RMK 254 Tort & Criminal

School of Housing Building and Planning

RMK 254 LEGAL STUDIES (Semester 1 09/10)

Topic: Please States The Criminal Offence & Tort Committed By Professionals In Construction Industry.

Lecturers:

ASSOCIATE PROF. ABDUL AZIZ HUSSIN

MR. ZULKIFLI OSMAN

Group : Green

Leader : LEW CHENG KEOK 99729 Members : CHENG FANG CHEE 99697 CHEW BEE KEAN 99699 FARZANEH MOAYEDI 102788 NG WEN YAN 99775 PEH SWEE CHIN 99809 Submission Date : 26 August 2009

Please States The Criminal Offence & Tort Committed By Professionals In Construction Industry. RMK 254 Legal Studies

Contents

1.0 Introduction 2

2.0 Parties 4 3.0 Introduction to torts

3.1 Definition of tort 5 3.2 The Law of Torts 5

3.3 Categories of torts 6

3.4 Tort : Relevance for construction Contractors 7

4.0 Specific Torts

4.1 Trespass 8

4.2 Nuisance 11 4.3 Negligence 22

5.0 Crime Offences in Construction Industry

5.1 Introduction 26

5.2 Respective Acts 28

5.3 Copyright Acts 1987 29

5.4 Anti-Corruption Acts 1987 31 5.5 Official Secret Acts 1972 36

6.0 Remedy

6.1 Definitions 37

6.2 Nature of Remedies 38

6.3 Crimes and Torts in Construction Industry 40

6.4 Example of cases 44

7.0 Limitation of Actions

7.1 Definitions 50

7.2 Limitation Period 50

7.3 Limitation Law 1953 51

8.0 References 55


1.0 Introduction

The professions in construction industry are also ordinary human which will make

mistakes or involved themselves into crime offences and torts. There are several act

in construction industry which to control the criminal offences and tort in construction

industry.

1. Respective profession act

2. Copyright Act 1987 –An act established to provide protection for literary,

scientific and artistic creations.

3. Anti-corruption act 1997- An Act to establish the Anti-Corruption Agency, to

make further and better provisions for the prevention of corruption and for

matters necessary thereto or connected therewith.

4. Official Secret act 1972- This is a statute in Malaysia prohibiting the

dissemination of information classified as an official secret

The torts in construction industry are classified into 3 specific torts

1. Trespass- An unlawful intrusion that interferes with one's person or property

2. Nuisance- Unlawful act or omission which endangers or interfere with the lives,

safety or comfort of the public or individual.

3. Negligence - Depends on the existence of a breach of duty of care owned by

one person to another

The criminal offence and torts in construction industry can cause delay to a projects.

Besides, all of that will bring to incurably extra cost. That profession which committed

crime such as involve with corruption will be black listed and need to face judgment

of law. This will also affect the future business. While the tort such as negligence and

nuisance will waste many unnecessary extra work and money expense. To build a

better tomorrow for construction world, the profession and players in construction

industry should obey the law and ethnic codes for a harmony industry.


2.0 Parties

There are many players in construction industry; many of them are registered under certain

acts. For examples,

i. Town Planner- Town Planner Act 1995 ii. Architect- Architects Act 1967 iii. Quantity Surveyor- Quantity Surveyor Act 1967 iv. Engineer- Engineer Act 1967 v. Valuer - Valuers, Appraisers and Estate Agents Act 1981 vi. Lawyer – Legal Profession Act 1976

These professionals have to register to board of respective professions. The board of professions will govern the professionals to assure professions are obey to the ethics and acts. The requirement of registration: i. Must obey professionals Acts respectively ii. Do not involve in crime offense iii. Obtain fees, charged and alimony upon the services provided The services provided normally classify as basic services, advice services and extra services. The fees for each of the services are different with the scale of payments, the level involved, the payment upon expenses, and others.Besides, the professions have to obey to professional ethic under respective act Every profession have certain relationship for the win-win concept, there are 3 types of relationships:

i. Contractual relationship ii. Under tort iii. Under criminal offence

For those professional who found rebel the ethics and act will being face into two situations, either bring to cancel of registration or not. The disciplines actions will take on are:

i. Discredit ii. Fine iii. Adjourn iv. Registration canceled

The parties who normally involved in torts and criminal offense of construction industries are :

Contractors

Subcontractors

Professionals

Other third parties

Relationship of employer with workers in construction industry can divide into :

i. Vicarious Liability

ii. Liability of employer to their employees

Relationship of client with consultant and professionals

Relationships of client and contractor/ subcontractor


3.0 Introduction to Torts

3.1 Definition of Tort

The word tort comes from the Latin term torquere, which means "twisted or wrong." The

English Common Law recognized no separate legal action in tort. Instead, the British legal

system afforded litigants two central avenues of redress: Trespass for direct injuries, and

actions "on the case" for indirect injuries. Gradually, the common law recognized other civil

actions, including Defamation, LIBEL, and slander.

Besides, a tort is an act that injures someone in some way, and for which the injured person

may sue the wrongdoer for damages. Legally, torts are called civil wrongs, as opposed to

criminal ones. (Some acts like battery, however, may be both torts and crimes; the

wrongdoer may face both civil and criminal penalties.) .

Torts may be committed with force, as trespasses, which may be an injury to the person,

such as assault, battery, imprisonment; to the property in possession; or they may be

committed without force. Torts of this nature are to the absolute or relative rights of persons,

or to personal property in possession or reversion, or to real property, corporeal or

incorporeal, in possession or reversion: these injuries may be either by nonfeasance,

malfeasance, or misfeasance.

Three elements must be established in every tort action.

i. The plaintiff must establish that the defendant was under a legal duty to act in a particular fashion.

ii. The plaintiff must demonstrate that the defendant breached this duty by failing to conform his or her behaviour accordingly.

iii. The plaintiff must prove that he suffered injury or loss as a direct result of the defendant's breach.

3.2 The Law of Torts

The law of torts is derived from a combination of common-law principles and legislative

enactments. Unlike actions for breach of contract, tort actions are not dependent upon an

agreement between the parties to a lawsuit. Unlike criminal prosecutions, which are brought

by the government, tort actions are brought by private citizens. Remedies for tortious acts

include money damages and injunctions (court orders compelling or forbidding particular

conduct). Tortfeasors are subject to neither fine nor incarceration in civil court.

Tort law is the name given to a body of law that creates, and provides remedies for, civil

wrongs that do not arise out of contractual duties. A person who is legally injured may be

able to use tort law to recover damages from someone who is legally responsible, or "liable,"

for those injuries. Generally speaking, tort law defines what constitutes a legal injury, and

establishes the circumstances under which one person may be held liable for another's

injury. Torts cover intentional acts and accidents.


In tort law, potential "injuries" are defined broadly. Injury does not just mean a physical injury

such as where the pedestrian is struck by a ball. "Injuries" in tort law reflect any invasion of

any number of individual "interests." This includes interests recognized in other areas of law,

such as property rights. Actions for nuisance and trespass to land can arise from interfering

with rights in real property. Conversion and trespass to chattels can protect interference with

movable property. Interests in prospective economic advantages from contracts can also be

injured and become the subject of tort actions. A number of situations caused by parties in a

contractual relationship may nevertheless be tort rather than contract claims, such as breach

of fiduciary duty

Tort law may also be used to compensate for injuries to a number of other individual

interests that are not recognized in property or contract law, and are intangible. This includes

an interest in freedom from emotional distress, privacy interests, and reputation. These are

protected by a number of torts such as infliction, privacy torts, and defamation. Defamation

and privacy torts may, for example, allow a celebrity to sue a newspaper for publishing an

untrue and harmful statement about him. Other protected interests include freedom of

movement, protected by the intentional tort of false imprisonment.

The law of torts serves four objectives.

i. it seeks to compensate victims for injuries suffered by the culpable action or inaction of others.

ii. it seeks to shift the cost of such injuries to the person or persons who are legally responsible for inflicting them.

iii. it seeks to discourage injurious, careless, and risky behaviours in the future. iv. it seeks to vindicate legal rights and interests that have been compromised,

diminished, or emasculated.

In theory these objectives are served when tort liability is imposed on tortfeasors for intentional wrongdoing, Negligence, and ultra hazardous activities.

3.3 Categories of torts

Torts can be categorized in:

i. Negligence Torts

ii. Intentional Torts.

3.3.1 Negligence Torts

The negligence torts occurred when the defendant's actions were unreasonably unsafe.

It provides a cause of action leading to damages, or to injunctive relief, in each case

designed to protect legal rights, including those of personal safety, property, and, in some

cases, intangible economic interests.

Negligence actions include claims arising primarily from automobile accidents and personal

injury accidents of many kinds, including clinical negligence. Product liability cases may also

be considered negligence actions, but there is frequently a significant overlay of additional

statutory content.


3.3.2 Intentional Torts

An intentional tort is any deliberate interference with a legally recognized interest, such as

the rights to bodily integrity, emotional tranquillity, dominion over property, seclusion from

public scrutiny, and freedom from confinement or deception

Among intentional torts may be certain torts arising out of the occupation or use of land.

a. Tort of nuisance, which connotes strict liability for a neighbour who interferes with

another's enjoyment of his real property.

b. Trespass allows owners to sue for incursions by a person (or his structure, for example

an overhanging building) on their land.

c. Tort of false imprisonment and a tort of defamation, where someone makes an

unsupportable allegation represented to be factual which damages the reputation of

another.

3.4 Tort: Relevance for Construction Contractors

Construction Contracts should be watertight to provide complete framework for liability

between the parties. Tortious liability would therefore be limited to the category of liability to

a third party.

Badly drafted construction contracts can open tortious liability between the parties,

since there can be concurrent liability under both tort and contract.

