Lessons Learned From Highland Towers

By Murgan D. Maniam, Pengarah Undang-Undang, Majlis Perbandaran Pulau Pinang

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.

ighland 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 MPAJs pre and post-collapse acts and omissions.

The 10 Defendants were as follows: (i) (ii) 1st Defendant 2nd Defendant - Developer - Draftsman who was engaged by the developer as the Architect for the project - 2 nd Defendants brother engaged by the 1st Defendant as the Engineer for the project - Majlis Perbandaran Ampang Jaya - Arab-Malaysian Bank owner of 50 lots of bungalow land directly at the rear of Highland Towers - Tropic - company that carried out clearing works on the 5th Defendants land in 1992 - owner of Metrolux land (the higher land adjacent to the 5th Defendants land)

(iii) 3rd Defendant

(iv) 4th Defendant

(v)

5th Defendant

(vi) 6th Defendant

(vii) 7th Defendant

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(viii) 8th Defendant

- Project Manager for the 7th Defendant and was in charge of the development of the Metrolux land. - Selangor State Government

(ix) 9th Defendant (x)

10th Defendant - Director of Lands and Mines, Selangor JUDGMENT OF THE HIGH COURT

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; by the same acts or omissions, the 2nd Defendant had created a nuisance on the hill slope behind Highland Towers.

The High Court found the 1st, 2nd, 3rd, 4th, 5th, 7th and 8th Defendants liable and apportioned liability in the following percentages : (i) (ii) (iii) (iv) (v) (vi) 1st Defendant 2nd Defendant 3 Defendant 4th Defendant 5th Defendant
rd

(ii)

- 15% - 10% - 10% - 15% - 30%

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 Defendants 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 Defendants credentials had in fact permitted him to submit such plans. CF was issued for the three blocks on the following dates: (i) (ii) (iii) Block 1 - 29.9.1978 Block 2 - 6.11.1981 Block 3 - 24.5.1985

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 Architects 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 2 nd 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 2 Defendant appointed the 3rd Defendant, who was his brother, to be the consulting engineer for Highland Towers. Initially, the 3rd Defendants 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:
nd

(i) (ii)

designing unsuitable foundations; 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 Defendants 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 1 st Defendant; the need to bring down the road level to fit the drains; and

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; 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;

(ii)

(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;

(ii)

(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 (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. 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;

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. or by reason of the fact that such building works or the plans thereof are subject to inspection and approval.

(ii)

(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;

(ii)

(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

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 precollapse acts by virtue of Sec. 95 of the SDB. Although the High Court excluded liability for precollapse 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. 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.

(ii)

(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 ArabMalaysian 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 Courts 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 Plaintiffs 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, th 5 , 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 precollapse, 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 Defendants 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 architects and engineers 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

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