The report compiled above is in regards to the Highland Towers Tragedy that took place in 1993 and is considered one of the worst collapse tragedies that occurred in Malaysia. The Highland Towers was an apartment building (condominium) that collapsed on December 11, 1993. It is located in Taman Hillview, Ulu Klang, Selangor, Malaysia.
There were originally three blocks of 12-storey apartments, each block respectively named Block 1, Block 2 and Block 3. Block 1 collapsed when 10 continuous days of rainfall led to a landslide after the retaining wall at the Tower's car park failed. The collapse of one block caused the deaths of 48 people and led to the complete evacuation of the other two blocks due to safety concerns. After the tragedy, The Highland Towers memorial was placed at the site of Block 1. The Highland Towers still stand today, although they are now almost completely overgrown by the Jungle. In recent years, they have been the site of much vandalism and the buildings are now in almost complete disarray and ruin. After the collapse, Over 1,000 residents in two other blocks were made homeless.
The 3 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 seize 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 was 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 hap hazardous manner. Some were located on the Highland Towers Site with the rest in the Arab Malaysian Land. Both the Highland Towers Site and the Arab Malaysian Land once belonged to a common owner - the 1st defendant, who intended to develop the entire area into a housing scheme with 3 apartment blocks on Highland Towers Site and bungalows on the Arab Malaysian Land. When the lands were subdivided and issued with individual documents of title, the 1st defendant mortgaged the bungalow lots, consisting of 50 in number, to the 5th defendant in consideration of some financial arrangements. When the loans were not repaid, the 50 bungalow lots were transferred to the 5th defendant in November 1991 to offset the amount due.
After the collapse, Over 1,000 residents in two other blocks are made homeless.
In Dec 15, 1993, The Highland Towers Owners and Residents Committee, headed by Dr Benjamin George, was set up to find out the real cause of collapse and to find the party responsible. In 1996, Seventy-three residents filed a suit against 10 parties who they claimed were jointly and/or severally liable for causing or contributing to the collapse of Block One and the subsequent abandonment of the other two. The case was first brought to the Coroner’s Court, where it was ruled that the Coroner’s Court finds no incriminating factors in the 48 deaths and rules the incident was not a natural disaster but which could be considered a misadventure. The case was later taken to the High Court, where The High Court found Arab Malaysian Finance Bhd and five others liable for the collapse of Block One. Ampang Jaya Municipal Council was found negligent of pre- and post-collapse events but only 15% liable for the latter. Few years later, in 2002, the Court of Appeal dismissed the appeals of four defendants. In 2004, AmFinance Bhd (formerly AMFB) agrees to pay RM52mil to 139 residents and owners of Highland Towers. But this verdict was overturned when in 2006, Federal Court ruled that MPAJ was not to be held liable either for the pre- and post-collapse events at Highland Tower.
The Fourth Defendant (Local Authority) which was the Ampang Jaya Municipal Council, (MPAJ), who had jurisdiction over, the Highland Towers Site, the Arab Malaysian Land and the surrounding areas, although negligent in respect of its duties associated with the building, which were in respect of the approval of building plans, in ensuring implementation of the approved drainage system during construction, and in the issue of the Certificate of Fitness, was nonetheless conferred immunity by reason of Section 95(2) of the Street, Drainage and Building Act.
Section 95(2) of the Street Drainage and Building Act 1974 states that:
The State Authority, local authority and any public officer or officer or employee of the local authority shall not be subject to any action, claim, liabilities or demand whatsoever arising out of any building or other works carried out in accordance with the provisions of this Act or any by-laws made thereunder or by reason of the fact that such building works or the plans thereof are subject to inspection and approval by the State Authority, local authority, or such public officer or officer or employee of the State Authority or the local authority and nothing in this Act or any by-laws made thereunder shall make it obligatory for the State Authority or the local authority to inspect any building, building works or materials or the site of any proposed building to ascertain that the provisions of this Act or any by-laws made thereunder are complied with or that plans, certificates and notices submitted to him are accurate.
