ingenieur Vol98 2024 | Page 17

Consultant ’ s Duty of Care towards Third Parties
In Steven Phoa Cheng Loon v Highland Properties Sdn Bhd [ 2000 ] 4 MLJ 200 , a building named the Highland Towers which consisted of three blocks of 12-storey apartments , was constructed in front of a steep hill with a stream . In 1993 , one of the blocks collapsed , and the residents from the remaining two blocks were ordered to evacuate . In 2000 , the residents of the building brought an action against ten defendants which included , among others , the developer , the architect , the engineer of the building , and the local authority . The High Court held that the architect and engineer for the project , amongst other defendants , were held to be liable for breach of duty of care owed to the residents and were liable for compensation . On the issue of design , it was held by the High Court that whilst there was no contractual relationship between the architect and the purchasers , an architect was capable of being held liable to anyone who was sufficiently proximate and whom the architect could foresee that his act and / or omission would cause damage to that person . The High Court ’ s decision was then upheld by the Court of Appeal .
In Lok Kok Beng & Anor v Loh Chiak Eong & Anor [ 2015 ] 4 MLJ 734 , 50 purchasers had entered into their respective sale and purchase agreements to purchase units of industrial buildings from the developer of a special industrial building project . There was a term in the SPAs that the purchasers would obtain vacant possession of the units purchased within 24 months from the date of the approval of the building plan . The purchasers filed an action in negligence against the project manager and the project architect for the financial loss they had suffered due to the late delivery of vacant possession of their industrial units . It was the purchasers ’ case against the project architect that as the professional consultant , it had acted negligently in the preparation of the original layout plan resulting in its amendment , and also negligent in the supervision of the works and the certification of completed works , thereby causing a delay of eight years for the completion of the industrial buildings . The Federal Court held that it was unforeseeable that the architect ’ s action and / or omission would lead the purchasers to suffer consequential financial loss , and the purchasers ’ claims were disallowed .
In the case of Corsa Tech Sdn . Bhd . v YTB Impressions Sdn . Bhd . & Ors [ 2021 ] MLJU 2210 , the first defendant company was the employer of a construction project in Malacca City . The Plaintiff was a contractor appointed by the first defendant for the design , fabrication , construction and installation of the entrance statement . The third defendant was appointed by the first defendant as the quantity surveyor in the project . The Plaintiff brought an action against the third defendant and alleged that the third defendant was negligent in revising its valuation and failing to value the Plaintiff ’ s progress claims within a reasonable time . The High Court held that there were cogent policy reasons to negate the duty of care against a quantity surveyor towards a contractor , because : a . The quantity surveyor was appointed by the employer , and not the contractor ; b . Imposing a duty of care of consultants towards a contractor might adversely affect the independence of the consultants in the performance of their duties ; c . It might hinder , if not jeopardise , the smooth running and success of the project . This would be unjust to the employer and does not augur well for the d . construction industry as a whole ; and No injustice would be caused to a contractor if the court did not recognise the existence of a duty of care owed by a consultant to a contractor in a project because the contractor should have a valid cause of action against the employer based on the agreement arising from any negligent action or omission on the part of the employer ’ s consultant .
In the case of L3 Architects Sdn Bhd v PCP Construction Sdn Bhd and another appeal [ 2019 ] MLJU 972 , the main contractor brought an action against the architect for incorrect certification of works done . It was held by the High Court that as the arbitration agreement between the main contractor and the employer served as an adequate machinery for the main contractor to pursue its grievances against the employer for issues such as wrongful certification , it would not be reasonable in the circumstances to impose a duty of care on the consultant . However , it must be highlighted that the High Court also held that there are certain exceptional cases where
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