I find this added requirement reasonable and I have no reason for not adopting it as part of the common law of this country for this cause of action.

The Liability Under Rylands v. Fletcher

The rule expounded by Blackburn J in the case of Rylands v. Fletcher is: "that the person who for his own purpose brings onto his land and collects and keeps there anything to do with mischief if it escapes must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape." When such a situation is found to exist, then there is no necessity for the plaintiff to prove the negligent act of the defendant; this is a case of strict liability.

However this rule has undergone changes in recent years in the common law practicing countries. Starting with England, the House of Lords, in Cambridge Water Co Ltd v. Eastern Counties Leather plc [1994] 1 All ER 53 has added to this principle the necessity to prove that the defendant could have reasonably foresee the thing might, if escape, cause damage to the plaintiff. Then in Australia, in the case of Burnie Port Authority v. General Jones Pty Ltd 120 ALR 42, the High Court after describing this rule as having "all its difficulties, uncertainty, qualifications and exception" completely discarded it as an independent cause of action, and incorporated it into the law of negligence. I tend to favour this Australian approach since after the case of Cambridge Water Co the requirement of foreseeability has deprived this independent cause of action of its attractiveness. Since foreseeability is required to be proved, it might as well be absorbed into the liability of negligence.

Objection To The Locus Standi Of Plaintiffs Number 44-73

The statement of claim has described plaintiffs 44 to 73 as having assigned their rights and interest in their respective apartments in Highland Towers to various financial institutions for consideration of loans granted to them by these financial institutions. The names of these financial houses are disclosed in para. 2 of the statement of claim against the amount owed by each of these plaintiffs. As security for these loans, these plaintiffs have executed in favour of these institutions what we commonly called a "loan agreement cum assignment". In it, these plaintiffs assigned to these institutions all their rights and interest in their apartments under the sale and purchase agreement they entered with the 1st defendant. This method of conveyancing was adopted for reason that no individual strata title was issued to the apartments (not even till today) to enable the financiers to create a legal charge over them. Seizing on this shortcoming all the defendants except Tropic argued that these 59 plaintiffs have no right to bring an action against the defendants since their rights have been assumed by the financial institutions.

To substantiate this contention s. 4(3) of the Civil Law Act and the principle as laid down in the case of Leigh & Sillavan v. Aliakmon Shipping Co Ltd [1986] 2 All ER 145 are highlighted.

Section 4(3) of the Civil Law Act reads as follows:

And the principle as expressed by Lord Brandon in Leigh & Sillavan v. Aliakmon Shipping (supra) is:
 

In arguing against this objection, Mr. Navaratnam, insists that the assignments executed by his clients to the financial institutions are firstly: "not absolute", and secondly: "purporting to be by way of charge", thus falling outside the ambit of s. 4(3) of the Civil Law Act.

By these assertions, the question that requires satisfaction, and which will decide the fate of the defendants' objections, is: whether the assignments in favour of the financial bodies are absolute (not purporting to be a way of charge)? If it is in the negative, then the objections of these defendants must fail.

As a guide to assist this court in its determination of this issue two decisions, one from the then Supreme Court (Nouvau Mont Dor (m) Sdn. Bhd. V. Faber Development Sdn. Bhd. [1985] CLJ 231), and the other of the Federal Court (HiPParion (m) Sdn. Bhd. V. Chung Khiaw Bank Ltd. [1989] 1 CLJ 41) confirming the approach of its predecessor, are relevant. In the case of Nouvau Mont Dor (m) Sdn. Bhd. V. Faber Development Sdn. Bhd. [1985] CLJ 231, Seah FJ advises that: in deciding on such matter of, "whether or not the assignment is absolute one (not purporting to be by way of a legal charge only) within the meaning of s. 4(3) of the Civil Law Act 1956 is to be gathered only from the four corners of the instrument itself". It must be recorded that in both these cases, the assignments by the borrowers to the banks for loans granted of this nature were ruled absolute (and not purporting to be by way of a legal charge only) rendering the assignors no legal right to bring an action in their own names.

Of late there seems to be substantial number of authorities distinguishing the finding made in Nouvau Mont Dor and Hipparion, though not the test they set. Particularly visible are the High Courts' decisions in Loh Hoon Loi & Ors v. Viewpoint Properties (Sabah) Sdn Bhd [1995] 4 MLJ 804, Bank of Commence (M) Bhd v. Mahajaya Property Sdn Bhd [1997] 3 MLJ 620 and Pak Ki Yau v. Kumpulan Promista Sdn Bhd [1999] 6 MLJ 220. The two latter cases ruled that there was no absolute assignment in the document of assignments before them.

The various instruments of assignment created by these plaintiffs in favour of their respective financial institutions are tendered in court. Though they are worded in various fashions, but common to all are the following features: (a) It is in consideration for loans granted by the financial institutions to these plaintiffs, as borrowers. (b) There are no individual documents of title issued to the apartments offered as securities for the loans to enable a legal charge to be created over them. (c) The assignments by these plaintiffs to the financial institutions are of the plaintiffs' rights and interest in the sale and purchase agreements they entered with the 1st defendant, when they purchased their respective apartments. (d) There are covenants by these financial institutions, as assignors, to reassign the said apartments back to the plaintiffs in the event individual documents of title are issued, and if the loans are still then subsisting, to create registrable legal charges over the properties so secured. (e) And if individual documents of title were not issued when the loans are repaid the assignors would reassign back the rights and interest in the sale & purchase agreements to the plaintiffs.

This type of arrangement is presently recognised as an "equitable mortgage" or even as a "equitable charge" by the Federal Court in the case of Chuah Eng Khong V. Malayan Banking Berhad [1995] 3 CLJ 581. In fact Peh Swee Chin's FCJ in his judgment in the same case accepted such creation despite the existence in this country of the National Land Code which speaks only of a "charge" with the following statement:

With recognition by such high authority of such loan agreement cum assignment to be an equitable charge, I see no reason why the word "charge" in s. 4(3) of the Civil Law Act should not include equitable charge of this nature. For after all, is this equitable charge not specie of a charge? Thus when this instrument of assignment purports to be by way of a charge, the effects of s. 4(3) of the Civil Law Act is no longer applicable.

Further, after perusing these loan agreement cum assignments, I honestly, within the four corners of these documents cannot interpret them to be absolute assignments by these plaintiffs to the financial institutions. Though the word "absolute" appears in the documentation of these loan agreement cum assignments, there are also other clauses to show that the rights and interest in the sale & purchase agreements so assigned have not been transferred to the assignors. This is explicitly revealed Clement Skinner JC (as he then was) in Pak Ki Yau v. Kumpulan Promista Sdn Bhd (supra). Though the clauses referred by Skinner JC in his judgment may not be exactly the same in wordings and in numerical order as those in the various loan agreement cum assignments in our present case but they are present and practically alike. The following is his exposition of which I adopt in full for the consideration in this case.

Besides the finding above, I am also of the view that by the principle of equity of redemption these plaintiffs are also able to maintain their right to sue. Though the defendants concerned have submitted to me that this equitable principle has no place in our system of land registration since 1917, as expressed in Haji Abdul Rahman v. Md. Hassan [1917] 1 FMSLR 290 and approved by the FMS Court of Appeal in Wong See Leng V. C Saraswathy Ammal [1953] 1 LNS 123 which says:

I find that this attitude have changed by the decision of the Federal Court in Chuah Eng Khong V. Malayan Banking Berhad [1995] 3 CLJ 581. There, Peh Swee Chin FCJ has categorically revived this principle with these:

The learned judge then proceeds to determine as follows:

The Court of Appeal used the words "equitable mortgage" in relation to security transaction without restrain, and totally without any inhibition in the face of the National Land Code.

Since the loan agreement cum assignment is an equitable mortgage the principle of the equity of redemption is back in force in this country; with it comes the right of these plaintiffs to proceed with their claims.

The Cause Of Collapse Of Block 1

In order to determine the liabilities of defendants on the allegations as charged by the plaintiffs, it is necessary at the onset to establish the cause of the collapse of Block 1 which lead to the forced evacuation Block 2 & 3. To decide on this, it is essential to disclose some brief facts.

Highland Towers & Its Surrounding Features

The Retaining Walls

The three apartment blocks of Highland Towers were built on elevated land with a relatively flat base. Directly behind it was a steep hill. Though some witnesses have describe the gradient of this hill to be 10 to 20 degrees but, by my estimate from various photographs tendered as exhibits, I perceive it to be far steeper. This hill was terraced, supported by retaining rubble walls made of boulders and cobbles of rock of varying size placed together by mortar at a random fashion. Some of these walls had collapsed and were buried in the soil at the time of the Highland Towers tragedy. Those left are still standing, either in part or as a whole, but in a dire state of repair. From a physical survey commissioned by MPAJ soon after the collapse of Block 1 on the affected area, covering the Highland Towers Site and the Arab Malaysian Land, it is apparent that these retaining walls were constructed in a haphazardous manner. Some were located on the Highland Towers Site with the rest in the Arab Malaysian Land.

