Steven Phoa

- vs -

Highland Properties Sdn Bhd

Judgment[a]

James Foong, J

1. INTRODUCTION

1. Highland Towers, as is collectively known, consist of three blocks 12 storey high apartments named simply as Blocks 1, 2 and 3. They were constructed sometime between 1975 and 1978 and the residents who dwelled therein were middle income earners. Directly behind the three blocks was a rather steep hill with a stream flowing west, if it was allowed to follow its natural course. The attraction of this place was the natural surroundings with an extensive view of the city of Kuala Lumpur.

2. On Saturday, December 11, 1993, at about 1.30 p.m., after 10 days of continuous rainfall, Block 1 collapsed. When the rescue operation was called off after days of searching, 48 people were recorded dead. The nation declared this incident a national tragedy.

3. Immediately after the collapse of Block 1 the residents of Blocks 2 and 3 were prevented from entering their apartments by the local authority having jurisdiction of the area, the Majlis Perbandaran Ampang Jaya (MPAJ), for fear of the instability of these two buildings. A couple of days later, these occupants were allowed in, in restricted numbers, but only to collect their personal valuables. At that time, even with the presence of the security forces, the apartments were looted. With the eventual passing of time especially when security was reduced and subsequently withdrawn altogether, vandalism became more intense. By 1998, when this court visited the site, every apartment in Blocks 2 and 3 was completely stripped of contents, including fittings leaving only the naked structure.

4. MPAJ had issued statutory notice to the purchasers / owners of the apartments of Blocks 2 and 3 to demolish these two buildings. This was refused leading to the affected purchasers / owners obtaining from the High Court at Shah Alam an order to set aside this notice. To date Blocks 2 and 3 remain standing but unoccupied for fear of instability.

5. Some three years after the Highland Towers tragedy the purchasers / owners of Blocks 2 and 3 issued a writ against ten defendants. This is the case against them.

   A. The Defendants

6. The ten defendants are as follows:

   • The first defendant was the developer of the three apartment blocks in Highland Towers and is still the registered owner of the three pieces of land - Lots 494, 495 and 653 in the Mukim of Hulu Klang, District of Gombak, State of Selangor, on which the buildings stood. For purposes of demarcation, I shall refer to this entire land as the Highland Towers site.

   • The second defendant was the purported architect of Highland Towers.

   • The third defendant, a brother of the second defendant, was the engineer for Highland Towers.

   • The fourth defendant is and was the local authority at the material time who had jurisdiction over the Highland Towers site, the Arab Malaysian land and the surrounding areas.

   • The fifth defendant is and was, at the material time, the registered owner of 50 lots of bungalow land directly at the rear of Highland Towers. I shall collectively refer to these lots as the Arab Malaysian land.

   • The sixth defendant (Tropic) is a company that carried out clearing works on the Arab Malaysian land in late 1978 and early 1979.

   • The seventh defendant is the registered owner of a large piece of land (Metrolux land) which is situated on top of a ridge, commonly known as Bukit Antarabangsa. This land is located just above the Arab Malaysian land and at the material time was under development.

   • The eighth defendant is and was, at all material times, the provider of management services to the seventh defendant to develop the Metrolux land into a housing estate.

   • The ninth defendant is the State Government Selangor.

   • The tenth defendant is the Director of Lands and Mines of the Selangor State.

   B. The Plaintiffs' Claim

7. The plaintiffs' claim is for damages caused jointly and/or severally by the acts and/or omissions of the defendants, their servants and/or agents in causing and/or contributing to the collapse of Block 1 and thereby forcing the plaintiffs to evacuate and abandon Blocks 2 and 3.

8. The causes of action relied on by the plaintiffs against the defendants are: negligence, nuisance, the liability under Rylands v Fletcher, and breach of statutory duty. During the course of the plaintiffs' submission, Mr. Navaratnam, the leading counsel for the plaintiffs, announced that the plaintiffs are abandoning the last cause of action - breach of statutory duty, leaving only

   1. negligence,

   2. nuisance and

   3. liability under Rylands v Fletcher.

