PROFESSIONAL

NEGLIGENCE

Dr Nur IzieAdiana binti

Abidin

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Outline
Introduction to Professional
Negligence

Ordinary Negligence vs
Professional Negligence

Negligence in Construction

Defenses in Negligence
Professional Negligence
Negligence
means careless conduct, failure to do some
act

- Professionals who have specialized knowledge and

Professional
skills but breach the expectation by owner Negligence
- Pure economic loss and damages

Who is professional?
 "You like potayto, I like potahto; you like tomayto, I like tomahto; potayto, potahto,
tomayto, tomahto.
Professional Negligence vs Ordinary
Negligence

Ordinary negligence does not involve any special skill,

people on the street
Ex: A reverse a car without check the rearview mirror and
hit B while he’s walking. B sues A due to failure in duty of
care.
.
Professional Negligence

• Negligence means failure to do some act

• Ordinary case does not involve any special skill

• Professional Negligence: The standard of care

required of professionals is that of a reasonable
professional
PROFFESIONAL NEGLIGENCE

The defendant owes a Duty of Care

There was a breach of that Duty of Care

The plaintiff suffered damage

as a result of breach

The damage suffered was not too remote.

Duty of Care
Was there
No
reasonable foresight
of harm?

Yes

Was there sufficient

No
proximity of
relationship?

Yes

Was it fair, just and

No
reasonable to
impose duty?
Yes
NO
DUTY OF CARE
Duty of Care
 Was there reasonable No
foresight of harm?

Yes

Was there sufficient No

proximity of relationship?

Yes
Was it fair, just and No
reasonable to impose
duty?
Yes
Did the defendant fall No
below the required
Psychiatric standard of care
illness??
Yes
NO
DUTY OF CARE & BREACH
LIABILITY
NEGLIGENCE IN
CONSTRUCTION
Potential Wrongdoer
• Client?…..
• Consultant/Designer
• Contractor/Employer
• Workers
• Authorities????….

To Whom?
• Parties In The Contract
• Parties Not In The Contract
Professional Negligence in
Construction

• Each professionals have a different role to play in the process of

building projects, from design to construction (duty of skill and
care).

• Also contribution of non-professionals such as building

contractors

• there is a risk that something may go wrong, as a result of the

negligence of one or more of those involved, leading to financial
loss and the headache of putting the damage right
Professional Negligence in
Construction

Establishing negligence against one party will necessarily involve a

consideration of the potential scope for liability in negligence of anyone else
who may have been involved in the project. As such, these cases are
potentially complex, high risk and very expensive to run.
Lets have a look at the real cases
PROFESSIONAL NEGLIGENCE CAN BE

a) NEGLIGENT MISSTATEMENT
- Special Relationship
- Relying on other advise

• inaccurate statement made honestly but carelessly usually in the form of advice given by a party
with special skill/knowledge to a party that doesn’t possess this skill or knowledge”

• An action for negligent misstatement arises where Party A has carelessly made a statement to
Party B, where the relationship between the parties is such that Party A owes Party B a duty of
care. A negligent misstatement claim is brought at common law in tort.

• A court will consider a special relationship or not when:

i) the plaintiff relied on the defendant’s skill and judgement,

ii) the person who gave the advice knew, or ought to have known, that the other party was relying
on him
iii) it was reasonable in the circumstances for the plaintiff to rely on the defendant.

Example of case: DATO’ SERI AU BA CHI V MALAYAN UNITED FINANCE BHD & ANOR
 DATO’ SERI AU BA CHI V MALAYAN UNITED FINANCE BHD & ANOR

Byrne & Co. Heller & Partners

• In this case a bank has given financial advice to a client in relation to a

company that the client will be dealing with. As a result of following the advice,
the customer suffered a loss.

Lord Justice Devlin states that the relationship between a lawyer and his client
or between a bank and a client is a general duty of care relationship.