Ownership Of The Slope Behind Highland Towers

Both the Highland Towers Site and the Arab Malaysian Land once belonged to a common owner - the 1st defendant, who intended to develop the entire area into a housing scheme with three apartment blocks on Highland Towers Site and bungalows on the Arab Malaysian Land. When the lands were subdivided and issued with individual documents of title, the 1st defendant mortgaged the bungalow lots, consisting of 50 in number, to the 5th defendant in consideration of some financial arrangements. When the loans were not repaid, the 50 bungalow lots were transferred to the 5th defendant in November 1991 to offset the amount due.

The East Stream & Pipe Culvert

At the furthest eastern corner of the Arab Malaysian Land water from a stream, popularly known as the "East Stream" (which name is totally inappropriate since it actually flows westward), enters the 5th defendant land. The source of this stream originates from the Metrolux Land. It flows down hill in a westerly direction until it reaches a plateau where it forms a mud pond. From here the water is channeled into a set of concrete culverts which directs it to a pipe culvert (pipe culvert). This pipe culvert runs horizontally right across the hill slope of the Arab Malaysian Land. After passing through 10 bungalow lots, the water from this pipe is discharged into Lot 445 which is situated in the north. Lot 445 is a government land. This entire section of the land, as described, seems unaffected by the effects of the landslide that brought down Block 1.

The initial section of this pipe culvert was built as an integrated part of a retaining wall. It has manholes located at various intervals. Just by the side of this pipe culvert, running for some distance, is an open concrete drain. This was intended to drain surface runoff water while the pipe culvert catered for the water emanating from the East Stream.

All drainage and geo-technical experts who testified in this case agree that the flow regime of the East Stream into the pipe culvert running across the hill is highly undesirable and dangerous. Instead of water flowing along its natural course - downhill (following its natural terrain), it is now diverted into a man made structure that requires constant maintenance and supervision. Failure to attend to this will affect slope stability, causing a danger to humans living down slope. It must have been this concern that, subsequent to the collapse of Block 1, the rescue operators, upon discovering this unwarranted drainage system of the East Stream, redirected the flow pattern of this stream to its natural course, downhill in a westerly direction. They did it by placing sandbags in an area to prevent the flow of water into the pipe culvert. This is not completely successful since, by my observation during this court's visit to the area, water is still detected in the pipe culvert.

Further down slope on the Arab Malaysian Land is network of drains. Those at the upper sector are earth drains while at the lower portion are made of concrete. These drains, I believed cater for surface water runoff while the pipe culvert was take care of the discharge emanating from the East Stream. Though in certain areas these drains are disconnected abruptly, presumably caused by the landslide that brought down Block1, those at the upper level are still intact. But they are in an odd fashion. Starting from the top, a drain runs parallel for some distance along the pipe culvert. It then suddenly makes a U-turn to flow back in the same direction from where it came from. Then after proceeding for some distance, it is connected to a culvert across a road reserve. At this culvert and joining it is a drain coming from the opposite direction. By deduction, this drain from the opposite caters for water runoff on the southern side of the slope. From the junction the drain proceeds down hill and terminates abruptly at far right at a level parallel to the rear of Highland Towers. From an overall view of the post-collapse survey plan, this drain must have continued along the rear of Highland Towers until the end of Block 3 when it turned left down hill and drained into the lower section of the government land - Lot 445.

This drainage pattern too, in the view of all experts in the field of hydrology, is far from satisfactory. Firstly, large section of drains is earth drains that can be easily eroded. Secondly, water can infiltrate into the soil of these earth drains at a greater rate than those made of concrete. Thirdly, the flow pattern of these drains is undesirable. It does not flow naturally down hill. Instead it makes a number of U-turns, one of which even flows backwards to the direction where it came from. Fourthly, the drains are insufficient to accommodate the amount of runoff from the slope. Fifthly, the drains are in a vegetated area and maintenance is regularly and constantly required.

Before the Arab Malaysian Land was sold to the 5th defendant, one Mr. Lim (DW1), an employee of the 1st defendant was in charge of the drains on the slope. He ensured water in the drains flowed without interruptions, particularly free from vegetation interference around it, and when the drains were damaged he would repair them. Failure or neglect to ensure these had serious consequences as can witnessed by the flooding in the car parks of Highland Towers accompanied by rocks and mud, as well as a landslide on the slope some months before the collapse of Block 1. This was when Tropic moved into the Arab Malaysian Land to excavate and cleared the vegetation as well as leaving branches of trees and debris in the drains.

Bruce Mitchell's Photographs

The three blocks of Highland Towers were built in such a manner that Block 1 and 3 were almost parallel to each other, with Block 2 in between set slightly back. From the window of the of the 4th floor of Block 3, a resident, Mr. Bruce Mitchell, had the presence of mind to snap a series of photographs just before the collapsed of Block 1. These highly commendable pictures, 6 in number, recorded the tragedy and rendered us a grime reminder of the last moments before the disaster that took so many lives and caused enormous loss of property. These pictures also provided invaluable information to specialist in the field of geo-technology to determine the cause of the collapse. They are marked as exhibit P7A - 7H but are commonly, throughout this trial, referred to as the "Mitchell Pictures".

As principal expert witnesses have relied extensively on these pictures to form their opinion, it is essential that I give a brief description of each of these.

Photograph P7A, shows a view of the rear section of Highland Towers framed on both sides by the balconies of apartments in Block 1 & 2. At the furthest end of the picture is the hill slope. Erosion scars are seen in two areas engulfed by vegetation, mainly trees which lean downhill as if being pushed by some force from above. Beneath is a rubble retaining wall. In front of this wall is a heap of earth with fragments of tar spawn over. Lower down from this spot is a continuous row of corrugated asbestos roofs in a state of collapse, with motor vehicles trapped under. Right next to this and slightly further front, is a cement slap which looks like an openair badminton court. Supporting it is a rubble retaining wall topped by flower plants.

The left side of picture P7B shows a partial profile of Block 1 with some balconies of apartments facing Kuala Lumpur City protruding out. Beneath these is a tar-paved road with three motor cars parked in a row. At the far end of this road is a rubble retaining wall supporting a growth of lush green vegetation. The lower portion of this retaining wall has explored with soil spawn over a lower tier road. A lamppost standing close to the area where the soil is seen emitting has leaned.

Photograph P7C is the second frame of the same spot as P7B. The soil seen emitting in the earlier picture it is more profound. Substantial part of the retaining wall has collapsed. Greater volume of earth is seen gushing out of the disintegrated retaining wall. The lamppost has leaned more extreme.

P7D captures almost the entire Block 1 tilted at an angle with clouds of dust emitting from the base.

P7E records Block 1 almost tumbling to the ground. The rear apartments' balconies, now facing the sky are clearly visible.

P7F is a second frame of the same spot as P7E. In this subsequent shot, taken a few seconds later, there is a sea of dust with intermittent sight of a fallen building.

P7G reveals a wider view of the rear of Block 1 without the building (Block 1) obstructing. The dust from the fallen Block 1 is still present as evidenced by the white cloudily shades on the right side of the picture. In the center, starting from the top is the hill slope marked by scars extending to the right in a continuous line. Below, divided by a row of vegetation, is a rubble retaining wall that is still standing but split in the middle and slanting. In front of this is a large mess of expose earth, and floating on top are some cars with parts of the corrugated roof, which once provided a shade for the car park. At the extreme left of this photograph stands Block 2, with its landscaped terraced garden fully intact.

P7H is a pathetic view of the collapsed Block 1 lying on the ground in one piece with stunned spectators staring at the aftermath in total disbelief.

Investigation & MPAJ Report

General

Immediately after the collapse of Block 1 rescue operation was mounted. MPAJ who had administrative responsibility over the area assumed a leading role. It set up a Commission of Inquiry (Commission of Inquiry) headed by its President. This Commission consisted of representatives from various government departments and professional bodies (like the Boards of architects and engineers) relevant to the scope of the enquiry. The term of reference of this Commission was to: determine the cause of the collapse, identify the person or persons responsible, with recommendations on actions that could be taken against him or them; make recommendations on measures to prevent reoccurrence of such an accident; and to make assessment and recommendations on the fate of Block 2 & 3.

