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|Legal Subjects > Law of Malaysia > Case & Codes > Judgments|
Liability Of Each Defendant
I shall now begin to examine the accusations on each of the defendants and to determine whether they are liable.
Beginning with the 1st defendant, who was the developer of the Highland Towers, the plaintiffs accuse it of the following: Firstly, for not employing reasonably fit, competent, skilled and qualified persons to design, draw, sign and submit architectural and engineering drawings and plans for the construction of Highland Towers and the hill slope behind it. Secondly, failing to ensure that the 3 apartment blocks of Highland Towers and the drainage system and rubble retaining walls around it were constructed in a workmanlike and safe manner by giving consideration to the surrounding terrain, soil condition and drainage requirement. Thirdly, of obtaining Certificate of Fitness (CF) to occupying the 3 apartment blocks when the drainage system in the Highland Towers Site and Arab Malaysian Land were incomplete.
The first accusation levied on the 1st defendant is much connected and associated with the liability of the 2nd and 3rd defendants. For the second and third allegations, these too require examination of the works and deeds of the 2nd, 3rd and 4th defendants. For this reason I shall defer my analysis on the liability of this defendant until my finding made on the above defendants.
The 2nd Defendant
In 1974 the 1st defendant engaged the 2nd defendant, an architectural draftsman, to draw and submit layout plans for the development of Highland Towers and the bungalows lots on the Arab Malaysian Land. For this development, I shall hereinafter to as the "Highland Towers Project". According to the 2nd defendant, an executive director of the 1st defendant, one Mr. Yap, was aware that he was not a fully qualified and registered architect. When the layout plan for the Highland Towers Project was approved, the 2nd defendant proceeded to prepare and submit building plans for the 3 apartment blocks of Highland Towers.
The following chronology of events will give an insight of what transpired in the course of building Highland Towers and the development of the Arab Malaysian Land including the surrounding area.
Chronology of Events
On the 9.10.1974 a layout plan submitted by the 2nd defendant, for and on behalf of the 1st defendant, to the District Office of Kuala Lumpur, the predecessor of the 4th defendant, was approved. This approved layout plan is for a proposed building of 3 blocks of apartments on Highland Towers Site and bungalows on the Arab Malaysian Land. Accompanying this approval was a letter by this District Office to say that the approval was subjected inter-alia to the following conditions:
1 because the area approved for development is steep and hilly, all excavation and leveling works must follow requirements set out by the Public Works Department; and
2 the relevant technical departments must approve drainage, road and other related plans before any development can begin.
The 2nd defendant in submitting this layout plan and subsequent building plans for the Highland Towers was only draftsman, but had held himself out as a registered architect. The authorities, by some error on their part in not checking the 2nd defendant's credentials, had in fact permitted him to submit such building proposals and plans.
On the 22.11.1975, the Lambaga Bandaran Gombak (LBG), the local authority who had taken over the administrative function of the area from the District Office, informed the 2nd defendant that the drainage plan submitted was not approved by the Irrigation and Drainage Department (JPS) because no provision was made to cater for the stream in the area. It proceeded to advise the 2nd defendant to stop construction work on the Highland Towers until the drainage for the stream is incorporated in the plan.
(System of operation between the local authority and the State Government departments)
At this stage it is necessary to disclose the system of operation between the local authority, such as the LBG and its successor, the Majlis Daerah Gombak (MDG), with various government departments of the State of Selangor. During the construction and completion of the 3 apartment blocks of Highland Towers the local authority having jurisdiction over the area was in its formative years. It lacked manpower and facilities. To assist them, the State Government of Selangor allowed the local authority to use its various technical departments to consider and evaluate all matters relating to the development projects under its jurisdiction. This included land leveling and drainage. In such matters, the local authority acted merely as a secretariat. Upon receiving relevant development proposals and plans it would send them to the respective technical departments of the State. JPS, being a department involved, would study the matter referred to it and after due consideration returned these to the local authority with comments and suggestions. Such comments and advice were normally accepted. These were then communicated to the developer.
On 5.1.1976, in pursuant to a proposal by the 2nd defendant to relocate some drains, JPS issued the following advice to the local authority - LBG:
1 though the proposal of the 2nd defendant is acceptable but a drainage proposal plan must be submitted by the consultant; and in the meantime no physical construction work on the of Highland Towers should continue;
2 that the land being steep, care must be taken to construct silt traps to prevent landslides or problems to the drains and stream.
