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|Legal Subjects > Law of Malaysia > Case & Codes > Judgments|
Investigation & MPAJ Report
Immediately after the collapse of Block 1 rescue operation was mounted. MPAJ who had administrative responsibility over the area assumed a leading role. It set up a Commission of Inquiry (Commission of Inquiry) headed by its President. This Commission consisted of representatives from various government departments and professional bodies (like the Boards of architects and engineers) relevant to the scope of the enquiry. The term of reference of this Commission was to: determine the cause of the collapse, identify the person or persons responsible, with recommendations on actions that could be taken against him or them; make recommendations on measures to prevent reoccurrence of such an accident; and to make assessment and recommendations on the fate of Block 2 & 3.
The Commission divided its work into various committees which in turn spread out its task to a number of sub-committees. At the end of 3 months from date of inception, this Commission published a report. It is in 5 volumes. For ease of reference, I refer to it as the "MPAJ report". When the plaintiffs' counsel attempted to tender this document in Court to be marked as an exhibit some defendants raised objections. This is understandable. The Commission of Inquiry, after identifying the cause of collapse, also attributed faults to certain defendants. Such findings, according to the affected defendants, is unfair since they were not represented at the inquiry nor given an opportunity to test the validity of the evidence adduced. It is pertinent to note that included in this report are numerous data and information gathered by the investigating section of the committee immediately after the collapse. These are useful and offer enormous assistance to any expert in determining the cause of the collapse of Block 1. In fact all the experts called to testify before me had, in one form or other, relied on some of the information and data contained in the MPAJ report to formulate their expert opinion.
The admissibility of the MPAJ report
To determine this issue on the admissibility of this MPAJ report I called for submission from both sides. After hearing arguments, I ruled that this report is admissible and ordered it to be marked as P47 to P52.
To justify this the following are my reasons. It is set in the format of question & answer.
1 Question: Is the MPAJ report a public document as defined under section 74 of the Evidence Act?
Answer: Yes, it is for reason that it falls within the definition of section 74 (a) (ii) of the Evidence Act which states:
" The following documents are public documents: documents forming the acts or records of the acts of - official bodies and tribunals".
2 Question: Is MPAJ an official body within the term - "public bodies" as set out in the specific section of the Act referred above?
Answer: Yes, it is for reason that in section 78 (1) (e) of the Evidence Act, which relates to the tendering of such public document, local authority is specifically mentioned in following manner:
" The following public documents may be proved as follows: the proceedings of a municipal body, town board or local authority in Malaysia - by a copy of the proceedings certified by the lawful keeper thereof, or by a printed book purported to be published by the authority of the body (emphasis added)".
3 Question: Is the MPAJ report a proceeding of the local authority?
Answer: Yes it is for reason that MPAJ, being a local authority, under section 28 of the Local Government Act:
"...may from time to time appoint committees, either of a general or special nature, consisting of the chairman and such number of the Councilors and such other persons as the local authority may think fit, for the purpose of examining and reporting upon any matter or performing any act which in the opinion of the local authority would be more conveniently performed by means of a Committee, and may delegate to any Committee such powers, other than the power to raise money by rates or loans, as it may think fit, and may fix the quorum of any such committee",
and the act of such committee in producing such a report must be considered as a proceedings of MPAJ.
4 Question: Has the plaintiffs proved this document for the purpose of admission as evidence in this proceeding?
Answer: Yes. The MPAJ report is in a printed book published by the authority of that body.
5 Question: What is the probative value to be attached to the contents of this MPAJ report?
Answer: By the Indian authority of Tara Kumar Ghose v Kumar Arun Chandra Singh 74 IC 383: A 1923 C 161, the High Court of Calcutta expressed that:
" it must be recognized that the question whether a document is admissible in evidence as a public document is fundamentally distinct from the question whether its contents are binding upon the tenants without proof of notice on them or of their consent."
Though this Indian case involves the proving or disproving the existence of tenancies to receive protection under some rent control enactment in India, the principle expressed therein is sound and logical. I am persuaded to adopt it for application to the circumstances of our case.
With this, I am of the view that though the MPAJ report is admitted as evidence, the findings made therein, as well as opinions expressed have still to be to be evaluated. And unless these are tested by the due process of the procedural law i.e. by examination of witness or witnesses who personally form such opinions or made such findings, then very little weight shall be attached when this Court is asked to evaluate them.