The Commission divided its work into various committees which in turn spread out its task to a number of sub-committees. At the end of three months from date of inception, this Commission published a report. It is in five volumes. For ease of reference, I refer to it as the "MPAJ report". When the plaintiffs' counsel attempted to tender this document in court to be marked as an exhibit some defendants raised objections. This is understandable. The Commission of Inquiry, after identifying the cause of collapse, also attributed faults to certain defendants. Such findings, according to the affected defendants, is unfair since they were not represented at the inquiry nor given an opportunity to test the validity of the evidence adduced. It is pertinent to note that included in this report are numerous data, plans, maps and information gathered by the investigating section of the committee immediately after the collapse. These are useful and offer enormous assistance to any expert in determining the cause of the collapse of Block 1. In fact all the experts called to testify before me had, in one form or other, relied on some of the plans, maps, and information and data contained in the MPAJ report to formulate their expert opinion.

The Admissibility Of The MPAJ Report

To determine this issue on the admissibility of this MPAJ report I called for submission from both sides. After hearing arguments, I ruled that this report is admissible and ordered it to be marked as P47 to P52.

To justify this the following are my reasons. It is set in the format of question & answer.

1. Question: Is the MPAJ report a public document as defined under s. 74 of the Evidence Act?

Answer: Yes, it is for reason that it falls within the definition of s. 74(a)(ii) of the Evidence Act which states:

2. Question: Is MPAJ an official body within the term - "public bodies" as set out in the specific section of the Act referred above?

Answer: Yes, it is for reason that in s. 78(1)(e) of the Evidence Act, which relates to the tendering of such public document, local authority is specifically mentioned in following manner:

Answer: Yes it is for reason that MPAJ, being a local authority, under s. 28 of the Local Government Act:

and the act of such committee in producing such a report must be considered as a proceedings of MPAJ.

4. Question: Has the plaintiffs proved this document for the purpose of admission as evidence in this proceeding?

Answer: Yes. The MPAJ report is in a printed book published by the authority of that body.

5. Question: What is the probative value to be attached to the contents of this MPAJ report?

Answer: By the Indian authority of Tara Kumar Ghose v. Kumar Arun Chandra Singh 74 IC 383: A 1923 C 161, the High Court of Calcutta expressed that:

it must be recognised that the question whether a document is admissible in evidence as a public document is fundamentally distinct from the question whether its contents are binding upon the tenants without proof of notice on them or of their consent.

Though this Indian case involves the proving or disproving the existence of tenancies to receive protection under some rent control enactment in India, the principle expressed therein is sound and logical. I am persuaded to adopt it for application to the circumstances of our case.

With this, I am of the view that though the MPAJ report is admitted as evidence, the findings made therein, as well as opinions expressed have still to be evaluated. And unless these are tested by the due process of the procedural law ie, by examination of witness or witnesses who personally form such opinions or made such findings, then very little weight shall be attached when this court is asked to evaluate them.

Except for Dr. Nik Ramlan, who was a member of the Commission of Inquiry and the head of the technical committee but was not personally involved in formulating the opinions and findings, and the MPAJ architect, who acted as the secretary for the Commission, no other members from this body or its various sub-committees were called to testify. This leaves the conclusions, findings, interpretations and opinions expressed in this MPAJ report quite valueless except for the data, plans, maps and information, which most parties made use of. Since these were accepted without objections, I shall consider them on the basis as documents agreed upon by all parties concerned.

The Theories Of Slope Failure

With sufficient disclosure above, I shall now proceed to analyse the cause of the failure of Block 1. There are basically two conflicting theories advanced: one from the plaintiffs and the other from the 5th defendant. Experts in the field of geo-technology were called to substantiate these. Supporting the plaintiffs' contention is Dr. Weeks (PW9), and on the side of the 5th defendant, is Professor Simons (DW11). The significance of these two theories is the belief that it will affect the liabilities of the parties, particularly of the 1st and 5th defendant. If Dr. Week's version is accepted, then it is contented that the cause of failure emanated from the 5th defendant's land. Professor Simon, on the other hand, insists that it originated from the 1st defendant's property. Though both are defendants, but only one is of substance. This is the 5th defendant, which is a financial institution as compared to the 1st defendant, a company that was wound up when submission was coming to an end. Thus, both the plaintiffs and the 5th defendant spent enormous energy in attempting to convince me to their side of their belief.

Dr. Week's Theory

Dr. Weeks commences his testimony with an explanation of the factors associated with slope stability when soil in the area consists of mainly sand or sandy materials. He says that the three factors governing slope stability are: firstly, the slope angle or the angle of the slope; secondly, the shear strength; and thirdly, the pore water pressure. In respect of shear strength, he explains that this is the strength of the soil material before it slips. It is technically described as the relationship between force weight and friction. In short, if you know the weight of the soil you would know the force needed to cause a slip of that soil. Pore water pressure is when water infiltrates into the sand, it fills up the pores of the sand particles. Due to the height of the sand on top of each other, pressure is asserted. This, in turn causes the grain of sand to loose contact with each other and lifts itself - resulting in weight reduction. When the weight is reduced the sand slips easily. Thus, any increase in pore water pressure will result in a reduction to the resistance in sliding. Much associated with these factors, is the reaction of sand caused by suction. Dr. Weeks illustrates this with the experience of a mold created by an upended bucket of beach sand. It is unstable when dry; when damp it will stay; yet with too much water it will slide or topple over.

With the aforesaid preliminaries, Dr. Weeks proceeds to declare that it was a series of landslides that brought down Block 1 and these were primarily caused by - water. According to him, it was a failure of a retaining wall on the upper slope of the 5th defendant's land which initiated a rotational landslide. This in turn triggered off a mantle slide just below due to the upper layer of the soil in this sector heavily saturated with water. When the mantle slide came down in one piece it took whatever was beneath it - the retaining walls, trees, vegetation, car parks, badminton courts and Block 1. Because of the speed of this mantle slide and the nature of the soil, being loose or very loose, and the presence of large amount of water in the soil, he classifies this mantle slide into a special category - called a flowslide.

At this stage there is a necessity to explain the types of landslide described. A rotational slide: is landslide where a failed landmass comes down in a rotational manner ie, the toe of the slip is forced out and reverts backwards in a curve. A mantle slide: is when a failure involves only the upper layer of the soil. As for a flowslide, it is a mantle slide but has the characteristic of speed, material being loose or very loose, and the depth of failure is relatively shallow depth with presence of substantial amount of water.

To support his theory Dr. Weeks relied, firstly, on Dames & Moore's borehole test. Dames & Moore is a firm of geo-technical engineers engaged by the 5th defendant to conduct geological test on the Highland Towers Site and the Arab Malaysian Land after the collapse of Block 1. At locations where they did the test, results show loose or very loose sandy soil. Such type of soil, in the opinion of Dr. Weeks, has large pore space and of low density. It moves close to each other when saturated with water, causing the pore water pressure to increase. When this happens there will be a reduction to the resistance in the shear strength of the soil - causing it to slide.

Secondly, Dr. Weeks relied on the Mitchell's pictures. At photo P7A, on the top left-hand corner of the building, he points out a scar with mark edges. This scar is more distinct in photo P7G. This, he claims, is where the mantle slide originated. Slightly lower, just above the third balcony of

Block 1, counting from the top as shown in the same photo, Dr. Weeks highlights another scar. This he says, is evidence of the landslide which originated above had moved downhill. Next, he points to the signs of heaping and buckling of the ground in front of the rubble wall at the second tier car park (again revealed in the same photo). With no earth from the rear overriding or falling from above onto the car park but instead of lifting it up, Dr. Weeks feels that the landslide was proceeding beneath the ground. He fortifies this view with the revelation of some cars have shifted to the front and cracks appearing in the retaining wall that supported the badminton courts as disclosed in photo P7A. Further, he claims that when photos P7B & C were shot five seconds later, the retaining wall at the side of Block 1 had busted. This, to Dr. Weeks, implies that the soil material was moving very fast and by his calculation - at the speed of 1 1/2 meter per second. This is based on the fact that the subsequent shot by Bruce Mitchell in photo P7C, taken of the same area a few seconds later, shows that the lamppost next to the retaining wall had leaned more extreme and the wall itself was disintegrating, with soil exploding across the road. Also found in this picture are cracks appearing on the tar pavement in front of Block 1. Dr. Weeks insists that these are not only indications of the speed of the soil movement but the momentum it generated to force the entire Block 1 to move, as shown in photo P7G.

To further support his theory, Dr. Weeks refers to the oral testimony of Bruce Mitchell. This witness has said that he noticed movement on the hill slope before he took the photos. He describes it as "like something rippling beneath". Dr. Weeks interprets this as representing a relatively shallow landslide of the upper mantle layer taking with it trees, vegetation and retaining walls on top.

Finally, for evidence of saturation of water on the slope, Dr. Weeks relies on his own observation during his three visits to the Arab Malaysian Land where he noticed water flowing in an uncontrolled manner over the surface of the slope. This he said, is confirmed by various photographs tendered as exhibits showing water over flowing a retaining wall and the existence of "ponding" (pools of water) on the ground.