Types of Tortious actions relevant for Construction Contractors:

o Negligence

o Nuisance

o Trespass

Other relevant legal principles under Tort law:

o Absolute Liability

o Strict Liability

o Vicarious Liability


4.0 Specific Torts

4.1 Trespass 3.1.1 Definitions An unlawful intrusion that interferes with one's person or property.

Tort Law originated in England with the action of trespass. Initially trespass was any wrongful conduct directly causing injury or loss; in modern law trespass is an unauthorized entry upon land. A trespass gives the aggrieved party the right to bring a civil lawsuit and collect damages as compensation for the interference and for any harm suffered. Trespass is an intentional tort and, in some circumstances, can be punished as a crime.

As trespass developed into a means of compelling the defendant to compensate the plaintiff for injury to his property interests, it took two forms

i. an action for trespass on real property ii.an action for injury to Personal Property.

a. Trespass to people

Included assault, battery and false imprisonment

b. Trespass to goods

Is the intentional or negligent interference with the possession of goods of another

c. Trespass to land

In modern law the word trespass is used most commonly to describe the intentional and wrongful invasion of another's real property. An action for trespass can be maintained by the owner or anyone else who has a lawful right to occupy the real property, such as the owner of an apartment building, a tenant, or a member of the tenant's family. The action can be maintained against anyone who interferes with the right of ownership or possession, whether the invasion is by a person or by something that a person has set in motion Normally, land trespassers have always occurred in the developing nation and in our country is not the exceptional. The issue of trespassers whether in the urban or rural areas needs to be addressed as it reflects the inefficiency of the land administration system as well as the weaknesses in the enforcement unit.

Besides that, the problems also lead to substantial losses to the state government due to huge amount of uncollected revenue. This happens because of the non-existence of legal right of ownership. The uncontrollable activities of trespassers such as the squatter‟s settlement do not only creating an eyesore but its unplanned existence has les to other issues like pollution and social problem. This study is undertaken after realizing the loss that the state government has incurred and it tries to show the impact of squatters around the city of Johor Bahru.


Based on the field study as well as data collected from various government agencies, the study reveals that there is a negative impact. The squatter settlements are mostly potential land for various uses. Hence, the areas affected could be developed and fetch a high market values. Based on calculation it is estimated that the state government has lost revenue as the government fail to collect the quit rent, premium and charges. Briefly speaking the study estimated that state government of Johore has lost around RM 44 million per annum in terms of revenue and RM 198 million in terms of potential land values. It is hope that the findings could make the state government aware of the substantial losses and appropriate measures should be taken.

d. Trespass by one entitled to possession A person who forcibly enters onto land is guilty of a crime, even if that person is entitled to possession of the land.

e. Continuing Trespass

A trespass is continuing when the offending object remains on the property of the person entitled to possession. A building or fence that encroaches on a neighbours‟ property creates a continuing trespass, as does a tree that has fallen across a boundary line

f. Criminal Trespass

At common law a trespass was not criminal unless it was accomplished by violence or breached the peace. Some modern statutes make any unlawful entry onto another's property a crime. When the trespass involves violence or injury to a person or property, it is always considered criminal, and penalties may be increased for more serious or malicious acts. Criminal intent may have to be proved to convict under some statutes, but in some states trespass is a criminal offense regardless of the defendant's intent.

4.1.2 Legal Responsibility of Trespass

In some cases a defendant is not liable for trespass even though she has intruded onto another's property. A police officer can pursue a criminal across private property without liability for trespass. The police officer's defence to a claim of trespass is her lawful authority to enter.

A landlord does not have the right to enter a tenant's apartment whenever the landlord wants. However, the landlord usually has the right to enter to make repairs. The landlord must arrange a reasonable time for the repairs, but the tenant's consent to this arrangement is either contained in the lease or is implied from the landlord's assumption of responsibility for making repairs inside the apartment.

A person is not guilty of trespass if he goes onto another's land to protect life or property during an emergency. Permission to enter someone else's property can be given either by consent or by license. Consent simply means giving permission or allowing another onto the land. Consent may be implied from all the circumstances. A homeowner who calls a house painter and asks for an estimate cannot later complain that the painter trespassed by coming into her yard.Sometimes consent to enter another's land is called a license, or legal permission. This license is not necessarily a certificate and may be in the form of a written agreement.


Case1:Infringement of the village Committee absence in regulating land contracts awarded damages

The village Committee agreed that its contract without authorization of 2 acres of land, let this village another villager Liu farming.16 November, Zhenping County in Henan province's courts by law decree immediately stop the village Committee and a fringe, restitution of land for tort and damages arising from infringement as economic costs of $ 3,200.

In 2000 of 17 March, the plaintiff respondent camps Township Secretary camp village Committee signed the contract, agriculture in the village Committee to the plaintiff was awarded the certificate of the contracted land ", since 2000, the contracted period of 17 March up to 2030 for the period ending on March 16.In 2004, the plaintiff's daughter mr.teoh married since land without obtaining the contract. Early 2005, the second daughter of defendant to plaintiff, Liu married a new addition to the children of the UDRP should be divided into the ground, in accordance with the traditional habits farming village to the plaintiff Zhao hwan sound land for the contract holder. on 2 acre

Case2: Court rules demolition of church as unlawful

PETALING JAYA: The Kota Baru High Court has ruled that the Gua Musang local authority was wrong in demolishing a church in an orang asli settlement on June 4.

Justice Mohd Azlan Hashim held that the demolition was unlawful and ordered the local authority to pay damages and costs, news portal Malaysiakini reported.

―It acted unlawfully to demolish the church without giving a due notice of 30 days,‖ he said.

The authority’s move to put up a multi-purpose building on the site of the church was also declared as ―an act of trespass‖.

Justice Mohd Azlan ordered the court registrar to assess the exemplary damages and costs at a later date.

The case was filed on July 1, 2007 by village head Pedik Busu and three villagers, who named the Gua Musang District Council head, Gua Musang Land and District assistant officer and the state government as respondents.

Pastor Moses Soo was quoted by the portal as saying that the community embraced Christianity in February 2007 and wanted to set up a small church to mark their faith.


4.2 Nuisance

4.2.1 Definitions

a) Nuisance can be separate into two parts:

i. Public nuisance

“unlawful act or omission which endangers or interfere with the lives, safety or

comfort of the public generally or of some section of the public, or by which

the public, or some section of it, is obstructed in the exercise of a common

right”

For example, erection of factory which emits excessive smoke, fumes or dirt

It is also a crime

ii. Private nuisance

“Unlawful interference with a man‟s use of his property, or with his health,

comfort or convenience”. It is a wrongful act or omission causing: material

injury to property; or sensible personal discomfort.

b) Public Nuisance

The term public nuisance covers a wide variety of minor crimes that threaten the health, morals, safety, comfort, convenience, or welfare of a community. Violators may be punished by a criminal sentence, a fine, or both. A defendant may also be required to remove a nuisance or to pay the costs of removal.

For example, a manufacturer who has polluted a stream might be fined and might also be ordered to pay the cost of cleanup. Public nuisances may interfere with public health, such as in the keeping of diseased animals or a malarial pond. Public safety nuisances include shooting fireworks in the streets, storing explosives, practicing medicine without a license, or harbouring a vicious dog. Houses of prostitution, illegal liquor establishments, Gaming houses, and unlicensed prize-fights are examples of nuisances that interfere with public morals. Obstructing a highway or creating a condition to make travel unsafe or highly disagreeable are examples of nuisances threatening the public convenience

A public nuisance interferes with the public as a class, not merely one person or a group of citizens. No civil remedy exists for a private citizen harmed by a public nuisance, even if his or her harm was greater than the harm suffered by others; a criminal prosecution is the exclusive remedy. However, if the individual suffers harm that is different from that suffered by the general public; the individual may maintain a TORT

ACTION for damages.

For example, if dynamiting has thrown a large boulder onto a public highway, those who use the highway cannot maintain a nuisance action for the inconvenience. However, a motorist who is injured from colliding with the boulder may bring a tort action for personal injuries.

Some nuisances can be both public and private in certain circumstances where the public nuisance substantially interferes with the use of an individual's adjoining land. For example, Pollution of a river might constitute both a public and a private nuisance. This is known as a mixed nuisance


c) Private nuisance

A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation.

Examples of private nuisances abound. Nuisances that interfere with the physical condition of the land include vibration or blasting that damages a house; destruction of crops; raising of a water table; or the pollution of soil, a stream, or an underground water supply. Examples of nuisances interfering with the comfort, convenience, or health of an occupant are foul odours, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures. Moreover, a nuisance may also disturb an occupant's mental tranquillity, such as a neighbour who keeps a vicious dog, even though an injury is only threatened and has not actually occurred.

An attractive nuisance is a danger likely to lure children onto a person's land. For example, an individual who has a pool on his property has a legal obligation to take reasonable precautions, such as erecting a fence, to prevent foreseeable injury to children.

Trespass is sometimes confused with nuisance, but the two are distinct. A trespass action protects against an invasion of one's right to exclusive possession of land. If a landowner drops a tree across her neighbour‟s boundary line she has committed a trespass; if her dog barks all night keeping the neighbour awake, she may be liable for nuisance.

d) The definition of nuisance relates with the principle of Sic utere tuo ut alienum non laedas' which mean that 'Use your property in such a way as not to damage that of others'.

