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Lessons Learned FromHighland TowersBy Murgan D. Maniam, Pengarah Undang-Undang, Majlis Perbandaran Pulau Pinang

Highland Towers, as is collectively known,

consisted of three blocks of apartments known

as Blocks 1, 2 and 3. It was constructed

between 1975 and 1978. Directly behind the

three blocks was a steep slope. A stream (‘the east stream’)

originating upslope from the Metrolux land flowed across

part of the slope.

On Saturday, December 11, 1993, about 15 years later,

after 10 days of continuous rainfall, a landslide occurred

resulting in the collapse of Block 1. Forty-eight people

were recorded dead. Immediately after the collapse of

Block 1, the residents of Blocks 2 and 3 were prevented

from entering their apartments by MPAJ for fear of the

instability of these two buildings. A few days later, they

were allowed in but only to collect their personal

valuables. At that time, their apartments were looted

and subsequently vandalized.

Seventy-three owners and occupiers of the Blocks 2

and 3 apartments brought an action against 10 defendants

in negligence, nuisance, strict liability under the rule in

Rylands v. Fletcher and breach of statutory duty. The

Plaintiffs alleged inter alia that they had been unable to

re-occupy Blocks 2 and 3 emanating from the collapse of

Block 1, as the result of MPAJ’s pre and post-collapse

acts and omissions.

The 10 Defendants were as follows:

(i) 1st Defendant - Developer

(ii) 2nd Defendant - Draftsman who was engaged

by the developer as the

Architect for the project

(iii) 3rd Defendant - 2nd Defendant’s brother

engaged by the 1st Defendant

as the Engineer for the project

(iv) 4th Defendant - Majlis Perbandaran

Ampang Jaya

(v) 5th Defendant - Arab-Malaysian Bank –

owner of 50 lots of bungalow

land directly at the rear of

Highland Towers

(vi) 6th Defendant - Tropic - company that carried

out clearing works on the 5th

Defendant’s land in 1992

(vii) 7th Defendant - owner of Metrolux land (the

higher land adjacent to the 5th

Defendant’s land)

Architects and engineers owe a professional obligation to the public and their profession to

conduct themselves and practise their profession in accord with ethical standards. Local authorities

are also required to act reasonably and in accordance with the law.

Clients and the public place trust and confidence in the competence and skills of the professional

architects and engineers. Generally, both the professionals depend on the personal confidence of

the client in their technical competence; and the confidence of the public at large in the integrity

and ethical conduct of the professions as a whole.

It is the purpose of this paper to examine the decision of the High Court and the Court of

Appeal in respect of the roles played by the architect, engineer, developer and the local authority

in the development of the Highland Towers, and to learn the observations and rulings of the two

courts to give a greater insight and understanding of their respective roles.

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(viii) 8th Defendant - Project Manager for the 7th

Defendant and was in charge

of the development of the

Metrolux land.

(ix) 9th Defendant - Selangor State Government

(x) 10th Defendant - Director of Lands and Mines,

Selangor

JUDGMENT OF THE HIGH COURT

The High Court found the 1st, 2nd, 3rd, 4th, 5th, 7th and 8th

Defendants liable and apportioned liability in the following

percentages :

(i) 1st Defendant - 15%

(ii) 2nd Defendant - 10%

(iii) 3rd Defendant - 10%

(iv) 4th Defendant - 15%

(v) 5th Defendant - 30%

(vi) 7th & 8th Defendants - 20%

After due consideration, the court ruled that the

landslide that brought down Block 1 was a rotational

retrogressive slide emanating from the high wall behind

the second tier car park. The High Court also decided

that Block 1 had collapsed due to a landslide caused

primarily by water which emanated from the damaged

pipe culvert, and the inadequate and unattended drains

on the 5th Defendant’s land.

The judgment of the High Court has since been reported

as Steven Phoa Cheng Loon & Ors v Highland Properties

Sdn. Bhd. & Ors (2000) 4 MLJ 200.

LIABILITY OF THE 2ND DEFENDANT – THE ARCHITECT

The 2nd Defendant was an Architectural Draftsman.

He drew and submitted the layout plans for and on behalf

of the 1st Defendant. The 2nd Defendant knew that he was

not a fully qualified and registered architect. When the

layout plan was approved subject to conditions, the 2nd

Defendant prepared and submitted the building plans.