Thus, as advised, professional members such as engineers or architects

should be cautious in making any statements, comments, advice or other forms
of professional services to their construction project clients. This is to prevent
them from giving incorrect (or negligently made) professional advice and
resulting in damages for negligent misrepresentation being taken against them.
PROFESSIONAL NEGLIGENCE CAN BE

b) NEGLIGENT ACT – pure economic loss

Failure to appropriately exercise and ethical rule

Many personal injury cases arise from the actions

of two or more parties, particularly in cases involving
the security or maintenance of a property.

Example case:
Spartan steel
Kerajaan Malaysia vs Cheah Foong Chiew
Teh Khem On & Or
PROFESSIONAL NEGLIGENCE CAN BE

Pure Economic Loss

Pure economic loss refers to financial damage and loss not

consequential(tidak berbangkit) upon physical damage to
person or property. It arises when the defendant has engaged
in negligent conduct which directly causes economic harm to
the plaintiff’s person or property.

Common categories of pure economic loss are expenditure,

loss of profit, profitability or loss of some other form of
financial gain. It is therefore important to determine whether
a claim is in fact consequential or pure economic loss, as the
latter is usually not recoverable in law as damages
PROFESSIONAL NEGLIGENCE CAN BE

Pure Economic Loss

• In a claim for personal injury following negligence of the

defendant, the claimant may be unable to resume work
suffering a loss of earnings which is a usual head of
damage. We can see that this is clearly a product of
personal injury thus representing consequential loss not
pure economic loss.

• Economic loss is recoverable using the law of contract,

and unless contractual terms or agreements have been
breached, there cannot be a claim for loss.
 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd

Facts
The defendants were responsible for digging up a road outside the plaintiff’s smelting factory. As a
result of their negligence when carrying out this task, they inadvertently severed a power supply under
the road resulting in a loss of power to the plaintiff’s factory. The plaintiffs suffered a number of forms
of damage as a result of this, including loss of profits as a consequence of the factory being non-
operational for the period while it was without power, and physical damage to the metal which was in
the process of being smelted at the time the power was lost.

Issue
The question was whether the plaintiff could recover damages for the loss of profits or whether this
was irrecoverable in negligence as it was a ‘pure economic loss’.

Held
The Court of Appeal held that even where a plaintiff is clearly owed a duty in respect of physical
damage to property, any 'pure' economic loss(loss of profits) suffered in addition to physical damage
are unrecoverable as either too remote, or outside the scope of the duty of care. However, economic
losses consequential on the damage to the metal in the melt (such as lost profits on the damaged
metal) were recoverable. The result was therefore that the damage to the metal due to the smelting
process being cut short was recoverable (as were the lost profits from the sale of this metal), but the
loss of profits from further melts which could have been completed during the time the factory was
without power could not be recovered as this was ‘pure’ economic loss.
 Kerajaan Malaysia vs Cheah Foong Chiew

The plaintiff appointed the first defendant, a consulting firm, to supervise the construction
of a building. The plaintiff later alleged that the defendant failed to carry out its duties,
causing the plaintiff to suffer substantial losses. The third defendant, the resident
engineer employed by the first defendant, applied to strike out the plaintiffs claim on
the ground that he did not sign any contract with the plaintiff. In turn, the plaintiff argued
that although there was no contractual relationship, there exists an action in tort. The
third defendant counter argued that the plaintiff could not claim under tort because the loss
suffered was pure economic loss.

The High Court acknowledged that the loss

was pure economic loss and that the third defendant could not be held liable under tort
as there was no injury to any person or damage to the property of another

**
NEGLIGENCE BY CONSULTANT
NEGLIGENCE- Misstatement
Case: Chin Sin Motor Sdn Bhd

NEGLIGENT ACT
• D & F Estates Ltd.

• Murphy vs Brentwood District Council

• Kerajaan M’sia v Cheah Foong Chiew & Ors

• Teh Khem On & Anor v Yeoh& Wu Development

Sdn Bhd

• Dr Abdul Hamid Abdul Rashid

The Construction Professionals

Contractor

Quantity
Architect Surveyor

CLIENT

Building
Engineers Surveyors

Project
Managers
The Construction Professionals

Engineers

• Designs, builds or maintains engines, machines or structures

• Follow the professional regulatory body.

