DEPARTMENT OF QUANTITY SURVEYING

KULLIYYAH OF ARCHITECTURE AND ENVIRONMENTAL DESIGN

INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA

COURSEWORK
AWARD OF MARKS
GROUP 11

GROUP MEMBERS : 1) NURUL NAJWA BINTI ABDULLAH SANI (2013254)

2) PUTERI NUR SABRINA BINTI MOHAMED SYAHADAT

(2013702)

3) UMAIRA HUSNA BINTI ABDUL RAHMAN (2015020)

YEAR :2
SEMESTER/SESSION : SEMESTER 1, 2021/2022
COURSE : LEGAL FOR QUANTITY SURVEYORS 1
COURSE CODE : BAQS 2143
COURSEWORK TITLE : ASSIGNMENT 1
EVALUATOR’S NAME : SR. DR. SAIFUL NIZAM

DATE OF SUBMISSION : 3rd DECEMBER 2021

To be filled by the evaluator

Score:

Remarks:
 1. Discuss the concept of “Negligence” in the context of construction project

The act of not caring or unaware of things no matter how big or small it is which could
create or enhance a problem. As stated by Abdul Rahim Abdul Hamid, Muhd. Zaimi Abd Majid
and Singh (2008), many of the construction employers only focus on maximizing profit without
having a complete understanding regarding the accident prevention policies. This shows the
negligence act of the employers, where they neglect the safety of their workers as safety issues
have always been secondary in the construction industry. The employers are being negligent due
to zero knowledge on how high the actual cost of an accident in construction work is. Therefore,
negligence is one of the main factors of accidents in the construction industry. To take action
towards someone under negligence, one needs to prove that the wrongdoer (the plaintiff) must
have four elements which are duty, breach, causation and harm. The defendant must have a duty
or service to the plaintiff, failed that duty that caused injury, damages or actual loss to the
plaintiff.

In construction, there are many classifications of negligence that can cause accidents at
the construction site. This negligence is being done by the people involved at the construction
site which are contractors, laborers, architects, quantity surveyors and engineers. Contractor is
the key player in a construction project. Due to this, negligence done by the contractor will have
a big impact towards the construction progress. Contractor can be neglectful in training the
labourers before entering the construction site. Insufficient training of labourers can lead to a
high number of accidents in construction sites. According to Toole, 2002, as cited in Abdul
Rahim Abdul Hamid, et al, 2008, it will cause the laborers to have less exposure to safety
measures and equipment, does not abide by safety rules, dangerous procedures will be done and
they will not take the safety rules seriously. Besides, negligence of the safety measures also can
be done by contractors. As an example, when they did not secure and warn, less safety measures
and first aid were prepared (Abdul Rahim Abdul Hamid, et al, 2008). Furthermore, the laborers
also take part in the charge of negligence. As some of them are careless in doing their job. For
instance, according to the Kavya. K (2019) illustrated that data about the scaffolding accident
human causes which is the highest data recorded about the accident from consciousness workers
in the site. This could be proved that even if the workers are conscious of doing their work they
still have the tendency to be careless. Thus, this will lead to accidents that involve many labour
on site.
In addition, negligence of the architects can also cause injuries and harm in construction.
This can be seen where the architects who are the consultant of design are being inattentive with
their design. According to Kavya, K., 2019, poor design may result in a structure collapsing.
Poor design such as improper measurement of buildings, unbalanced shape, unrealistic design
and more are the main factors of failure in design which lead to injury and accidents. Quantity
surveyors also can contribute to harm due to their negligence in their job scope. Negligence in
costing of a construction project can give harm to the client whereby the client has to suffer from
financial loss. As for the engineers, negligence by them can lead to harm to people in
construction projects as well. Negligence of an engineer in providing errors on structural
calculations of a building can actually cause structural failure, project to be delayed, and
economic loss.
2) Identify and explain the “duty of care” for the following stakeholders against the
construction project: (20 marks)

2.1) Client

According to the Safety, Health and Welfare at Work (Construction) Regulations, 2013, a
client is defined as the person that the construction works is constructed to. This makes the client
one of the most important people in a construction project. They have a critical role in order to
ensure the management of health and safety in construction projects as well.

2.1.1 Appoint the Supervisor of site

The client has a duty to appoint the site supervisor who will monitor the situation,
workers and their work at site. The site supervisor will keep the client updated and ensure
that the progress as well as the construction works are aligned with the client’s needs. The
supervisor appointed by the client must be responsible to visit the site regularly,
communicate with the workers well, ensure the safety condition at construction site and
provide correct information to the client (Kavya & Pradeep, 2019).