The 2nd Defendant, whilst submitting the layout plans

and building plans, had held himself out as a registered

architect. The local authority, by some error on their part

in not checking the 2nd Defendant’s credentials had in

fact permitted him to submit such plans.

CF was issued for the three blocks on the following dates:

(i) Block 1 - 29.9.1978

(ii) Block 2 - 6.11.1981

(iii) Block 3 - 24.5.1985

The Plaintiffs alleged that the 2nd Defendant had held

himself out to be a suitably qualified, competent and skilled

person to design, prepare and sign architectural and other

building plans. 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:

(i) the drainage required and rubble walls and the

earthworks were adequately and properly

designed, supervised during its construction and

in compliance with the requirements as set by

the authorities;

(ii) by the same acts or omissions, the 2nd Defendant

had created a nuisance on the hill slope behind

Highland Towers.

The 2nd Defendant argued that he did not owe such

duty of care to the Plaintiffs. Furthermore, even if such

duty of care exists, it was not breached. He explained

that he was only engaged to design the three apartment

blocks and was never involved in the design, supervision

and construction of drains, rubble walls and earthworks

within and outside of Highland Towers site; he submitted

that the 1st Defendant (Developer) carried out these works.

He played no part in them. He also submitted that the

intervening acts of the 4th, 5th, 7th and 8th Defendants in

altering the condition of the area caused the collapse of

Block 1 and exempted from liability.

A building draftsman is only permitted under the

Architect’s Act 1967 to design buildings of no more than

two storeys in height and limited floor space. In this case,

each block of Highland Towers consisted of 12 storeys

with a built area far exceeding that allowed for a building

draftsman to undertake. The 2nd Defendant managed to

induce a relevant Government department to grant him a

‘specially authorised person’ status under a repealed

enactment (the Architect Ordinance 1951) which he

claimed entitled him to summit and oversee construction

works of three apartment blocks.

The court held that this would make no difference to

the duty of care the 2nd Defendant owed. James Foong J

said:

‘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.’

The extent of his duty, said the judge:

‘Is primarily to his client because he has a contractual

relationship with him. But in law, an architect is

also liable to anyone who is sufficiently proximate

and whom the architect could foresee that his act

and/or omission would cause damage to that person.

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….. At the time when this Defendant exercised his

duty as an architect for the Highland Towers project,

he must have foreseen that the apartments he built

would be sold, and purchasers, their servants and or

agents would be occupying them. ….. he must have

or ought to have them in contemplation when he

was directing his mind to his acts and/or omissions.’

By this, a duty of care existed between the 2nd

Defendant and the Plaintiffs.

The 2nd Defendant had also argued that he had no

responsibility for the drainage or earthworks or anything

else beyond the design and supervision of construction

of the apartment blocks. To this, the judge held:

‘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 aesthetics

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

potential adverse effects to the building planned.’

‘…… He must ensure that no soil from the hill slope

would come crashing down on his designs. …..’

‘…… 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, there would be danger to

the buildings erected below. Yet he neglected this

basic duty. The intervening acts of the third parties

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.’

On the facts, the court found the 2nd Defendant had

breached his duty of care to the Plaintiffs. The 2nd

Defendant was held to have ‘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 that, he had also colluded with the

1st and 3rd Defendants (Developer and Engineer) to obtain

CF for the three apartment blocks of the Highland Towers

without fulfilling the conditions as set out by the 4th

Defendant (MPAJ).

The 2nd Defendant argued that the Plaintiffs’ claim

for pure economic loss i.e. compensation to make good

the defective building or for a replacement thereof which

the 2nd Defendant was engaged to build cannot be

maintained.

The court held that a claim for pure economic loss can

be maintained against a Defendant, and therefore ruled

that the Plaintiffs’ claim for negligence and nuisance is

established against the 2nd Defendant.

LIABILITY OF THE 3RD DEFENDANT – THE ENGINEER

The 3rd Defendant was a qualified civil engineer. The

2nd Defendant appointed the 3rd Defendant, who was his

brother, to be the consulting engineer for Highland Towers.

Initially, the 3rd Defendant’s scope of works was restricted

to the structural aspect of the three blocks. But

subsequently, the 3rd Defendant was engaged by the 1st

Defendant to submit proposals over the drainage of the

area. His drainage plan was approved. He was also

retained by the 1st Defendant to design and supervise the

construction of two retaining walls on the Highland Towers

site.

