Can you sue the government if you sustain damage from a pothole?

Potholes have become a hot topic since Minister Khairy Jamaluddin (KJ) posted on his social media detailing his cycling accident due to a pothole. The Public Works Department’s (JKR) lightning-fast response to KJ’s accident only further fuelled the discussion. Many have voiced their experience following the incident and the question raised is: Can you sue the government if you sustain damage or injuries from a pothole? The answer is yes, you can.

As per Section 5 of the Government Proceedings Act 1956:

“Subject to this Act, the Government shall be liable for any wrongful act done by any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person, is liable for any wrongful act done, or any neglect or default committed by his agent…”

Legal site AskLegal explained that potholes are the responsibility of the local government and this makes them liable for negligence if they do not fix a pothole as soon as possible.

This is clearly stated in the Street, Drainage and Building Act 1974:

“The local authority shall, so far as the funds at its disposal will admit, cause all public streets together with the footways thereof, whether covered by arcades or not, to be maintained and repaired…”

But don’t go running off to write up a lawsuit against the government just yet. If you sustain any damage caused by a pothole on a highway, you might be looking at a lawsuit against another party which is usually the highway’s operating company.

Private roads are another story, they won’t be considered as part of the government’s responsibility if it is owned by other companies.

Alas, the matter is also not that simple. The government also has a get-out-of-jail trouble card as there is an exclusion clause built into the Government Proceedings Act in Section 7 stating:

“… no proceedings, other than proceedings for breach of contract, shall lie against the Government on account of anything done or omitted to be done or refused to be done by the Government or any public officer in exercise of the public duties of the Government.”

Simply put the government is saying that unless there’s a breach in contract, you can’t sue the government for anything done within their public duties.

But don’t despair, AskLegal also pointed out that Section 7(3) states that the government still has to take responsibility if ever there is proof that they have been negligent or have trespassed upon someone’s property:

“Nothing in this section shall prevent the bringing of any suit for damages or compensation arising out of negligence or trespass in the execution of any works of construction or maintenance undertaken by the Government in the exercise of the said public duties.”

A motorcyclist successfully sued the government over a pothole accident

Back in 2009, Penangite Raymond Cheah encountered an accident while on his way to work. During his ride, he unexpectedly rode over 2 potholes specifically measuring 1.4 m and 1.6 m in diameter. The potholes threw him off his bike, badly damaging it, while he sustained injuries.

Though he first lost the lawsuit in the Magistrate Court and later the High Court, he finally won the case at the Court of Appeal.

The judge for the case pointed out that the government had known that the road was a busy one where a lot of heavy vehicles frequently traversed.

He also cited that the government had failed to place warning signs and that a JKR witness also admitted that it was the government’s negligence that led to the multiple accidents that happened on the same stretch.

So, if ever you find yourself in an unfortunate situation where you or your property, regardless if it is a car or a motorcycle, snap as much proof as you can. Filing a lawsuit against the government for negligence classifies as a tort case.

In any tort case, you will require to provide proof of the losses that you want to claim from the other party, which in this case is the government.

Fortunately for us, there are groups like the Ikatan Silaturrahim Brotherhood ready to help. The group functions like a nighttime vigilante who fixes potholes at night because the authorities aren’t doing the repairs fast enough.

The group have also set up a legal aid programme to help out any victims of pothole accidents to get compensation from the government.