4.2.3 Legal Responsibility

A private nuisance is a tort, that is, a civil wrong. To determine accountability for an alleged nuisance, a court will examine three factors: the defendant's fault, whether there has been a substantial interference with the plaintiff's interest, and the reasonableness of the defendant's conduct.

i) Fault

Fault means that the defendant intentionally, negligently, or recklessly interfered with the plaintiff's use and enjoyment of the land or that the defendant continued her conduct after learning of actual harm or substantial risk of future harm to the plaintiff's interest. For example, a defendant who continues to spray chemicals into the air after learning that they are blowing onto the plaintiff's land is deemed to be intending that result. Where it is alleged that a defendant has violated a statute, proving the elements of the statute will establish fault.


ii) Substantial Interference

The law is not intended to remedy trifles or redress petty annoyances. To establish liability under a nuisance theory, interference with the plaintiff's interest must be substantial. Determining substantial interference in cases where the physical condition of the property is affected will often be fairly straightforward. More challenging are those cases predicated on personal inconvenience, discomfort, or annoyance. To determine whether interference is substantial, courts apply the standard of an ordinary member of the community with normal sensitivity and temperament. A plaintiff cannot, by putting his or her land to an unusually sensitive use, make a nuisance out of the defendant's conduct that would otherwise be relatively harmless.

iii) Reasonableness of Defendant's Conduct

If the interference with the plaintiff's interest is substantial, a determination must then be made that it is unreasonable for the plaintiff to bear it or to bear it without compensation. This is a Balancing process weighing the respective interests of both parties. The law recognizes that the activities of others must be accommodated to a certain extent, particularly in matters of industry, commerce, or trade. The nature and gravity of the harm is balanced against the burden of preventing the harm and the usefulness of the conduct.

The following are factors to be considered:

Extent and duration of the disturbance; Nature of the harm; Social value of the plaintiff's use of his or her property or other interest; Burden to the plaintiff in preventing the harm; Value of the defendant's conduct, in general and to the particular community; Motivation of the defendant; Feasibility of the defendant's mitigating or preventing the harm; Locality and suitability of the uses of the land by both parties.

Zoning boards use these factors to enact restrictions of property uses in specific locations. In this way, zoning laws work to prohibit public nuisances and to maintain the quality of a neighbourhood.

4.2.4 Defences for nuisance

In an attempt to escape liability, a defendant may argue that legislation (such as zoning laws or licenses) authorizes a particular activity. Legislative authority will not excuse a defendant from liability if the conduct is unreasonable.

A defendant may not escape liability by arguing that others are also contributing to the harm; damages will be apportioned according to a defendant's share of the blame. Moreover, a defendant is liable even where his or her actions without the actions of others would not have constituted a nuisance.

Defendants sometimes argue that a plaintiff "came to a nuisance" by moving onto land next to an already operating source of interference. A new owner is entitled to the reasonable use and enjoyment of his or her land the same as anyone else, but the argument may be considered in determining the reasonableness of the defendant's conduct. It may also have an impact in determining damages because the purchase price may have reflected the existence of the nuisance.


4.2.5 Remedies for nuisance

Redress for nuisance is commonly monetary damages. An Injunction or abatement may also be proper under certain circumstances. An injunction orders a defendant to stop, remove, restrain, or restrict a nuisance or abandon plans for a threatened nuisance. In public nuisance cases, a fine or sentence may be imposed, in addition to abatement or injunctive relief.

Injunction is a drastic remedy, used only when damage or the threat of damage is irreparable and not satisfactorily compensable only by monetary damages. The court examines the economic hardships to the parties and the interest of the public in allowing the continuation of the enterprise.

A Self-Help remedy, abatement by the plaintiff, is available under limited circumstances. This privilege must be exercised within a reasonable time after learning of the nuisance and usually requires notice to the defendant and the defendant's failure to act. Reasonable force may be used to employ the abatement, and a plaintiff may be liable for unreasonable or unnecessary damages. For example, dead tree limbs extending dangerously over a neighbour‟s house may be removed by the neighbour in danger, after notifying the offending landowner of the nuisance. In cases where an immediate danger to health, property, or life exists, no notification is necessary.

4.2.6 The Nuisance in Construction Projects

In the construction projects, many of the activities may bring to nuisance,

i. Water catchment activities, alteration of natural water movement ii. Land activities, such as soil heaping, land slicing on the land boundary. iii. Dirt , ash, dust, rubbish, noise as the outcome of construction work iv. Vibration or land movement results from hamming work, etc.

There are several news occurred recently which relates to nuisance.


Case 1

Source of data :http://thestar.com.my/metro/story.asp?file=/2008/7/31/central/1681688&sec=central

Thursday July 31, 2008

Renovations leave residents frustrated

Often, residents complain about illegal home renovations and mega-structures coming up in their neighbourhoods. BAVANI M finds out from the authorities what unlawful renovations are as well as the by-laws and guidelines that home owners are supposed to abide by when renovating their homes.

LEE Choo Seng, 87, of Taman Seputeh in Kuala Lumpur hardly spends time at home these days. Most people his age would prefer to stay home gardening or even reading and enjoying some quiet time. However, Lee is ―forced‖ to go out claims a neighbour who only wished to be known as Ng.

According to Ng, Lee often sought refuge at the nearby mall – Mid Valley Megamall - and only returned much later when things were quieter.

Ng said Lee would go off in the afternoons to avoid the constant grinding, drilling and banging sounds of renovation work going on in the neighbourhood.

Lee is not alone as many of his neighbours have also complained that the massive construction and renovation work going on simultaneously in the area has resulted in anger and frustration among the residents.

Complaints include on-going construction work, illegal renovation, encroachment onto public roads, uncleared construction debris, noise and dust pollution.

―We are not against development,’’ Ng said, adding that they were certainly against the blatant way their

neighbours disregarded the rules and guidelines when renovating their homes.

They are also angry with the Kuala Lumpur City Hall (DBKL) for not doing anything about it..

―DBKL should look at the status of neighbouring properties before giving approvals for renovations. The numerous renovations taking place at the same time have appeared to turn this area into a construction site,’’ Ng said.

According to Ng, at such a scale, the control and monitoring was totally different from that of a single isolated case.

The number of heavy vehicles, the noise level, the number of workmen, debris, sanitation, and dust are increased tremedously, affecting the residents’ quality of life.

Built it up: At almost any housing area, sights like these are commonplace.


―DBKL should look at the existing properties and not indiscriminately approve any submissions that come along,’’ Ng said.

StarMetro paid a visit to the neighbourhood recently and discovered that there were several construction projects going on and one or two were major ones.

.

Two were running into the third year and still look far from being completed.

According to a resident, who wished to remain anonymous, most of the work included tearing down existing buildings and rebuilding them on a grand scale.

According to this resident, from 2006 to 2007, within a radius of 50 metres, there were at least five construction and rebuilding jobs being carried out simultaneously.

Residents are questioning the DBKL’s policy on approvals and are saying that local authority’s priority should be to maintain the harmony of existing residences.

―What’s grossly incompatible should not be approved,’’ he said.

Some owners have also taken liberties during construction, flouting rules as to height limits, adding attics and basements without approval, relocating house entrances to side roads and even encroaching onto road shoulders to create private car parks or gardens.

Case 2 :

Source of data :http://thestar.com.my/metro/story.asp?file=/2009/7/4/north/4255501&sec=north

Saturday July 4, 2009

Construction halted after collapse of driveway

By WINNIE YEOH Photo by CHARLES MARIASOOSAY

THE Penang Municipal Council (MPPP) has issued a stop-work order to Hunza Properties Bhd to halt all construction work for a super condominium project after a driveway sank 1.2m into the ground next to a 42-storey condominium on Kelawei Road.

MPPP president Tan Cheng Chui said the council had ordered the developer to rectify the problem and also come up with a comprehensive report on the condition of the Gurney Park condominium where a 10m stretch of the driveway had sunken in.

Encroachment: These two old folks have been inconvenienced by renovation which has encroached into a public road


The driveway leading to the multi-storey carpark of the condominium was cordoned off after it sank and cracked at about 8pm on Thursday.

―They will also have to provide reasons and give a letter of guarantee that the building is safe.

―Until all rectification work is done on the damage, the developer and contractor cannot continue with the building project,‖ Tan said when met at the site yesterday.

He said he had received numerous reports from residents that construction work was carried out late into the night.

State Local Government and Traffic Management Committee chairman Chow Kon Yeow urged MPPP to instruct the developer and contractors to carry out round the clock surveillance over the next few days for fear the condition might get worse.

Hunza Properties Bhd group executive chairman Datuk Khor Teng Tong said the developer would take full responsibility, adding that its consultant group had been instructed to handle the issue.

The Gurney Paragon’s East and West Towers, upon completion, will see two 43-storey buildings consisting of 240 units of service apartments. It also has a commercial podium and two basement parking storeys.

―We have identified the cause. The sheet piles that were used by the basement contractor to temporarily hold up the sides of the excavation gave way,‖ he said, adding that it led to the subsidence of the ground behind the sheet piles where the Gurney Park driveway is located.

Hunza engineer Tong Veng Wye said a thorough check showed there were no signs to show that Gurney Park buildings including the multi-storey car park adjacent to the driveway were in danger.

―We’ve inspected the main pillars and there is no tilting or serious cracks.

―Another fortunate thing is that Gurney Park has basement car parks and that means its foundation is more sturdy and the incident did not affect it,‖ he said, adding that inspection report will be ready by Monday.

Khor said remedial works were initiated on Thursday night by commencing backfilling of the excavation site.

―Remedial works are not expected to last longer than 10 days as work will be done around the clock,‖ he added.

Resident Stephen Abbott, 55, said he saw workers using sand to cover up the cracks.

―We’re concerned that the cracks and sunken road might cause more cracks and our multi-storey parking lots with the swimming pool on the fifth floor might cave in,‖ he said.

Cause for concern: A small crowd gathering to take a closer look at the sunken driveway at the Gurney Park condominium in Penang.


Case 3.