The Plaintiffs claimed that the 3rd Defendant was

negligent for the following reasons:

(i) designing unsuitable foundations;

(ii) lack of care and concern of the hill and slope;

(iii) issuing a notice to the authorities confirming the

drainage works was completed when only a

fraction of it was done.

By the above acts of preparing, designing and

supervising the construction of Highland Towers and the

drainage system of the Highland Towers site, he was

negligent and had caused nuisance to them.

The 3rd Defendant had used rail piles welded together

as foundation to support the three apartment blocks. This

type of piles, which was considered inferior to concrete

piles, was accepted in the engineering and building

industry to support high-rise buildings at the material

time. Thus, no fault can be attributed to the 3rd Defendant

in using the rail piles as he was only adhering to the

accepted professional practice at that time.

However, there was lack of consideration by the 3rd

Defendant to the hill and the slope directly behind the

three blocks. The court ruled that the 3rd Defendant should

have reasonably foreseen 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 the

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 3rd Defendant’s attempt to deny liability on the

ground that he relied on the 1st Defendant to ensure that

other retaining walls were constructed properly was

unsuccessful. The judge found that it was encumbent

upon the 3rd Defendant to enquire and ascertain whether

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the work was that of a qualified professional and what its

impact might be on the safety of his own building. The

judge agreed with a passage from the judgment of Bingham

LJ in the case of Eckersley v. Binnie (1988) 18 Con LR 1

@ p.80

‘…… 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 new advances, discoveries and developments in his

field. He should have such awareness as an ordinarily

competent practitioner would have of the deficiencies

in his knowledge and the limitations of his skill. 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 of

his profession 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.’

Although the drainage plan was approved by the

authorities, it was not fully implemented by the 1st

Defendant. The reasons offered by the 3rd Defendant for

this failure were:

(i) shortage of financial resources of the 1st

Defendant;

(ii) the need to bring down the road level to fit the

drains; and

(iii) prohibition on rock blasting in the area

Nevertheless, the court ruled that whatever the excuse

may be, it did not entitle and warrant the 3rd Defendant to

issue a notice to the authorities stating that the entire

approved drainage proposal was implemented when only

10% was completed. This was a gross violation of his

duty of care which, as a consultant engineer for the three

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. The

judge issued a powerful condemnation by saying as

follows:

‘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.’

The 3rd Defendant was found liable in negligence

and nuisance.

LIABILITY OF THE 1ST DEFENDANT – THE DEVELOPER

The Plaintiffs claimed the 1st Defendant liable in negligence

for the following reasons:

(i) 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;

(ii) Not vetting through their appointments to ensure

that they are competent and possess such skill

for the task they are employed to undertake which

involves enquiries and investigations into their

credentials and qualifications;

(iii) Constructing insufficient and inadequate

retaining walls on the Arab-Malaysian land and

the Highland Towers site without considering the

surrounding terrain, soil condition and drainage

requirement;

(iv) Constructing drains that were insufficient to effect

proper and adequate drainage of water run-offs

on the slope and those originating from the East

Stream;

(v) Diversion of the East Stream from its natural path

to the pipe culvert which ran horizontally across

the hill slope directly above the three blocks;

(vi) Obtaining CF to occupy the three blocks when

the drainage system in the Highland Towers site

and the Arab-Malaysian land was incomplete.

The court relied upon the dictum of Lord Finlay LC in

Greenock Corp. v. Caledonian Rly Co. (1917)AC 556 which

is quoted by Abdul Hamid FJ in the Federal Court case of

Seong Fatt Sawmills Sdn. Bhd. v. Dunlop Malaysia

Industries Sdn. Bhd. (1984) 1 MLJ 286 @ p 291.

‘It is the duty of anyone who interferes with the course

of the stream to see that the works which he substitutes

for the channel provided by nature are adequate to

carry off the water brought down 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.’

The court exonerated the 1st Defendant from the

allegation that they were responsible for the negligence

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of their consultants after appointment. The court held

that the 1st Defendant would only be liable if the works

involved were ‘of an extra hazardous nature’ which was

not the case here.

The court held that the 1st Defendant were liable in

negligence and nuisance.

LIABILITY OF THE 4TH DEFENDANT –

MAJLIS PERBANDARAN AMPANG JAYA (MPAJ)

The High Court held MPAJ liable in respect of the

following :

(i) At the planning and design stage of Highland

Towers, MPAJ had not taken reasonable care, skill

and diligence in checking the plans submitted to

ascertain whether they are reasonably fit for the

purpose it was intended for. This included matters

relating to water courses, streams and rivers in

the vicinity of the Highland Towers site, Arab

Malaysian land and the surroundings which were

under the jurisdiction of MPAJ.