As for the failure of the retaining wall at the upper slope of the 5th defendant's land which initiated the rotational slide, Dr. Weeks alludes that this was due to a low factor of safety of this wall and the uncontrolled water coming down the surface of the slope to cause movement on the loose or very loose soil material at the spot. By Dr. Week's assessment, the factor of safety for this retaining wall was only 1.02. This is far below the accepted geo-technical engineering standard to determine slope stability which rules that a slope will fail if it has a factor of safety of 1 or less than 1. Factor of safety in simple term means the reserve you have before failure of a slope.

During the course of trial, Dr. Weeks advances an alternative theory - that the landslide was caused by the existence of "a perched water table". He says that he formulated this after his recent revisit to the site where he discovered new landslide in the area. This caused him to "revisit" the Dames & Moore data where it shows the presence of clay in the soil at the Highland Towers Site and Arab Malaysian Land. He explains that clay being a relatively impermeable substance does not allow water to infiltrate the soil easily to reach the ultimate ground water table. When there are lens of clay present in the sub-soil a perched water table can be formed above. Such perch water table has enormous effect on the pore water pressure of the loose or very loose soil at the mantle of the slope causing it to be less resistance to slide.

To support his new alternative theory, Dr. Weeks relies on: (a) the finding of clay or clayey materials at the sub-level of the slope as indicated by the soil test from Dames & Moore borehole test; (b) the relatively high water level recorded by Dames & Moore when the borehole test was carried out.

As there is a challenge by the 5th defendant on this perception of a perch water table there is a necessity to explain the technique used to obtain the data mentioned above. To conduct a bore hole test an instrument called a standpipe is inserted into a hole drilled to the ground till it reaches the granite. The purpose is to obtain subterranean soil sample and to ascertain where the ground water table is. For the latter, the theory works in this manner. As granite is relatively impermeable water will remain just above it. This level is considered as the ground water table. Readings are taken periodically from this standpipe and with a series of standpipes placed vertically in a row down slope one can chart a graph to determine the gradient of its flow. The necessity to ascertain this is because the level where this table is will effect the pore water pressure on the soil material around it. Also, the pressure of this water table creates pressure against any retaining wall around it.

Professor Simons's Theory

Professor Simons's theory is less complicated once the characteristic of the soil material and its relationship to slope failure has been explained. According to Professor Simons, the collapse of Block 1 was due to the initial failure of the high rubble retaining wall of 10 to 11 meters immediately behind the second tier car park. This wall he refers to as the "High Wall" failed and initiated a series of retrogressive landslides up the slope behind this wall. Simultaneously a forward movement down slope was effected. This forward movement down hill created such a surcharge load that Block 1, with its pile foundation not designed to accommodate any horizontal load, collapsed, bringing along with it the structure it was supporting.

Professor Simons explains a "retrogressive slide" as a rotational slide which begins at the bottom of the slope and regresses upward in a series of rotational slide. Here, each rotational slide is a segment of a limited failure and it happens next behind the other due to loss of toe support. It continues progressively up slope, getting less active as it proceeds.

To support his contention, Professor Simons offers the following: First, the aerial photograph (p. 30 of exh. P48) taken by the Investigation Committee of the Commission of Inquiry a few days after the collapse of Block 1. This photo shows a number of scars on the land behind the collapsed building. "A scar" is interpreted here to mean "a step in the slope with bare earth". It is the exposed surface of the earth after the ground had slipped due to weakness and loss of support. According to Professor Simons's interpretation of this photo, there are four scars. This, in accordance to authoritative geo-technical engineering text represents a rotational retrogressive failure beginning from the head scar at the lowest point. The High Wall, he insists, was located here. Against this is Dr. Week's interpretation of this photograph. He says there are only two scars. By this, he claims, is in line with his theory of a rotational slide followed by a flow slide.

Secondly, by the calculation done by Professor Simons this High Wall had a very low factor of safety. In his opinion, this High Wall would fail at the height of five meters without any water pressure acting at the back of this wall. In fact, his analysis shows all those walls behind Block 1 had only a factor of safety of 1.52 even on the assumption of no water pressure was applied against them. This factor of water acting at the back of the wall has relevance because water at the back of the wall will increase the thrust on the wall and makes it more vulnerable to collapse. Thus, in his opinion this High Wall with such a low factor of safety would have easily failed on its own without any water influence.

Further, according to the words of Professor Simons, "This High Wall consist of blocks of stone of varying sizes hand plastered in mortar at a random fashion with no drainage blanket behind it. It does not appear to sit on any foundation. It just rests directly on the ground ... It is simply not big and heavy enough to carry earth pressure acting on it, let alone additional water pressure." Such wall, in his opinion, was very vulnerable to failure.

Before I proceed further I must express this court's appreciation to the efforts of Dr. Weeks and Professor Simons in analysing the cause of failure of Block 1. Though this court may believe one against the other, or even only accepting part of either theories, but no aspersion is cast on the integrity, competency and professionalism of both these two men. They are, in the mind of this court, gentlemen of integrity and great learning in their chosen discipline. From their c.v. presented, they rank among the top personalities in the field of geo-technological engineering in this world. This court has indeed benefited from their expertise.

My Analysis Of These Two Theories

With the views of both these experts forcefully put, I shall now proceed to analyse the two theories advanced and attempt to come to a conclusion as to which of the two is more probable.

I shall begin with the aerial photo. This photo, taken just two days after the collapse of Block 1 by the Investigation Committee of Commission of Inquiry is already interpreted by the various dotted lines drawn across the scars. It shows three scars. According to Dr. Nik Ramlan, the person responsible for this interpretation was a member of the Investigation Committee and he was qualified to undertake such task. But since this "interpreter" was not called to testify then such interpretation must be ignored, leaving for consideration the different versions put forth by the two experts based on the images captured in the photo. This photograph proper is not disputed by the parties; what they are only unhappy about is the interpretation by whoever who drew the lines on it.

After due consideration I am more inclined to adopt Professor Simons's interpretation. But instead of his conclusion of four scars, I only can detect three. I base this on the number of exposed naked surfaces interspersed by the lines of vegetation which must obviously include the area above the top most scar.

The next matter I shall consider is the soil condition of the failed mess after the collapsed of Block 1. According to Dr. Weeks, in a mantle flowslide the soil must be very saturated with loose or very loose material spreading over a wide area. With such a characteristic one must expect the area around the collapsed apartment to be wet and muddy. But, from evidence adduced through various witnesses it is the contrary. Even Bruce Mitchell who initially described the soil exploding from the side of the retaining wall of Block 1 to water spurting out from a fire hydrant was forced to admit that such material looks dry after reviewing his own photos P7B and C.

Proceeding therefrom, I find Dr. Week's reliance on Mitchell's photo P7A to show the beginning of the mantle flow slide has many flaws. Firstly, Bruce Mitchell's line of vision from his window in Block 3 was restricted. What he saw, as reflected in this photo, was a landslide that had already begun with the High Wall having failed. By "failed", I must adopt Professor Simons's interpretation to mean, "the ground (beneath it) has failed" even though "the foundation or structure of the wall may not fail". This explains the reason why this wall remained upright in photos P7A and G as well as that in p. 36 of P49. These pictures show this wall in a slanting position but not disintegrated. But effectively, this wall had failed since it was no longer capable of fulfilling its purpose of retaining soil behind it. Bruce Mitchell in fact did not see this wall failing, in the sense as described above, when he shot photo P7A. His line of vision did not extend to the area where this wall was originally located. His vision was blocked by Block 2. What he actually saw of the High Wall through photo P7A was after this wall had moved 16 meters down slope after failing. The heap of earth material in front of this High Wall must be the effect of a rotational slide where the surcharge had lifted the earth in front of the failed mass and exposed it at its toe. Dr. Weeks had attempted to explain the reason why this area heaved since it is contrary to the characteristic of a mantle flow slide (which would have brought this part of ground in one piece down slope). He said that this location being dry, due to the tar surface of the car park, prevented water from infiltrating into the soil. So when there was a surcharge caused by the mantle flowslide this area just buckled up. I find this unconvincing. To my mind a mantle flowslide progressing down hill at a speed would have generated so much momentum that this relatively narrow area would not be able to withstand any surcharge to even heave. It would have been just swept down slope in one piece with everything on it. This heaped up ground material was caused more probably by the effect of a rotational slide.

As for the scars described by Dr. Weeks at the rear of this High Wall in Mitchell's photo P7A, I am more inclined to think that they were actually the effects of a retrogressive slide that happened after the High Wall had failed. It could not be an indication of the beginning of a mantle flowslide that progressed downwards from here. By the time this picture was taken, the High Wall had moved a substantial distance and when seen together with the scars spotted by Dr. Weeks, then it could not be an indication of the beginning of a mantle slide.

