Peh Swee Chin SCJ:

The High Court has earlier at the first instance given judgment against the defendant by allowing the claim of plaintiff against the defendant and dismissing the defendant's claim against the third party. On appeal to us against the said judgment, we have allowed the appeal of the defendant to the extent that the judgment and costs given by the High Court in favour of the plaintiff be confirmed but that the judgment and costs given by the High Court in favour of the third party be reversed by entering judgment with costs in favour of the defendant against the third party instead. We indicated we would give our reasons in writing and we now hereby do so.

This case concerns one of those lift accidents, which have been on the increase with usually serious injuries to persons involved, brought about by a very notable change of lifestyle caused by shortage of town land, and hefty increase of urban population leading to mushrooming of construction of high-rise blocks of flats and similar structures incorporating lifts for the use of such flat-dwellers.

The facts could be summarized as follows.

At about 6.00 a.m. on 29 April 1980, the plaintiff, a taxi driver wanted to collect some keys from a friend living at Block B, Pekeliling Flats at Jalan Pekeliling, Kuala Lumpur, the latter apparently a tenant at the Pekeliling Flats which together with lifts inside them were owned by the Dewan Bandaraya, Kuala Lumpur of which the defendant was its Datuk Bandar. He wanted to use the lift and pressed the lift button. He tried all the three lifts there on the ground floor but no lift came after about 5 minutes. He then decided to walk up the staircase and found every lift door closed on 1st, 2nd, 3rd and 4th floors. On reaching the 5th floor, he saw a lift door open partly for about one foot wide. There were lights at the staircase but none at that lift about 12 feet away from the staircase and it was bright enough to see the lift door. He opened the lift door and stepped in and fell straight down the shaft, there was no lift inside the door.

There was no warning sign of any sort or any guard or barricade put up then at the lift door about the lift being out of order.

The plaintiff was badly injured and at the trial all parties agreed on the damages being fixed at RM30,000 at the outset of trial subject to proof of liability.

In respect of the particular lift, it was covered by an agreement for maintenance of lifts in Pekeliling Flats made between the defendant and the third party for a period during which the accident took place. Under the agreement, the 3rd party was paid RM180 per month for maintaining each of the lifts, and it emerged in evidence that in case of major repairs or replacement of parts costing more than RM300 (as involved in the instant case), the third party had to submit quotations to the Dewan Bandaraya and "local orders" had to be given by the defendant before such work could be commenced.

The lifts, as far as all the parties herein were concerned were under the control and management of and to be maintained by the defendant at the cost of the defendant.

Further the third party agreed to carry out its work "according to a reasonable working capability..." the wording is clumsy and not quite English, but the meaning is clear enough, that is, reasonable skill. The third party further agreed to arrange for insurance for, among other things, damages "under the Common Law ..." for accidents arising out of the work in connection with the agreement and if the third party failed to do so, such damages etc. could be recovered from the third party itself by the defendant.

Further, clause 4 of the maintenance agreement, stated:- "whenever there is a lift breakdown and which the contractor is examining or maintaining or undertaking any other work, the contractor must display at every landing door of the lift, a notice or a cordon or a reasonable signboard indicating that the particular lift is out o