It has a vast difference if compared to Law of Tort, whereas judging from the facts as disclosed in the chronology of events, the fourth defendant is negligent of certain aspects. Firstly, as a local authority, the fourth defendant owes a duty of care to the plaintiffs to use reasonable care, skill and diligence to ensure that the hill slope and the drainage thereon were properly accommodated before approving building or other related plans, and during construction stage, to comply with and to ensure the implementation of drainage system. Second, when the Certificates of Fitness were applied for, there should be proper and thorough inspection on whether the buildings so built were safe in all aspects and not just confined only to the structure. And after the Highland Towers was erected, to ascertain drainage requirement in the area was adequate to ensure slope stability behind Block 1. Then subsequent to the collapse of Block 1, measures should have been taken to prevent recurrence of the tragedy to Blocks 2 and 3. The MPAJ had issued notices pursuant to Section 83 of the Street, Drainage and Building Act 1974 (‘the Act’) to the applicants, which had the effect of ordering them to either repair or demolish blocks two and three of the Highland Towers and the walls on the nearby hillslopes, within three months from the date of the notices. The directions in the notices were contrary to the recommendations proposed by the Highland Towers committee, which was set up by the respondent to study the safety of blocks two and three, immediately after the collapse of block one of the Highland Towers. The applicants had actively tried to seek a solution to the Highland Towers problem, but the respondents refused to discuss the legality of the Section 83 notices. This clearly ruled out any possibility that the respondent would withdraw the Section 83 notices. Therefore, the applicants applied to the High Court for certiorari via Ordinance 53 of the Rules of the High Court 1980, to quash the notices on the grounds, inter alia, that the notices were unreasonable, unconstitutional, and illegal. However, the respondent argued that it had acted within its jurisdiction, and that the s 83 notices were not amenable to certiorari, as alternative appeal procedure had been provided by Section 83(3), (6), 91 and 92 of the Act.
Section 83(1) of the Act confers a broad discretion on a local authority by allowing it to issue a Section 83 notice after conducting such inquiry as it thinks fit to satisfy itself that a building is in a dangerous condition. A notice may require the owner of the building to either repair the defects or demolish the building within such period of time as it may specify. However, this discretion must be exercised in good faith, for a proper purpose, and after consideration of all the relevant factors. Furthermore, a Section 83 notice can only be directed to an ‘owner’ of a building as defined in s 3 of the Act.
Both s 83(3) and (6) of the Act are not appeal provisions, as neither provides recipients of the s 83 notices with an opportunity to appeal to a higher authority against the validity of the notices. Thus, there is nothing in s 83 which provides them with an alternative statutory appeal procedure in preference to certiorari. Similarly, ss 91 and 92 also do not provide a genuine appeal procedure, as a right of appeal under the provisions only arises against a mandatory order made by the magistrates’ court. This would mean that the recipients of the s 83 notices could only appeal if the respondent had seeked for the mandatory order.
In Law of Tort, the liability of negligence as defined by Lord Atkin in case of Donoughue v. Stevenson [1932] AC 562 states 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. This is quite the opposite of the jurisdiction according to Section 95(2) of the Street Drainage and Building Act 1974.
The Highland Towers decision becomes another Malaysian High Court decision which diverges from the approach of the English Courts and adopts the approach taken by other Commonwealth jurisdictions in allowing the recovery of “pure economic loss”, especially where sufficient proximity can be demonstrated between the negligent act and the loss. Pure economic loss is the loss related to the product itself which is defective by reason of negligence, as opposed to the loss or damage caused to the property of the Plaintiff by this defective product. It is economic loss unaccompanied by damage or injury. The English courts have always found pure economic loss problematic. Their tendency to reject claims to recover pure economic loss probably stem more from policy, rather than logical, considerations. The problem is that holding someone liable for pure economic loss may lead to damages completely beyond the scale of the fault. Moreover, it is often difficult to assess how much economic loss has really been suffered.
