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|Legal Subjects > Law of Malaysia > Case & Codes > Judgments|
Apportion of Liability & Contribution
When damage is caused as the result of torts committed by two or more tortfeasors, the tortfeasors my be jointly and severally liable for causing the same damage - see paragraph 4-54 of Clerke & Lindsell on Tort, 17th edition. Dato Sethu, arguing for and on behalf of the 8th & 9th defendants, raises two points in respect of this subject. The first relates to the distinction between contribution and apportionment; the second concerns the requirement of each defendant to make specific claim against each other for contribution.
For the first, Datu Sethu insists that this Court must determine whether the tortuous acts of the defendants relate to the same damage or different damages. If they are for different damages then contribution cannot apply since section 10 (1) (c) of the Civil Law Act confines to only the same damage. Section 10(1) (c) of the Civil Law Act provides as follows:
"Where damages is suffered by any person as a result of a tort (whether a crime or not) - any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitles to be indemnified by him in respect of the liability in respect of which the contribution is sought (emphasis added)."
From the evidence tendered, I am without doubt that all the defendants, except number 6, 9 & 10, are joint tortfeasors in causing the same damage to the plaintiffs. For this, contribution can be recovered from each other.
As regards to the second issue raised, I note that throughout the hearing of this suit in respect of liability, each of the defendants who appeared had accused the other defendants (except when they are closely associated with each other, like the 7th and 8th defendants, and the 9th and 10th defendants respectively) of negligence and/or nuisance. This was taken during cross-examination and submission. By this, I am satisfied that this constituted demands for contribution from each other under section 10(1) (c) of the Civil Law Act.
And by the powers conferred upon me under section 10(2) of the same Act which reads as:
"In any proceedings for contribution under this section the amount for the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable having regard to the extend of that person's responsibility for the damage, and the Court shall have power to exemption any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.",
I hereby announce the following apportionment of contribution after taking into consideration of the factors stated in this provision.
1st defendant: 15%
2nd defendant: 10%
3rd defendant: 10%
4th defendant: 15%
5th defendant: 30%
7th & 8th defendant: 20%
There shall also be cost to the plaintiffs to be paid by all defendants except the 6th, 9th and 10th defendants where, for the latter two defendants cost shall be paid to them by the plaintiffs.
With this I conclude the issue of liability between the parties. Assessment of damages can now proceed.
Counsel for the Plaintiffs: Mr. Rajendra Navaratnam & Mr. Yatiswara Ramachandran
Solicitors: M/s Azman, Davidson & Co.
Counsel for the 1st defendant: Mr. A.D. Rajah & Ms Khoo
Solicitors: M/s Khoo & C.H. Loo
Counsel for the 2nd defendant: Mr. Melvin Selvam & Miss Sharon Kaur
Solicitors: M/s Jagjit Singh & Co
Counsel for the 4th defendant: V.S. Viswanathan & Mr. S Ravichandran
Solicitors: M/s V.S. Viswa & CO
Counsel for the 5th defendant: Mr. Cecil Abraham & Mr. Dhinesh Bhaskaran
Solicitors: M/s Sheran Delamore & CO
6th defendant not represented
Counsel for the 7th & 8th defendants: Dato R. R. Sethu & Mr. Kelvin Kong
Solicitors: M/s Heng & Morgan
Counsel for the 9th & 10 defendants: YB Dato Mohd. Zawawi Salleh, State Legal Adviser of Selangor & Tuan Nik Suhaimi Nik Suleiman.