9. At this stage I am of the view that it is pertinent to set out broadly the principles governing these causes of actions so that this court will be focused when analyzing the alleged liabilities of the defendants. An amplification of them will be undertaken when I examine each defendant's acts in detail.

       (a) Negligence

10. The liability of negligence as defined by Lord Atkin in case of Donoghue v Stevenson [1932] AC 562 is: that every man must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure his neighbour, i.e. those persons who are so closely and directly affected by his act that he ought reasonably to have them in contemplation as being so affected when he is directing his mind to the acts or omissions which are called to question, and this results in damage to the neighbour. By this, suffice to say, at this stage, that the important elements for the plaintiffs to prove in this cause of action are: causation and foreseeability.

        (b) Nuisance

11. In general, nuisance is a condition or activity which unduly interferes with the use or enjoyment of one's land. There is public nuisance and private nuisance. In this case we are only concerned with private nuisance which is often described as "unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it", and this takes three forms. The first: is encroachment on a neighbour's land. The second: is direct physical injury to the neighbour's land. And the third: is interference with the enjoyment of the neighbour's land - see Winfield & Jolowicz on Tort, 15th Edn @ 494.

12. But not all types of nuisance are actionable. Whether a nuisance is actionable depends on a variety of considerations: the character of the defendant's conduct, the act complained of, the effect of the complained act and such likes. And all these are to be balanced off against the conflicting interests of the parties; that of an occupier in using his land as he thinks fit with that of his neighbour for the quiet enjoyment of his land.

13. In deciding the defendant's conduct, the test is: reasonableness i.e. "according to the ordinary usage of mankind living in ... a particular society" - see Sedleigh-Denfield v O'Callaghan [1940] AC 880 @ 903. This factor of "reasonableness" of the defendant's conduct is different from that in negligence. Here it signifies what is legally right between the parties taking account

    all the circumstances of the particular case; the time and place of its commission, the seriousness of the harm, the manner of committing it, whether it was done maliciously or in the reasonable exercise of rights; and the effect of the commission, that is transitory or permanent, occasional or continuous; so that it is a question of fact whether or not a nuisance has been committed. Winfield & Jolowicz on Tort, 15th Edn, pp 497-8

14. Thus "if the defendant is a reasonable user, he would not be liable for consequent harm to his neighbour's enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it." - Lord Coffin Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53 @ 70. Of late another factor is added to this test. It is expounded by the House of Lords in the same case of Cambridge Water Co Ltd. Lord Goff introduced it in this way:

    We are concerned with the liability of a person where a nuisance has been created by one for whose action he is responsible. Here, as I have said, it is still the law that the fact that the defendant has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanism being founded within the principle of reasonable user. But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee; and the development of the law of negligence in the last sixty years points strongly towards the requirement that such foreseeability should be a prerequisite of liability in damages for nuisance, as it is of liability in negligence. For if a plaintiff in ordinary circumstances only able to claim damages in respect of personal injuries where he can prove foreseeability on the part of the defendant, it is difficult to see why, in common justice, he should be in a stronger position to claim damages for interference with the enjoyment of his land where the defendant was unable to foresee such damage.

15. 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.

        (c) Rylands v Fletcher

16. 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.

17. 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.

18. However this rule has undergone changes in recent years in the common law practising 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 foreseen the thing might, if escaped, 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.

    2. OBJECTION TO THE LOCUS STANDI OF PLAINTIFFS NO. 44-73

19. 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 paragraph 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 first defendant. This method of conveyancing was adopted for reasons 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.