Except for Dr. Nik Ramlan, who was a member of the Commission of Inquiry and the head of the technical committee but was not personally involved in formulating the opinions and findings, and the MPAJ architect, who acted as the secretary for the Commission, no other members from this body or its various subcommittees were called to testify. This leaves the conclusions, findings, interpretations and opinions expressed in this MPAJ report quite valueless except for the data, plans, maps and information, which most parties made use of. Since these were accepted without objections, I shall consider them on the basis as documents agreed upon by all parties concern.
The Theories of Slope Failure
With sufficient disclosure above, I shall now proceed to analyze the cause of the failure of Block 1. There are basically 2 conflicting theories advanced: one from the plaintiffs and the other from the 5th defendant. Experts in the field of geo-technology were called to substantiate these. Supporting the plaintiffs' contention is Dr. Weeks (PW9), and on the side of the 5th defendant, is Professor Simons (DW11). The significance of these two theories is the belief that it will affect the liabilities of the parties, particularly of the 1st and 5th defendant. If Dr. Weeks's version is accepted, then the cause of failure emanated from the 5th defendant's land. Professor Simons, on the other hand, insists that it originated from the 1st defendant's property. Though both are defendants, but only one is of substance. This is the 5th defendant, which is a financial institution as compared to the 1st defendant, which is a company that was wound up when submission was coming to an end. Thus, both the plaintiffs and the 5th defendant spent enormous energy in attempting to convince me to their side of their belief.
Dr. Weeks's theory
Dr. Weeks commences his testimony with an explanation of the factors associated with slope stability when soil in the area consists of mainly sand or sandy materials. He said that the three factors governing slope stability are: firstly, the slope angle or the angle of the slope; secondly, the shear strength; and thirdly, the pore water pressure. In respect of shear strength, he explains that this is the strength of the soil material before it slips. It is technically described as the relationship between force weight and friction. In short, if you know the weight of the soil you would know the force needed to cause a slip of that soil. Pore water pressure is when water infiltrates into the sand, it fills up the pores of the sand particles. Due to the height of the sand on top of each other, pressure is asserted This, in turn causes the grain of sand to loose contact with each other and lift itself - resulting in weight reduction. When the weight is reduced the sand slips easily. Thus, any increase in pore water pressure will result in a reduction to the resistance in sliding. Much associated with these factors, is the reaction of sand caused by suction. Dr. Weeks illustrates this with the experience of a mold created by an upended bucket of beach sand. It is unstable when dry; when damp it will stay; yet with too much water it will slide or topple over.
With the aforesaid preliminaries, Dr. Weeks proceeds to declare that it was a series of landslides that brought down Block 1 and these were primarily caused by - water. According to him, it was a failure of a retaining wall on the upper slope of the 5th defendant's land which initiated a rotational landslide. This in turn triggered off a mantle slide just below due to the upper layer of the soil in this sector heavily saturated with water. When the mantle slide came down in one piece it took whatever beneath it - the retaining walls, trees, vegetation, car parks, badminton courts and Block 1. Because of the speed of this mantle slide and the nature of the soil, being loose or very loose, and the presence of large amount of water in the soil, he classifies this mantle slide into a special category called a flowslide.
At this stage there is a necessity to explain the meaning of the types of landslide described. A rotational slide: is landslide where a failed landmass comes down in a rotational manner i.e. the toe of the slip is forced out and reverts backwards in a curve. A mantle slide: is when a failure involves only the upper layer of the soil. As for a flowslide, it is a mantle slide but has the characteristic of speed, material being loose or very loose soil, and the depth of failure being relatively shallow depth with the presence of substantial amount of water.
To support his theory Dr. Weeks relied, firstly, on Dames & Moore's borehole test. Dames & Moore is a firm of geo-technical engineers engaged by the 5th defendant to conduct geological test on the Highland Towers Site and the Arab Malaysian Land after the collapse of Block 1. At locations where they did the test, results show loose or very loose sandy soil. Such type of soil, in the opinion of Dr. Weeks, has large pore space and of low density. It moves close to each other when saturated with water, causing the pore water pressure to increase. When this happens there will be a reduction to the resistance in the shear strength of the soil - causing it to slide.
