JUDGMENT

James Foong J:

The plaintiffs are husband and wife, and were at all material times owners of a piece of property known as Lot 3007, Kemendah Heights, Selangor ('Lot 3007'). In need of professionals to draw up plans to build a house on Lot 3007, the husband, the first plaintiff, walked into the office of the first defendant. The first defendant had described itself as a firm of 'consulting civil and structural engineers'. In attendance at the first defendant's office was the fifth defendant who gave an impression to the first plaintiff that he was the engineer of the firm, when in fact he was only a chief clerk and a draftsman. Plans of a double storey house were then drawn and signed by the fourth defendant. The fourth defendant was a registered engineer with the Board of Engineers of Malaysia at the material time, but no longer so after being struck off the rolls when he admitted to the regulatory body of engineers that he breached the rules by operating two firms at the same time, one of which being the first defendant.

Relevant building plans were submitted to the second defendant, the town council of the area. The plans were approved with the usual specifications and conditions. Building then commenced until it was completed and handed over to the plaintiffs on or about April 1985 whereupon, the plaintiffs moved into residence. Until 18 September 1988, no certificate of fitness was issued by the second defendant for the occupation of this house, though there was an inspection by an officer from the second defendant.

On 18 September 1988 at about 3am, the plaintiffs were awoken by an unusually loud sound. When the first plaintiff looked out of his bedroom window facing a river below the house he was unable to see the tops of some trees which he had planted on the slope. A concrete deck and the boundary brick wall which were erected on this part of the land had tilted and collapsed respectively. The plaintiffs and the family rushed out of the house to take refuge with a neighbour some short distance away. At about 5am, the first plaintiff heard shattering sound of glasses echoing from his house. By 6am, when sufficient daylight appeared, the plaintiffs returned to inspect their house and found that virtually half of the house facing the river had crumbled due to landslide.

This incident was reported to the authorities and at the instigation of the second defendant, an engineering consultant firm known as Kumarasivan Tan & Ariffin Sdn Bhd ('KTA') was appointed to determine the cause. Together with a geo-engineering expert by the name of Dr Ramli, a report was issued on 3 April 1989.

Basically, this report attributes the cause of the collapse to the following:

(1) the slope on which the house was built was steep with a gradient of about 45 degrees;

(2) engineers advising on the building and construction of the house took little consideration in assessing the stability of the slope;

(3) an excavation that was carried out on a neighbouring land known as Lot 3008 at the material time by the third defendant who was the contractor engaged in erecting a double storey bungalow thereon;

(4) heavy rainfall; and

(5) toe erosion at the river banks bordering Lot 3007.

As the result of the collapse, the plaintiffs suffered damages, and all parties agree that the quantum shall be as follows: (a) loss for the replacement of a new house RM293,000 (b) loss of furniture, fixtures and fittings RM 43,623

(c) guard wages to look after the partially collapsed house RM 2,500

(d) rentals for alternative accommodation from 18 September 1988 to June 1994 RM 25,050 RM364,173

The court shall now proceed to deal with the issue of liability of each of the defendants.

Against The Fifth Defendant

The first defendant was a firm which the plaintiffs claim that the fourth and fifth defendants were its proprietors. Against them, the cause of action in tort is negligence, and in contract is a breach of the terms and conditions of their appoi