is the duty of a person who is A

causing such works to be executed to see that they are properly
carried out so as not to occasion any damage to persons passing
by on the highway. I do not agree that this was a case of mere
casual and collateral negligence within the meaning of that term,
for it was negligence in the very act which Highmore was
B
engaged to perform.

(see pp. 399 to 400 of the report)

[12] Based on the aforesaid pronouncements, counsel for the

appellant contended that where the independent contractor was C
undertaking work in the highway, the main contractor such as the
3rd respondent is liable in negligence even if the 2nd respondent
was an independent contractor. According to counsel for the
appellant, in such cases, the law extends the duty of care to
include the main contractor since the duty imposed by law on the D
3rd respondent cannot be delegated to the 2nd respondent. The
rationale being that you cannot avoid liability merely by delegating
the work to a third party. We were then referred to the following
passage in the judgment of Sellers LJ:
E
As the Electricity Board had authorized work to be done adjoining
the highway which might without due precautions cause injury to
anyone on the highway, the authorities already cited by my Lords
show that the board would be liable for the negligence of the
contractors or sub-contractors in failing to take due precautions.
Likewise, the contractors would be liable for any negligence in the F
performance of their duties delegated to sub-contractors.

in the case of Walsh v. Holst & Co Ltd And Others [1958] 1 WLR
800 at p. 812 in support of this proposition.

Judgment Of The Court G

First Issue

[13] In our judgment, the learned Sessions and High Court

Judges cannot be faulted for determining the case based on
H
cls. 16 and 18 and without due regard to the remaining clauses
in the contract between the 2nd and 3rd respondents. We opine
to this effect because the appellant’s pleaded case for contending
that the 3rd respondent was equally liable as the 2nd respondent
was premised on one fact only. This was that the 1st respondent
I
was the employee and/or agent of the 2nd and/or 3rd respondent
 Lim Gim Seah v.
[2012] 5 CLJ Lokman Talib & Ors 575

A (see paras. 5 and 6 of the appellant’s amended statement of claim

at p. 32 of vol. 111(a)). In other words, in our judgment, the
appellant having relied on this fact alone to impose vicarious
liability on the 3rd respondent cannot be heard to complain since
the evidence before the court was that the 1st respondent was
B the employee of the 2nd and not the 3rd respondent. Furthermore,
we agree with the learned Sessions Judge that it is evident from a
plain reading of cl. 16 of the contract that the site is deemed to
be in the control of the 2nd respondent until the issuance of the
taking over order by the S.O pursuant to cl. 35 of the contract
C between the 2nd and 3rd respondents. In our opinion, this serves
to explain why the 2nd respondent is obliged to indemnify the 3rd
respondent for any damage to persons or property caused whilst
carrying out the works, pursuant to cl. 18. Accordingly, on this
ground alone, the High Court was right to dismiss the appeal from
D the decision of the learned Sessions Judge.

[14] Be that as it may, since the two issues in this case were
argued at length and the subject matter of lengthy submissions in
writing, we propose to deal with these issues in this judgment. In
E our judgment, the decision of the High Court to dismiss the claim
of the appellants against the 3rd respondent on the 1st issue can
also be justified on the following additional grounds. First, we do
not agree with counsel for the appellant that the test to determine
whether a wrongdoer is a servant or agent or independent
F contractor varies depending on whether the works are being
undertaken in the highway or elsewhere. In our judgment, the test
is the same as is evident from this passage in the leading judgment
of Lord Justice Widgery in the case of Salsbury v. Woodland And
Others [1970] 1 QB 324 at pp. 336 to 337:
G
It is trite law that an employer who employs an independent
contractor is not vicariously responsible for the negligence of that
contractor. He is not able to control the way in which the
independent contractor does the work, and the vicarious obligation
of a master for the negligence of his servant does not arise under
H the relationship of employer and independent contractor. I think
that it is entirely accepted that those cases – and there are some
– in which an employer has been held liable for injury done by
the negligence of an independent contractor are in truth cases
where the employer owes a direct duty to the person injured, a
duty which he cannot delegate to the contractor on his behalf. The
I
whole question here is whether the occupier is to be judged by
the general rule, which would result in no liability, or whether he
576 Current Law Journal [2012] 5 CLJ

comes within one of the somewhat special exceptions – cases in A

which a direct duty to see that care is taken rests upon the
employer throughout the operation. This is clear from authority;
and for convenience I take from Salmond on Torts, 14th ed.
(1965), p. 687, this statement of principle:

One thing can, however, be said with confidence: the mere fact B
that the work entrusted to the contractor is of a character which
may cause damage to others unless precautions are taken is not
sufficient to impose liability on the employer. There are few
operations entrusted to an agent which are not capable, if due
precautions are not observed, of being sources of danger and C
mischief to others; and if the principal was responsible for this
reason alone, the distinction between servants and independent
contractors would be practically eliminated from the law.

[15] For the reasons given earlier in this judgment, in our

judgment, the appellant does not fall within the general rule for D
imposing vicarious liability on the main contractor such as the 3rd
respondent. In this respect, we adopt the rejection by LJ Widgery
of the pronouncements of LJ Sellers set out in para. 12 of this
judgment. LJ Widgery in Salsbury v. Woodland And Others (supra)
at p. 340 had this to say on the pronouncements of LJ Sellers: E

But in my judgment, having considered this matter with such care

as I can, I can find nothing in the authorities to which Sellers LJ
referred which justifies a conclusion in the terms which he uses;
and, as I have already said, this decision was obiter because the
F
case turned on the absence of negligence and not upon any nice
question of which of the Defendant might have been liable if
negligence had been proved.