Secondly, Dr. Weeks relied on the Mitchell's pictures. At photo P7A, on the top left-hand corner of the building, he points out a scar with mark edges. This scar is more distinct in photo P7G. This, he claims, is where the mantle slide originated. Slightly lower, just above the third balcony of Block 1, counting from the top as shown in the same photo, Dr. Weeks highlights another scar. This he says, is evidence of the landslide having originated above had moved downhill. Next, he points to the signs of heaping and buckling of the ground in front of the rubble wall at the second tier car park (again revealed in the same photo). With no earth from the rear overriding or falling from above onto the car park but instead of lifting it up, Dr. Weeks feels that the landslide was proceeding beneath the ground. He fortifies this view with the revelation of some cars being shifted to the front and cracks appearing in the retaining wall that supported the badminton courts as disclosed in photo P7A. Further, he claims that when photos P7B & C were shot five seconds later, the retaining wall at the side of Block 1 had busted. This, to Dr. Weeks, implies that the soil material was moving very fast and by his calculation - at the speed of 1 1/2 meter per second. This is based on the fact that the subsequent shot by Bruce Mitchell in photo P7C, taken of the same area a few seconds later, shows that the lamppost next to the retaining wall had leaned more extreme and the wall itself was disintegrating, with soil exploding across the road. Also found in this picture are cracks appearing on the tar pavement in front of Block 1. Dr. Weeks insists that these are not only indications of the speed of the soil movement but the momentum it generated to forced the entire Block 1 to move, as shown in photo P7G.
To further support his theory, Dr. weeks refers to the oral testimony of Bruce Mitchell. This witness has said that he noticed movement on the hill slope before he took the photos. He describes it as " like something rippling beneath". Dr. Weeks interprets this as representing a relatively shallow landslide of the upper mantle layer taking with it trees, vegetation and retaining walls on top.
Finally, for evidence of saturation of water on the slope, Dr. Weeks relies on his own observation during his 3 visits to the Arab Malaysian Land where he noticed water flowing in an uncontrolled manner over the surface of the slope. This he said, is confirmed by various photographs tendered as exhibits showing water over flowing a retaining wall and the existence of "ponding" (pools of water) on the ground.
As for the failure of the retaining wall at the upper slope of the 5th defendant's land which initiated the rotational slide, Dr. Weeks alludes that this was due to a low factor of safety of this wall and the uncontrolled water coming down the surface of the slope to cause movement on the loose or very loose soil material at the spot. By Dr. Week's assessment, the factor of safety for this retaining wall was only 1.02. This is far below the accepted geo-technical engineering standard to determine slope stability which rules that a slope will fail if is has a factor of safety of 1 or less than 1. Factor of safety in simple term means the reserve you have before failure of a slope.
During the course of trial, Dr. Weeks advances an alternative theory - that the landslide was caused by the existence of "a perched water table". He says that he formulated this after his recent revisit to the site where he discovered new landslide in the area. This caused him to "revisit" the Dames & Moore data where it shows the presence of clay in the soil at the Highland Towers Site and Arab Malaysian Land. He explains that clay being a relatively impermeable substance does not allow water to infiltrate the soil that easily to reach the ultimate ground water table. When there are lens of clay present in the sub-soil a perched water table can be formed above. Such perch water table has enormous effect on the pore water pressure of the loose or very loose soil at the mantle of the slope causing it to be less resistance to slide.
To support his new alternative theory, Dr. Weeks relies on: (a) the finding of clay or clayey materials at the sub-level of the slope as indicated by the soil test from Dames & Moore borehole test; (b) the relatively high water level recorded by Dames & Moore when the borehole test was carried out.
As there is a challenge by the 5th defendant on this perception of a perch water table there is a necessity to explain the technique used to obtain the data mentioned above. A bore hole test is an insertion of an instrument called a standpipe into a hole drilled into the ground till it reaches the granite. This is for the purpose of obtaining sub-terrain soil sample and to ascertain where the ground water table is. For the latter, the mechanism works in this manner. As granite is relatively impermeable water will remain just above it. This level is considered as the ground water table. Readings are taken periodically from this standpipe and with a series of standpipes placed vertically in a row down slope one can chart a graph to determine the gradient of its flow. The necessity to ascertain this is because the level where this table is will effect the pore water pressure on the soil material around it. Also, the pressure of this water table creates pressure against any retaining wall around it.
