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2021 MarsdenLR 2936
SESSIONS COURT KUALA LUMPUR
ENG HAN BINA SDN BHD – Appellant
Versus
AST MACHINERY (MALAYSIA) SDN BHD & ORS; WONG LIIT KUAN & ANOR (THIRD PARTIES.... – Respondent
[Civil Suit No: WA-B52NCvC-34-01/2020]
The judgment emphasizes that all parties in a construction project share a duty of care, and negligence can arise from design defects and failure to adhere to safety protocols.
Headnote:(A) The law on negligence – The court examined the principles of negligence applicable to construction projects, referencing the standard of care owed by various stakeholders, including developers and contractors. The court applied the doctrine of res ipsa loquitur, leading to findings of negligence against multiple parties involved in the tower crane collapse. (Paras 63, 65, 118)
Facts of the case: The incident involved the collapse of Tower Crane No. 5 during its erection at a construction site, leading to claims for damages by the insurance company on behalf of the plaintiff. (Paras 2, 33)
Findings of Court: The court concluded that all parties involved were negligent and contributed to the incident, with the design defects being a primary cause of failure. (Paras 70, 71)
Issues: The primary issue was whether each party's negligence caused the collapse of TC5. (Paras 61, 62)
Ratio Decidendi: The court held that the principle of reasonable care is paramount, especially in high-risk activities such as construction, emphasizing that each party had a duty of care that had to be jointly fulfilled. (Paras 70, 68)
Result: The plaintiff’s claims were allowed in part, and damages were apportioned among the parties found liable. (Paras 217)
JUDGMENT
Background
[1] Today is for judgment. The Court would like to thank the learned solicitors for all the parties for the submissions duly filed.
[2] This case revolves around the collapse of a tower crane No 5 [TC5] on the 6th floor of a building construction at Jalan Ampang, Kuala Lumpur on 15 June 2014.
[3] The plaintiff's claim was made on behalf of the insurance company [MSIG Insurance Berhad] by way of subrogation against the defendants.
[4] In brief, due to the collapse of TC5, the plaintiff prayed from this Court the sum of RM800,431-14 as damages.
[5] The first and second defendant [D1 and D2] filed a third party summons against the first and second third parties [1TP and 2TP].
[6] The third parties also counter claimed against D1 and D2.
M-City Project - Jalan Ampang
[7] Oasis Garden Development Sdn Bhd was the employer for the project of proposed 37 storey M-City service apartments at Jalan Ampang, Kuala Lumpur.
[8] The project started on 17 July 2012 and was scheduled to complete on 16 May 2015. All the parties were involved in the project.
[9] The plaintiff was in the business of civil engineering and the main contractor for the project.
[10] The plaintiff had the machinery and equipment insurance policy with MSIG Insurance Berhad.
[11] D1 was specialized in the business of supplying and erecting tower crane.
[12] D2 was in the business of providing engineering and consultancy services and was assigned by D1 to prepare design calculation for TC5.
[13] Hup Yee Engineering Works [Hup Yee] was trading in the business of supplying the engineering and construction services. D3-D6 were partners. The plaintiff appointed Hup Yee as subcontractors to make the crane foundation constructed on 6th floor of the apartment building.
[14] 1TP was a civil and structural engineer. He was also a consultant.
[15] 1TP was involved in two companies namely D2 and 2TP. 1TP was the director of D2, appointed on 22 January 2010 and resigned on 16 July 2014. 1TP also had been owning 2 since 1996. 1TP was the majority shareholder out of three shareholders in 2TP. As a company, 2TP was in the business of engineering consultancy.
Key Persons In Charge
[16] The project manager for the plaintiff was PW3 [Jimmy Kee]. Besides PW3, the plaintiff had its own engineer and site supervisor. They supervised the overall project.
[17] DW13 was the operation manager for D1 at the site.
The Purchase Of Tower Crane 5
[18] In carrying out the project, the plaintiff had to use tower crane to lift and move heavy materials.
[19] For the purpose, the plaintiff purchased five (5) tower cranes from D1 [TC1-TC5]. These tower cranes were deployed and installed at different blocks within the project site.
[20] It is significant to note that this case relates only to TC5. See the example of tower crane below.
[21] On 30 December 2013, PW3 emailed to D2. The address of D2 was ciptamas.consult@gmail.com. The email states:
"Dear Ir. Wong,
Please be informed that we intended to install an additional tower crane (TC5) at M-City project. This tower crane is to be supported from level 6. Kindly look into the footing design of the said tower crane. Enclosed please find the relevant drawings for your reference.
Please do not hesitate to contact the undersigned should you require any further clarification.
Thank you.
Regards,
Jimmy Kee"
[22] The plaintiff issued the purchase order [P.O] for TC5 to D1 with the price of RM1,1000,000-00. Under the terms, D1 also agreed to provide the design calculation for TC5. The P.O dated 15 January 2014.
[23] Before that, on 09 January 2014, D2 emailed the design calculations Rev. A to both D1 [staff of D1 Miss Cherry] and the plaintiff. The email address of D1 was cherrylee@astm.om.my while of the plaintiff was mcity ehc@yahoo.com. The address of D2 was the same. The content of the email is as follows:
"Dear Cherry,
We forward herewith TC5 foundation for your further action.
Regards
Wong LK
Ciptamas Consult Sdn Bhd
No 52C, Jalan SS21/35
Damansara Utama
4740