Source of Data :http://thestar.com.my/metro/story.asp?file=/2009/7/27/central/4396794&sec=central

Monday July 27, 2009

Emergency evacuation as road caves in

Stories by SALINA KHALID, LIM CHIA YING and CHOONG MEK ZHIN

DESPITE the danger of their homes collapsing after a large section of Lorong Gelugor caved in on Saturday evening, some residents are still returning to their homes to salvage their belongings on Sunday afternoon.

This followed the emergency evacuation of about 100 people by the Kuala Lumpur City Hall when the area was declared unsafe for occupation.

StarMetro visited the scene yesterday and found the entire section around the collapsed road had been cordoned off.

Some residents were temporarily relocated to a nearby hotel while a few remained to look after their homes.

Eyewitness Umihani Sudin, a resident at the JKR quarters affected by the cave-in, said the road had gradually collapsed at 4.30pm on Saturday and, two hours later, a large section of the area near her home was literally swallowed by a large gaping hole near the construction site of a wholesale mall.

―We saw with our own eyes how the road sank and the project’s retaining wall had given way,‖ she said.

She was referring to the project site of Kenanga Wholesale City in Jalan Merlimau, off Jalan Kenanga, in Cheras, with the San Peng flats in the background, where part of it had caved in last Saturday evening.

As Umihani’s home was a corner lot, she had a side parking space that was damaged with cracks on the ground following the impact of the crash.

―As my house is nearest to the scene, I need to shift my belongings out fast as I fear for my family’s safety,‖ Umihani, who had lived there for 20 years, said.

She was busy lugging her essentials and furniture out of her home to move into another block of quarters down the road where there were a few vacant units.

―We put up at the hotel on Saturday night and were told that we would stay on,‖ the 42-year-old housewife said.

Another resident Anucia Augustine said her family had been evacuated to a nearby hotel where they were expected to stay for the next three days.

―We heard a loud rumbling noise and scrambled to grab whatever belongings we could because we feared that our house would also collapse,‖ the 27-year-old administration executive said.

Wet and messy: A burst water pipe in the basement of the project is believed to be the cause of the incident


She returned to the quarters where her father in-law lived to dry her laundry.

The business community in the area was also affected by the incident.

A morning wet market was closed for business yesterday and today due to proximity to the site.

Trader C.H. Song said the traders needed to know how long they had to be closed because they were suffering losses due to the closure.

―Since the project started, the roads and pedestrian pavements here have been damaged and are in a bad state.

―Although they did come to repair the cracks, they were signs of things to come.

―Thank goodness no one was hurt or killed as the cave-in happened in the evening, after our market had closed,‖ Song said.

Trader Abdullah Hussein, 62, who runs a small sundry stall near Lorong Gelugor was surprised to find the police barring him from going to his usual spot.

―I have been doing business here for seven years and now the spot I usually take up is no longer there so it was quite tough to find another spot,‖ Abdullah said, adding that the situation had caused a lot of confusion among the people living there.

He added that water seeping out from the ground was a common sight along the road.

Another resident, who declined to be named, said the project developer had carried out repair work on Lorong Gelugor several times.

―The section where the wholesale mart is being built had sturdy piling to support its foundation.

―However, the weak spot was in Lorong Gelugor and I saw them repairing a burst water pipe there many times,‖ the resident said.

Sundry shop owner Santhy Malaisamy, 61, was shocked when she heard a loud rumbling noise and quickly ran out of her house to see what had happened.

―I could feel the floor sinking and then the cracks started appearing on the floor and I just did not know what to do,‖ Santhy, a mother of five, said, adding she was now staying with her son.

She owned a sundry shop located on the ground floor of her renovated double-storey house and lived with two of her sons and one worker who helped her at the shop.

Several Tenaga Nasional Bhd (TNB) employees were seen restoring electricity supply to 61 shophouses in the area after power was cut on Saturday.

Gaping hole: The cave-in occured on Saturday afternoon and

the residents were immediately evacuated


When asked, a TNB employee said electricity was re-routed to the shophouses by a sub-station inside the San Peng flats after electrical cables were severed when the road collapsed.

Souce of data :http://thestar.com.my/metro/story.asp?file=/2009/7/27/central/4396903&sec=central

Monday July 27, 2009

Builder told to stop work until report ready

A TEMPORARY stop-work order has been issued to the developer effective Saturday, the day the cave-in happened.

According to Kuala Lumpur mayor Datuk Ahmad Fuad Ismail, the stop-work order is pending an independent, technical report to be prepared by Public Works Department (JKR) Slope Department and also by other agencies like Syabas.

―The result of the report should be out tomorrow. Until then, I cannot say yet what action would be taken against the developer or what recommendations to give to the people.

―However, we are not taking things for granted and the most important thing now is remedial work,‖ he said.

It is learnt that 22 families have been ordered to evacuate their premises. Of the 22, 10 were staying at the Kuala Lumpur City Hall (DBKL) quarters and the remaining 12 at the JKR quarters.

―The developer’s consultant has gone down to the ground with me on Saturday night and given me a black and white assurance that the surrounding areas are safe,‖ Ahmad Fuad said.

He said initial checks by the JKR had shown that the cause was due to an burst underground pipe in the three-level basement car park, and that water had been leaking.

―I’ve also met the affected families and are offering them either the option of staying at the DBKL flats in San Peng or at Kg Muhibbah in Puchong.

―The JKR is taking care of those staying at its quarters but if these families come to us, we will still help,‖ the mayor said.

Representatives from JKR, including Public Works II deputy director Datuk Mohd Noor Yaacob, Kuala Lumpur JKR director Adanan Sukri Musa and JKR corporate management branch director Datuk Abdullah Abdul Rahman met the affected residents of the JKR quarters the day after the incident to discuss their options.

―They have three options including moving to safer quarters in the same area, to quarters located at the 4 1/2 and 6 1/2 mile at Sungai Besi or to the Hardcore Poor Housing Programme (PPRT) Puchong,‖ Adanan said.


The disrupted electricity and water supplies to the other quarters will be restored as soon as possible by TNB and Syabas according to Adanan.

He added that only eight JKR quarters with a total of 59 people were affected while the remaining four affected quarters were empty.

Adanan said each affected resident was given RM25 per day as compensation.

Cheras MP Tan Kok Wai, who was at the scene on Saturday evening and yesterday morning, said he had called for a meeting to be chaired by the DBKL deputy director-general today at 11am between the parties concerned.

―I’ll be there too and have roped in Bukit Bintang MP Fong Kui Lun to join in,‖ Tan said.

He said he had also formed a six-man committee to look into the welfare of the traders in view of the losses they suffered.

―How long the market will be closed will be determined later. The developer’s consultant has said the surrounding areas are safe, but it needs to convince the DBKL that is the case,‖ Tan said.


4.3 Negligence 4.3.1 Definitions

In order to establish negligence as a Cause of Action under the law of TORTS, a plaintiff must prove that the defendant had a duty to the plaintiff, the defendant breached that duty by failing to conform to the required standard of conduct, the defendant's negligent conduct was the cause of the harm to the plaintiff, and the plaintiff was, in fact, harmed or damaged.

The dominant action in tort is negligence. The tort of negligence provides a cause of action leading to damages, or to injunctive relief, in each case designed to protect legal rights, including those of personal safety, property, and in some cases, intangible economic interests. Negligence action includes claims arising primarily from automobile accidents of many kinds, including clinical negligence, workers negligence and so forth. Product liability cases may also be considered negligence actions, but there is frequently a significant overlay of additional statutory content.

Negligence is a legal concept in the common law legal systems usually used to achieve compensation for injuries (not accidents). Negligence is a type of tort or a civil wrong. However, the concept is sometimes used in criminal law as well. "Negligence" is not the same as "carelessness", because someone might be exercising as much care as they are capable of, yet still fall below the level of competence expected of them. It is the opposite of "diligence". It can be generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm

Negligence is a tort which depends on the existence of a breach of duty of care owned by one person to another. In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foresee ably harms others. Duty of care is the first element that must be established to proceed with an action in negligence.

Common law jurisdictions may differ slightly in the exact classification of the elements of negligence, but the elements that must be established in every negligence case are: duty, breach, causation, and damages. Each is defined and explained in greater detail in the paragraphs below. Negligence can be conceived of as having just three elements - conduct, causation and damages. More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking.


4.3.2 Defences to negligence liability

Even if a plaintiff has established that the defendant owed a duty to the plaintiff, breached that duty, and proximately caused the defendant's injury, the defendant can still raise defenses that reduce or eliminate his liability. These defenses include contributory negligence, comparative negligence, and Assumption of Risk.

i. Contributory Negligence

Frequently, more than one person has acted negligently to create an injury. Under the common-law rule of contributory negligence, a plaintiff whose own negligence was a contributing cause of her injury was barred from recovering from a negligent defendant

The doctrine of contributory negligence seeks to keep a plaintiff from recovering from the defendant where the plaintiff is also at fault. However, this doctrine often leads to unfair results. For example, even if a defendant's negligence is the overwhelming cause of the plaintiff's injury, even slight negligence on the part of the plaintiff completely bars his recovery.

Also, the negligence of many defendants such as corporations, manufacturers, and landowners creates no corresponding risk of injury to themselves. In such cases the doctrine of contributory negligence, which can completely eliminate the liability for their negligence, reduces their incentive to act safely. As a result, courts and statutes have considerably weakened the doctrine of contributory negligence.

Ii.Comparative Negligence

Court decision or statute has now adopted some form of comparative negligence in place of pure, contributory negligence. Under comparative negligence, or comparative fault as it is sometimes known, a plaintiff's negligence is not a complete bar to her recovery. Instead the plaintiff's damages are reduced by whatever percentage her own fault contributed to the injury. This requires the jury to determine, by percentage, the fault of the plaintiff and defendant in causing the plaintiff's

iii. Assumption of Risk

Under the assumption of risk defence, a defendant can avoid liability for his negligence by establishing that the plaintiff voluntarily consented to encounter a known danger created by the defendant's negligence. Assumption of risk may be express or implied. Under express assumption of risk, persons agree in advance that one person consents to assume the risk of the other's negligence.

