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Monorail operator liable for injury (Updated 4:33pm)

Updated 4:33pm, 8 April 2009

KUALA LUMPUR, 8 April 2009: After seven years of pain and suffering caused by a monorail safety wheel falling on him, a Bernama journalist was pleased with the High Court decision today holding the monorail operator liable for the incident.

Judicial Commissioner Harmindar Singh Dhaliwal ruled that David Chelliah @ Kovilpillai Chelliah David had established a prima facie case of negligence against the defendants, Monorail Malaysia Technology (MMT) and KL Monorail Systems Sdn Bhd (KLMS).

He said that at the time of the incident on 18 Aug 2002, the safety wheel was under the sole control of the defendants.

The defendants had also failed to produce credible evidence to show that the incident occurred without their negligence, he said.

However, Harmindar Singh found that the Director-General of Railway Department (DGR) was not liable for the incident as the DGR had undertaken his duties and functions quite seriously.

He then ordered that the damages be assessed by the High Court Senior Assistant Registrar (SAR). The SAR has fixed 20 May for case management.

Chelliah, 47, who is now a sub-editor with Bernama, suffered serious head and body injuries after the monorail safety wheel came off and hit him while he was crossing Jalan Sultan Ismail on 18 Aug 2002.

In 2003, he filed a RM5 million negligence suit against MMT, the designer and manufacturer of KL Monorail, KLMS, the company responsible for the installation, commission and operation of the trains and the DGR, the approving and certifying authority under the Minister of Transport of any railway scheme.

When met by reporters after the judgment, he said the decision signaled the end of his long and painful struggle since the incident which almost killed him.

“I have been in a legal battle with the defendants seeking justice. I have been put through tremendous pain and suffering, and my medical and psychological injuries have severely impaired my quality of life. At times I felt that I may never live to see this day,” he said.

However, he said, he was extremely disappointed that the DGR, being the public authority charged with the statutory responsibility of ensuring all aspects of safety for railway projects, had not been found liable, despite the strong evidence of negligence.

Counsel Steven Thiru and Brian Jit Singh represented Chelliah, while counsel T Tharumarajah represented the MM T and KLMS and senior federal counsel Lailawati Ali acted for the DGR. 

Harmindar Singh, in his 17-page judgment, said the defendants had also failed to provide a reasonable explanation as to how the safety wheel had come off the train and instead relied on the possibility that there had been tampering by unknown persons.

“However, no evidence of tampering was disclosed save for references to that in various investigation reports. It therefore remained a hypothesis but significantly, it could not have been the only possible cause. It might also have been the case that the bolts were not sufficiently tightened by the defendant’s employees,” he said.

Harmindar said that if there was tampering, the question that arose was when or where it happened and the defendants ought to have led evidence that they took all the requisite safety measures to prevent such tampering.

He also said that the safety wheel was exposed in the sense that it could be seen and there was nothing to prevent it from falling to the ground if the bolts failed to secure the wheel.

Harmindar Singh said any reasonable person observing the monorail train would be left wondering if the wheel was secure or if it could or would come off and the possibility of the wheel coming off was not unforeseeable.

In upholding that the DGR was not liable for the incident, the judge said the evidence from the DGR’s witness was that throughout the construction period before the licence was granted by the minister to start the monorail operation, the DGR’s officers had conducted regular inspections on the whole project.

Harmindar Singh dismissed Chelliah’s action against the DGR after finding that there was no breach of statutory duty by the DGR as claimed.

“A private-law cause of action only arises if it can be shown as a matter of construction of the statute that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty,” he said. — Bernama

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