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

    Any absolute assignment, by writing, under the hand of the assignor, not purporting to be by way of charge only, of any debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim the debt or chose in action, shall be, and be deemed to have been, effectual in law, subject to all equities which would have been entitled to priority over the right of the assignee under the law as it existed in the State before the date of the coming into force of this Act, to pass and transfer the legal right to the debt or chose in action, from the date of the notice, and all legal and other remedies for the same, and the power to give good discharge for the same, without the concurrence of the assignor. (emphasis added)

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

    in order to enable a person to claim in negligence for loss caused to him by reason of loss or damage to property, he must have either the legal ownership of or a possessory title to the property concerned at the time when the loss or damage occurred, and it is not enough for him to have only had contractual rights in relation to such property which have been adversely affected by the loss or damage to it. (emphasis added)

22. 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.

23. 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.

24. 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 [1984] 2 MLJ 268), and the other of the Federal Court (Hipparion (M) Sdn Bhd v Chung Khiaw Bank Ltd [1989] 2 MLJ 149) confirming the approach of its predecessor, are relevant. In the case of Nouvau Mont Dor (M) Sdn Bhd v Faber Development Sdn Bhd (supra), Seah FJ advises that in deciding on such matter of, "whether or not the assignment is an 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.

25. 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 v Viewpoint Properties (Sabah) Sdn Bhd [1995] 4 MLJ 804, Bank of Commerce (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.

26. 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:

    1. It is in consideration for loans granted by the financial institutions to these plaintiffs, as borrowers.

    2. 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.

    3. 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 first defendant, when they purchased their respective apartments.

    4. 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.

    5. 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 and purchase agreements to the plaintiffs.

27. This type of arrangement is presently recognized as an "equitable mortgage" or even as a "equitable charge" by the Federal Court in the case of Chuah Eng Khong v Malayan Banking Bhd [1998] 3 AMR 2729. In fact Peh Swee Chin, 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:

    The Court of Appeal used the words "equitable mortgage" in relation to security transaction without restraint, and totally without inhibition in the face of the National Land Code. We support such usage.

28. 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 a 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.

29. Further, after perusing these loan agreement cum assignments, I honestly, within the four comers 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 and purchase agreements so assigned have not been transferred to the assignors. This is explicitly revealed by Clement Skinner JC (as he then was) in Pak Ki You 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.

    Clause 19 in particular permits or recognizes that the appellants (plaintiffs in our case) may execute or create a further or subsequent assignment, charge, mortgage or encumbrance over the said property or any part thereof, and to do so would not constitute an event of default; the only sanction such an event invites is that the bank is entitled to open a separate account and any money repaid by the appellants is paid into such new account and will not be treated as a repayment of the loan. In my view, a clause such as the above which allows the appellants to exercise rights over the said property as if he is still the owner thereof, must surely by strong indication mean that the parties did not intend the assignment to be absolute. In addition to the above, Clauses 15, 26 and 33 all recognized the appellants are entitled to have possession of and enjoy the said property except that the appellants are obliged to insure, maintain and upkeep the same. lf the assignment was intended to be absolute so as to transfer all rights, title and interest in the said property, as contented for by the respondent, then the appellants' occupation and use of the said property would only be possible with the permission and licence of the respondent. Yet, there are no words in the loan cum assignment that indicates that the position of the appellants are that of a licensee.

30. With this, and the reason as expressed earlier, my answer to the question posed earlier is in the negative. This paves the way for these plaintiffs to pursue with their claims.

31. 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.

32. 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 [1954] 20 MLJ 141 which says:

    It seems to their Lordships that the learned Judges have been too much swayed by the doctrines of English equity, and not paid sufficient attention to the fact that they were dealing with a totally different land law, namely a system of registration of title contained in a codifying enactment. The very phase 'equity of redemption' is quite inapplicable in the circumstances.