On 13.2.1978, MDG who replaced LBG as the local authority of the area, requested the 2nd defendant to construct an underpass drain to divert water from the area proposed for drainage to the Klang River which was across the main trunk road - Jalan Ulu Kelang and the cost should be borne by the 1st defendant. This was met with displeasure from the 1st and 2nd defendants as they felt other developers in the area should also contribute to such cost.
On 19.8.1978 there was a request by the 2nd defendant to MDG to issue a Certificate of Fitness (CF) for Block 1. Obviously construction on the Highland Towers proceeded despite the earlier order by the PLG not to do so.
On 29.9.1978 JPS suddenly informed MDG that its objection to the 2nd defendant's request for CF is withdrawn provided that no further construction work should proceed on the Highland Towers. One Dato Goonting (DW17), the then director of JPS, explained that this attitude was adopted because the authorities feared complaints from purchasers of Block 1 who wished to move into the completed building. Further JPS believed that the drainage plan for the area could still be carried out by the developer after this CF was issued.
On 8.10.1978 JPS wrote to MDG to advise that no construction on the other blocks of Highland Towers should proceed since the land to be acquired by the 1st defendant for the drainage was not implemented,
On the 6.4.1979 the 2nd defendant submitted drainage plans to MDG. These were rejected on grounds that it lacks computation and detail and not of engineering quality.
On 17.4.1981, MDG in response to the 1st defendant request for issuance of CF for Block 2 required drainage plan to be approved by JPS before consideration.
On the 18.4.1979 JPS wrote to MDG stating that there were complaints from residents in the vicinity of Highland Towers of flooding. MDG was to instruct the 1st defendant to stop earth works and to build silt traps as well as to submit drainage plans. In consequence of this, the 1st defendant engaged the 3rd defendant as consulting engineer to submit drainage plans. When the 3rd defendant came into the scene there were proposals to acquire some land below Highland Towers to channel water in the area to Klang River. This, however, did not materialize.
On 18.9.1981 the 3rd defendant submitted a drainage plan to JPS. This was partially approved.
On the 2.10.1981 JPS withdrew its objection for the issuance of CF to Block 2 provided the following conditions were met:
1) the 1st defendant was to put up a bank ganruntee for RM100, 000.00 to ensure that any drainage proposal when approved is carried out; and
2) that such drainage proposal, when approved, must be completed within a period of 4 months.
On the 6.11.1981, upon the 1st defendant securing the Bank Ganruntee which was placed with JPS, CF to Block 2 was issued by MDG. But no drainage proposal was forwarded to JPS nor was there any approved drainage system implemented within the period stipulated. Because of this, the Bank Ganruntee was extended.
On 5.6.1982, in pursuance to a request by the 1st defendant for a CF to be issued to Block 3, JPS advised MDG to refrain from entertaining such request until a drainage plan is approved and implemented.
On 6.5.1985 the 3rd defendant submitted a drainage plan (exhibit P34). This plan involves the construction of concrete drains all along the hill slope of Arab Malaysian Land starting from the point where the East stream enters lot 3671. Water from here will flow along these concrete channels eastward down slope to join a set the drains along the road reserve at lot 3666. Following the road, the drains then proceed behind the 3 blocks of Highland Towers in a northerly direction. Then at the end of Block 3 they turn left until they reach Lot 3626. At this point they will be connected to a larger drain situated on lot 445 which belongs to the government. The point of entry into Lot 445 is marked on this plan as "C".
On the 24.10.1985, P34 was approved by MDG with the consent of JPS..
On the 2.12.1985 without the knowledge and presence of any official from JPS, a technical assistant with MDG, one Mohd Harris (DW5) accompanied only by a director of the 1st defendant went to the Highland Towers Site and inspected a constructed concrete drainage structure located at point "C" on P34. Such an inspection, according to Dato Gooting, was not the normal practice where usually a representative of JPS would be present. Further, this inspection only focus on a particular section of an extensive approved drainage system. Thus this does not reflect the drainage works approved in P34 has been complied with. After this purported inspection, DW5 returned to MDG and wrote a report stating that the drainage works were duly completed according to plan.
On the 24.5.1985 based on the above inspection report, CF for Block 3 was duly issued by MDG.
Plaintiffs' Claim & The 2nd Defendant's Defence
In the plaintiffs' Statement of Claim, the plaintiffs allege that this defendant held himself out to be a suitably qualified, competent and skilled person to design, prepare and sign architectural and other building plans pertaining to the developments of Highland Towers and the Arab Malaysian Land. In the performance of this task, the 2nd defendant has breached a common law duty of care to the plaintiffs to take reasonable care and diligence in ensuring that: the drainage requirement and rubble walls in the Highland Towers Site and the Arab Malaysian Land, and the earthworks thereon were adequately and properly designed, supervised during its construction, and in compliance with the requirements as set by the authorities. Further, by these same acts or omissions, the 2nd defendant has created nuisance on the hill slope behind Highland Towers.