During the final verdict in the Federal Court, one of the three judges, Justice Abdul Hamid Mohamad, said in the Federal Court proceedings that if the local councils were made liable, it would open the floodgates to further claims for economic loss, and this would deplete the council’s resources meant for the provision of basic services and infrastructure.
He also mentioned that if they were held liable, ongoing and future projects will stall and the local council may even go bust. He added that even if it does not end in that way, it is unfair, unjust and unreasonable that taxpayers’ money be utilised to pay the ‘debts’ of ‘such people’. He also said a local council has an endless list of duties to perform for its residents and relied mainly on assessment rates and fees for licences. This was only agreed with by two of the three judges. In his dissenting judgment on the post-collapse liability, another judge, Chief Judge of Sabah and Sarawak Justice Steve Shim Lip Kiong, however, said the MPAJ could not seek shelter in Section 95(2) of the Street, Drainage and Building Act because this was a case of negligence in failing to formulate and implement the master drainage plan so as to ensure the stability and safety of the adjacent Blocks Two and Three. He said there was an assumption of responsibility by the MPAJ to do what it had promised.
The case has been closed since that final hearing and verdict. The local authorities, MPAJ, received the legal mandate that they are fully immune to liabilities. Even though it can be considered as reckless negligence, they will be shielded by the law under Section 95(2) of the Street, Drainage and Building Act 1974. Presumably, they could be care-free in all their ways of doing things and approving anything they deem fit in their full discretion, without the need to consider any threats to life, or to others, as shown in the Highland Towers Tragedy.
In my opinion, this is rather a poor verdict which is aimed at shielding the interest, image, and name of the local council which is under control of government. If this is carried on, officers from the local council will be more relaxed and less concerned about the quality of their work and get away unpunished for things that are their fault and doing. Section 95(2) of the Street, Drainage and Building Act 1974 should in the least be amended or, if possible, abolished to ensure quality and safety in future developments.
There were originally three blocks of 12-storey apartments, each block respectively named Block 1, Block 2 and Block 3. Block 1 collapsed when 10 continuous days of rainfall led to a landslide after the retaining wall at the Tower's car park failed. The collapse of one block caused the deaths of 48 people and led to the complete evacuation of the other two blocks due to safety concerns. After the tragedy, The Highland Towers memorial was placed at the site of Block 1. The Highland Towers still stand today, although they are now almost completely overgrown by the Jungle. In recent years, they have been the site of much vandalism and the buildings are now in almost complete disarray and ruin. After the collapse, Over 1,000 residents in two other blocks were made homeless.
The 3 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 seize 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 was 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 hap hazardous manner. Some were located on the Highland Towers Site with the rest in the Arab Malaysian Land. Both the Highland Towers Site and the Arab Malaysian Land once belonged to a common owner - the 1st defendant, who intended to develop the entire area into a housing scheme with 3 apartment blocks on Highland Towers Site and bungalows on the Arab Malaysian Land. When the lands were subdivided and issued with individual documents of title, the 1st defendant mortgaged the bungalow lots, consisting of 50 in number, to the 5th defendant in consideration of some financial arrangements. When the loans were not repaid, the 50 bungalow lots were transferred to the 5th defendant in November 1991 to offset the amount due.
After the collapse, Over 1,000 residents in two other blocks are made homeless.
