ingenieur Vol98 2024 | Page 18

INGENIEUR
INGENIEUR
the professional consultant could be liable to the contractor , namely , where the professional consultant has acted fraudulently or colluded with the employer to cause loss and damage to the contract , or the professional consultant has in the course of administering the contract deliberately misapplied the contract , or the professional consultant has committed misrepresentation which resulted in loss to the contractor .
In MRCB Builders Sdn Bhd ( formerly known as Gelanggang Harapan Construction Sdn Bhd ) v Liang United Engineering Studio [ 2022 ] MLJU 3359 , the High Court had to decide whether the professional consultant appointed by the employer to design the Contiguous Bored Piled Wall ( CBP ) walls owes a duty of care to the subcontractor . It was held by the High Court that as there was no contract between the subcontractor and the professional consultant , the professional consultant did not owe a duty of care to the subcontractor with regard to the damaged CBP walls .
Conclusion
As demonstrated in the case authorities above , it can be seen that in addition to fulfilling their contractual duties , a professional consultant is also bound by a duty of care in tort towards their employer . 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 .
On the other hand , though not completely impossible , it would be an uphill task for third parties to bring an action against a professional consultant under tort of negligence . This is especially applicable in cases where the third parties have a remedy against the employer under the construction project .

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