The defendant's reply to the plaintiffs' allegations are as follows: Firstly, he does not owe such duty of care to the plaintiffs. Secondly, even if such duty of care exists, it is not breached. He explains that he was only engaged to design the 3 apartment blocks of Highland Towers and was never involved in the design, supervision and construction of drains, rubble walls and earthworks within and outside of Highland Towers Site. The 1st defendant, he discloses, carried out these works; he played no part in them. Thirdly, he blames intervening acts of the 4th, 5th, 7th, and 8th defendants in the altering the condition of the area to cause the collapse of Block 1. This he submits, breaks the chain of causation arising from his wrong doings (if any), and exempts him from liability.
Analysis - Negligence
There was a considerable outcry over the qualifications of this defendant in submitting and dealing with the development, building and other related matters in the Highland Towers Project for reason that this defendant was only a building draftsman and not a qualified architect at the material time. As a building draftsman he was only permitted under the Architects Act 1967 to design buildings of no more than two stories in height and limited floor space. In this case, each apartment block of Highland Towers consisted of 12 stories with a built-up area far exceeding that allowed for a building draftsman to undertake. This defendant seemed to have got round the authorities at that the material time by inducing a relevant government department to grant him a "specially authorized person" status under a repealed enactment (the Architect Ordinance 1951). This he claims entitled him to summit and oversees construction works of three apartment blocks.
To the plaintiffs, whether this defendant misrepresented himself as to his qualification makes little difference to the duty of care he owes to the plaintiffs. According to the plaintiffs' counsel, " if a man is unqualified but holds himself out to be possessing a skill, he will be judged by the standards of a reasonably competent qualified person " - see Jackson & Power on Professional Negligence, 4th edition @ 86 where the case of Cardy v Taylor (1994) 38 Con.L.R. 79, is cited in support.
I am in full agreement with this view. When this defendant had represented himself as a qualified architect to all and sundry, as displayed by his actions, then he must be judged according to the character he had assumed.
As an architect, his duty is primarily to his client because of because he has a contractual relationship with him. But in law, an architect is also liable to anyone who is sufficiently proximate and who suffers loss or damage by reason of his negligence - see Halsbury's Laws of England, 4th edition, volume 4(2) @ paragraph 525. In this case, the plaintiffs are the purchasers of the two apartment blocks designed, supervised and built by the 2nd defendant. At the time when this defendant exercised his duty as an architect for the Highland Towers Project he must have known that the apartments he built would be sold and purchasers, their servants and or agents would be occupying them. Thus he must have foreseen that these purchasers would be closely and directly affected by his acts and/or omissions in building the apartments and for this he ought to have them in contemplation when he was directing his mind to his acts and/or omissions. From this, I find the existence of a duty of care owed by the 2nd defendant to the plaintiffs who are purchasers of these Highland Towers apartments.
The 2nd defendant has insisted that he was engaged only to design and supervise the construction of the 3 apartment blocks. He vehemently denies that his scope of work extended to the drainage, earthworks and construction of rubble walls on the Highland Towers Site and the Arab Malaysian Land. And since there is nothing defective in the design of the 3 apartment blocks that contributed to the collapse of Block 1 then he should not be held liable. And if it relates to the foundation of the Block 1, then the finger should not be pointed at him; it is the responsibility of the 3rd defendant, the engineer. He declares that he had not even been up the hill slope behind Highland Towers before designing the buildings, let alone being aware of the East Stream, which he only discovered while accompanying the judicial visit.
I think the 2nd defendant is under a serious misapprehension that an architect is engaged just to design and supervise the construction of a building and need not bother with the surrounding area where the building is to be erected. Surely the primary consideration for the construction of any building, or structure for that matter, besides the aesthetic aspect, is the safety of the building. To achieve this, the condition of the land on which the building is to be built as well as those in the vicinity must be considered and evaluated, particularly if it has potentials to affect the building that is being planned adversely. Like in this case, there was a steep hill right behind the 3 blocks of apartments and a stream nearby. Both these elements may affect the ground condition and drainage of the area on which the building stood. These dangers were not unknown to this defendant, as he wishes this Court to believe. They were duly brought to his notice by the authorities from the day the layout plan was approved.