• It should also be stated that the duty of care to professionals is given

(stated) in the terms and conditions of their appointment by the client.
 The Construction Professionals

Engineers:

Obligation for Engineer by BEM (clause 5)

Clause 5, General Conditions for the Employment Conditions of Consulting
Engineers for Professional Services in Forms A, B or C,

5.1 The consulting engineer shall exercise all reasonable skill, vigilance and diligence
in performing his professional services
The Construction Professionals

Architects
• Draw an accurate plans and models, specification, taking account of how the building is going to
be used and factoring into their design important matters such as safety and longevity.

• The geographical environment such as whether the building will sit on a flood plain. Instead of
aesthetically pleasing ensure that it is safe to use for the whole of its intended life.

• Supervision of building work to ensure that they build to the design.

• To adhere to strict codes of conduct.

• Further in the case of Investors in Industry Commercial Properties Ltd V South

Bedfordshire DC & Anors:

the court ruled that an architect who heads a construction project (for which a group of
design experts, i.e. structural, mechanical and electrical engineers are appointed) cannot
blindly rely on the work of those experts, and the architect is subject to the obligation to
remind the Client of any matter given to the experts who are part of the architect's field of
expertise.
 The Construction Professionals

Architects:
Actions for negligence in carrying out project supervision duties (by architects
or engineers) who conduct carelessly can be taken against the concerned
party.

Case: Equitable Debenture Assets Corporation V William Moss Groups

The duty of construction supervision will place a person under the obligation to
inspect the work according to the progress of the work and the architect is also
subject to the duty of care and this duty continues until the work is completed
from a practical aspect.
 The Construction Professionals

Quantity Surveyors

• Prepare costs estimates for building work based on the quantities of materials and man-hours that are
required for each stage of a building project
• They prepare pricing schedules for contractors
• Value work done and they negotiate with building contractors in relation to pricing matters
• Royal Institute of Chartered Surveyors (RICS), which has its own membership standards and requires its
members to adhere to its own code of conduct.

Building Surveyors
• to inspect work that has been undertaken and ensure that it complies with whatever building regulations
may be relevant

• ensuring that completed structures are safe.

• RICS which has its own membership standards and requires its members to adhere to its own code of
conduct.
 The Construction Professionals

Project Managers
To protect their client’s interest then it necessarily carries with it, a duty of care.

Contractors

• build the property according to the architect’s and the engineer’s plans

• comply with the quantity surveyor’s calculations and the building surveyors directions on Building
Regulations’ compliance, and in doing this, their work may be overseen by the client, by the architect, or by
a project manager.

• not always obviously ‘professionals’ in the sense of carrying a particular qualification and/or belonging to a
professional members’ organisation who adhere to a particular set of standards,

• nevertheless has concurrent duties in contract and in tort, to exercise reasonable care and skill in
undertaking the building work services he is contracted to provide.
 NEGLIGENCE TO CLIENTS

• CONTRACTOR-
• Fail To Ensure Contractor Work Properly
• Duty Assigned Through So

• DESIGNER

• SUB-CONTRACTOR?

• WORKERS – NOT
RESPONSIBLE
PROFESSIONAL NEGLIGENCE

ENGINEER & ARCHITECT

Pre-Design
- Soil investigation

Design Stage
- Design, Calculation And Untested Material

In service
- Advise, Consents From Authorities

Supervision
- Inadequate Attendance, Fail To Detect Defect Works
PROFESSIONAL NEGLIGENCE

EMPLOYER
• The Way Works Been Carried Out
Workers

OCCUPIER
• Invitee
• Licensee
• Trespasser
NEGLIGENCE TO WORKERS

Negligence by workers
-Vicarious Liability (partly responsible for the unlawful actions of
a third party)
-an employer can be held liable for the unlawful actions of an
employee
-Ex: An employer might also be held liable if an employee
operates equipment or machinery in a negligent or inappropriate
way that results in damages to property or personal injury.