2.1.2 Appoint the Principal Designer and Principal Contractor for the Project
The client is also responsible for appointing the principal designer and contractor
of the project who suits the project. The client should appoint the principal designer to
take control of the pre-construction phase of any project involving more than one
contractor (Health and Safety Executive, 2015). This shall be done before an early design
stage. As for the contractor, client also should appoint the contractor to maintain control
over the building phase of any project involving many contractors (Health and Safety
Executive, 2015). Principal contractor should be appointed at an early pre-construction
phase. Besides, the principal designer and contractor appointed must be those who are
competent on their own duty of care.
2.1.3 Provide Training for the Contractor
In order for the construction work to run smoothly, the client shall provide
training for the contractor. Through this, the contractor can obtain essential information,
instruction, and proper training, as well as that proper supervision is provided, in order to
comply with the requirements. According to Toole, 2002 as cited in Abdul Rahim Abdul
Hamid, et al., 2008, research has been done and concluded that the causes of accidents
were attributable to a lack of sufficient training. This is why training of contractor is
indeed important for the whole construction project to complete safely.

2.1.4 Provide relevant information

According to Construction Industry Development Board (CIDB), 2015, a client
should provide appropriate data and deliver it in a timely manner. This is to ensure that
the contractors, designers, quantity surveyors and all other key players of construction are
updated on the information within the progress of their work. Besides, in terms of safety
and health hazards, a client needs to highlight how the project is likely to be handled
(Department of Occupational Safety and Health, 2017).

2.1.5 Verify the preparation of safety and health file

In continuation of providing relevant information, a client also must ensure that
preparation of safety and health files is done by principal designers. According to the
Department of Occupational Safety and Health, 2017, this should be done when the
project has more than one contractor. Its goal is to make sure that at the end of the
project, the client has all of the knowledge that anybody doing following construction
work on the building would need to know in order to plan and execute the job safely and
without putting their health at danger. The client must make sure that the file is reviewed
and revised on a regular basis by the primary designer, and that the final file is returned at
the end of the project.
2.2) Contractors

According to Tobias, 2021, the duty of a contractor in general is to plan, lead, execute,
supervise and inspect a building construction project. The duty extends within the whole process
of the construction project, regardless of its scope. The ​contractors may accomplish their duties
by planning activities, supervising workers, and ensuring the project is following the local codes
and laws.

2.2.1 Perform work in a good and workmanlike manner

The case of Stonegate Homeowners Assn v. Staben described the contractor's duty
of care to homeowners. In the case, a subcontractor who is hired by a general contractor
was given a task to waterproof retaining walls and install backdrains in a large residential
development. However, the subcontractor's work was below industry standards and
resulted in seepage and drainage problems. Based on the court’s ruling, a subcontractor
who is careless and negligent in the performance of the work is liable to the general
contractor, to the owner and to third persons for any damages approximately caused
(Stonegate Homeowners Assn v. Staben, 2006).

2.2.2 Exercise reasonable skill and care in carrying out the works they are contractually
engaged to execute
Every subcontractor engaged in a construction project must be aware of their
safety such as wearing personal protective equipment (PPE), horseplay, operating
equipment under the observation of the authority, operating at safe speed and using
energized equipment (Abdul Rahim Abdul Hamid, et al, 2008). Additionally, they shall
take a safe position or posture and test all the equipment to avoid using defective tools or
equipment. Every subcontractor and specialised contractor should take lessons on how to
manage and take care of equipment and work on site properly.

2.2.3 Avoid causing the Client/third party personal injury or damage to property other
than the property that is the subject matter of their work/services
According to Kennaley (2018), based on a case that happened in Ontario, where a
concrete subcontractor is hired to form and pour a concrete slab driven stakes into the
 aggregate base, below. The stakes had penetrated a storm water drainage pipe, which later
backed up through the penetrations into the finished building. The subcontractor should
ensure the owner’s property is safe from any damage from the stake installation work. In
order to perform the duty of care, the subcontractors should have confirmed the location
of the pipes below which are safe from any risk of damage.

2.2.4 Not to cause the Main Contractors economic loss

This duty of care is relied upon by a subcontractor towards the main contractor.
Based on Barclays Bank v Fairclough [1995] 76 BLR 1, specialist subcontractors are
employed to clean asbestos cement off a roof. Unfortunately, the asbestos slurry dripped
into the building being worked upon. The Court of Appeal found them to owe a duty of
care upon the main contractor to not cause economic loss by way of the curing works
needed (Moran, 2008).

2.2.5 Take reasonable care when coordinating the activities of trades at a site
This duty of care is bestowed by the principal contractors over the subcontractors
employee. This duty of care aims to avoid unnecessary risks of injury and to minimise the
risk of injury for those who engaged in the activity it organised. A principal contractor
can be considered to have done their duty of care when they require all workers who
attend the work site to complete an induction session and assessment (Sharp, 2021).