Further, I find that his claim that his work was limited to only the apartment blocks is false. When he submitted the layout plan for approval it included the development of the Arab Malaysian Land. When the development plan was approved this hill slope must naturally be part and parcel of an overall scheme for which he must assume certain amount of responsibility. Besides, he has taken an active role in corresponding with the authorities and submitted drainage plans to them. All these are again evidenced in the chronology of events and there is no necessity in singularizing them out. Though the terracing and the construction of the retaining walls on the hill slope may be carried out by the 1st defendant but he, as architect for the project, must ensure that such work be carried out in a competent workmanlike manner so as not to affect the Highland Towers which he was responsible. He must ensure that no soil from the hill slope would come crashing down on his designs. With this, I cannot accept this 2nd defendant's contention that his scope of work did not include the hill slope and the drainage of the Highland Towers Site and the Arab Malaysian Land nor that he had any knowledge of these.
Having determined the scope of his work and the duty demanded of him, I shall move on to find out whether he owes such duty of care to the plaintiffs. To evaluate this, the test is - foreseebility. Basically it is whether the 2nd defendant could reasonably foresee that by his acts and/or omissions it would be likely to injure those persons who are so closely and directly affected by his acts and/or omissions that he ought reasonably to have them in contemplation as being so affected when he was directing his mind to the acts and/or omissions.
As an architect responsible for building the 3 apartment blocks, the 2nd defendant must have foreseen the plaintiffs, who were the purchasers of the buildings, would be affected by his acts and/or omissions as stated above. But Mr. Choo, his counsel, argues that though this might be so but when there are intervening acts of 3rd parties which his client could not have reasonably foreseen nor could have prevented, then his client should not be made liable for any negligence to the plaintiffs. The intervening acts, Mr. Choo claims, were the deliberate acts or omissions of other defendants which caused and /or contributed to the plaintiffs' loss. To support this he cited the case of Smith v Littlewood Ltd (1987) 2 WLR 481. This is a case where some teenagers who were playing in a disused cinema set it on fire. Not only was the cinema destroyed but also the neighboring properties. Those who suffered brought a claim against the cinema owner. On appeal it was ruled that the defendant should not be held liable because the defendant could not have foreseen such danger or prevented the deliberate acts of the third party (the teenagers) in setting fire to the premises which affected the neighbours.
I do not dispute the principle set out in Smith v Littlewood Ltd. But in our present case, the 2nd defendant did foresee the danger of not exercising his professional skill, care and diligence in attending to the initial and basic factors regarding drainage and the stability of the hill slope. As an architect, or someone who represented himself as one, he must have foreseen the dangers that if no proper, adequate and sufficient drainage system and retention walls were built then there would be danger to the buildings erected below. Yet he neglected this basic duty. The intervening acts of 3rd parties he may not be foreseen by him, but if a proper, adequate and sufficient drainage system and retaining walls were implemented and erected then the collapse of Block 1 may not even have occurred.
Having decided that the 2nd defendant owes a duty of care to the plaintiffs, the next issue to determine is whether he has breached such duty of care. In evaluating this, the standard of care to be applied is, as expressed by Justice Windeyer in Voli v Inglewood Shire Council (1963) ALR 657 to be:
"An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practicing their profession. And he must use due care. If he fails in these matters and the person who employed him thereby suffers damage, he is liable to that person. This liability can be said to arise either from the breach of his contract or in tort."
From the facts as set out above it is obvious that the 2nd defendant has breached his duty of care to the plaintiffs. He had failed in his duty as an architect and had also refused to comply with the requirements imposed by the authorities on the drainage of the area. Besides he had also colluded with the 1st and 3rd defendants to obtain CF for the 3 apartment blocks of the Highland Towers without fulfilling the conditions as set out by the 4th defendants and/or its predecessors. The compliance of these requirements and conditions were part of his duties as an architect and failure to do so is a breach of his duty of care - see the case of B.L. Holdings Ltd v Robert J Wood & Partners (1978) 10 BLR (though this case was reversed on appeal but not on this principle enunciated). Further, though he was aware of the terracing on the hill slope and the construction of the retaining walls which would effect the buildings which he was in charge of constructing, he did not investigate as to whether these were properly designed, adequately provided for and sufficient to withstand any slope failure. His excuse of "how can I stop my boss from doing anything" and " though I know I put great danger on everyone but (I) have no choice (for I have) to earn a living" is not only inexcusable but, as this case has displayed, 46 lives were loss as well as properties. On this score, I cannot, but to reiterate my feelings towards such attitude as expressed in my judgement in the case of Perunding Alam Bina Sdn. Bhd. v Errol Ho & Ors (1999) 2 CLJ 875 @ 882 which is:
" Though undoubtedly the ultimate decision of whether to proceed with, or without approved amended plans lies with the proprietor, but when the law is broken, the plaintiffs, as architects, to my mind, must report the matter to the authorities. Otherwise they may not only be an accessory to the commission of an offence but also liable to unprofessional conduct. If everyone adopts the attitude that it is "the client's decision" and not the architect's, and that in the general practice of the industry to built first before approval, then there is practically no necessity to obtain approval of plans for any building. And if the argument relates to only major changes needs approval first, then where is the line to be drawn between what is major and minor. Is the episode of Jaya Supermarket which built an additional four office floors without prior approval a minor deviation since only a fine was imposed? If this is the attitude of the industry to rely on the precedent of Jaya Supermarket experience, then it will be practically forcing the authorities to compromise; very similar to thumping the nose of the authorities. Surely, as citizens and professionals, the plaintiffs must ensure that the law must be followed, even at the risk of being discharged by the client; otherwise, the architectural profession will suffer irreparable damage if allowed to continue with such mentality."