33. I find that this attitude has changed by the decision of the Federal Court in Chuah Eng Khong v Malayan Banking Bhd (supra). There, Peh Swee Chin FCJ has categorically revived this principle with these:

    If it is an equitable mortgage, like a legal mortgage, the borrower has obtained a second right to redeem after the contractual date for redemption has expired, i.e. he has got equity of redemption for, in the eyes of equity, the lender is not the owner of the said land notwithstanding the said assignment, but the borrower is, but subject to mortgage, and the lender a mere "encumbrancer". The equity of redemption arises as soon as any document on a true construction is found to be a mortgage. The word "mortgage" may sound like sacrilege in view of the presence of the Code which does not use the word, especially to a legal man who specializes in "common law" but not to one who is familiar with "Chancery practice"; for the latter; despite the assignment, the borrower is still the owner of the land subject to the mortgage.

34. The learned Judge then proceeds to determine as follows:

    Although there is a well-known distinction between a mortgage where a borrower's land is usually transferred or assigned subject to the equity of redemption and a charge where such land is not transferred or assigned at all but it gives the chargee rights over the land, a charge of land has always been regarded as a species of mortgage for most practical purposes, see "Law of Real Property" by Sir Robert Megarry (former Vice Chancellor of the Supreme Court of the United Kingdom) and HSR Wade, 5th Edn, at p 914. 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. We support such usage. Here the said loan agreement, on true construction, is an equitable charge, as there is no deposit of document of title...

35. 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.

    3. COLLAPSE OF BLOCK 1 - THE CAUSE

36. 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 of Blocks 2 and 3. To decide on this, it is essential to disclose some brief facts.

    A. Highland Towers And Its Surrounding Features

        (a) The retaining walls

37. 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 described 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 sizes 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.

        (b) Ownership of the slope behind Highland Towers

38. Both the Highland Towers site and the Arab Malaysian land once belonged to a common owner-the first 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 first defendant mortgaged the bungalow lots, consisting of 50 in number, to the fifth defendant in consideration of some financial arrangements. When the loans were not repaid, the 50 bungalow lots were transferred to the fifth defendant in November 1991 to offset the amount due.

        (c) The East Stream and pipe culvert

39. At the furthest eastern comer 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 fifth defendant's land. The source of this stream originates from the Metrolux land. It flows downhill 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 ten 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.

40. 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 run-off water while the pipe culvert catered for the water emanating from the East Stream.

41. 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.

42. 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.

43. Further down slope on the Arab Malaysian land is a network of drains. Those at the upper sector are earth drains while those at the lower portion are made of concrete. These drains, I believed cater for surface water run-off while the pipe culvert was to 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 Block 1, 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. 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 run-off 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 downhill and drained into the lower section of the government land - Lot 445.

44. This drainage pattern too, in the view of all experts in the field of hydrology, is far from satisfactory.

    • First, large section of drains is earth drains that can be eroded easily.

    • 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 downhill. 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 run-off from the slope.

    • Fifthly, the drains are in a vegetated area and maintenance is regularly and constantly required.

45. Before the Arab Malaysian land was sold to the fifth defendant, one Mr. Lim (DW1), an employee of the first 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 be 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 clear the vegetation as well as leaving branches of trees and debris in the drains.

    B. Bruce Mitchell's Photographs

46. 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 4th floor of Block 3, a resident, Mr. Bruce Mitchell, had the presence of mind to snap a series of photographs just before the collapse of Block 1. These highly commendable pictures, six in number, recorded the tragedy and rendered us a grim 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 specialists in the Field of geo-technology to determine the cause of the collapse. They are marked as Exhs P7A-7H but are commonly, throughout this trial, referred to as the "Mitchell pictures".

47. 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 Blocks 1 and 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 slab which looks like an open-air 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 apartment 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 exposed 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.

    4. INVESTIGATION AND MPAJ REPORT

    A. General

48. Immediately after the collapse of Block 1, a 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 Blocks 2 and 3.

49. 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.

    B. Admissibility Of The MPAJ Report

50. 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.