Professor Simons's Theory
Professor Simons's theory is less complicated once the characteristic of the soil material and its relationship to slope failure has been explained. According to Professor Simons, the collapse of Block 1 was due to the initial failure of the high rubble retaining wall of 10 to 11 meters in height immediately behind the second tier car park. This wall he refers to as the "High Wall" failed and initiated a series of retrogressive landslides up the slope behind this wall. Simultaneously a forward movement down slope was effected. This forward movement down hill created such a surcharge load that Block 1, with its pile foundation not designed to accommodate any horizontal load, collapsed, bringing along with it the structure it was supporting.
Professor Simons explains a "retrogressive slide" as a rotational slide which begins at the bottom of the slope and regresses upward in a series of rotational slide. Here, each rotational slide is a segment of a limited failure and it happens next behind the other due to loss of toe support. It continues progressively up slope, getting less active as it proceeds.
To support his contention, Professor Simons offers the following: First, the aerial photograph (page 30 of exhibit P48) taken by the Investigation Committee of the Commission of Inquiry a few days after the collapse of Block 1. This photo shows a number of scars on the land behind the collapsed building. "A scar" is interpreted here to mean "a step in the slope with bare earth". It is the exposed surface of the earth after the ground had slipped due to weakness and loss of support. According to Professor Simons's interpretation of this photo, there are four scars. This, in accordance to authoritative geo-technical engineering text represents a rotational retrogressive failure beginning from the head scar at the lowest point. The High Wall, he insists, was located here. Against this is Dr. Week's interpretation of this photograph. He says there are only two scars. By this, he claims, is in line with his theory of a rotational slide followed by a flow slide.
Secondly, by the calculation done by Professor Simons this High Wall had a very low factor of safety. In his opinion, this High Wall would have failed at the height of 5 meters without any water pressure acting at the back of this wall. In fact, his analysis shows all those walls behind Block 1 had only a factor of safety of 1.52 based on the assumption that no water pressure was applied against them. This factor of water pressure acting at the back of the wall is relevant because water at the back of the wall will increase the thrust on the wall thereby making it more vulnerable to collapse. Thus, in his opinion this High Wall with such a low factor of safety would have easily failed on its own without any water influence.
Further, according to the words of Professor Simons, "This High Wall consist of blocks of stone of varying seizes hand plastered in mortar at a random fashion with no drainage blanket behind it. It does not appear to sit on any foundation. It just rests directly on the ground.... It is simply not big and heavy enough to carry earth pressure acting on it, let alone additional water pressure." Such wall, in his opinion, was very vulnerable to failure.
Before I proceed further I must express this Court's appreciation to the efforts of Dr. Weeks and Professor Simons in analyzing the cause of failure of Block 1. Though this Court may believe one against the other, or even only accepting part of either theories, no aspersion is cast on the integrity, competency and professionalism of both these two men. They are, in the mind of this Court, gentlemen of integrity and great learning in their chosen discipline. From their C.V. presented, they rank among the top personalities in the field of geo-technological engineering in this world. This Court has indeed benefited from their expertise.
My Analysis Of These Two Theories
With the views of both these experts forcefully put, I shall now proceed to analyze the two theories advanced and attempt to come to a conclusion as to which of the two is more probable.
I shall begin with the aerial photo. This photo, taken just 2 days after the collapse of Block 1 by the Investigation Committee of Commission of Inquiry, is already interpreted by the various dotted lines drawn across the scars. It shows 3 scars. According to Dr. Nik Ramlan, the person responsible for this interpretation was a member of the Investigation Committee and he was qualified to undertake such task. But since this "interpreter" was not called to testify then such interpretation must be ignored, leaving for consideration the different versions put forth by the two experts base on the images captured in the photo. This photograph proper is not disputed by the parties; what they are only unhappy about is the interpretation by whoever who drew the lines on it.
After due consideration I am more inclined to adopt Professor Simons's interpretation. But instead of his conclusion of 4 scars, I only can detect 3. I base this on the number of exposed naked surfaces interspersed by the lines of vegetation which must obviously include the area above the top most scar.