I shall now proceed to comment on the alternative theory of Dr. Weeks - the existence of a perched water table. When Mr. Han (DW10), who supervised the borehole test for Dames & Moore, exposed that water, as a drilling fluid, was used for all the borehole test this theory of the Dr. Weeks losses creditability. By Dr. Week's own admission, when water was used instead of foam then the reading of the standpipes inserted soon after the boreholes were made would not represent the true water level for the purpose of determining a perch water table of the ground. The reason is this: Water introduced into the ground takes a substantial period to infiltrate into the ground to reach ground water table. So when water level readings are taken soon after water is introduced into the standpipes high water level will be recorded. This may give a false indication of a perched water table existing above the ground water table.

For a perched water table to prevail it is insufficient to just have clay or clayey material present; there must be lenses of these and they must be fairly proximate to each other to prevent water from infiltrating into the soil below. Though clayey materials are found in the Highland Towers Site and Arab Malaysian Land there is no evidence to fortify that they are extensive enough to indicate presence of lenses of clay of close proximity to form a perched water table. Against these facts, Dr. Weeks criticises the methodology carried by Dames & Moore in its investigation. He is of the view that Dames & Moore should have used a piezometer (an instrument to detect pore water pressure beneath ground) to locate the slip surface and in the course of this could have detected a perched water table. I feel that this criticism is somewhat unwarranted. If the plaintiffs wish to influence this court on the presence of a perched water table then they must prove it. It is not for the 5th defendant to carry out such task for the plaintiffs. As far as the methodology is concerned, like in any form of investigation, there is more than one approach. In this instance case I do not find the investigators of the 5th defendant had carried out their probe in a manner unacceptable in their professional field.

This Court's Finding

With the aforesaid reasoning I find that the landslide that brought down Block 1 of Highland Towers was a rotational retrogressive slide emanating from the High Wall behind the 2nd tier car park.

Though this wall was the first to fail but what caused it to fail? Professor Simons attributes it to poor design and construction and reiterated that this wall, with a very low factor of safety, would have failed even without any water pressure acting against it. But this High Wall stood for ten years without failing. Why did it not fail earlier if it was so weak and fragile?

Professor Simons causally offers this excuse: that at "certain location the soil strength is stronger than what we have assessed". But I note that he did not dismiss water as one of the factors that caused this High Wall to fail, though he down played it by insisting that it only played a "comparatively small role".

But I find this not convincing against all theories and principles advanced to explain slope failure. Firstly, failure of a wall as defined by Professor Simons means "the ground (beneath it) has failed" even though "the foundation or structure of the wall may not fail". In this case it must be the former since this High Wall is still visible in the Mitchell pictures. With this, we must examine the soil condition beneath this wall. We have evidence that the suspected area of failure consisted of sandy soil. Such soil material is very permeable and water will percolate into it very fast. With ten days of continuous rainfall in the area before the failure of this wall surely the ground on which it stood would be saturated with water when the drainage system of the slope was either insufficient or inadequate to accommodate water. When this happened the pore water pressure in the soil increased to cause the soil to be less resistance to slide. This must have played a very major role in causing the ground on which this High Wall stood to fail. Besides, it is also established that when soil is saturated behind any retaining wall it will create a thrust against the wall. This must have been the effect on this High Wall. Thus I find that water must have been a major factor in causing the collapse of the High Wall and the landslide that followed. In fact Professor Simons, in his expert report (P38) has repeatedly emphasised water as a factor which caused the collapse of Block 1. But as to why he reduced its significance and importance is not explained, leaving room for speculation.

Where Did The Water Come From?

But where did the water come from? From evidence adduced, it came from two sources. The first was rainfall. Though rainfall in the area for the same measured period of time did not exceed the amount which fell the previous years it rained continuously for ten days preceding the day of the collapse of Block 1. This rainfall that fell, part of it was absorbed into the ground and percolated into the soil. The other would be runoffs and washed along the surface. With the internal drains on the Arab Malaysian Land, the water would be directed down the slope in a controlled manner. But these drains on the Arab Malaysian Land were neither sufficient nor efficient or maintained to carry the load, as described by the drainage experts - Mr. Hooi (PW3) and Mr. Douglas Yee (DW12). Substantial part was earth drains and this permitted easy percolation of water into the soil to saturate it. Some were blocked or with vegetation growing over them, as witnessed by the photographs taken soon after the collapse of Block 1. Such blockage must have caused severe overflow on the terraced slope as disclosed by Mr. Lim (DW1), the maintenance man of the Highland Towers from the experience of the Tropic's clearance of the hill slope without removing and clearing the debris from the hill slope drains.

The second source was water from the East Stream. As described earlier, water from this stream was directed into the pipe culvert. A witness, Mr. Mike Rickard (PW4) who tracked up the slope of the Arab Malaysian Land soon after the collapse of Block 1 found this pipe culvert in very poor condition, damaged in many parts with water leaking therefrom. He captured these images on photographs exhibited in encl. 98. Subsequently, when Mr. Hooi and Mr. Douglas Yee visited the same site to carry out investigations they too confirmed what Mr. Mike Rickard described.

Not only was water not flowing smoothly along the pipe culvert, the area before the water of the East Stream entered this channel was also heavily silted. Mr. Lim (DW1), testifies that when he went up to this spot just after the Highland Towers tragedy he found the mud pond and the inlet into the pipe culvert completely covered with silt. Due to this, water from the East Stream over flowed onto the slope. This view is reiterated by Mr. Rickard with his photographs.

Liability Of Each Defendant

I shall now begin to examine the accusations by the plaintiffs on each of the defendants and determine whether they are liable.

1st Defendant

Beginning with the 1st defendant, who was the developer of the Highland Towers, the plaintiffs accuse it of the following: Firstly, for 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. Secondly, failing to ensure that the three apartment blocks of Highland Towers and the drainage system and rubble retaining walls around it were constructed in a workmanlike and safe manner by giving consideration to the surrounding terrain, soil condition and drainage requirement. Thirdly, of obtaining Certificate of Fitness (CF) to occupy the three apartment blocks when the drainage system in the Highland Towers Site and Arab Malaysian Land were incomplete.

The first accusation levied against the 1st defendant is much connected and associated with the liability of the 2nd and 3rd defendants. For the second and third allegations, these too require examination of the works and deeds of the 2nd, and 3rd defendants. For this reason I shall defer my analysis on the liability of this defendant until my finding is made at least against the 2nd and 3rd defendants.

The 2nd Defendant

In 1974 the 1st defendant engaged the 2nd defendant, an architectural draftsman, to draw and submit layout plans for the development of Highland Towers and the bungalows lots on the Arab Malaysian Land. For this development, I shall hereinafter refer to it as the "Highland Towers Project". According to the 2nd defendant, an executive director of the 1st defendant, one Mr. Yap, was aware that he was not a fully qualified and registered architect. When the layout plan for the Highland Towers Project was approved, the 2nd defendant proceeded to prepare and submit building plans for the three apartment blocks of Highland Towers.

The following chronology of events will give an insight of what transpired in the course of building Highland Towers and the development of the Arab Malaysian Land including the surrounding area.

Chronology Of Events

On 9 October 1974 a layout plan submitted by the 2nd defendant, for and on behalf of the 1st defendant, to the district office of Kuala Lumpur, the predecessor of the 4th defendant, was approved. This approved layout plan is for a proposed building of three blocks of apartments on Highland Towers Site and bungalows on the Arab Malaysian Land. Accompanying this approval was a letter by this district office to say that the approval was subjected inter alia to the following conditions:

1. because the area approved for development is steep and hilly, all excavation and levelling works must follow requirements set out by the Public Works Department; and

2. the relevant technical departments must approve drainage, road and other related plans before any development can begin.

The 2nd defendant in submitting this layout plan and subsequent building plans for the Highland Towers was only a draftsman, but had held himself out as a registered architect. The authorities, by some error on their part in not checking the 2nd defendant's credentials, had in fact permitted him to submit such building proposals and plans.

On 22 November 1975, the Lembaga Bandaran Gombak (LBG), the local authority who had taken over the administrative function of the area from the district office, informed the 2nd defendant that the drainage plan submitted was not approved by the Irrigation and Drainage Department (JPS) because no provision was made to cater for the stream in the area. It proceeded to advise the 2nd defendant to stop construction work on the Highland Towers until the drainage for the stream is incorporated in the plan.

