INGENIEUR
INGENIEUR
In a standard construction project , professional consultants are typically appointed directly by the employer .
or remedies may include the employer ' s contractual entitlement to pursue compensatory damages , request specific performance , or seek the rescission of the consultancy contract .
In addition to fulfilling their contractual duties , a professional consultant is also bound by a duty of care in tort towards their employer . The standard of care for a professional consultant is that of a professional having or holding himself out as having the skill or ability in question . An action in negligence can be pursued against a professional consultant if it can be proven that the professional consultant had breached their duty of care , resulting in loss or damage to the employer and provided that the loss or damage is not too remote . As we will demonstrate in the case laws below , it may be found that a professional consultant also owes a tortious duty of care to other persons who are reasonably within his contemplation to be closely and directly affected by his action or omission .
Positions Taken by the Malaysian Courts on Liability of Professional Consultants
There are various instances in a construction project where professional consultants could be exposed to potential claims against them , whether by the employer or the contractor , due to their breach of duty in contract or in tort arising from the provision of their professional services .
In the case of Pembinaan BLT Sdn Bhd v Nazarin ( NBM ) Sdn Bhd & Ors [ 2021 ] MLJU 1254 , it was held by the High Court that in a situation where there is a contract between the parties but the contractual terms did not specifically stipulate the specific contractual duty to carry out a certain task , the consultants would still be liable to the employer if the consultant had in the course of performance of his professional services assumed responsibility for those actions within their expertise which have been relied upon by the employer .
In PB Malaysia Sdn Bhd v Samudra ( M ) Sdn Bhd [ 2009 ] 7 MLJ 681 , the defendant , a developer , appointed the plaintiff , a consultant engineer , for their project in the district of Gombak to design , advise on and supervise permanent work to be constructed or installed per the relevant contract . Due to outstanding consultancy fees which were not paid by the developer , the consultant engineer commenced an action against the developer . In its defence and counterclaim , the developer contended that the engineer had been negligent in carrying out its duties as the consultant engineer to , amongst others , supervise and offer solutions in relation to sewerage problems . It was held by the High Court that the consulting engineer owes no duty to the developer to advise , supervise or offer solutions in relation to the sewerage problem , as it relates to temporary works .
14 VOL 98 APRIL - JUNE 2024