(ii) At the construction stage of the Highland Towers,

MPAJ failed to exercise reasonable care, skill and

diligence to ensure the drainage system and the

rubble walls on Arab Malaysian land were

adequately provided for and/or constructed in a

workman-like manner before the issuance of the

Certificate of Fitness to the three apartment

blocks;

(iii) MPAJ failed to maintain and upgrade drains and

rubble walls on Highland Towers site and Arab

Malaysian land, and to provide adequate drainage

requirement to water courses, streams and rivers

after the Highland Towers was constructed;

(iv) MPAJ failed to take remedial measures to remove,

rectify and/or minimise the hazards posed on the

Arab-Malaysian land and the surroundings after

the collapse of Block 1;

(v) MPAJ failed to prevent vandalism and theft at

Blocks 2 and 3 in the aftermath of the collapse

of Block 1;

(vi) MPAJ failed to maintain the East Stream which

was under its jurisdiction;

According to the court, MPAJ owes a duty of care to

the Plaintiffs to use reasonable care, skill and diligence to

ensure that the hill slope and the drainage thereon were

properly accommodated before approving building or

other related plans, and during construction stage, to

comply with and to ensure the implementation of the

drainage system. Then, when Certificate of Fitness was

applied for, there should be proper and thorough inspection

on whether the buildings so built were safe in all aspects

and not just confined only to the structure, and after the

Highland Towers was erected, to ascertain drainage

requirement in the area was adequate to ensure slope

stability behind Block 1. Subsequent to the collapse of

Block 1, measures should have been taken to prevent

recurrence of the tragedy to Blocks 2 and 3.

The court found that MPAJ owed a duty of care to the

Plaintiffs and that this duty had been breached resulting

in damages.

Upon establishing that MPAJ was negligent, the High

Court was influenced by Sec.95(2) of the SDB Act 1974,

which provided an immunity to the Plaintiffs’ claims and

the passage in Dr. Abdul Hamid Abdul Rashid & Anor v.

Jurusan Malaysia Consultant & Ors (1997) 3 MLJ 546:

‘If there is any fear that this approach may encumber

the local authorities to pay out substantial claims

due to their negligence in granting approvals or

inspecting building works, there is s 95 of the Street,

Drainage & Building Act 1974 (Act 133) which

prohibits such authorities to be sued.’

In discussing the above Sec. 95(2), the High Court

pointed that Parliament can create an exemption from

liability for certain acts committed by local authorities

and its officers. James Foong J said:

‘It is my view that s 95(2) of the 1974 Act is just

such a piece of legislation to exempt the local authority

and its officer from negligent act related to and

connected with certain specified activities. In our

case, since the acts of the 4th Defendant found to be

negligent by this court are within those specified

activities under s 95(2) of the 1974 Act, immunity

applies to the 4th Defendant.

Further, the High Court explained that Sec. 95(2) covers

situations:

(i) ‘whatsoever arising out of building or other works

carried out’ by the 4th Defendant in accordance

with the provision of the said Act.

(ii) ‘or by reason of the fact that such building works

or the plans thereof are subject to inspection and

approval’.

The acts of negligence of which MPAJ was accused of

inter alia, approval of plans, inspection and issue of CF

were all covered by this immunity. Thus Sec. 95(2) applies

to acts/omissions committed by MPAJ pre-collapse.

However, the immunity could not cover the post- collapse

actions of MPAJ and for these, they were liable.

MPAJ had undertaken to prepare a master drainage

plan to ensure the safety of Blocks 2 and 3. After a period

of one year, there was no sight or news of such a plan.

MPAJ offered no explanation as to why its promise was

not met. Thus, MPAJ was held liable for post-collapse

management of the situation which included failure to

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prevent vandalism and theft in Blocks 2 and 3 as well as

failure to produce the master drainage plan. MPAJ was

also liable in nuisance by reason of its failure to maintain

properly a stream which formed part of the drainage

system of the area.

JUDGMENT OF THE COURT OF APPEAL

The 1st, 2nd, 6th, 9th and 10th Defendants did not appeal

against the decision of the High Court. The 3rd, 4th, 5th, 7th

and 8th Defendants appealed against that decision.