The next matter I shall consider is the soil condition of the failed mess after the collapsed of Block 1. According to Dr. Weeks, in a mantle flowslide the soil must be very saturated with loose or very loose material spreading over a wide area. With such a characteristic one must expect the area around the collapsed apartment to be wet and muddy. But, from evidence adduced through various witnesses it was the contrary. Even Bruce Mitchell who initially described the soil exploding from the side of the retaining wall of Block 1 to water spurting out from a fire hydrant was forced to admit that such material looks dry after reviewing his own photos P7B and C.
Proceeding therefrom, I find Dr. Week's reliance on Mitchell's photo P7A to show the beginning of the mantle flow slide has many flaws. Firstly, Bruce Mitchell's line of vision from his window in Block 3 was restricted. What he saw, as reflected in this photo, was a landslide that had already begun with the High Wall having failed. By "failed", I must adopt Professor Simons's interpretation to mean, "the ground (beneath it) has failed" even though "the foundation or structure of the wall may not fail". This explains the reason why this wall remained upright in photos P7A and G as well as that in page 36 of P49. These pictures show this wall in a slanting position but not disintegrated. But effectively, this wall had failed since it was no longer capable of fulfilling its purpose of retaining soil behind it. Bruce Mitchell in fact did not see this wall failing, in the sense as described above, when he shot photo P7A. His line of vision did not extend to the area where this wall was originally located. His vision was blocked by Block 2. What he actually saw of the High Wall through photo P7A was after this wall had moved 16 meters down slope after failing. The heap of earth material in front of this High Wall must be the effect of a rotational slide where the surcharge had lifted the earth in front of the failed mass and exposed it at its toe. Dr. Weeks had attempted to explain the reason why this area heaved since it is contrary to the characteristic of a mantle flow slide (which would have brought this part of ground in one piece down slope). He said that this location being dry, due to the tar surface of the car park, prevented water from infiltrating into the soil. So when there was a surcharge caused by the mantle flowslide this area just buckled up. I find this unconvincing. To my mind a mantle flowslide progressing down hill at a speed would have generated so much momentum that this relatively narrow area would not be able to withstand any surcharge to even heave. It would have been just swept down slope in one piece with everything on it. This heaped up ground material was caused more probably by the effect of a rotational slide.
As for the scars described by Dr. Weeks at the rear of this High Wall in Mitchell's photo P7A, I am more inclined to think that they were actually the effects of a retrogressive slide that happened after the High Wall had failed. It could not be an indication of the beginning of a mantle flowslide that progress downwards from here. By the time this picture was taken, the High Wall had moved a substantial distance and when seen together with the scars spotted by Dr. Weeks, then it could not be an indication of the beginning of a mantle slide.
I shall now proceed to comment on the alternative theory of Dr. Weeks - the existence of a perched water table. When Mr. Han (DW 10), who supervised the borehole test for Dames & Moore, exposed that water, as a drilling fluid, was used for all the borehole test this theory of the Dr. Weeks losses creditability. By Dr. Week's own admission, when water was used instead of foam then the reading of the standpipes inserted soon after the boreholes were made would not represent the true water level for the purpose of determining a perch water table of the ground. The reason is this: Water introduced into the ground takes a substantial period of time to infiltrate into the ground to reach ground water table. So when water level readings are taken soon after water is introduced into the standpipes high water level readings will be recorded. This may give a false indication of a perched water table existing above the ground water table.
For a perched water table to prevail it is insufficient to just have clay or clayey material present; there must be lenses of these and they must be fairly proximate to each other to prevent water from infiltrating into the soil below. Though clayey materials are found in the Highland Towers Site and Arab Malaysian Land there is no evidence to fortify that they are extensive enough to indicate presence of lenses of clay of close proximity to form a perched water table. Against these facts, Dr. Weeks criticizes the methodology carried by Dames & Moore in its investigation. He is of the view that Dames & Moore should have used a piezometer (an instrument to detect pore water pressure beneath ground) to locate the slip surface and in the course of this could have detected a perched water table. I feel that this criticism is somewhat unwarranted. If the plaintiffs wish to influence this Court on the presence of a perched water table then they must prove it. It is not for the 5th defendant to carry out such task for the plaintiffs. As far as the methodology is concerned, like in any form of investigation, there is more than one approach. In this instance case I do not find the investigators of the 5th defendant had carried out their probe in a manner unacceptable in their professional field.