Richard Malanjum J:

Introduction

[1] There are two actions before me, namely suit No MR 5 of 1993 (the first action) and suit No MR 60 of 1992 (the second action). At the commencement of the hearing for the second action, learned Counsel for the plaintiff in that action applied to have the first action jointly heard. Learned Counsel for the defendants and third parties in the second action raised no objection to the application. And having considered the matter, in particular, the facts that both actions related to the same incidents and that there could be common parties and witnesses, I therefore ordered that the two actions should be jointly heard.

The Actions

[2] In the first actions, the plaintiff is the administratrix of the estate of Jeffery Satuk Gabar, ("deceased"). And in her claim, the plaintiff prays for the following relief, (verbatim):

1) Damages under s 7 of the Civil Law Act 1956 for the benefit of the dependents of the deceased.

2) Damages under s 8 of the Civil Law Act for the benefit of the estate of the said deceased.

3) Interest on the said damages at such rate and for such period as the Court shall think just.

4) Such further or other relief as the Court may deem fit.

5) Costs.

[3] And these relief are sought for arising from the averments of the plaintiff on the escape of gas, a dangerous thing, negligence, occupiers breach of duty of care and public nuisance.

[4] Whereas in the second action, the plaintiff is suing in his own capacity and he prays for the following, (verbatim):

1. Special damages as aforesaid (RM244,206.72);

2. Damages;

3. Further and other relief;

4. Costs.

[5] Similarly, in the second action the plaintiff alleges liability on the basis of the escape of gas, being a dangerous thing, negligence and public nuisance.

[6] For the first action, only the 1st, 2nd and 4th defendents are involved as judgment had been entered against the 3rd defendant.

[7] In respect of the second action the 2nd defendant was not served with the writ of summons as he was in New Zealand. Thus, only the 1st and 3rd defendants were before the Court. However, both the defendants brought in third parties, naming three third parties, to wit:

(i) Perunding Dayacipta (a firm), ("Perunding");

(ii) The Director, Public Works Department Sarawak ("the Director"); and

(iii) The Government of Sarawak ("the Government").

[8] And for purposes of this judgment I shall also be referring the 1st defendants in the first action as "the Government".

[9] In both the first and second actions, the defendants and the third parties dispute the claims I shall therefore proceed to deal firstly with the issue of liability in respect of both the actions and should I find any liability I will then proceed to deal with the quantum of damages. But in view of the common incident upon which both these actions are based, perhaps I should outline at the outset the common undisputed facts.

The Common And Relevant Undisputed Facts

(i) That on 16 February 1990 at about 10 am there was an explosion and fire in the premises ("the premises") occupied by the Public Bank Berhad, ("the Public Bank"), the 4th and 3rd defendant in the first and second actions respectively;

(ii) That the premises occupied two shop lots, Nos 292 and 293 ("the shoplot NO 292 and Shoplot NO 293 respectively") which were registered in the names of the 2nd defendant ("Liew") and 3rd defendant ("Phua") respectively in the first action and as the 1st and 2nd defendants respectively in the second action;

(iii) That the Public Bank subleased the premises from Liew and Phua as from the 28 October 1988. A Draft Memorandum of Sublease was exhibited. (exh Pl p 9);

(iv) That the Public Bank engaged a consultant, Perunding, to handle the renovations works in the premises and which commenced on 24 March 1989 and completed on 29 April 1989. However, gas supply was not included in the renovations plans and gas supply was not a subject to be considered before a certificate of fitness could be issued;

(v) That there