MPAJ filed an appeal to the Court of Appeal against

the whole decision of the High Court except that part

which decided that MPAJ was not liable for all pre-

collapse acts by virtue of Sec. 95 of the SDB.

Although the High Court excluded liability for pre-

collapse acts on the part of MPAJ on the basis of Sec.

95(2) of the SDB, MPAJ had raised the grounds of appeal

in the Court of Appeal that independently of Sec. 95(2) of

the SDB, MPAJ had not been negligent at all because :

(i) at the planning and design stage, MPAJ had relied

on the skill and diligence of the Architect (2nd

Defendant) who submitted those plans as well as

the various Government agencies which vetted

those plans.

(ii) at the construction stage of the Highland Towers,

MPAJ had relied on the skill and diligence of the

1st, 2nd and 3rd Defendants to supervise the said

construction and had relied on the Certificates

of the Architect (2nd Defendant) that all the works

had been completed in compliance with the

approved plans.

(iii) the Highland Towers and the surrounding areas,

after completion and after Certificate of Fitness

had been issued, had been maintained by the 1st

Defendant.

(iv) the drains in Highland Towers and the Arab

Malaysian land were never in the control of

MPAJ.

(v) the East-Stream was diverted from its natural

course by the 1st Defendant as found by the High

Court.

(vi) the drainage of the Highland Towers and the

Arab-Malaysian land was functioning effectively

until the 5th Defendant took over the Arab-

Malaysian land.

(vii) at no time did the Plaintiffs complained to MPAJ

of the dangers of the state of the drains in the

Highland Towers and the Arab-Malaysian land.

In considering the appeal of MPAJ against liability,

the Court of Appeal ruled that there are two separate

matters that must be addressed. These are the pre-collapse

and post-collapse liability.

The Court of Appeal observed that assuming that there

was a duty on the 4th Defendant (MPAJ) to act in a

particular manner towards the property of the Plaintiffs

post-collapse, such duty must find its expression in public

and not private law. Accordingly, if there had been a

failure on the part of MPAJ to do or not to do something

as a public authority, the proper method is to proceed by

way of application for judicial review. Thus the High

Court’s finding that MPAJ was liable for negligence after

the collapse was set aside.

Next, the Court of Appeal looked at the pre-collapse

position. The Plaintiffs submitted that Sec. 95(2) did not

apply to the facts as MPAJ had directed the East Stream

to be diverted from its natural course. The carrying out

of these works created a danger to the Plaintiff’s property.

Accordingly, this is not a case of inspection or approval

of building or other works or the plans thereof. This is a

case where a danger was expressly created by MPAJ. The

Court of Appeal agreed with this submission and set aside

the indemnity granted to MPAJ by the High Court for

negligence before the collapse.

The Court of Appeal ruled that there is no proposition

of law that a local authority such as MPAJ may never

owe a common duty of care to the third party. It all

depends on the particular circumstances. The kind of

harm that was foreseeable by the 5th Defendant was equally

foreseeable by the MPAJ. Upon the evidence and the

relevant principles, it was clear that MPAJ, as a reasonable

local authority must have foreseen the danger created by

diverting the East Stream would probably be a landslide

of the kind that happened and that in such event resultant

harm, including financial loss of the kind suffered by the

Plaintiffs would occur.

The Court of Appeal dismissed the appeals of the 3rd,

5th, 7th and 8th Defendants and affirmed the apportionment

of liability made by the High Court amongst the

Defendants.

The judgment of the Court of Appeal has since been

reported as Arab- Malaysian Finance Bhd. v Steven Phoa

Cheng Loon & Ors (2003) 1 MLJ 567. It appears that the

Court of Appeal has departed from the clear finding of

fact by the High Court that it was the 1st Defendant who

diverted the East-Stream and substituted their own finding

that it was MPAJ who diverted the East-Stream.

Furthermore, although the High Court made a very clear

finding of fact that it was the 1st Defendant who diverted

the East-Stream, the Court of Appeal declared that it was

MPAJ that diverted the East-Stream. The Court of Appeal

held that MPAJ owed a common law duty of care to the

Plaintiffs to avoid pure economic loss. It also held that

MPAJ is a Joint Tortfeasor along with the other Defendants.

It was argued that at all material times, MPAJ did not

have qualified people to deal with planning application.