(System Of Operation Between The Local Authority And The State Government Departments)

At this stage it is necessary to disclose the system of operation between the local authority, such as the LBG and its successor, the Majlis Daerah Gombak (MDG), with various government departments of the State of Selangor. During the construction and completion of the three apartment blocks of Highland Towers the local authority having jurisdiction over the area was in its formative years. It lacked manpower and facilities. To assist them, the State Government of Selangor allowed the local authority to use its various technical departments to consider and evaluate all matters relating to the development projects under its jurisdiction. This included land levelling and drainage. In such matters, the local authority acted merely as a secretariat. Upon receiving relevant development proposals and plans it would send them to the respective technical departments of the state. JPS, being a department involved, would study the matter referred to it and after due consideration returned these to the local authority with comments and suggestions. Such comments and advice were normally accepted. These were then communicated to the developer.

On 5 January 1976, in pursuant to a proposal by the 2nd defendant to relocate some drains, JPS issued the following advice to the local authority - LBG:

1. though the proposal of the 2nd defendant is acceptable but a drainage proposal plan must be submitted by the consultant; and in the meantime no physical construction work on the Highland Towers should continue;

2. that the land being steep, care must be taken to construct silt traps to prevent landslides or problems to the drains and stream.

On 13 February 1978, MDG who replaced LBG as the local authority of the area, requested the 2nd defendant to construct an underpass drain to divert water from the area proposed for drainage to the Klang River which was across the main trunk road - Jalan Ulu Kelang and the cost should be borne by the 1st defendant. This was met with displeasure from the 1st and 2nd defendants as they felt other developers in the area should also contribute to such cost.

On 19 August 1978 there was a request by the 2nd defendant to MDG to issue a Certificate of Fitness (CF) for Block 1. Obviously construction on the Highland Towers proceeded despite the earlier order by the PLG not to do so.

On 29 September 1978 JPS suddenly informed MDG that its objection to the 2nd defendant's request for CF is withdrawn provided that no further construction work should proceed on the Highland Towers. One Dato' Goonting (DW17), the then director of JPS, explained that this attitude was adopted because the authorities feared complaints from purchasers of Block 1 who wished to move into the completed building. Further JPS believed that the developer could still carry out the drainage plan for the area after this CF was issued.

On 8 October 1978 JPS wrote to MDG to advise that no construction on the other blocks of Highland Towers should proceed since the land to be acquired by the 1st defendant for the drainage was not implemented.

On 6 April 1979 the 2nd defendant submitted drainage plans to MDG. These were rejected on grounds that they lack computation and detail and not of engineering quality.

On 17 April 1981, MDG in response to the 1st defendant request for issuance of CF for Block 2 required drainage plan to be approved by JPS before consideration.

On 18 April 1979 JPS wrote to MDG stating that there were complaints from residents in the vicinity of Highland Towers of flooding. MDG was to instruct the 1st defendant to stop earth works and to build silt traps as well as to submit drainage plans. In consequence of this, the 1st defendant engaged the 3rd defendant as consulting engineer to submit drainage plans. When the 3rd defendant came into the scene there were proposals to acquire some land below Highland Towers to channel water in the area to Klang River. This, however, did not materialise.

On 18 September 1981 the 3rd defendant submitted a drainage plan to JPS. This was partially approved.

On 2 October 1981 JPS withdrew its objection for the issuance of CF to Block 2 provided the following conditions were met:

1) the 1st defendant was to put up a bank ganruntee for RM100,000 to ensure that any drainage proposal when approved is carried out; and

2) that such drainage proposal, when approved, must be completed within a period of four months.

On 6 November 1981, upon the 1st defendant securing the bank guarantee which was placed with JPS, CF to Block 2 was issued by MDG. But no drainage proposal was forwarded to JPS nor was there any approved drainage system implemented within the period stipulated. Because of this, the bank guarantee was extended.

On 5 June 1982, in pursuance to a request by the 1st defendant for a CF to be issued to Block 3, JPS advised MDG to refrain from entertaining such request until a drainage plan is approved and implemented.

On 6 May 1985 the 3rd defendant submitted a drainage plan (exh. P34). This plan involves the construction of concrete drains all along the hill slope of Arab Malaysian Land starting from the point where the East stream enters lot 3671. Water from here will flow along these concrete channels eastward down slope to join a set the drains along the road reserve at lot 3666. Following the road, the drains then proceed behind the three blocks of Highland Towers in a northerly direction. Then at the end of Block 3 they turn left until they reach Lot 3626. At this point they will be connected to a larger drain situated on lot 445 which belongs to the government. The point of entry into Lot 445 is marked on this plan as "C".

On 24 October 1985, P34 was approved by MDG with the consent of JPS.

On the 2 December 1985 without the knowledge and presence of any official from JPS, a technical assistant with MDG, one Mohd Harris (DW5) accompanied only by a director of the 1st defendant went to the Highland Towers Site and inspected a constructed concrete drainage structure located at point "C" on P34. Such an inspection, according to Dato' Gooting, was not the normal practice where usually a representative of JPS would be present. Further, this inspection only focussed on a particular section of an extensive approved drainage system. Thus this does not reflect the drainage works approved in P34 has been complied with. After this purported inspection, DW5 returned to MDG and wrote a report stating that the drainage works were duly completed according to plan.

On 24 May 1985 based on the above inspection report, CF for Block 3 was duly issued by MDG.

Plaintiffs' Claim & The 2nd Defendant's Defence

In the plaintiffs' statement of claim, the plaintiffs allege that this defendant held himself out to be a suitably qualified, competent and skilled person to design, prepare and sign architectural and other building plans pertaining to the developments of Highland Towers and the Arab Malaysian Land. 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: the drainage requirement and rubble walls in the Highland Towers Site and the Arab Malaysian Land, and the earthworks thereon were adequately and properly designed, supervised during its construction, and in compliance with the requirements as set by the authorities. Further, by these same acts or omissions, the 2nd defendant has created nuisance on the hill slope behind Highland Towers.

The defendant's replies to the plaintiffs' allegations are as follows: Firstly, he does not owe such duty of care to the plaintiffs. Secondly, even if such duty of care exists, it is not breached. He explains that he was only engaged to design the three apartment blocks of Highland Towers and was never involved in the design, supervision and construction of drains, rubble walls and earthworks within and outside of Highland Towers Site. The 1st defendant, he discloses, carried out these works; he played no part in them. Thirdly, he blames intervening acts of the 4th, 5th, 7th, and 8th defendants in the altering the condition of the area to cause the collapse of Block 1. This he submits, breaks the chain of causation arising from his wrong doings (if any), and exempts him from liability.

Analysis - Negligence

Preliminary Issue: 2nd Defendant Not A Qualified Architect

There was a considerable outcry over the qualifications of this defendant in submitting and dealing with the development, building and other related matters in the Highland Towers Project for reason that this defendant was only a building draftsman and not a qualified architect at the material time. As a building draftsman he was only permitted under the Architects Act 1967 to design buildings of no more than two stories in height and limited floor space. In this case, each apartment block of Highland Towers consisted of 12 stories with a built-up area far exceeding that allowed for a building draftsman to undertake. This defendant seemed to have got round the authorities at that the material time by inducing a relevant government department to grant him a "specially authorized person" status under a repealed enactment (the Architect Ordinance 1951). This he claims entitled him to summit and oversee construction works of three apartment blocks.

To the plaintiffs, whether this defendant misrepresented himself as to his qualification makes little difference to the duty of care he owes to the plaintiffs. According to the plaintiffs' counsel, "if a man is unqualified but holds himself out to be possessing a skill, he will be judged by the standards of a reasonably competent qualified person" - see Jackson & Power on Professional Negligence, 4th edn at 86 where the case of Cardy v. Taylor [1994] 38 Con. LR 79, is cited in support.

I am in full agreement with this view. 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.

Duty Of Care By The 2nd Defendant To The Plaintiffs

As an architect, his duty 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 - see Halsbury's Laws of England, 4th edn, vol. 4(2) at para. 525. In this case, the plaintiffs are the purchasers of the two apartment blocks designed, supervised and built by the 2nd defendant. 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. Thus these purchasers would be closely and directly affected by his acts and/or omissions and for this, he must have or ought to have them in contemplation when he was directing his mind to his acts and/or omissions. By this, I find a duty of care exist between the 2nd defendant and the plaintiffs who are purchasers of these Highland Towers apartments.

The 2nd defendant has insisted that he was engaged only to design and supervise the construction of the three apartment blocks. He vehemently denies that his scope of work extended to the drainage, earthworks and construction of rubble walls on the Highland Towers Site and the Arab Malaysian Land. And since there is nothing defective in the design of the three apartment blocks that contributed to the collapse of Block 1 then he should not be held liable. And if it relates to the foundation of the Block 1, then the finger should not be pointed at him; it is the responsibility of the 3rd defendant, the engineer. He declares that he had not even been up the hill slope behind Highland Towers before designing the buildings, let alone being aware of the East Stream, which he only discovered while accompanying the judicial visit.