Negligence to workers
- Negligence Due To Breach Of Statutory Duty – Insurance,
SOSCO, OSHA

EMPLOYERS NEGLIGENCE
employing wrong workers
fail to ensure machines are in good condition & safe
fail to provide good working environment
 NEGLIGENCE TO WORKERS

Negligence to workers- Breach Of Statutory Duty

Factories and Machinery Act 1967

• Part IV of the Act, which is about the installation, operation and removal of machines in construction
operations or engineering construction works, which must comply with the procedures.

• Fencing of certain machines and machinery under the Factories and Machinery

• Installation and maintenance of certain machines that need to comply with the requirements
specified under the Factories and Machinery (Safety, Health and Welfare) Regulations, 1970.•

• Installation, methods of use and provision of safety equipment, as well as methods of carrying out
work that must comply with the Factory and Machinery (Building Operations and Engineering
Construction Works) Regulations, 1986
NEGLIGENCE TO WORKERS

Negligence to workers- Breach Of Statutory Duty

The Electrical Inspectorate Act of 1983 is about ensuring safety during electrical
work.

The Workers' Safety and Health Act 1994, related to measures to control
employment, workplaces, etc.
NEGLIGENCE TO WORKERS

Ng Kim Cheng Iwn. Naigai Nitto Singapore Pte.Ltd. & Anor

The plaintiff worked with the defendant as a store maintainer. One day, the plaintiff was driving a forklift by himself when
the real driver was on holiday that day. The plaintiff had an accident and was injured while driving the forklift due to faulty
brakes. Plaintiff alleges that the defendant failed to maintain the forklift properly (section 7 (1) Factory Act (Cap 104)
1985 (Singapore) so that it can always be used smoothly and repaired satisfactorily.

The court ruled that because the plaintiff is a store manager, his job is to unload goods with the forklift, where he uses
the machine specified in the Act.

Regarding the employer's own negligence, it covers the following matters:-

the selection of employees who are suitable for the job (including their competence),

- plants, machines, work tools, etc. that are adequate and in satisfactory condition,

and- safe working system

. Failure of an employer to remove (or transfer) incompetent and irrresponsible workers that can caused harm to others,
the employer was charged with negligence. In the case of Hudson Iwn. Ridge Manufacturing Co. Ltd.41 empermanter by,
the plaintiff was injured as a result of the actions of an employee (of which the employer knows the naturetends to harm
the worker but does not remove or remove the dangerous worker from the workplace or take any measures to prevent
the act from happening or continuing​
NEGLIGENCE TO WORKERS

In the case of Hudson V. Ridge Manufacturing Co. Ltd.41

the plaintiff was injured as a result of the actions of an employee (of which the
employer knows the nature tends to harm the worker but does not remove or
transfer the dangerous worker from the workplace or take any measures to
prevent the act from happening or continuing​.

Court held: employer was negligence

OCCUPIER’S LIABILITY
• refers to the duty owed by land owners to those who come onto their land.

• However, the duty imposed on land owners can extend beyond simple land
ownership and in some instances, the landowners may transfer the duty to
others, hence the term occupier rather than owner
• Ensure visitors reasonably safe in using the premises for the purposes for
which he is invited or permitted by the occupier to be there

Liable towards:

• Invitee –
Case: Mohd Sainudin
: Chong Fah Lin V Uem
: Dobb & Co V Heela

• Licensee
OCCUPIER’S LIABILITY-invitee
Ng Hon V Chow Wai Chuang

The defendant is a contractor for earthworks for a school.

The plaintiff is an engineer from the Department of Public
Works (JKR) who was assigned to inspect the defendant's
contract works. During the inspection, the plaintiff stepped on
a thin piece of iron lying on the ground.
Apparently the iron used to cover a trench that the defendant
dug (without the plaintiff's instructions). As a result, the
plaintiff broke his leg due to a fall.