2.3) Local Authority

Aathaworld (n.d.) stated that several regulatory authorities and groups are involved in the
development of the building sector in Malaysia. The Ministry of Works Malaysia, for example, is
involved in the implementation of infrastructure projects and guarantees that Bumiputera
businesses participate in the construction industry. The Malaysian Construction Industry
Development Board (CIDB) is a statutory body under the Ministry of Works to promote and
assist in the development of the construction industry. Also, the Board of Engineers Malaysia,
Institution of Engineers Malaysia, Malaysian Institute of Architects, Master Builders Association
Malaysia, and other relevant agencies and associations all control the Malaysian construction
sector.
2.3.1 Approved the design plan
Obtaining building plan approval as a preliminary step before construction begins
ensures that construction plans will be assessed by qualified individuals, reducing the
chance of construction failure (Marzukhi et al., 2020). It is crucial for the local authority
to approve the project building design in the aspect of the safety of the building. Once the
building plan is approved, this means the building complies with the rules and regulations
of the construction. For instance, it is mandatory for every building to apply for the
approval of the building plan from the planning department before they start the
construction. Thus, this could enhance the safety of the building according to the plan
that has been approved.

2.3.2 Appoint the feasible professional worker

Every professional worker has their own institution that handles and gives the
certificate of appointment to those who are feasible. The local authority needs to be
detailed in selecting and appointing the professional worker for the future country. It is
necessary to have the certificate of the professional profession as it indicates that the
person is reliable to handle the project and have a knowledge of it. For instance, if the
authority does not appoint the architect, engineer, landscape architect with procedures ,
the owner of land is not confident enough to appoint that person to handle their project.
Worst, if someone who is not reliable to handle the project is taken, then the project could
fail, the building is not safe enough and there would be much trouble in the future.
2.4) Architect

Architects play a big role in the design of the building. With the architect, clients can
have accomplished their dream building. An architect must be professional in their work as the
construction will involve many other workers in the different industries and the cost of the
project. However, as human beings, humans tend to not be perfect. Some might have
encountered problems throughout their career as an architect. Thus, the architect must always
take care of their duty of care to ensure their integrity as an architect.

2.4.1 Design the needs of the client

A design mistake is a directive (or lack thereof) in the plans and specifications
that, if followed by the contractor, will need costly replacement or rectification as per
result of a construction failure (Pott,2016). Architects must follow the needs of the client
as they are the owner of the project. The breach of the duty in architecture commonly
relates to the errors in the design which are caused by the architects who are lacking in
giving attention, knowledge, experience, and overreliance towards the other stakeholders
in the project. Architects can be sued due to their negligence that could cause a blunder
that involves the whole project. Thus, the duty of care as an architect needs to be taken
seriously as it involves many aspects such as people, the project, and the environment.

2.4.2 Inspect and supervise the building

The architect’s job is not only to design the building, the duty of care of an
architect is involved from the early stage of the process of construction procurement until
the risk allocation. Often, architects might take the inspection and supervise the job easily
as they might think that it is the contractor's job to take care of it. However, it is also the
architect’s duty of care to supervise and inspect the building according to the agreement
of the document contract. The architects will be considered a breach of duty of care as
they fail to supervise the building project properly. Kayva (2019) illustrated the data
about the building collapse accident technical causes. The highest causes are from the
plan of the building that is properly designed. This shows that although the building is
properly designed, it needs to be properly inspected and supervised to maintain the
quality of the building.
 References

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Sites. Malaysian Journal of Civil Engineering, 20(2), 243–259.

Construction Industry Development Board (CIDB) Malaysia. (2015). Standard Terms of

Construction Contract For Renovation and Small Projects (STCC-RSP 2015) between

Client and Contractor.

https://www.cidb.gov.my/sites/default/files/2020-05/STCC-RSP-2015--Proforma-_-Versi

-BI.pdf (Retrieved on November 30, 2021)

Department of Occupational Safety and Health (Ministry of Human Resources). (2017).

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es/3542-guidance-notes-for-clients/file (Retrieved on November 29, 2021)

Health and Safety Authority. (2021). Who is A Client?

https://www.hsa.ie/eng/Your_Industry/Construction/Construction_Duty_Holders/Client/

(Retrieved on November 27, 2021)

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Kennaley, R. (2018). Construction Law: Duty of care in construction. Rock to Road.

https://www.rocktoroad.com/construction-law-duty-of-care-in-construction-5984/

(Retrieved on November 30, 2021)

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Approval Process for Residential Development in One Stop Center. Case Study: Subang

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https://doi.org/10.22452/jscp.sp2020no1.4

Moran, V. (2008). Negligence: Duties of Care in the Construction Field. Australian

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http://classic.austlii.edu.au/au/journals/AUConstrLawNlr/2008/31.pdf (Retrieved on

November 30, 2021)

Sharp, G. (2021). Courts clarify your duty of care as a principal contractor to workers employed

by subcontractors performing work on your site.

https://cgw.com.au/publication/courts-clarify-your-duty-of-care-as-a-principal-contractor-

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