Assumption of risk may also be implied from a plaintiff's conduct. The implied assumption of risk defence has caused a great deal of confusion in the courts because of its similarity to contributory negligence, and with the rise of comparative fault, the defense has diminished in importance and is viable today only in a minority of jurisdictions.


Case 1 Donoghue v. Stevenson :

Donoghue v Stevenson [1932] AC 562 was a decision of the House of Lords that founded the modern tort of negligence (delict in Scotland), both in Scots law and English law by setting out general principles whereby one person would owe another person a duty of care. The case originated in Paisley, Scotland but the House of Lords declared that the principles of their judgment also applied in English and Welsh law. It is often referred to as the "Paisley snail" or the "snail in the bottle" case, and is one of the most famous cases in British legal history.

On the evening of Sunday 26 August 1928 May Donoghue, née M’Alister, boarded a tram in Glasgow

for the thirty-minute journey to Paisley. At around ten minutes to nine, she and a friend took their seats in the Wellmeadow Café in the town's Wellmeadow Place. They were approached by the café owner, Francis Minchella, and Donoghue's friend ordered and paid for a pear and ice and an ice-cream drink. The owner brought the order and poured part of a bottle of ginger beer into a tumbler containing ice cream. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. It was claimed that the remains of a snail in a state of decomposition dropped out of the bottle into the tumbler. Donoghue later complained of stomach pain and her doctor diagnosed her as having gastroenteritis and being in a state of severe shock. On 9 April 1929, Donoghue brought an action against David Stevenson, an aerated water manufacturer in Paisley, in which she claimed £ 500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by him. The case was ultimately settled out of court and the facts were never established in a court of law. The identity of Donoghue's friend is unknown, but that person is referred to as "she" in the case reports (including the first paragraph of the judgment of Lord MacMillan in the House of Lords). Other factual uncertainties include whether the animal (if it existed) was a snail or a slug; whether the bottle contained ginger beer or some other beverage (as 'ginger' in Glaswegian and West of Scotland parlance referred to any fizzy drink) and whether the drink was part of an ice-cream soda.

In common law, a person can claim damages from another person where that other person owed them a duty of care and harmed them through their negligent action. This concept existed prior to Donoghue, but it was generally held that a duty of care was only owed in very specific circumstances, such as where a contract existed between two parties or where a manufacturer was making inherently dangerous products or was acting fraudulently.

There was no contractual relationship between Donoghue the drinks manufacturer or even, as Donoghue had not ordered or paid for the drink herself, between Donoghue and the café owner. Although there was a contractual relationship between the café owner and Donoghue's friend, the friend had not been harmed by the ginger beer. As ginger beer was not a dangerous product, and the manufacturer had not fraudulently misrepresented it, the case also fell outside the scope of the established cases on product liability. On the face of it, the law therefore did not provide a remedy for Donoghue. Donoghue's solicitor, Walter Leechman of W G Leechman & Co in Glasgow's West George Street, had already tried to establish liability against aerated water manufacturer A. G. Barr when a dead mouse was alleged to have found its way into a bottle of its ginger beer. However, an action for damages was rejected by the Inner House of the Court of Session, when the appeal court judges ruled that there was no legal authority allowing such an action (Mullen v A.G. Barr & Co. 1929 S.C. 461).

The writ lodged in the Court of Session on April 1929 alleged that May Donoghue had become ill with

nervous shock and gastroenteritis after drinking part of the contents of an opaque bottle of ginger beer, and David Stevenson, the manufacturer, "owed her a duty to take reasonable care that ginger beer he manufactured, bottled, labelled and sealed, and invited her to buy, did not contain substances likely to cause her injury." Donoghue claimed damages of £ 500.


Counsel for the manufacturer denied that any such duty was owed, but in June 1930 the judge, Lord Moncrieff, ruled there was a case to answer. Stevenson appealed the ruling on a number of legal grounds, and the judges of the Inner House granted the appeal in November 1930, dismissing Donoghue's claim as having no legal basis following the authority of their earlier decision in Mullen v AG Barr. One of the judges said that "the only difference between Donoghue's case and the mouse cases was the difference between a rodent and a gastropod and in Scots law that meant no difference at all."

Donoghue was allowed to appeal her case to the House of Lords but, whilst her legal team had agreed

to provide their services free, she was unable to put up the security needed to ensure the other side's costs were met should she lose in the Lords. However, as such security would not be required if she could gain the status of a pauper, she petitioned the House of Lords, saying, "I am very poor and am not worth in all the world the sum of five pounds, my wearing apparel and the subject matter of the said appeal...". A certificate of poverty signed by a minister and two elders of her church was attached to the petition, and the House of Lords agreed to grant her pauper status.

Nine months after her petition was granted, Lords Buckmaster, Atkin, Tomlin, Thankerton and

MacMillan heard counsels' arguments. Donoghue's counsel - George Morton KC and W. R. Milligan (later a Lord Advocate) - argued that a manufacturer who puts a product intended for human consumption onto the market in a form that precludes examination before its use is liable for any damage caused if he fails to exercise reasonable care to ensure it is fit for human consumption. Stevenson's counsel - W. G. Normand KC (then Solicitor General for Scotland and later a Law Lord), J.L. Clyde (later Lord Advocate and then Lord President of the Court of Session), and T. Elder Jones - argued that there was no authority for such a principle of law.

Case 2

Hedley Byrne & Co Ltd v Heller & Partners Ltd : Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 is an English tort law case on negligent

misstatement. Decided by the House of Lords, it was a groundbreaking case in recognising liability for pure economic loss not arising from a contractual relationship. It introduced the idea of an "assumption of responsibility".

Hedley Byrne were advertising agents. A customer, Easipower Ltd, put in a large order. Hedley Byrne

wanted to check their financial position. They asked their bank, National Provincial Bank, to get a report from Easipower’s bank, Heller & Partners Ltd. Heller & Partners Ltd, and they replied in a letter that was headed,"without responsibility on the part of this bank" It said that Easipower was,"considered good for its ordinary business engagements".

The letter was sent for free. Easipower went into liquidation and Hedley Byrne lost £ 17,000 on contracts. Hedley Byrne sued Heller & Partners for negligence, claiming that the information was given negligently and was misleading. Heller & Partners argued there was no duty of care owed regarding the statements, and in any case liability was excluded.

The court found that the relationship between the parties was "sufficiently proximate" as to create a duty of care. It was reasonable for them to have known that the information that they had given would likely have been relied upon for entering into a contract of some sort. This would give rise, the court said, to a "special relationship", in which the defendant would have to take sufficient care in giving advice to avoid negligence liability. However, on the facts, the disclaimer was found to be sufficient enough to discharge any duty created by Heller's actions. There were no orders for damages.

Lord Morris of Borth-y-Gest stated : ―I consider that it follows and that it should now be regarded as

settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference.


Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise. in my judgment, the bank in the present case, by the words which they employed, effectively disclaimed any assumption of a duty of care. They stated that they only responded to the inquiry on the basis that their reply was without responsibility. If the inquirers chose to receive and act upon the reply they cannot disregard the definite terms upon which it was given. They cannot accept a reply given with a stipulation and then reject the stipulation. Furthermore, within accepted principles... the words employed were apt to exclude any liability for negligence.‖

Effectively, the House of Lords had chosen to approve the dissenting judgment of Denning LJ in

Candler v Crane, Christmas & Co [1951]


5.0 Crime offence in Construction Industry

5.1Introduction-Elements of crime offence

For a criminal offence to occur there must be two main elements - the prohibited conduct and the mental element of a guilty mind or intention. Unless an offence falls into the unusual category of a strict liability offence, the prosecution must, in order to prove that a person has committed an offence, show that both these elements were present.

For example, if a person intentionally and without lawful excuse (such as self defence) strikes another without that person's consent, an assault has been committed. The prohibited conduct is the striking and the mental element, or guilty mind, is the intention to strike/hurt/injure.

On the other hand, if a person accidentally strikes another, no criminal offence occurs because the mental element, or guilty mind, is absent. However, sometimes a person may commit an offence by acting recklessly, that is, without a specific intent but disregarding or not caring about the consequences of their actions.

5.1.1Strict liability offences

Strict liability offences are the exception to this rule and require only the commission of the prohibited conduct for an offence to arise. That is, no mental element is required. Strict liability offences are usually offences of a relatively minor regulatory nature.

For example, many offences against the Public and Environmental Health Act 1987 are strict liability offences. An offence is committed if a shop is unclean, whether or not the proprietor intended the premises to be unclean. Similarly, if a driver is speeding, the prosecution does not need to show that the driver also had a guilty mind or intended to travel at that speed. As this is a strict liability offence, the mere fact of travelling at a prohibited speed is enough to make it an offence. It is not a defence that the vehicle's speedometer was faulty or that the driver thought she or he was driving within the speed limit.

5.12 Ancillary criminal responsibility

Most people charged with offences are principal offenders. In general terms, a principal offender is a person who performs prohibited conduct, but a person who is less directly involved with that conduct can also have criminal responsibility on the basis of 'joint enterprise'. The person who drives the getaway car is just as guilty as those who hold up the bank, the person who keeps a lookout is just as guilty as those who break into the house and steal property as long as that person is aware of the offence that the offender is committing.

An offence can be committed by a person who promotes, aids and abets, or conspires to commit, an offence. Those who encourage or give aid for the offence are known as accessories to the crime. It is also an offence to comfort or assist a person after an offence has been committed [Criminal Law Consolidation Act 1935 ss.241,267].


