Control over a work site is crucial in determining vicarious liability; an employer is not liable for an independent contractor's negligence unless exceptional duty of care is established.

[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 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 can be found from pp 5 to 354 of the 3rd respondent's Core Bundle of Documents Volume 1.

[2] According to the unchallenged evidence of Encik Ghazali bin Mohamad Noor (SP 3), JKR is responsible for the maintainance of the site. It is his evidence that a permit had been granted to Time Telecommunications Sdn Bhd to undertake the said project commencing July 1995 (see p 472 of the 3rd respondent's Core Bundle Volume 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.

[3] On 13th June 1995 at about 2. 30 am the plaintiff 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. 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 SP 2 at p 465 of Core Bundle). It is the appellant's pleaded 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 ('SO') under the contract between the 2nd and 3rd 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 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 24th January 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 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.

[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 categorisation of whether that person is a contractor or sub-contractor. Counsel for the appellant then 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