The role of MPAJ was that of an intermediary by

forwarding that application to the respective departments,

district technical departments e.g. JKR, Health, State

Planning Departments and other authorities relating to

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that particular application. There was clear evidence

that MPAJ had relied upon the skill of the Architect (2nd

Defendant), the Engineer (the 3rd Defendant) and the

Developer (1st Defendant) as well as the checking of the

accuracy of the said plans by the relevant departments

(the 9th and 10th Defendants). The High Court held that

Sec. 95(2) SDB protected MPAJ for all acts of MPAJ pre-

collapse, including the checking of the accuracy of the

plans submitted and the failure to detect any danger in

the said plans.

However, the Court of Appeal held that Sec. 95(2) SDB

does not apply to the facts of the present case since MPAJ

had directed that the East-Stream be diverted from its

natural course and that such an act of MPAJ was caught

by the doctrine of Kane v New Forest District Council

(2001) 2 All ER 914. In Kane, the local authority

specifically required the footpath to be created. In the

present case, it was the 3rd Defendant on behalf of the 1st

Defendant who submitted the plans relating to the drains

to be implemented on the 5th Defendant’s land. In Kane,

all the parties including the local authorities were aware

that the construction of the footpath would be dangerous.

Despite the said knowledge of danger, the local authority

went ahead with the construction of the footpath.

However, in the present case, the drainage plan was

conveyed by MPAJ to JPS. JPS recommended approval

of the drainage plan. Thus the issue of danger in the

present case did not arise at all.

Furthermore, in Kane there was no equivalent statutory

provision such as Sect. 95(2) of the SDB. In Kane, it was

also argued that local authorities enjoyed blanket

immunity in law in respect of anything done in the exercise

of the planning functions. Thus it can be said, that the

Court of Appeal had erred in relying on Kane as a basis

for depriving MPAJ the indemnity afforded by Sec.95(2)

of the SDB.

CONCLUSION

The judgments of the High Court and the Court of

Appeal cannot be lightly regarded. They discuss the causes

of the collapse of Block 1 which may arise from a variety

of circumstances. Every architect, engineer and developer

must never allow an unsafe condition to persist or develop

at the construction site. They should also ensure at all

times that there is no threat to public health and welfare

and remember two assets which are vital to the practice

of their profession – their integrity and their ability.

On February 6th, 2004, the Federal Court has granted

MPAJ leave to appeal to the Federal Court on four main

issues inter alia whether Sec. 95(2) of the SDB is wide

enough to provide immunity to a local authority in

approving the diversion of a stream and in failing to detect

any danger or defect in the building and drainage plans

relating to the development submitted by the architect

and/or engineer on behalf of a developer.

Local authorities will welcome the decision of the

Federal Court as it would put to rest the debate as to

whether Sec.95(2) of the SDB provides absolute immunity

or qualified immunity.

SUMMARY

The decisions of the High Court and the Court of Appeal confirmed that architects and engineers have a duty

to secure the safety, health and welfare of the public in the performance of their professional services.

The architects and engineers owe a duty to exercise the skill, care and diligence which may reasonably be

expected of a person of ordinary competence, measured by the professional standard of the time. Thus an

architect’s and engineer’s general inexperience and lack of knowledge do not furnish a valid excuse for unprofessional

conduct.

The architects and engineers are to be judged by the professional standards prevailing at the time the work

was done, not by what may be known or accepted at a later date, or what may be seen only with the benefit of

hindsight.

The courts emphasised that every architect and engineer owe a duty to third parties to ensure that they are

sufficiently qualified to undertake the assignments for which they accept professional responsibility. The architects

and engineers must also know when to seek a competent specialist in areas outside their expertise.

In this case, the Court of Appeal was unable to see how MPAJ could possibly escape liability for requiring the

diversion of the East Stream. This infers that a local authority should not direct or do anything to make the site

dangerous; otherwise it will be liable.

Although the courts did not discuss in the ground of the Judgment the certification given by the architects and

engineers on the plans submitted by them to exonerate MPAJ, these professionals’ duty must always be reflected

on the plans, by requiring the architects and engineers to certify that they are responsible for supervising the

construction of the project to ensure that it is built in accordance with the approved plans, specifications and

drawings.

The local authorities should be entitled to rely on the certificate executed by the architects and engineers and

to hold them responsible for the structural design, safety and supervision of the project. This would enable the

architects and engineers to retain control over the design and erection procedures so as to be able to advise the

contractor of any special construction or safety consideration. BEM

B U L E T I N I N G E N I E U R 27

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