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

    Q.1	:	Is the MPAJ report a public document as defined under s 74 of the Evidence Act?
    A.	:	Yes, it is for reason that it falls within the definition of s 74(a)(ii) of the Evidence Act which states: The following documents are public documents: documents forming the acts or records of the acts of- official bodies and tribunals.
    Q.2	:	Is MPAJ an official body within the term - "public bodies" as set out in the specific section of the Act referred above?
    A.	:	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: The following public documents may be proved as follows: the proceedings of a municipal body, town board or local authority in Malaysia - by a copy of the proceedings certified by the lawful keeper thereof, or by a printed book purported to be published by the authority of the body. (emphasis added)
    Q.3	:	Is the MPAJ report a proceeding of the local authority?
    A.	:	Yes it is for reason that MPAJ, being a local authority, under s 28 of the Local Government Act: may from time to time appoint committees, either of a general or special nature, consisting of the chairman and such number of the Councillors and such other persons as the local authority may think fit, for the purpose of examining and reporting upon any matter or performing any act which in the opinion of the local authority would be more conveniently performed by means of a Committee, and may delegate to any Committee such powers, other than the power to raise money by rates or loans, as it may think fit, and may fix the quorum of any such committee, and the act of such committee in producing such a report must be considered as a proceedings of MPAJ.
    Q.4	:	Has the plaintiffs proved this document for the purpose of admission as evidence in this proceeding?
    A.	:	Yes. The MPAJ report is in a printed book published by the authority of that body.
    Q.5	:	What is the probative value to be attached to the contents of this MPAJ report?
    A.	:	By the Indian authority of Tara Kumar Ghose v Kumar Arm Chandra Singh 74 IC 383: A 1923 C 161, the High Court of Calcutta expressed that: it must be recognized 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.

52. 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.

53. 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 i.e. by examination of witness or witnesses who personally formed such opinions or made such findings, then very little weight shall be attached when this court is asked to evaluate them.

54. 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.

    5. SLOPE FAILURE - THE THEORIES

55. With sufficient disclosure above, I shall now proceed to analyze the cause of the failure of Block 1. There are basically two conflicting theories advanced: one from the plaintiffs and the other from the fifth 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 fifth defendant, is Professor Simons (DW11).

56. The significance of these two theories is the belief that it will affect the liabilities of the parties, particularly of the first and fifth defendant. lf Dr Week's version is accepted, then it is contended that the cause of failure emanated from the fifth defendant's land. Professor Simons, on the other hand, insists that it originated from the first defendant's property. Though both are defendants, only one is of substance. This is the fifth defendant, which is a financial institution as compared to the first defendant, a company that was wound up when submission was coming to an end. Thus, both the plaintiffs and the fifth defendant spent enormous energy in attempting to convince me to their side of their belief.

    A. Dr Weeks' Theory

57. 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.

58. 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.

59. 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 fifth 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.

60. At this stage there is a necessity to explain the types of landslide described.

    1. A rotational slide: is landslide where a failed landmass comes down in a rotational manner i.e. the toe of the slip is forced out and reverts backwards in a curve.

    2. A mantle slide: is when a failure involves only the upper layer of the soil.

    3. 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 with presence of substantial amount of water.

61. 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 fifth 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.

62. Secondly, Dr Weeks relied on the Mitchell's pictures. At photo P7A, on the top left-hand comer 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 having 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 1½ 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.

63. 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.

64. 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.

65. As for the failure of the retaining wall at the upper slope of the fifth 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.

66. 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 resistant to slide.

67. To support his new alternative theory, Dr Weeks relies on:

    1. 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;

    2. the relatively high water level recorded by Dames & Moore when the borehole test was carried out.

68. As there is a challenge by the fifth 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.

69. 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.

    B. Professor Simons' Theory

70. Professor Simons' 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.

71. Simultaneously a forward movement down slope was effected. This forward movement downhill 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.

72. 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 slides. 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.