Pure Economic Loss
Mr. Choo (as well as other defendants) has raised the issue that this claim of the plaintiffs cannot be maintained because it is a claim for "pure economic loss"; the 2 apartment blocks being the defective product.
To understand this legal terminology of pure economic loss it is necessary to return to the principle of Lord Atkin in the case of Donoghue v Stevenson which commands the basic principle of negligence. In this concept, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can reasonably be foreseen to be likely to cause physical injury to person or damage to his property other than the damaged property itself. By this proposition, a person without contractual relationship can claim from another, damages for injury suffered by him or damage to his property, other than the defective product itself. Any claim to this defective product, either in the manner of making good or replacement thereto, is a claim for pure economic loss. The facts in the very case of Donoghue v Steveson gives the best illustration. Here, the consumer of a bottle of ginger beer that contained a dead snail was successful in her claim against the manufacturer of the drink for negligence resulting in injuries to her health and damage to her property (if any). But she could not claim damages on the bottle of ginger beer either in the form of asking the manufacturer to make good this defective product or for a replacement of it. This is because such claim would be considered as a claim for pure economical loss.
By analogy to the factual situation regarding the 2nd defendant, the plaintiffs' claim against him is actually for pure economic loss. The plaintiffs are asking compensation from this defendant to make good the defective building or for a replacement thereof which he was engaged to built.
Over the years, arising out of dissatisfaction over this principle of pure economic loss, the common law practicing countries had a change of approach and decided to eradicate this rule. But sadly, the English Courts after having agreed to this change reverted back to the old concept that pure economic loss cannot be claimed. This stimulated fierce debate throughout the Commonwealth where common law is followed. Malaysia was no exception. In the case of Dr. Abdul Hamid Rashid v Jurusan Malaysian Consultants (1997) 3 MLJ 546 I gave my views that claim for pure economic loss in this country can be maintained against a defendant. The reasons for supporting this are comprehensively documented in that reported case and I do not think it wise to add to the growing pages in this judgement.
On this contention of the 2nd defendant, as well as all those defendants who relied on this defence of pure economic loss, suffice me to say that it must fail on the same reasons expressed in the case of Dr. Abdul Hamid Rashid v Jurusan Malaysian Consultants (supra).
Based on the reasons aforesaid, I find the 2nd defendant negligent.
Analysis - Nuisance
The other cause of action against the 2nd defendant is nuisance. To succeed, the plaintiffs must prove that this defendant was an unreasonable user of the neigbouring land to that of the plaintiffs' property and that he did foresee that his acts/or omissions would injure the plaintiffs. On the first factor, Mr. Navaratnam claims that this arose from the 2nd defendant being one of the creators of the situation on the hill slope behind Highland Towers that gives rise to the nuisance which caused the collapse of Block 1 and forced the plaintiffs to evacuate their apartments. To support this, he cited the text by Winfield & Jolowiez on The Law of Tort @ pages 59 & 66.
There is substantial degree of over-lapping between nuisance and negligence in this case. Thus there is no necessity to recount the facts and analysis already stated for negligence which is equally applicable to nuisance. Based on the facts and analysis expressed and elaborated when I considered negligence, I find this first factor of the 2nd defendant being an unreasonable user of the land proved. Also satisfied is the requirement of foreseeability. For this, I find the plaintiffs' claim for nuisance established against this defendant.
The Plaintiffs' Claim & The 3rd Defendant's Explanation
The plaintiffs claim that the 3rd defendant by his acts an/or omissions in preparing, designing and supervising in the construction of Highland Towers and the drainage system of the Highland Towers Site and the Arab Malaysian Land was negligent and had caused nuisance to them.
