Siti Norma Yaakob JCA:

Civil Appeals Q-01-181-95 and Q-01-182-95 were, with the consent of all parties, heard together as the causes of action in both appeals arose from one common tragedy. That tragedy happened on 16 February 1990 at 10am at the premises of Public Bank Berhad in Miri (the Bank) when inflammable gas escaped, got ignited and caused a series of explosions and fire that killed a customer of the Bank, one Jeffrey Satuk Gabar (the deceased), and seriously injured another, one Chin Fuei Yung alias Chooi Ngung Choi (Chin).

The widow of the deceased as the administratrix, filed civil suit No. MR 5/ 93 (the first suit) in Miri seeking damages on behalf of herself, the other dependants of the deceased which included the deceased's four minor children and his aged parents and the estate of the deceased under ss. 7 and 8 of the Civil Law Act 1956 (Act 67). She named the Government of Sarawak (the State Government), the supplier of gas in the town of Miri, as the first defendant, Liew Yit Tze (Liew) and Phua Su Meng (Phua), as the second and third defendants respectively, they being the registered proprietors of two adjoining plots of land, Lots 292 and 293, together with a building erected thereon which Liew and Phua had sub-leased to the bank, who in turn is cited as the fourth defendant.

The principal causes of action in that suit are:

(1) strict liability following the escape of gas, a dangerous thing, under the Rylands v. Fletcher rule against all four defendants.

(2) further or in the alternative negligence against all four defendants.

(3) further or in the alternative public nuisance against all four defendants.

(4) further or in the alternative breach of duty of care on the part of the bank as an occupier.

Chin had also filed separate proceedings in civil suit no. MR. 60/92 (the second suit) claiming special damages amounting to RM244,206.72 and general damages for pain and suffering against Liew, Phua and the bank based on three causes of action similar to those listed as (1), (2) and (3) above. In the course of the proceedings, the bank joined its building consultant, Perunding Dayacipta (Perunding), who renovated the demised premises before the bank moved in, the Director of Public Works Department (the director) and the State Government as the first, the second and the third parties respectively claiming indemnity and/or a right for contribution from the said third parties against the claims of Chin for damages and costs. Likewise Liew joined the director and the State Government as third parties seeking indemnity and/or contribution from them in the same manner as was done by the bank.

Judgment had already been entered against Phua in the first suit and the writ of summons in the second suit has not been served on him and for all intents and purposes he is in no way concerned with these instant appeals before us.

The claims of the widow and Chin were strenuously disputed by the other defendants and third parties and a general defence of denial of liability as well as specific ones that include unlawful tampering of the gas pipes and volenti non fit injuria were raised by them.

In the High Court, there was a joint trial of both civil suits and the proceedings were geared towards proving liability on the torts of negligence, strict liability and public nuisance against all the defendants and third parties and additionally occupier's breach of duty against the bank. Once liability was established, the learned trial judge proceeded to determine the various monetary claims made by the widow and Chin in their respective civil suits. The widow abandoned her claims grounded on strict liability under the Rylands v. Fletcher rule and public nuisance.

From the documentary and oral evidence of 12 witnesses testifying on behalf of the widow and Chin and 10 other defence witnesses called by the defendants and third parties, the learned trial judge made the following findings.

The First Suit

(1) The Stat