In Dec 15, 1993, The Highland Towers Owners and Residents Committee, headed by Dr Benjamin George, was set up to find out the real cause of collapse and to find the party responsible. In 1996, Seventy-three residents filed a suit against 10 parties who they claimed were jointly and/or severally liable for causing or contributing to the collapse of Block One and the subsequent abandonment of the other two. The case was first brought to the Coroner’s Court, where it was ruled that the Coroner’s Court finds no incriminating factors in the 48 deaths and rules the incident was not a natural disaster but which could be considered a misadventure. The case was later taken to the High Court, where The High Court found Arab Malaysian Finance Bhd and five others liable for the collapse of Block One. Ampang Jaya Municipal Council was found negligent of pre- and post-collapse events but only 15% liable for the latter. Few years later, in 2002, the Court of Appeal dismissed the appeals of four defendants. In 2004, AmFinance Bhd (formerly AMFB) agrees to pay RM52mil to 139 residents and owners of Highland Towers. But this verdict was overturned when in 2006, Federal Court ruled that MPAJ was not to be held liable either for the pre- and post-collapse events at Highland Tower.
The Fourth Defendant (Local Authority) which was the Ampang Jaya Municipal Council, (MPAJ), who had jurisdiction over, the Highland Towers Site, the Arab Malaysian Land and the surrounding areas, although negligent in respect of its duties associated with the building, which were in respect of the approval of building plans, in ensuring implementation of the approved drainage system during construction, and in the issue of the Certificate of Fitness, was nonetheless conferred immunity by reason of Section 95(2) of the Street, Drainage and Building Act.
Section 95(2) of the Street Drainage and Building Act 1974 states that:
The State Authority, local authority and any public officer or officer or employee of the local authority shall not be subject to any action, claim, liabilities or demand whatsoever arising out of any building or other works carried out in accordance with the provisions of this Act or any by-laws made thereunder or by reason of the fact that such building works or the plans thereof are subject to inspection and approval by the State Authority, local authority, or such public officer or officer or employee of the State Authority or the local authority and nothing in this Act or any by-laws made thereunder shall make it obligatory for the State Authority or the local authority to inspect any building, building works or materials or the site of any proposed building to ascertain that the provisions of this Act or any by-laws made thereunder are complied with or that plans, certificates and notices submitted to him are accurate.
It has a vast difference if compared to Law of Tort, whereas judging from the facts as disclosed in the chronology of events, the fourth defendant is negligent of certain aspects. Firstly, as a local authority, the fourth defendant owes a duty of care to the plaintiffs to use reasonable care, skill and diligence to ensure that the hill slope and the drainage thereon were properly accommodated before approving building or other related plans, and during construction stage, to comply with and to ensure the implementation of drainage system. Second, when the Certificates of Fitness were applied for, there should be proper and thorough inspection on whether the buildings so built were safe in all aspects and not just confined only to the structure. And after the Highland Towers was erected, to ascertain drainage requirement in the area was adequate to ensure slope stability behind Block 1. Then subsequent to the collapse of Block 1, measures should have been taken to prevent recurrence of the tragedy to Blocks 2 and 3. The MPAJ had issued notices pursuant to Section 83 of the Street, Drainage and Building Act 1974 (‘the Act’) to the applicants, which had the effect of ordering them to either repair or demolish blocks two and three of the Highland Towers and the walls on the nearby hillslopes, within three months from the date of the notices. The directions in the notices were contrary to the recommendations proposed by the Highland Towers committee, which was set up by the respondent to study the safety of blocks two and three, immediately after the collapse of block one of the Highland Towers. The applicants had actively tried to seek a solution to the Highland Towers problem, but the respondents refused to discuss the legality of the Section 83 notices. This clearly ruled out any possibility that the respondent would withdraw the Section 83 notices. Therefore, the applicants applied to the High Court for certiorari via Ordinance 53 of the Rules of the High Court 1980, to quash the notices on the grounds, inter alia, that the notices were unreasonable, unconstitutional, and illegal. However, the respondent argued that it had acted within its jurisdiction, and that the s 83 notices were not amenable to certiorari, as alternative appeal procedure had been provided by Section 83(3), (6), 91 and 92 of the Act.