I think the 2nd 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 aesthetic 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 effect to the building planned. Like in this case, there was a steep hill right behind the three blocks of apartments and a stream nearby. Both these elements may affect the ground condition and drainage of the area on which the building stood. These dangers were not unknown to this defendant, as he wishes this court to believe. They were duly brought to his notice by the authorities from the day the layout plan was approved.

Further, I find that his claim that his work was limited to only the apartment blocks is false. When he submitted the layout plan for approval it included the development of the Arab Malaysian Land. When the development plan was approved this hill slope must naturally be part and parcel of an overall scheme for which he must assume certain amount of responsibility. Besides, he has taken an active role in corresponding with the authorities and submitted drainage plans to them. All these are again evidenced in the chronology of events and there is no necessity in singularising them out. Though the terracing and the construction of the retaining walls on the hill slope may be carried out by the 1st defendant but he, as architect for the project, must ensure that such work be carried out in a competent workmanlike manner so as not to affect the Highland Towers which he was responsible. He must ensure that no soil from the hill slope would come crashing down on his designs. With this, I cannot accept this 2nd defendant's contention that his scope of work did not include the hill slope and the drainage of the Highland Towers Site and the Arab Malaysian Land nor that he had any knowledge of these.

As an architect responsible for building the three apartment blocks, the 2nd defendant must have foreseen the plaintiffs, who were the purchasers of the buildings, would be affected by his acts and/or omissions as stated above. But Mr. Choo, his counsel, argues that though this might be so but when there are intervening acts of 3rd parties which his client could not have reasonably foreseen nor could have prevented, then his client should not be made liable for any negligence to the plaintiffs. The intervening acts, Mr. Choo claims, were the deliberate acts or omissions of other defendants which caused and/or contributed to the plaintiffs' loss. To support this he cited the case of Smith v. Littlewood Ltd [1987] 2 WLR 481. This is a case where some teenagers who were playing in a disused cinema set it on fire. Not only was the cinema destroyed but also the neighbouring properties. Those who suffered brought a claim against the cinema owner. On appeal it was ruled that the defendant should not be held liable because the defendant could not have foreseen such danger or prevented the deliberate acts of the third party (the teenagers) in setting fire to the premises which affected the neighbours.

I do not dispute the principle set out in Smith v. Littlewood Ltd. But in our present case, 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 3rd parties he 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.

Was There A Breach Of Duty Of Care?

Having decided that the 2nd defendant owes a duty of care to the plaintiffs, the next issue to determine is whether he has breached such duty of care. In evaluating this, the standard of care to be applied is, as expressed by Justice Windeyer in Voli v. Inglewood Shire Council [1963] ALR 657 to be:

From the facts as set out above it is obvious that the 2nd defendant has breached his duty of care to the plaintiffs. He had 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 he had also colluded with the 1st and 3rd defendants to obtain CF for the three apartment blocks of the Highland Towers without fulfilling the conditions as set out by the 4th defendants and/or its predecessors. The compliance of these requirements and conditions were part of his duties as an architect and failure to do so is a breach of his duty of care - see the case of B.L. Holdings Ltd v. Robert J Wood & Partners [1978] 10 BLR (though this case was reversed on appeal but not on this principle enunciated). Further, though he was aware of the terracing on the hill slope and the construction of the retaining walls which would effect the buildings which he was in charge of constructing, he did not investigate as to whether these were properly designed, adequately provided for and sufficient to withstand any slope failure. His excuse of "how can I stop my boss from doing anything" and "though I know I put great danger on everyone but (I) have no choice (for I have) to earn a living" is not only inexcusable but, as this case has displayed, 46 lives were loss as well as properties. On this score, I cannot, but to reiterate my feelings towards such attitude as expressed in my judgment in the case of Perunding Alam Bina Sdn. Bhd. v. Errol Ho & Ors [1999] 2 CLJ 875 at 882 which is:

Pure Economic Loss

Mr. Choo (as well as other defendants) has raised the issue that this claim of the plaintiffs cannot be maintained because it is a claim for "pure economic loss"; the two apartment blocks being the defective product.

To understand this legal terminology of pure economic loss it is necessary to return to the case of Donoghue v. Stevenson which commands the basic principle of negligence. In this concept, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can reasonably be foreseen to be likely to cause physical injury to person or damage to his property other than the damaged property itself. By this proposition, a person without contractual relationship can claim from another, damages for injury suffered by him or damage to his property, other than the defective product itself. Any claim for this defective product, either in the manner of making good or replacement thereto, is a claim for pure economic loss. The facts in the very case of Donoghue v. Stevenson gives the best illustration. Here, the consumer of a bottle of ginger beer that contained a dead snail was successful in her claim against the manufacturer of the drink for negligence resulting in injuries to her health and damage to her property (if any). But she could not claim damages on the bottle of ginger beer either in the form of asking the manufacturer to make good this defective product or for a replacement of it. This is because such claim would be considered as a claim for pure economical loss.

By analogy to the factual situation regarding the 2nd defendant, the plaintiffs' claim against him is actually for pure economic loss. The plaintiffs are asking compensation from this defendant to make good the defective building or for a replacement thereof which he was engaged to built.

Over the years, arising out of dissatisfaction over this principle of pure economic loss, the common law practicing countries had a change of approach and decided to eradicate this rule. But sadly, the English Courts after having agreed to this change reverted back to the old concept that pure economic loss cannot be claimed. This stimulated fierce debate throughout the Commonwealth where common law is followed. Malaysia was no exception. In the case of Dr. Abdul Hamid Rashid v. Jurusan Malaysian Consultants [1997] 3 MLJ 546 I gave my views that claim for pure economic loss in this country can be maintained against a defendant. The reasons for supporting this are comprehensively documented in that reported case and I do not think it wise to add to the growing pages in this judgment.

On this contention of the 2nd defendant, as well as all those defendants who relied on this defence of pure economic loss, suffice me to say that it must fail on the same reasons expressed in the case of Dr. Abdul Hamid Rashid v. Jurusan Malaysian Consultants (supra).

Based on the reasons aforesaid, I find the 2nd defendant negligent.

Analysis - Nuisance

The other cause of action against the 2nd defendant is nuisance. To succeed, the plaintiffs must prove that this defendant was an unreasonable user of the neighbouring land to that of the plaintiffs' property and that he did foresee that his acts/or omissions would cause damage to the plaintiffs. On the first factor, Mr. Navaratnam claims that this arose from the 2nd defendant being one of the creators of the situation on the hill slope behind Highland Towers that gives rise to the nuisance which caused the collapse of Block 1 and forced the plaintiffs to evacuate their apartments. To support this, he cited the text by Winfield & Jolowicz on The Law of Tort at pp. 59 & 66.

There is substantial degree of over-lapping between nuisance and negligence in this case. Thus there is no necessity to recount the facts and analysis already stated for negligence which is equally applicable to nuisance. Based on the facts and analysis expressed and elaborated when I considered negligence, I find this first factor of the 2nd defendant being an unreasonable user of the land proved. Also satisfied is the requirement of foreseeability. For this, I find the plaintiffs' claim for nuisance established against this defendant.

3rd Defendant

The Plaintiffs' Claim & The 3rd Defendant's Explanation

The plaintiffs claim that the 3rd defendant by his acts an/or omissions in preparing, designing and supervising in the construction of Highland Towers and the drainage system of the Highland Towers Site and the Arab Malaysian Land was negligent and had caused nuisance to them.

The 3rd defendant is, and at all material time was, a qualified civil engineer. His brother, the 2nd defendant, appointed him to be the consulting engineer for Highland Towers. Initially, his scope of work was restricted to the structural aspect of the three apartment blocks. But subsequently, when the 1st and 2nd defendants encountered difficulties with JPS over drainage of the area, the 3rd defendant was engaged by the 1st defendant to submit proposals to the authorities to resolve the problem. This resulted in his drainage plan, exh. P34, being approved by the authorities. Slightly later, he was also retained by the 1st defendant to design and supervise the construction of two retaining walls on the Highland Towers Site. Both were in front of Block 2. Other than these, he disclaims responsibility for the remainder of the retaining walls on the Arab Malaysian Land and Highland Towers Site. The 1st defendant, he insists, constructed these; he has nothing to do with it. Though admitting that he was aware of these walls being built he was under the apprehension that they were designed and supervised by qualified engineers engaged by the 1st defendant.

Analysis - Negligence

The principles or test applicable to determine whether this defendant is liable for negligence is the same as those used in analysing the liability of the 2nd defendant for this same cause of action. They are both considered as persons possessing special skills - see the case of Greaves & Co (Contractors) Ltd v. Baynham Meikle & Partners [1975] 1 WLR 1095, and thus their conducts are judged according to the standard of a skill and competence of person in their respective profession.