73. 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' 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.

74. 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.

75. Secondly, by the calculation of 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 make 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.

76. Further, according to 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.

77. Before I proceed further I must express this court's appreciation to the efforts of Dr Weeks and Professor Simons in analyzing 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 CV 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.

    C. My Analysis Of These Two Theories

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

79. 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.

80. After due consideration I am more incline to adopt Professor Simons' 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.

81. 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 flow slide 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.

82. 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' 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.

83. 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.

84. As for the scars described by Dr Weeks at the rear of this high wall in Mitchell's photo P7A, I am more incline 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.

85. 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 tests 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.

86. 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 the 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 criticizes 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 fifth 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 instant case I do not find the investigators of the fifth defendant had carried out their probe in a manner unacceptable in their professional field.

    D. This Court's Finding

87. 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 second tier car park.

88. 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?

89. 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".

90. 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.

91. When this happened the pore water pressure in the soil increased to cause the soil to be less resistant 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 emphasized 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.

    E. Where Did The Water Come From?

92. 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 run-offs 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.

93. 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.

94. 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.

    6. LIABILITY OF EACH DEFENDANT

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

    A. First Defendant

96. Beginning with the first 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 the Arab Malaysian land were incomplete.

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

    B. The Second Defendant

98. In 1974 the first defendant engaged the second 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 second defendant, an executive director of the first 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 second defendant proceeded to prepare and submit building plans for the three apartment blocks of Highland Towers.

99. 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.

        (a) Chronology of events

100. On October 9, 1974 a layout plan submitted by the second defendant, for and on behalf of the first defendant, to the District Office of Kuala Lumpur, the predecessor of the fourth defendant, was approved. This approved layout plan is for a proposed building of three blocks of apartments on the 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 alias 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.

101. The second 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 second defendant's credentials, had in fact permitted him to submit such building proposals and plans.

102. On November 22, 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 second 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 second defendant to stop construction work on the Highland Towers until the drainage for the stream is incorporated in the plan.[1]

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

     1. though the proposal of the second 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.

104. On February 13, 1978, MDG who replaced LBG as the local authority of the area, requested the second 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 first defendant. This was met with displeasure from the first and second defendants as they felt other developers in the area should also contribute to such cost.

105. On August 19, 1978, there was a request by the second 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.

106. On September 29, 1978, JPS suddenly informed MDG that its objection to the second 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.

107. On October 8, 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 first defendant for the drainage was not implemented.

108. On April 6, 1979, the second defendant submitted drainage plans to MDG. These were rejected on grounds that they lacked computation and detail and not of engineering quality.

109. On April 17, 1981, MDG in response to the first defendant's request for issuance of CF for Block 2 required drainage plans to be approved by JPS before consideration.

110. On April 18, 1981, JPS wrote to MDG stating that there were complaints from residents in the vicinity of Highland Towers of flooding. MDG was to instruct the first defendant to stop earth works and to build silt traps as well as to submit drainage plans. In consequence of this, the first defendant engaged the third defendant as consulting engineer to submit drainage plans. When the third 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 materialize.

111. On September 18, 1981, the third defendant submitted a drainage plan to JPS. This was partially approved.

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

     1. the first defendant was to put up a bank guarantee 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.

113. On November 6, 1981, upon the first 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.

114. On June 5, 1982, in pursuance to a request by the first 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.

115. On May 6, 1985, the third defendant submitted a drainage plan (Exh P34). This plan involves the construction of concrete drains all along the hill slope of the 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 of 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".

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

117. On December 2, 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 first 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 Goonting, was not the normal practice where usually a representative of JPS would be present. Further, this inspection only focused 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.

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

         (b) Plaintiffs' claim and the second defendant's defence

119. In the plaintiffs' statement of claim, the plaintiffs alleged 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 second 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 second defendant has created nuisance on the hill slope behind Highland Towers.

120. 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