The 3rd defendant is, and at all material time was, a qualified civil engineer. His brother, the 2nd defendant, appointed him to be the consulting engineer for Highland Towers. Initially, his scope of work was restricted to the structural aspect of the 3 apartment blocks. But subsequently, when the 1st and 2nd defendants encountered difficulties with JPS over drainage of the area, the 3rd defendant was engaged by the 1st defendant to submit proposals to the authorities to resolve the problem. This resulted in his drainage plan, exhibit P34, being approved by the authorities. Slightly later, he was also retained by the 1st defendant to design and supervise the construction of two retaining walls on the Highland Towers Site. Both were in front of Block 2. Other than these, he disclaims responsibility for the remainder of the retaining walls on the Arab Malaysian Land and Highland Towers Site. The 1st defendant, he insists, constructed these; he has nothing to do with it. Though admitting that he was aware of these walls being built he was under the apprehension that they were designed and supervised by qualified engineers engaged by the 1st defendant.
Analysis - Negligence
The principles or test applicable to determine whether this defendant is liable for negligence is the same as those used in analyzing the liability of the 2nd defendant for this same cause of action, They are both considered as persons possessing special skills - see the case of Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners (1975) 1 WLR 1095, and thus their conducts are judged according to the standard of a skill and competence of person in their respective profession.
From the particulars listed in the Statement of Claim the plaintiffs identify three areas of negligence caused by this defendant. The first is on the foundation of Highland Towers, particularly that of Block 1. As disclosed in evidence, used rail piles welded together were used as foundation to support of the 3 apartment blocks. Both Dr. Weeks and Professor Simons consider this type of piles as inferior to concrete pile. But as this type of piles was accepted in the engineering and building industry to support high-rise building at the material time in this country no fault can be attributed to the 3rd defendant in approving its use since he was only adhering to the accepted professional practice of the time.
But what I find unacceptable is the lack of consideration paid by this defendant to the hill and the slope directly behind the 3 apartment blocks. Though the 3rd defendant seemed to have taken comfort on what he claims was the hill of a low gradient (10 to 20 degrees as perceived by him) being some distance away from the building, I am bemused as to how this impression can be formed when the physical appearance of the place was completely different. What I saw during this Court's visit to the site and from the photographs and plans of the area taken both before and after the collapse of Block 1, was a steep hill extremely close to the three apartment blocks. In fact the hill was so close that this defendant had to design and erect the two retaining walls in front of Block 2 to keep it from intruding into the buildings. In one of the photographs adduced by the 5th defendant, it shows the hill being separated from Block 1 by a narrow ally way. When you had a hill so close and acute then the 3rd defendant should have reasonably foreseen, judging by professional standard as an engineer responsible for the structure of Block 1, the danger of a landslide producing a lateral load against the foundation of the building. For this, he should have exercised care to either design and construct a foundation to accommodate lateral load or ensure that the slope was reasonably stable. Failure to do so is a breach of his duty of care he owes to the plaintiffs since his duty was to ensure the safety of the buildings he designed and built.
The same excuse as the 2nd defendant was offered to disclaim responsibility as to why the slope was not attended to. This is: he (the 3rd defendant) was not involved in the design or construction of the other retaining walls on the hill slope; it was the 1st defendant who did it. But this view is totally unacceptable since, and as I have stated, the paramount duty of an engineer for the Highland Towers was the safety of the buildings he was involved. This duty cannot be exempted by a mere belief of the retaining walls and terracing of the slope were designed, supervised and built by the 1st defendant, whose director was an engineer himself, or another firm of consultant, and therefore presumed safe. If this was the belief of the 3rd defendant, then it encumbered upon him to inquire and to ascertain whether: firstly, this other consultant is a qualified professional, and secondly, what they were doing would have any effect on the safety of Highland Towers. To support this view I shall quote a passage from the judgement of Bingham L.J. in the case of Eckersley v Binnie & Partners (1988) 18 Con. L.R. 1:
"... a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinarily assiduous and intelligent members of his profession in knowledge of the new advances, discoveries and developments in his field. He should be alert to the hazards and the risk inherent in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill, and care than other ordinarily competent members would bring but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet."