5.1.3 Attempts

A person who does not manage to complete the offence can still be found guilty of attempting to commit the offence [Criminal Law Consolidation Act 1935 s.270A(1)]. A person can be charged with attempting to commit an offence or may be found guilty of attempt as a result of a case in which the person was charged with a completed offence but where, according to the evidence, she or he failed to complete the offence.

5.1.4 Conspiracy

People who plan to commit a crime can be found guilty of conspiracy even where there has been no attempt made. People may be charged with this offence if there is evidence that more than one person planned a crime and there was an agreement to commit a particular crime. For example, if more than one person planned to rob a bank, they can be charged with conspiracy even if the bank had not been selected.

5.2 Respective Professions Acts

i. Town Planner- Town Planner Act 1995 ii. Architect- Architects Act 1967 iii. Quantity Surveyor- Quantity Surveyor Act 1967 iv. Engineer- Engineer Act 1967 v. Valuer - Valuers, Appraisers and Estate Agents Act 1981 For example, the Architects Act 1967, Section 34 , General penalty 34. (1) Any person, sole proprietorship, partnership or body corporate who contravenes or fails to comply with any of the provisions of this Act or any rules made thereunder shall be guilty of an offence and where no penalty is expressly provided shall, on conviction, be liable to a fine not exceeding five thousand ringgit or imprisonment for a term not exceeding two years or to both. (2) If a sole proprietorship, partnership or body corporate contravenes or fails to comply with any of the provisions of this act or any rules made thereunder, the sole proprietor or every partner, director, manager, secretary or other similar officer thereof shall be guilty of the same offence and be liable to the same penalty as the sole proprietorship, partnership or body corporate is guilty of and liable to, unless he proves that the offence was committed without his knowledge, consent or connivance or was not attributable to any neglect on his part. Failure to comply with orders of the Disciplinary Committee, Board, Appeal Board or Minister 34A. Notwithstanding subsection 7A(6), 15A(3) or 25(2), where— (a) a Professional Architect or registered Architect refuses or fails to comply with an order of the Disciplinary Committee made under subsection 15A(2), or Appeal Board made under section 28;Architects 39 (b) an architectural consultancy practice refuses or fails to comply with an order of the Disciplinary Committee made under subsection 7A(5), or Appeal Board made under section 28; or (c) a registered Building Draughtsman refuses or fails to comply with an order of the Board made under subsection 25(1), or decision of the Minister made under subsection 25(3), the Disciplinary Committee or Board shall immediately cancel his or its certificate of registration after reminders that require him or it to comply with such order or decision, as the Disciplinary Committee or Board in its absolute discretion deems fit, have been given to him or it. Professions have to comply to their respective acts.


5.3 Copyright Acts 1987 Copyright protection in Malaysia is governed by the Copyright Act 1987 which provides comprehensive protection for copyrightable works. The Act outlines the nature of works eligible for copyright (which includes computer software), the scope of protection, and the manner in which the protection is accorded. A unique feature of the Act is the inclusion of provisions for enforcing the Act, which include such powers to enter premises suspected of having infringing copies and to search and seize infringing copies and contrivances. A special team of officers is appointed to enforce the Act. According to Copyright Acts 1987, those who found guilty under copyright law 1987 will be fine not exceeding RM10,000 or imprisonment for a term not exceeding 5 years or to both. 5.3.1 Introductions to acts of copyright This act establishes to provide protection for literary, scientific and artistic creations. This act does apply to construction industry. In construction industry, the act still applies as copyright protection to architectural works. Copyright protection for architecture is limited to original works. In addition, functionally required elements of a building are not protected by copyright. Thus, standard configurations of spaces, and individual standard features, such as windows, doors, and other staple building components, as well as functional elements whose design or placement is dictated by utilitarian concerns, are not protected. 5.3.2 The Rights

It is commonly understood that a copyright prohibits copying the work, such as by putting a document in a photocopier and making copies to use, sell, or otherwise distribute. In other words, the owner of the copyright-protected architectural design documents controls who makes copies of those documents and for what purpose. As a result, unauthorized construction of a building based on the unauthorized copying of copyrighted designs may also be an infringing act.

In addition to the right to reproduce the copyrighted work, the copyright owner also has the exclusive right to prepare derivative works based on the copyrighted work, and to perform or display the work publicly. For an architectural work, a derivative work might include any photograph, painting, or other representation of either the design drawings or the building itself.

Recognizing that application of some of these traditional rights to architectural works could cause draconian results, the Copyright Act does include limitations on the copyright for architectural works. For example, the copyright in an architectural work that has been constructed does not prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work Â– but only if the building in which the work is embodied is located in or ordinarily visible from a public place. In addition, a building owner may make alterations to or destroy a building without the copyright owner's consent.


5.3.3 The case relates to acts of copyrights

One well-known standard owner-architect agreement was developed by the American Institute of Architects, Document B141-1997. Although many owners routinely sign this agreement, it is weighted toward preserving the interests of the architect. As far back as 1977, the B141 included language providing that the drawings and specifications "remain the property of the Architect." In the 1997 document, this language was further expanded and refined. As a result, B141-1997 includes many pitfalls for the unwary owner regarding the ownership of the design documents.

First, under B141-1997, the design documents are "instruments of service" for use solely with respect to the project, and the Architect is the "author and owner" such that the architect retains all rights, including copyrights, to the documents. This language has been carefully selected in support of the architect's position that she or he has been retained in furtherance of the completion of a construction project and that the design documents are not an end result in and of themselves, but are actually the "instruments" by which this goal is accomplished. In addition, by specifically identifying the architect as the author, this provision protects the copyright of the documents and limits the ability of the owner to claim joint authorship.

By retaining all rights to the documents, the architect controls the right to copy the documents, as well as the use of the documents by others. Obviously, if the architect refused to permit copying and use of the documents, the owner would not be able to pursue construction of the project or maintenance of the building. Accordingly, B141-1997 provides that upon execution of the B141 agreement, the architect grants the owner a "nonexclusive license to reproduce" the documents for the limited purposes of constructing, using and maintaining the building.

Importantly, the license to copy and use the documents is conditioned on full compliance by the owner with all the obligations under the contract "including prompt payment of all sums when due." Should the architect deem the contract terminated prior to completion, the license to use and reproduce the documents likewise terminates, and the owner must return all originals and reproductions within seven days.

Can the owner terminate if the architect defaults? B141-1997 does recognize this possibility and provides that the owner is given a "nonexclusive license . . . to authorize other similarly credentialed design professionals to reproduce, and where permitted by law, to make changes, corrections or additions" to the documents as necessary to complete, use or maintain the project. However, this second license arises only "[i]f and upon the date the Architect is adjudged in default of this Agreement." Thus, when the relationship with the architect goes sour, the owner is faced with a difficult decision to either (1) continue work on the project and risk a copyright infringement claim in the event the courts do not agree that the termination of the architect was proper, or (2) halt construction until a court renders its opinion as to whether the architect was to blame. Neither option is favorable to the owner.

It should be noted that the license granted the owner to reproduce the documents does not extend to use of the documents by the owner for "future additions and alterations" of the building without the architect's prior written consent. While the copyright laws permit the owner to make additions and alterations to a building itself as the embodiment of the design without the copyright owner's consent, this does not extend to the design documents. Thus, should the owner wish to use the original design documents to expand or alter the building in the future, or to build an identical building in another location, the AIA contract would require the architect's consent.

The financial implications of such a contractual limitation are unclear. Should the owner merely wish to provide copies of the documents to another architect or a contractor so that person is aware of the layout of the current building, the architect may not object or may charge a minimal fee. However, the value of the designs will likely be dependent on many factors specific to the work and the bargaining positions of the parties. Given this uncertainty, the owner would be wise to provide for the possibility of such future uses in the contract for the original work, or when possible, to obtain ownership of the design documents.


In summary, both the copyright laws and the AIA Owner-Architect Agreement, B141-1997, provide significant protections to the author of an architectural work Â – usually the architect Â – that could hamper or restrict the owner's activities in constructing a building or in making future changes. Owners would be wise to negotiate alternative language to minimize these risks that provides for the transfer of ownership of the documents and the copyright to the owner, or at least expands upon the license for use provided for in the contract. By taking such precautions, owners can prevent a situation from arising whereby a project is delayed or derailed by design document ownership limitations

5.4 Corruption and Bribery- Anti-corruption Act 1997

5.4.1 Introduction and definition

For a long time and for many people, corruption has been considered as a necessary

evil, a way to do business in many countries. Indeed corruption has been an ingredient of

the social order for centuries.

Corruption in the ancient world is first evidenced by an archive listing the names of

"employees accepting bribes" found in an administrative centre of the ancient Assyrian

empire 3400 years ago.

Corruption or bribery is broadly defined as the abuse of entrusted power for private

gain. It is often used interchangeably with bribery which, according to Black's Law Dictionary,

is "the offering, giving, receiving or soliciting of any item of value to influence the actions of

an official or other person in discharge of a public or legal duty. The other forms of corruption

include embezzlement, fraud, collusion, favouritism and extortion.

Contrary to other crimes, both parties immediately involved in corruption (a public or

private official with some discretionary powers and an individual or enterprise expecting a

favorable decision) profit from it so that none of them has an incentive to report the crime.

On the contrary, both have an interest to make sure that nothing transpires. There is no

specific victim other than the public at large, which remains most of the time ignorant of what

has taken place. This explains why the number of corruption cases which are prosecuted

criminally is only a very small fraction of all cases (fewer than 5%).

In order to understand corruption better, it is appropriate to make a distinction

between petty and grand corruption. Petty corruption is the demand of a relatively small

payment made by a public official in order to issue a permit, ignore a violation of the law,

clear goods through customs or people through immigration, obtain a telephone line, have

access to education or obtain a degree, etc. The impact of this petty corruption should not be

underestimated. The poorest of the poor are excluded entirely or partly by it from many

public services, including e.g. medical care, because they cannot pay the necessary bribe.

