INGENIEUR
establish on a balance of probabilities the
former’s liability for all loss or damage suffered by
the latter in respect of matters within the scope or
ambit of the particular indemnity clause involved:
Chung Syn Kheng Electrical Co Ltd v Regional
Construction Sdn Bhd.33
The losses or damages recoverable may be
reduced on account of the fault34 of the claimant
or of any person for whom the claimant is
responsible. Accordingly, the indemnifier’s liability
of indemnification must be reduced in proportion
to the extent such fault has contributed to the
loss or damage being claimed: Nance v British
Columbia Electric Railway. 35 The courts have
interpreted the term ‘damages’ in respect of
such clauses widely to include also loss of life
and personal injury: Harrison v British Railways
Board.36
In a similar vein, the nominated sub-contracts39
reflect similar categories or by the nominated
subcontractor to the contractor itself.
(1) Category One: Personal Injury or Death of Any
Person
This category is featured in almost all the local
standard forms of conditions adverted to before.
Notable examples are Clause 18.1 PAM Contract
2006 (With Quantities) PAM Contract 2006
(Without Quantities); Clause 14.1 JKR Forms 203
& 203A (Rev 1/2010); Clause 24.1 JKR Sarawak
Form (2006); Clause 35.1 CIDB Form (2006);
etc, although the drafting style and content are
dissimilar. The following pertinent points should
be noted:
●●
It is to be noted that the principle of contribution
as adverted to above normally applies to claims
arising under such indemnity clauses for causes
of action involving tort and to a certain extent for
breach of a contractual duty of care: Barclays
Bank Plc v Fairclough Building Ltd37 and is often
incorporated as an express provision in the
contract itself.38
Nature and Extent of Indemnities under Express
Provisions
Under the standard forms of contract, the
contractor assumes liability for and indemnifies
the employer against any liability arising out of
the execution of the works under the contract in
respect of the following broad categories:
●●
●●
●●
33
34
35
36
37
38
39
40
6
68
Personal injury or death of any person;
Injury or damage to property;
Claims by workmen.
●●
●●
the contractor bears a rather wide
and onerous burden arising from the
particular wordings employed in the
various provisions; typical examples
being ‘any damage, expense, liability,
loss, claim or proceeding’ in the PAM
2006 Forms; ‘all actions, suits, claims or
demands, proceedings, losses, damages,
compensation, costs (including legal costs),
charges and expenses whatsoever …’. in
the JKR Form (Rev 1/2010), etc;
the scope of the indemnity apparently
covers not only liabilities arising under
the contract but even at common law
and/or statute40 for the injury or death of
any person arising out of, or caused by
the carrying out of the works under the
contract;
the precondition to the crystallisation of the
contractor’s liability is premised on some
[1987] 2 MLJ 763 (Brunei).
ie the default, omission or neglect.
[1951] AC 601.
[1981] 3 All ER 679.
[1992] CILL 848.
See eg, cl 35.3 CIDB Form (2000 Edn).
Eg, PAM Sub-Contract 2006; JKR 203N (Rev 1/2010), etc.
See Clause 18.1 PAM Contract 2006 (With Quantities), PAM Contract 2006 (Without Quantities); Clause 24.1 JKR
Sarawak Form 2006.
VOL
- MARCH 2016
VOL65
55JANUARY
JUNE 2013