The court ruled that the contractor has general responsibility

to take reasonable precautions to prevent damage to
persons whom he can reasonably expect to come to the
place of work, whether as invitees or as licensees, or other
contractors. Since the defendant did not fence the trench but
covered it with thin metal sheets, this created a hidden
danger that was not fenced and without any warning of the
danger. The defendant has no right to trap the plaintiff that he
knew would come to that place. Therefore, the defendant
liable for Neligence.
OCCUPIER’S LIABILITY-licensee

Corby V Hill

A private land owner with a private road (which people use to get to his house),
has given permission to a construction contractor (defendant) (who is carrying
out construction work on the road) to place building materials on the road. The
defendant had placed a pile of stones and left them unlit at night.A visitor (the
landlord's guest) struck the stone one night, and was injured.

The court ruled that the contractor was negligent.

OCCUPIER’S LIABILITY-licensee
The case of Woh Hup (Pte) Ltd. John. China Insurance Co. Ltd.

is about the liability of the main contractor towards the employees of his
subcontractors. The relevant facts of this case are as follows:

S (the deceased) was a subcontractor (M) who carried out furniture installation
work on a building built by C (the main contractor).
While S was pushing a wheelbarrow carrying cement on an open path at the
construction site, the wheelbarrow got stuck on an electric wire lying on the
ground and S was electrocuted to death.

The court ruled that S is a licensee, where C is under a duty to inform S of the
hidden danger (electrical wires) that S does not know about. Therefore C is
charged with the duty to protect the workers who pass through the path from the
hidden danger by building barriers or warning or any other means that the
electric cable conducts electric current. With the absence of those measures
taken by C, then C has failed to take precautionary measures against S.
DEFENCES IN PROFESSIONAL NEGLIGENCE

01VOLENTI NON-FIT INJURIA

02 CONTRIBUTORY NEGLIGENCE
03 INEVITABLE ACCIDENT
04 MECHANICAL FAULTS
05 SELF DEFENCE
HIGHLAND TOWER
 CASE HISTORY
highland tower block 1

total collapse of a 14-storey condominium

block on 11 december,1993 killing 48 people
structure of building
construct by using
reinforced concrete columns,
beams and slabs.

building supported
by rail piles
with each columns
being supported in
at least 2 to 3 rail
Piles.
FINDINGS
Collapse not due to natural disaster or act of God

Act of sabotage was also ruled out by the police

(no evidence of any explosive found)
No significant inadequacy in the design of the super structure

Slope and rubble walls behind, and in front of

collapsed block were not properly designed and
supervised
Initial landslide of slope imposed additional pressure in soil resulted in
the failure of rail piles foundation. (The design were never intended to
carry any lateral load)
HIGHLAND TOWER

DEVELOPER

CONSULTANT ARCHITECT

ENGINEER

NEIGHBOURING PROPERTY OWNERS

LOCAL AUTHORITY
PARTIES CONTRIBUTORY TO THE COLLAPSE
DEFENDANTS WERE:

A) Developer/owner of the condominiums

➢Fail to engage a qualified submitting person
➢Proceeding with construction work without
getting the required approval and without
proper supervision
➢Fail to implement and fully comply with the
drainage plans approved by Department of
Drainage and Irrigation (JPS)
il to carry out proper maintenance of surface
drainage behind condominiums
B) Consultant Architect
➢Failed in his duty as a consultant &
had also refuse to comply with
requirement impossed by the
authorities on drainage of the area.

C) Engineer
➢Signing the road and drainage plans
for the project though he did not
design nor supervise the
construction
D) Neighbouring Property Owners
➢Development carried out on their properties
had resulted in changes to the direction of
the natural water path resulting in the
concentration of run-off water into the slope
behind the collapse block

E) Local Authority
➢Weakness in complying with enforcement of
the building by-laws due to lack of staff
leading to approval of plans & CF.
THANK YOU..