Petty corruption is the ugly face of corruption which poisons the daily life of many.

In the 2003 Global Corruption Report of Transparency International, Gopakumar

Krishnan, a programme manager at TI's Secretariat reports (page 157) that according to an

independent survey (Sita Sekhar, Maternity Health Care for the Urban Poor in Bangalore : A

Report Card, Public Affaires Centre, June 2000),

"... in the city of Bangalore, southern India, one in two women receiving care at a

public maternity hospital is forced to pay a bribe in order to have a doctor attend her delivery.


An astonishing 70 per cent have to pay the orderly in order to see their own baby. The

gender of the baby determines how much the bribe will be. If the baby is a boy, the parents

have to pay Rs 300 (US$ 6), if it is a girl, the bribe is considerably less at Rs 200 (US$ 4) ..."

Grand corruption involves large payments, paid to high ranking public officials or

politicians (including Ministers, Heads of Government Agencies or, even, Heads of States)

as lump sum or as commission in order to obtain or retain a specific business, such as a

arms sales, the building of infrastructures, or concession to exploit natural resources.

Contrary to petty corruption, grand corruption remains hidden. More often than not, it is

engineered by middlemen who are experts in channeling payments through off-shore

financial centers and paper companies so as to make it impossible to trace them upstream

to their origin or downstream to their beneficiaries.

In December 2008, the German engineering firm Siemens agreed to pay 1 billion

Euros in fines in Germany and the US to settle allegations that it had used slush funds to

systematically bribe public officials in order to gain business in many countries. The amount

of the bribes allegedly paid exceeded Euro 625 million over the years 2001 to 2006 in a

large number of instances which, in the words or Joseph Persichini, head of the FBI field

office in Washington, D.C. "... were not an anomaly. They were a standard operating

procedure for executives who viewed bribery as a business strategy".

Corruption of the Judiciary takes a middle place between petty and grand corruption.

It is akin to petty corruption in its appearance because it impacts on the daily life of civil

society. However, it often involves amounts which bring it closer to grand corruption.

Corruption of the Judiciary is particularly perverse because it deprives the honest individual

of the only protection it has against the abuse of private or public power. Without the

Judiciary, there is no remedy against violations of human rights or of contractual

engagements.

In the 2007 Global Corruption Report of Transparency International, Jorge

Fernández Menéndez, a radio and print journalist in Mexico, describes (pages 77-79) how

the Mexican justice system reacts to drug trafficking. The question asked in trafficking circles

when it comes to sentencing is "Plata or plomo (meaning 'silver or lead', in other words what

will make a judge comply with a corrupt demand : money or a bullet?). Among several

examples, José Fernández mentions some odd findings by judge Humberto Ortega Zurita

from Oaxaca : "Two men were detained in a car in 1996 with 6 kg of pure cocaine : the judge

absolved them declaring that no one could be sure that the cocaine was theirs. Some time

later, a woman was detained in a bus with 3 kg of cocaine taped to her stomach. The judge

had no doubt : the woman was set free because he considered that 'she did not carry the

drugs consciously' ".

Bribery may also take the form of a secret commission, a profit made by an agent, in

the course of his employment, without the knowledge of his principal. Euphemisms abound

for this (commission, sweetener, back-kick etc.) Bribers and recipients of bribery are likewise

numerous although bribers have one common denominator and that is the financial ability to

bribe.


Bribery around the world is estimated at about $1 trillion (£494bn). The burden of

corruption falls disproportionately on the bottom billion people living in extreme poverty who

cannot afford to pay and who thus receive sub-standard treatment from officials.

5.4.2 Example of Cases

Transparency International‟s Bribe Payer‟s Index 2002 identified the construction sector as the most corrupt worldwide. Estimates of the amount lost globally to corruption in infrastructure procurement lie at US$ 3,200 billion per year. Corruption in construction is facilitated by a variety of factors, such as its complex contractual structure, the high degree of specialization required and multiple project phases. Moreover, the infrequency of large scale projects precludes opportunities for benefiting from economies of scale and imbues bidding with a sense of urgency for companies whose immediate future may largely depend on a single project

Some costs of corruption in the construction sector:

„Monuments of corruption‟ from the Global Corruption Report 2005:

In the Lesotho Lesotho Highlands Water Project US $2 million was allegedly paid in

bribes by Acres International and 11 other international dam-building companies.

During the construction of the Cologne incinerator project in Germany, US $13 million

was allegedly paid in bribes.

According to the head of Paraguay‟s General Accounting Office, US $1.87 billion in

expenditures for the Yacyretá hydropower project on the border of Argentina and

Paraguay „lack the legal and administrative support documentation to justify the

expenditures‟.

The contractor for the Bataan nuclear power plant in the Philippines, built at a cost of more than US $2 billion, admitted paying US $17 million in commissions to a friend of former president Marcos.


Case 1:

Richard Marin Scrushy’s Montgomery criminal trial

On October 26, 2005, four months after Richard Marin Scrushy’s acquittal in Birmingham, Scrushy was indicted by a federal grand jury in Montgomery, Alabama. The indictment included 30 counts of money laundering, extortion, obstruction of justice, racketeering, and bribery of Alabama Governor Don Siegelman. Prosecutors claimed that Scrushy had agreed to pay over $500,000 of Siegelman's debt, which he accumulated during a failed attempt to bring a state lottery to Alabama, in exchange for a seat on the Certificates of Need Review Board. The board serves the state by reviewing hospitals and approving their construction. Although the new charges were filed a month before the previous trial ended, Scrushy's attorney's accused prosecutors of filing charges as retaliation for Scrushy's acquittal. Scrushy and Siegleman pleaded not guilty to all charges, but they were both convicted following a trial that lasted approximately six weeks. Scrushy was convicted of bribery, conspiracy, and mail fraud, while Siegelman was convicted of bribery, conspiracy, mail fraud, and obstruction of justice.

While awaiting sentencing, on March 29, 2007, Scrushy's probation officer filed a report claiming that

Scrushy had violated the conditions of his bond by leaving Walt Disney World in Orlando, Florida and traveling to Palm Beach where he boarded a yacht and sailed to Miami. The probation officer suggested that Scrushy should be placed under house arrest and that he be required to wear an electronic monitoring device at all times. United States Magistrate Judge Charles Coody warned Scrushy that he "would not tolerate any future deviations from the requirements the court has placed on" him and ruled that Scrushy must wear a GPS tracking device anytime he travels outside of Alabama.

On June 28, 2007, Scrushy was sentenced to six years and ten months in a federal prison, ordered to pay $267,000 in restitution to United Way of Alabama, three years probation, and a fine of $150,000. Scrushy is also expected to personally pay for his time in prison and perform 500 hours of community service. Siegelman was sentenced on the same day to seven years and four months in prison, restitution of $181,325 to the state, three years probation, a $50,000 fine, and 500 hours of community service upon his release. U.S. District Judge Mark Fuller would later rule, however, that Sieglman would not be required to pay the $181,325 in restitution. The restitution was based on debts accumulated by the State of Alabama during a fraudulent warehouse deal, but Siegelman was acquitted on charges related to the deal. Upon sentencing, Scrushy and Siegelman were taken into custody and transported to a federal prison in Atlanta, Georgia, where they briefly shared a cell.

Case 2:

Sigma Huda

Sigma Huda is a Bangladeshi lawyer and wife of former government minister and barrister Nazmul Huda. Since 2004, she has served as the United Nations' Special Rapporteur on human trafficking. The Bangladesh press reported on August 28, 2007 that in the first ever bribery case filed by the Anti-Corruption Commission, a court yesterday sentenced Huda to three years imprisonment under the Bangladesh Penal Code for being an accomplice in a crime. It also sentenced her husband, former communications minister Nazmul Huda, to seven years imprisonment for taking bribes from a construction firm in early 2005 in exchange for awarding the construction company five contracts including road renovation (worth approximately US$5 million). Huda's husband was charged under the Prevention of Corruption Act, 1947 for abuse of power and corruption. The court also ordered the amount of the bribe, Taka 2.40 crore (approximately US$400,000) "taken by Nazmul Huda assisted by his wife, to be confiscated by the state." As a result of the conviction, Huda has been prevented from leaving Bangladesh despite apparently enjoying diplomatic privileges as a UN rights expert which prevent her arrest or detention. The UN Special Rapporteur on the independence of the judges and lawyers issued a statement on September 2, 2007 expressing concern that Huda was not given a fair trial. He said it received reports indicating that the right to legal representation and the independence of the court were severely affected during her trial.

http://en.wikipedia.org/wiki/Federal_grand_jury

http://en.wikipedia.org/wiki/Montgomery,_Alabama

http://en.wikipedia.org/wiki/Money_laundering



http://en.wikipedia.org/wiki/Extortion

http://en.wikipedia.org/wiki/Obstruction_of_justice

http://en.wikipedia.org/wiki/Racketeering

http://en.wikipedia.org/wiki/Governor_of_Alabama

http://en.wikipedia.org/wiki/Don_Siegelman

http://en.wikipedia.org/wiki/State_lottery

http://en.wikipedia.org/wiki/Not_guilty

http://en.wikipedia.org/wiki/Walt_Disney_World

http://en.wikipedia.org/wiki/Orlando,_Florida

http://en.wikipedia.org/wiki/Palm_Beach,_Florida

http://en.wikipedia.org/wiki/Miami,_Florida

http://en.wikipedia.org/wiki/Ankle_monitor

http://en.wikipedia.org/wiki/United_States_Magistrate_Judge



http://en.wikipedia.org/wiki/GPS

http://en.wikipedia.org/wiki/United_Way_of_America

http://en.wikipedia.org/wiki/Atlanta,_Georgia

http://en.wikipedia.org/wiki/Prison_cell

http://encyclopedia.thefreedictionary.com/lawyer

http://encyclopedia.thefreedictionary.com/human+trafficking

http://encyclopedia.thefreedictionary.com/Special+Rapporteur


"Defense lawyers felt pressured, they had no opportunity to visit her in prison and could only meet with her at the end of the hearings. They also had difficulties accessing the case files and other relevant information, thus compromising their ability to ensure an adequate defense."

