The main contractor is not vicariously liable for the actions of an independent contractor unless a direct duty is imposed on the employer.

[1] There are two appeals before us (Appeal 372 and Appeal 365). The appeals are against the decision of the High Court at Kuantan dated 20 October 2014. They concern a claim originating in the Sessions Court Kuantan involving a motor vehicle accident that occurred on 26 July 2004. These appeals were ordered to be heard together. For convenience, the parties will be referred to as they were in the Sessions Court or by their abbreviated names.

[2] The 3rd defendant ("MTD Prime") was the main contractor in charge of the construction of the Pantai Timur Highway ("LPT"). The plaintiff was the employee of a company, Q-Free Sdn Bhd ("Q- Free"), which was in charge of supplying, installing and testing the toll system at LPT. At the material time, the plaintiff was the driver of the car bearing registration number WLK 4500 ("the said car").

[3] The 1st defendant was the employee of Ireka Engineering & Construction Sdn Bhd ("Ireka Engineering"), a subsidiary company of the 2nd defendant ("Ireka Construction"). The 1st defendant was also the driver of the bulldozer bearing registration number BCT 7086 ("the bulldozer") which was owned by Ireka Construction. Ireka Construction was the subcontractor hired by MTD Prime to perform works in the construction of the LPT.

[4] On 26 July 2004, at about 1.30pm, the plaintiff was driving along the road at KM 200 LPT from Maran heading towards Gambang. At that time, the 1st defendant was driving the bulldozer at the other side of the road from the direction of Gambang to Maran. The 1st defendant suddenly made a U-turn into the plaintiff's right of way. As a consequence, the plaintiff's car collided with the bulldozer, and the plaintiff suffered serious injuries. It was not disputed that at the time of the accident, the LPT was not opened to the public.

[5] On 19 July 2010, the plaintiff commenced an action at the Kuantan Sessions Court against the 1st, 2nd and 3rd defendants claiming damages for injuries suffered. On 17 December 2013, the Sessions Court after a full trial held that the plaintiff was 90% liable for the accident. The 1st defendant was held 10% liable in negligence. The 2nd and 3rd defendants were held not liable and the claim against them was dismissed.

[6] On 19 December 2013, the plaintiff appealed against the Sessions Court's decision to the Kuantan High Court. On 20 October 2014, the Kuantan High Court allowed the appeal and varied the Sessions Court's decision in that the plaintiff was held 30% liable for the accident and the 1st, 2nd and 3rd defendants were found to be 70% liable. The 3rd defendant (MTD Prime) and the 1st and 2nd defendants lodged separate appeals, namely, Appeal 372/2014 and Appeal 365/2014 respectively.

At The Sessions Court

[7] The salient grounds of decision by the Sessions Court can be stated as follows:

(a) the plaintiff was driving fast when he collided with the bulldozer. The impact of the collision was overwhelming until it had caused "total loss" to the car driven by him. On balance of probability, the Court found that the long braking mark was the result of fast driving by the plaintiff; and

(b) the lack of safety or warning signboards was not an issue as the road was not opened to the public. The Court was satisfied that safety briefings were sufficiently given before the workers were allowed to enter the construction area. The safety and warning signboards were only required if the road had been opened to the public use and did not tantamount to be the main cause of the accident.

At The High Court

[8] The salient grounds of judgment