The second area of negligence is in regards to drainage. Though P34, the drainage plan, was approved but it was not fully implemented by the 1st defendant. The reasons offered by this defendant were: shortage of financial resources of developer; the need to bring down the road level to fit the drains; and prohibition on rock blasting in the area. On the last reason, evidence has proved this to be false. The second reason is much associated with the first, but to my mind, what ever the excuses may be they do not entitle and warrant the 3rd defendant to issue a notice to the authorities stating that the entire approve drainage proposal was implemented when, according to my estimates, only 10% was completed. This was a gross violation of his duty of care which, as a consultant engineer for the 3 apartment blocks, he owes to the plaintiffs as purchasers of Highland Towers particularly when this approved drainage system was so fundamental to the safety of the building. I have reiterated my strong sentiments against this type of attitude of professionals whose only consideration is to guard and secure their own interest rather than their duties and obligations to those closely affected and the public on which so much faith and reliance are placed on them to carry out their professional duties. I need not elaborate further except to remind this defendant that he has to live out the rest of his life knowing truly well that he had contributed to the tragedy of Highland Towers.
Based on the above I find the 3rd defendant liable to the plaintiffs for negligence.
Analysis - Nuisance
On the cause of action for nuisance, I also find this defendant liable to the plaintiffs. The reasons are similar to that stated under this category of liability for the 2nd defendant which is basically: he who did the first wrong must answer for the damage resulting from it - see Winfield & Jolowicz On Tort, 14th edition @ 514.
Returning to the 1st Defendant
Now that the actions and/or omissions of the 2nd and 3rd defendants are examined and determined I shall return to consider the liability of the 1st defendant.
Analysis - Negligence
On the cause of action for negligence the plaintiffs announce that this defendant owes a duty of care to them in four areas and the 1st defendant has breached this duty of care.
The first concerns the appointment of competent consultants to carry out the designs, construction and supervision of the architectural and engineering works.
As admitted by the 2nd defendant, he was not a registered qualified architect when he designed, drew and supervised the Highland Towers Project. In fact this was his first job of such magnitude on his own. As decided earlier, he was incompetent and lacking in skill. He failed to consider the effects of the steep hill on the building he was engaged to build. He adopted a narrow view in not considering all other factors that an architect of experience for such type of structures would have taken into account. Worse is his failure to comply with regulations set by the local authority for the drainage of the area, particularly when he knew or ought to have known that unless the drainage of the area was implemented he should not have applied for CF for the 3 blocks.
The acts and/or omissions of the 3rd defendant are no better. His failure covers: designing of suitable foundation, care and concern of the hill and slope, and the issuance of a notice to the authorities confirming the drainage works was completed when only a fraction of it was done. These are certainly traits of incompetence and lack of skill expected of a professional engineer.
Against these accusations, the 1st defendant counsel, Mr. Rajah argues that though these consultants may be incompetent and lacking in skill but they were independent contractors responsible for their own acts. Under such a situation, the 1st defendant is not liable for the acts of its independent contractors.
Undoubtedly as a general rule, it is a correct proposition that an employer of independent contractor is not liable for the default or negligence of such a contractor. But here the plaintiffs are focusing on the appointment of such personalities, not after they were appointed. This means that before their appointments there was a duty placed upon the 1st defendants to vet through them to ensure that they were competent and possessed such skill for the task they were employed to undertake. This involved inquiries and investigations into their credentials and qualifications as can be seen in the Supreme Court case of Datuk Bandar Dewan Bandaraya v Ong Kok Peng & Anor 91993) 2 MLJ 234 @ 239. Obviously these were not done. In fact even more extreme happened. Despite being notified by the 2nd defendant that he was not a qualified architect, the 1st defendant proceeded to engage him and even allowed him to appoint the 3rd defendant as the consultant engineer for the project. This is surely negligent on the part of the 1st defendant.
The second area negligence relates to the terracing of the slope and construction of retaining walls and drains on both the Arab Malaysian Land and the Highland Towers Site. Both 2nd and 3rd defendants have expressly declared that it was the 1st defendant who carried out such works. There is no denial of this assertion by the 1st defendant. When implementing such works, the 1st defendant must have reasonably foreseen that such works if insufficient and ineffective would cause the collapse of Block 1 and result in damages to the plaintiffs, who are his neighbours under the principle of negligence. The retaining walls have proved to be insufficient and inadequate, as disclosed by both Dr. Weeks and Professor Simons. In respect of the drains, there are the testimonies of Mr. Hooi and Mr. Douglas Yee - the hydrology and hydrogeology experts (whose theories and opinions I shall be alluding in the later part of this judgement) to announce that these were insufficient to effect proper and adequate drainage of water run-offs on the slope and those originating from the East Stream.
With such disclosures I must conclude that the 1st defendant has breached its duty of care to the plaintiffs and must therefore be liable to the plaintiffs for negligence in the erection and construction of these retaining walls and drains.