Section 83(1) of the Act confers a broad discretion on a local authority by allowing it to issue a Section 83 notice after conducting such inquiry as it thinks fit to satisfy itself that a building is in a dangerous condition. A notice may require the owner of the building to either repair the defects or demolish the building within such period of time as it may specify. However, this discretion must be exercised in good faith, for a proper purpose, and after consideration of all the relevant factors. Furthermore, a Section 83 notice can only be directed to an ‘owner’ of a building as defined in s 3 of the Act.
Both s 83(3) and (6) of the Act are not appeal provisions, as neither provides recipients of the s 83 notices with an opportunity to appeal to a higher authority against the validity of the notices. Thus, there is nothing in s 83 which provides them with an alternative statutory appeal procedure in preference to certiorari. Similarly, ss 91 and 92 also do not provide a genuine appeal procedure, as a right of appeal under the provisions only arises against a mandatory order made by the magistrates’ court. This would mean that the recipients of the s 83 notices could only appeal if the respondent had seeked for the mandatory order.
In Law of Tort, the liability of negligence as defined by Lord Atkin in case of Donoughue v. Stevenson [1932] AC 562 states 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. This is quite the opposite of the jurisdiction according to Section 95(2) of the Street Drainage and Building Act 1974.
The Highland Towers decision becomes another Malaysian High Court decision which diverges from the approach of the English Courts and adopts the approach taken by other Commonwealth jurisdictions in allowing the recovery of “pure economic loss”, especially where sufficient proximity can be demonstrated between the negligent act and the loss. Pure economic loss is the loss related to the product itself which is defective by reason of negligence, as opposed to the loss or damage caused to the property of the Plaintiff by this defective product. It is economic loss unaccompanied by damage or injury. The English courts have always found pure economic loss problematic. Their tendency to reject claims to recover pure economic loss probably stem more from policy, rather than logical, considerations. The problem is that holding someone liable for pure economic loss may lead to damages completely beyond the scale of the fault. Moreover, it is often difficult to assess how much economic loss has really been suffered.
During the final verdict in the Federal Court, one of the three judges, Justice Abdul Hamid Mohamad, said in the Federal Court proceedings that if the local councils were made liable, it would open the floodgates to further claims for economic loss, and this would deplete the council’s resources meant for the provision of basic services and infrastructure.
He also mentioned that if they were held liable, ongoing and future projects will stall and the local council may even go bust. He added that even if it does not end in that way, it is unfair, unjust and unreasonable that taxpayers’ money be utilised to pay the ‘debts’ of ‘such people’. He also said a local council has an endless list of duties to perform for its residents and relied mainly on assessment rates and fees for licences. This was only agreed with by two of the three judges. In his dissenting judgment on the post-collapse liability, another judge, Chief Judge of Sabah and Sarawak Justice Steve Shim Lip Kiong, however, said the MPAJ could not seek shelter in Section 95(2) of the Street, Drainage and Building Act because this was a case of negligence in failing to formulate and implement the master drainage plan so as to ensure the stability and safety of the adjacent Blocks Two and Three. He said there was an assumption of responsibility by the MPAJ to do what it had promised.
The case has been closed since that final hearing and verdict. The local authorities, MPAJ, received the legal mandate that they are fully immune to liabilities. Even though it can be considered as reckless negligence, they will be shielded by the law under Section 95(2) of the Street, Drainage and Building Act 1974. Presumably, they could be care-free in all their ways of doing things and approving anything they deem fit in their full discretion, without the need to consider any threats to life, or to others, as shown in the Highland Towers Tragedy.
In my opinion, this is rather a poor verdict which is aimed at shielding the interest, image, and name of the local council which is under control of government. If this is carried on, officers from the local council will be more relaxed and less concerned about the quality of their work and get away unpunished for things that are their fault and doing. Section 95(2) of the Street, Drainage and Building Act 1974 should in the least be amended or, if possible, abolished to ensure quality and safety in future developments.