Accordingly, the appeal fails on this ground as well. Thirdly, in our

judgment, the fact that the S.O appointed by the 3rd respondent G
was entitled to give instructions to the 2nd respondent can be
easily explained away as being necessary since the works
undertaken by the 2nd respondent are complementary to the
works undertaken by the 3rd respondent as part of the project.
This is evident from the contents of cl. 16.2 which inter alia H
requires the 2nd respondent to ensure that:
the works shall be in good order and condition and in conformity
in every respect with the requirements of the contract.

I
 Lim Gim Seah v.
[2012] 5 CLJ Lokman Talib & Ors 577

A Accordingly, the S.O’s instructions are not intended to control the

actual performance of the 2nd respondent as much as to ensure
that the works of the 2nd respondent are in conformity with the
project.

B Second Issue

[16] In our judgment, the answer to the second issue revolves

around whether the appellant can bring his case within any of
those cases which fall within the exception to the general rule.
The Federal Court in the case of Datuk Bandar Dewan Bandaraya
C
Kuala Lumpur v. Ong Kok Peng & Anor (Peh Swee Chin SCJ)
[1993] 3 CLJ 205 acknowledged the two exceptions to the
general rule to be those cited by the English Court of Appeal in
Salsbury v. Woodland And Others (supra). Lord Justice Widgery in
this case cited the two exceptions to be:
D
The first class concerns what have sometimes been described as
‘extra-hazardous acts’ – acts commissioned by an employer which
are so hazardous in their character that the law has thought it
proper to impose this direct obligation on the employer to see that
E care is taken. An example of such a case is Honeywill & Stein
Ltd. v. Larkin Bros (London’s Commercial Photographers) Ltd. [1934]
1 KB 191. Other cases which one finds in the books are cases
where the activity commissioned by the employer is the keeping
of dangerous things within the rule is Rylands v. Fletcher [1868]
LR 3 HL 330 and where liability is not dependent on negligence
F at all.

The second class of case, which is relevant for consideration,

concerns dangers created in a highway. There are a number of
cases on this branch of the law, a good example of which is
Holliday v. National Telephone Co. [1899] 2 QB 392. These, on
G
analysis, will all be found to be cases where work was being done
in a highway and was work of a character which would have been
a nuisance unless authorized by statute. It will be found in all
these cases that the statutory powers under which the employer
commissioned the work were statutory powers which left upon
H the employer a duty to see that due care was taken in the
carrying out of the work, for the protection of those who passed
on the highway. In accordance with principle, an employer subject
to such a direct and personal duty cannot excuse himself, if things
go wrong, merely because the direct cause of the injury was the
act of the independent contractor.
I
(see p. 338 of the report)
578 Current Law Journal [2012] 5 CLJ

[17] As is apparent from the contents of para. 11 of this A

judgment, it was contended with much force by counsel for the
appellant that the facts in the instant appeal fall within the facts
of the case of Holliday v. National Telephone Company (supra). To
the extent that Lord Justice Widgery acknowledged the judgment
of the court in Holliday v. National Telephone Company (supra) as B
falling within the second class of cases, counsel for the appellant
contended that it follows that the facts in the instant appeal fall
within the exception to the general rule. With respect, we are
unable to agree with the submission of counsel for the appellant.
First, the facts in the case of Holliday v. National Telephone C
Company are materially different from the facts in the instant
appeal. As acknowledged by Lord Halsbury LC, the facts in
Holliday v. National Telephone Company (supra) involved work being
undertaken not just by the independent contractor alone but
jointly by the independent contractor and the employer. This is D
evident from His Lordship’s observation at p. 398 of the reported
judgment of the court that:
I think the evidence justified the view that they were both engaged
in the joint operation under such circumstances that both of them E
would be responsible if there were negligence in the performance
of it such as that which occasion the accident in this case.

[18] Secondly, in Holliday v. National Telephone Company (supra),

the work undertaken in the highway also included extra hazardous
acts of the nature falling within the first class of cases cited by F
Lord Widgery in Salsbury v. Woodland And Others (supra). This is
evident from His Lordship’s observation at p. 399 of the reported
judgment of the court that:
In this case the work to be done was the soldering together of G
pipes, and for that operation it appears to have been necessary to
have molten metal at hand for the purpose of being instantly
applied, and it was, as the deputy judge finds, a common and
proper practice, with which it may be assumed that the
Defendants were familiar as they themselves did part of the work,
to dip a benzoline lamp into the caldron of molten metal for the H
purpose of getting a flare. If the lamp were in good order, the
operation would be harmless; but, if the safety-valve of the lamp
were out of order, an explosion must ensue. Therefore, works
were being executed in proximity to a highway, in which in the
ordinary course of things an explosion might take place. I
 Lim Gim Seah v.
[2012] 5 CLJ Lokman Talib & Ors 579

A [19] In our judgment, the facts in the instant appeal do not fall
within either the first or second class of cases cited in the
judgment of the court in Salsbury v. Woodland And Others (supra).
Even if we are wrong, in our opinion, this appeal must still fail
since it is neither the appellant’s pleaded case nor is there any
B evidence that the nature of the work undertaken by the 3rd
respondent resulted in the creation of a direct duty of care to the
appellant on the 3rd respondent. Accordingly, this appeal fails on
the second issue as well.

C [20] We dismiss the appeal and order the appellant to pay costs
of RM15,000 to the 3rd respondent only. We order the deposit
to be paid to the 3rd respondent on account of the fixed costs.