The third area complained of involves diversion of the East Stream from its natural path to the pipe culvert which ran horizontally across the hill slope directly above the 3 blocks of apartments. According to Dr. Weeks this is exceedingly dangerous, as water should be always, when possible, flow away from residential areas. But who diverted this East Stream? There is a conflict of claims. The plaintiffs of course blame the 1st defendant for having done this. Though the 1st defendant never directly denies this, but Mr. Rajah drew this Court's attention to an aerial photograph taken in 1966 (contain in the MPAJ report - P47) of the Highland Towers Site and Arab Malaysian Land. It shows the East Stream was already diverted across the hill slope before the 1st defendant became owner of the said properties. This implies that the 1st defendant could not have performed this diversion. But surprisingly the aerial photographs taken in subsequent years - 1974 and 1975 do not pick up this diversion; it had disappeared. Then subsequently in later pictures it reappeared. It was certainly there not long before the collapse of Block 1 for Mr. Lim - DW1 was in charged of maintaining it before the bungalow lots were sold to the 5th defendant.
To this mystery the plaintiffs counsel offers this cue. He announces that this temporarily disappearance of the division was caused by the1st defendant when they terraced the hill slope in preparation for the bungalow lots. After terracing the pipe culvert was incorporated as an integral part of the retaining wall to support the slope. Thus this diversion reappeared in the later pictures.
I find this proposition probable. Looking at the retaining wall and the pipe culvert besides it, the pipe culvert is actually an integral part of the wall. It is not constructed independently and it does not stand on its own. It is a section of the wall. Since this wall was built by the 1st defendant it must be inferred that the pipe culvert must also be built by the 1st defendant. By installing this pipe culvert, the 1st defendant must be considered to have diverted the East Stream from it natural course. And as declared by Lord Finlay L.C. in the well-known case of Greenock Corpn. V Caledonian Rly. Co., and Greenock Corpn. V Glasgow & South Western Rly. Co, (1917) A.C. 556, which is quoted by Abdul Hamid F.J. (as he then was) in the Federal Court case of Seong Fatt Sawmills Sdn, Bhd. V Dunlop Malaysia Industries Sdn Bhd. (1984) 1 MLJ 286 @ 291:
" It is the duty of anyone who interferes with the course of the stream to see that the work which he substitutes for the channel provided by nature are adequate to carry off the water brought even by extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel he will be liable."
As this pipe culvert was insufficient and inadequate to drain the discharge of the East Stream, the 1st defendant is liable to the plaintiffs.
The fourth area involves the exception to the principle of an employer who employs an independent contractor to carry out works on its behalf is directly responsible for the manner in which those works are carried out if the works are extra-hazardous in nature. This legal concept is incorporated into our law through the case of Datuk Bandar Dewan Bandaraya v Ong Kok Peng & Anor (supra) as an exception to the general rule that an employer is not liable for the acts of an independent contractor. But in order for this rule to apply the works involve must be of an extra-hazardous nature. Thus the first question that must be answered before attributing liability to the 1st defendant for the negligence of his independent contractor i.e. the 2nd and 3rd defendants is whether the works carried out by these two defendants are extra-hazardous? I do not believe so. What they did or undertook to do involved the normal and usual course of things as expected of them in their respective professions i.e. to draw plans, submitting them and supervise in the construction of what were approved. There was nothing extra-hazardous in such activities. My concern is that this exception to the general rule of an employer being liable for the act of an independent contractor appointed by him should not unduly expanded. It must be sparing applied, otherwise there will be a danger in exposing every employer to liability when he engages an independent contractor, such as the professionals in this case, to carry out a project which he himself is unable to handle but has to rely and depend on the skills of such person. It is only in cases where the works involved is of an extra-hazardous nature, and not just hazardous, that the employer assumes full responsibility. For this, I do not agree with the plaintiffs that the 1st defendant should be make liable for the negligence of the 2nd and 3rd defendants in this area.
Analysis - Nuisance
Like the 2nd and 3rd defendants, the 1st defendant is liable for nuisance as one of the creators of the nuisance by its acts and/or omissions as amplified above. Further, as an owner of the Highland Towers Site it had not been a reasonable user of its land for it failed to maintain the drainage system and the retaining walls on Highland Towers Site resulting in the damages suffered by the plaintiffs who are owners of the two apartments blocks which must be considered as its neighbours. While in the performance of these acts and/or omissions, the 1st defendant must have or ought to have reasonably foreseen that its acts and/or omissions would cause nuisance to the plaintiffs resulting in the loss mentioned. On this ground too, I find this defendant liable to the plaintiffs under this cause of action.