From the particulars listed in the statement of claim the plaintiffs identify three areas of negligence caused by this defendant. The first is on the foundation of Highland Towers, particularly that of Block 1. As disclosed in evidence, used rail piles welded together were accepted as foundation to support of the three apartment blocks. Both Dr. Weeks and Professor Simons consider this type of piles as inferior to concrete pile. But as this type of piles was accepted in the engineering and building industry to support high-rise building at the material time in this country no fault can be attributed to the 3rd defendant in approving its use since he was only adhering to the accepted professional practice at the time.

But what I find unacceptable is the lack of consideration paid by this defendant to the hill and the slope directly behind the three apartment blocks. Though the 3rd defendant seemed to have taken comfort on what he claims was the hill of low gradient (10 to 20 degrees as perceived by him) and being some distance away from the building, I am bemused as to how this impression can be formed when the physical appearance of the place was completely different. What I saw during this court's visit to the site and from the photographs and plans of the area taken both before and after the collapse of Block 1, was a steep hill exceedingly close to the three apartment blocks. In fact the hill was so close that this defendant had to design and erect the two retaining walls in front of Block 2 to keep it from intruding into the buildings. In one of the photographs adduced by the 5th defendant, it shows the hill being separated from Block 1 by a narrow ally way. When you had a hill so close and acute then the 3rd defendant should have reasonably foreseen, judging by professional standard as an engineer responsible for the structure of Block 1, 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 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 same excuse as the 2nd defendant was offered to disclaim responsibility as to why the slope was not attended to. This is: he (the 3rd defendant) was not involved in the design or construction of the other retaining walls on the hill slope; it was the 1st defendant who did it. But this view is totally unacceptable since, and as I have stated, the paramount duty of an engineer for the Highland Towers was the safety of the buildings he was involved. This duty cannot be exempted by a mere belief of the retaining walls and terracing of the slope were designed, supervised and built by the 1st defendant, whose director was an engineer himself, or another firm of consultant, and therefore presumed safe. If this was the belief of the 3rd defendant, then it encumbered upon him to inquire and to ascertain whether: firstly, this other consultant is a qualified professional, and secondly, what he was doing would have any effect on the safety of Highland Towers. To support this view I shall quote a passage from the judgment of Bingham LJ in the case of Eckersley v. Binnie & Partners [1988] 18 Con. LR 1:

The second area of negligence is in regards to drainage. Though P34, the drainage plan, was approved but it was not fully implemented by the 1st defendant. The reasons offered by this defendant were: shortage of financial resources of developer; the need to bring down the road level to fit the drains; and prohibition on rock blasting in the area. On the last reason, evidence has proved this to be false. The second reason is much associated with the first, but to my mind, what ever the excuse may be it did not entitle and warrant the 3rd defendant to issue a notice to the authorities stating that the entire approve drainage proposal was implemented when, according to my estimates, only 10% was completed. This was a gross violation of his duty of care which, as a consultant engineer for the three apartment 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. 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 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.

Based on the above I find the 3rd defendant liable to the plaintiffs for negligence.

Analysis - Nuisance

On the cause of action for nuisance, I also find this defendant liable to the plaintiffs. The reasons are similar to that stated under this category of liability for the 2nd defendant which is basically: he who did the first wrong must answer for the damage resulting from it - see Winfield & Jolowicz On Tort, 14th edn at 514.

Returning To The 1st Defendant

Now that the actions and/or omissions of the 2nd and 3rd defendants are examined and determined I shall return to consider the liability of the 1st defendant.

Analysis - Negligence

On the cause of action for negligence the plaintiffs announce that this defendant owes a duty of care to them in four areas and the 1st defendant has breached this duty of care.

The first concerns the appointment of competent consultants to carry out the designs, construction and supervision of the architectural and engineering works.

As admitted by the 2nd defendant, he was not a registered qualified architect when he designed, drew and supervised the Highland Towers Project. In fact this was his first job of such magnitude on his own. As decided earlier, he was incompetent and lacking in skill. He failed to consider the effects of the steep hill on the building he was engaged to build. He adopted a narrow view in not considering all other factors that an architect of experience for such type of structures would have taken into account. Worse is his failure to comply with regulations set by the local authority for the drainage of the area, particularly when he knew or ought to have known that unless the drainage of the area was implemented he should not have applied for CF for the three blocks.

The acts and/or omissions of the 3rd defendant are no better. His failure covers: designing of suitable foundation, care and concern of the hill and slope, and the issuance of a notice to the authorities confirming the drainage works was completed when only a fraction of it was done. These are certainly traits of incompetence and lack of skill expected of a professional engineer.

Against these accusations, the 1st defendant counsel, Mr. Rajah argues that though these consultants may be incompetent and lacking in skill but they were independent contractors responsible for their own acts. In such a situation, the 1st defendant is not liable for the acts of its independent contractors.

Undoubtedly as a general rule, it is a correct proposition that an employer of independent contractor is not liable for the default or negligence of such a contractor. But here the plaintiffs are focusing on the appointment of such personalities, not after they were appointed. This means that before their appointments there was a duty placed upon the 1st defendants to vet through them to ensure that they are competent and possess such skill for the task they are employed to undertake. This involved inquiries and investigations into their credentials and qualifications as can be seen in the Supreme Court case of Datuk Bandar Dewan Bandaraya v. Ong Kok Peng & Anor [1993] 2 MLJ 234 at 239. Obviously these were not done. In fact even more extreme happened. Despite being notified by the 2nd defendant that he was not a qualified architect, the 1st defendant proceeded to engage him and even allowed him to appoint the 3rd defendant as the consultant engineer for the project. This is surely negligent on the part of the 1st defendant.

The second area negligence relates to the terracing of the slope and construction of retaining walls and drains on both the Arab Malaysian Land and the Highland Towers Site. Both 2nd and 3rd defendants have expressly declared that it was the 1st defendant who carried out such works. There is no denial of this assertion by the 1st defendant. When implementing such works, the 1st defendant must have reasonably foreseen that such works if insufficient and ineffective would cause the collapse of Block 1 and result in damages to the plaintiffs, who are his neighbours under the principle of negligence. The retaining walls have proved to be insufficient and inadequate, as disclosed by both Dr. Weeks and Professor Simons. In respect of the drains, there are the testimonies of Mr. Hooi and Mr. Douglas Yee - the hydrology and hydrogeology experts (whose theories and opinions I shall be alluding in the later part of this judgment) to announce that these were insufficient to effect proper and adequate drainage of water run-offs on the slope and those originating from the East Stream.

With such disclosures I must conclude that the 1st defendant has breached its duty of care to the plaintiffs and must therefore be liable to the plaintiffs for negligence in the erection and construction of these retaining walls and drains.

The third area complained of involves 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 of apartments. According to Dr. Weeks this is exceedingly dangerous, as water should be always, when possible, flow away from residential areas. But who diverted this East Stream? There is a conflict of claims. The plaintiffs of course blame the 1st defendant for having done this. Though the 1st defendant never directly denies this, but Mr. Rajah drew this court's attention to an aerial photograph taken in 1966 (contain in the MPAJ report - P47) of the

Highland Towers Site and Arab Malaysian Land. It shows the East Stream was already diverted across the hill slope before the 1st defendant became owner of the said properties. This implies that the 1st defendant could not have performed this diversion. But surprisingly the aerial photographs taken in subsequent years - 1974 and 1975 do not pick up this diversion; it had disappeared. Then subsequently in later pictures it reappeared. It was certainly there not long before the collapse of Block 1 for Mr. Lim - DW1 was in charged of maintaining it before the bungalow lots were sold to the 5th defendant.

To this mystery the plaintiffs counsel offers this cue. He announces that this temporarily disappearance of the division was caused by the 1st defendant when they terraced the hill slope in preparation for the bungalow lots. After terracing the pipe culvert was incorporated as an integral part of the retaining wall to support the slope. Thus this diversion reappeared in the later pictures.

I find this proposition probable. Looking at the retaining wall and the pipe culvert besides it, the pipe culvert is actually an integral part of the wall. It is not constructed independently and it does not stand on its own. It is a section of the wall. Since the 1st defendant built this wall it must be inferred that the 1st defendant also built the pipe culvert. By installing this pipe culvert, the 1st defendant must be considered to have diverted the East Stream from its natural course. And as declared by Lord Finlay LC in the well-known case of Greenock Corpn. v. Caledonian Rly. Co., and Greenock Corpn. v. Glasgow & South Western Rly. Co [1917] AC 556, which is quoted by Abdul Hamid FJ (as he then was) in the Federal Court case of Seong Fatt Sawmills Sdn. Bhd. v. Dunlop Malaysia Industries Sdn Bhd. [1984] 1 MLJ 286 at 291:

As this pipe culvert was insuf