Lee Hun Hoe CJ (Borneo):

This appeal is concerned with the construction of s. 80(1) of the Road Traffic Ordinance 1958 (hereinafter referred to as the Ordinance) in respect of the duty of insurers to satisfy a judgment against persons insured by them.

The appellant was a pillion passenger on a motor vespa owned and ridden by one Abdul Aziz bin Ibrahim. On 20 March 1976, as a result of an accident between the motor vespa and a motor lorry owned by Tan Keng Wee and driven by Ng Pit Fei, the appellant was injured. He sued the three named persons in civil suit no. 103 of 1977. On 9 June 1982 judgment was given in his favour. The rider of the motor vespa and the driver of the motor lorry were held to be equally to blame for the accident. He sought to enforce the whole judgment sum against the respondent, the insurer. The motor vespa was covered by another insurance company which did not cover any pillion passenger.

In the statement of defence the respondent admitted being liable to one half of the judgment sum as liability was equally apportioned by the learned Judge. It is the contention of the appellant that on the principle of liability for several tortfeasors causing the same damage the rider of the motor vespa and the driver of the motor lorry are liable in law to the appellant for the full amount of the judgment.

In a very short judgment the learned Judge pointed out that the respondent had only insured the owner and the driver of the motor lorry but not the rider of the motor vespa. Consequently, he held that under s. 80(1) of the Ordinance, the respondent was only liable to any judgment obtained by a third party in respect of the motor lorry which was insured by them. He further held that the respondent was duty-bound to satisfy any judgment which the appellant obtained against the owner and the driver of the motor lorry but was not obliged to satisfy the judgment obtained against the rider of the motor vespa as the respondent had at no time covered the latter with any risk in respect of third party liability. He therefore held that the appellant could not enforce that part of the judgment against the respondent.

Encik Khoo Eng Jin for the appellant submitted that although liability was apportioned the learned Judge in civil suit no. 103 of 1977 left the judgment open to the appellant. Under the common law each joint tortfeasor is liable for the whole judgment. Thus, in Oli Mohamed v. Keith Murphy & Anor. [1969] Choor Singh J at p. 245 observed:

Counsel for the second defendant submitted that if the Court holds that both defendants were equally negligent, then the judgment against the second defendant should be only for 50 per cent of the total sum assessed as damages in this case. In my opinion this submission also fails. It is clear law that if each of several persons, not acting in concert, commits a tort against another person substantially contemporaneously and causing the same or indivisible damage, each tortfeasor is liable for the whole damage...

Choor Singh J also referred to the case of Dingle v. Associated Newspapers Ltd. & Ors. [1961] 2 QB 162 where Devlin LJ stated at p. 188:

... Where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant it is immaterial that there are others whose acts also have been a cause of the injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasors for contribution, but the plaintiff is not concerned with that; he can obtain judgment for total compensation from anyone whose act has been a cause of his injury. If there are more than one of such persons, it is immaterial to the plaintiff whether they are joint tortfeasors or not. If four men, acting severally and not in concert, strike the plaintiff one after another and as a result