Case 3:

Bataan Nuclear Power Plant

Bataan Nuclear Power Plant is a nuclear power plant, completed but never fueled, on Bataan Peninsula, 100 kilometers (60 miles) north of Manila in the Philippines. It is located on a 3.57 square kilometer government reservation at Napot Point in Morong, Bataan. It was the Philippines' only attempt at building a nuclear power plant. The Philippine nuclear program started in 1958 with the creation of the Philippine Atomic Energy Commission (PAEC) under Republic Act 2067. Under a regime of martial law, Philippine President Ferdinand Marcos in July 1973 announced the decision to build a nuclear power plant. This was in response to the 1973 oil crisis, as the Middle East oil embargo had put a heavy strain on the Philippine economy, and Marcos believed nuclear power to be the solution to meeting the country's energy demands and decreasing dependence on imported oil. Construction on the Bataan Nuclear Power Plant began in 1976 and was completed in 1984 at a cost of $2.3 billion. A Westinghouse light water reactor, it was designed to produce 621 megawatts of electricity. Following the 1979 Three Mile Island accident in the United States, construction on the BNPP was stopped, and a subsequent safety inquiry into the plant revealed over 4,000 defects. It was built near major earthquake fault lines and close to the then dormant Pinatubo volcano. Marcos was overthrown by the 1986 People Power Revolution. Days after the April 1986 Chernobyl disaster, the succeeding administration of President Corazon Aquino decided not to operate the plant. Among other considerations taken were the strong opposition from Bataan residents and Philippine citizens. The government sued Westinghouse for overpricing and bribery but was ultimately rejected by a United States court. Debt repayment on the plant became the country's biggest single obligation, and while successive governments have looked at several proposals to convert the plant into an oil, coal, or gas-fired power station, but all have been deemed less economically attractive in the long term than the construction of new power stations. Despite never having been commissioned, the plant has remained intact, including the nuclear reactor, and has continued to be maintained. The Philippine government completed paying off its obligations on the plant in April 2007, more than 30 years after construction began.

Case 4:

Eugene Hanley

Eugene Hanley (b. April 2, 1926) was a New York City labor leader, as well as an associate of the Genovese crime family. Hanley took over as President of Local 257 of the New York City District Council of Carpenters for his father-in-law, a Genovese mobster named Will Graziano. Hanley and Local Vice-President Attilio Bitondo extorted building contractors operating in Manhattan in conjunction with Local shop steward Carmine Fiore, a Gambino crime family soldier, and other organized crime figures linked to the Gambino, Genovese and Colombo crime families. In 1987, Hanley, Bitondo and other high ranking officials of the N.Y.C. District Council of Carpenters were indicted on 79 counts of labor racketeering, including extortion, bribery, and bid rigging. Gambino associate turned informant Dominick LoFaro wore a wire to gather information on the unions and gangsters, and provided information to the New York State Organized Crime Task Force leading to the "bugging" of the offices of Local 608 at 1650 Broadway and of Local 257 at 157 East 25th Street. Hanley would receive a 4-year prison sentence to lesser charges of bribe giving, and would be banned from future union activities. Hanley earned an early release from prison and received a no-show work release job at Casale Jewelry on Court Street, Brooklyn. Hanley's son William is currently the President of Carpenter's Union Local 157 (which was re-named after the massive racketeering indictment).

http://encyclopedia.thefreedictionary.com/nuclear+power+plant

http://encyclopedia.thefreedictionary.com/Bataan+Peninsula



http://encyclopedia.thefreedictionary.com/Manila

http://encyclopedia.thefreedictionary.com/Philippines

http://encyclopedia.thefreedictionary.com/Morong,+Bataan

http://encyclopedia.thefreedictionary.com/Bataan

http://encyclopedia.thefreedictionary.com/Ferdinand+Marcos

http://encyclopedia.thefreedictionary.com/1973+oil+crisis

http://encyclopedia.thefreedictionary.com/Westinghouse+Electric+Company

http://encyclopedia.thefreedictionary.com/Three+Mile+Island

http://encyclopedia.thefreedictionary.com/United+States

http://encyclopedia.thefreedictionary.com/1986+People+Power+Revolution

http://encyclopedia.thefreedictionary.com/Chernobyl+disaster



http://encyclopedia.thefreedictionary.com/Corazon+Aquino

http://encyclopedia.thefreedictionary.com/Genovese+crime+family

http://encyclopedia.thefreedictionary.com/Attilio+Bitondo

http://encyclopedia.thefreedictionary.com/Gambino+crime+family

http://encyclopedia.thefreedictionary.com/Dominick+LoFaro


6.5 Official Secret Acts 1972

6.5.1 Definitions

Official Secrets define as any document specified in the Schedule and any information and material relating thereto and includes any other official document, information and material as may be classified as 'Top Secret', 'Secret', 'Confidential' or 'Restricted', as the case may be, by a Minister, the Menteri Besar or Chief Minister of a State

6.5.2 In Construction Industry

In the contract, if the clients are government bodies, the items below are classified as secret

during tendering process:

i. Estimated tender price

ii. Allocation funds that is available

iii. Tenderer-tenderer which offer the price( especially who offer the lowest price)

If the professions appointed by clients as consultants, they should keep as secret especially

to the future tenderer. So as the professional who work for contractor.

In these situations, the professionals maybe will commit guilt under section 8, Official secret

Acts 1972.which reveal the secrets which relates to the tender. Those who found guilty will

be imprison not less than 1 year but not exceeding 7 years.

6.6 Others crime offences in construction industry

1. Extortion by a few relevant government officials, gangsters and other rivals

2. The theft on the project properties or personal properties

3. Vandalism from the employees, the neighbours of construction sites, third party such

as gangster.

4. Illegal workers are hire as unskilled workers for site workers

5. Quarrels which causing injuries or death among the workers


6.0 Remedy

6.1 Definitions

The manner in which a right is enforced or satisfied by a court when some harm or injury, recognized by society as a wrongful act, is inflicted upon an individual.

The law of remedies is concerned with the character and extent of relief to which an individual who has brought a legal action is entitled once the appropriate court procedure has been followed, and the individual has established that he or she has a substantive right that has been infringed by the defendant.

Categorized according to their purpose, the four basic types of judicial remedies are (1) damages; (2) restitution; (3) coercive remedies; and (4) declaratory remedies.

1. Damages

The remedy of damages is generally intended to compensate the injured party for any harm he or she has suffered. This kind of damages is ordinarily known as compensatory damages. Money is substituted for that which the plaintiff has lost or suffered. Nominal damages, generally a few cents or one dollar, are awarded to protect a right of a plaintiff even though he or she has suffered no actual harm. The theory underlying the award of punitive damages is different since they are imposed upon the defendant in order to deter or punish him or her, rather than to compensate the plaintiff.

2. Restitution

The remedy of restitution is designed to restore the plaintiff to the position he or she occupied before his or her rights were violated. It is ordinarily measured by the defendant's gains, as opposed to the plaintiff's losses, in order to prevent the defendant from being unjustly enriched by the wrong. The remedy of restitution can result in either a pecuniary recovery or in the recovery of property.

3. Coercive Remedies

Coercive remedies are orders by the court to force the defendant to do, or to refrain from doing, something to the plaintiff. An injunction backed by the contempt power is one kind of coercive remedy. When issuing this type of remedy, the court commands the defendant to act, or to refrain from acting, in a certain way. In the event that the defendant willfully disobeys, he or she might be jailed, fined, or otherwise punished for contempt. A decree for specific performance commands the defendant to perform his or her part of a contract after a breach thereof has been established. It is issued only in cases where the subject matter of a contract is unique.

4. Declaratory Remedies

Declaratory remedies are sought when a plaintiff wishes to be made aware of what the law is, what it means, or whether or not it is constitutional, so that he or she will be able to take appropriate action. The main purpose of this kind of remedy is to determine an individual's rights in a particular situation.

http://www.answers.com/topic/compensatory-damages-1

http://www.answers.com/topic/nominal-damages-2

http://www.answers.com/topic/injunction

http://www.answers.com/topic/contempt

http://www.answers.com/topic/specific-performance


6.2 Nature of Remedies

6.2.1 Equitable

In law, equitable remedies are the remedies developed and granted by the old courts of equity, such as the Court of Chancery in England, and still available today in common law jurisdictions. Equity is said to operate on the conscience of the defendant, so an equitable remedy is always directed at a particular person, and his knowledge, state of mind and motives may be relevant to whether a remedy should be granted or not.

Equitable remedies are distinguished from "legal" remedies (which are available to a successful claimant as of right) by the discretion of the court to grant them. In common law jurisdictions, there are a variety of equitable remedies, but the principal remedies are:

1. injunction 2. specific performance 3. Account of profits 4. rescission 5. declaratory relief 6. rectification 7. estoppels 8. certain proprietary remedies, such as constructive trusts or tracing 9. subrogation 10. in very specific circumstances, an equitable lien

1. Injunction

An injunction is an equitable remedy in the form of a court order, whereby a party is required

to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction

faces civil or criminal penalties and may have to pay damages or accept sanctions for failing

to follow the court's order. In some cases, breaches of injunctions are considered serious

criminal offences that merit arrest and possible prison sentences.

2. Specific Performance

In the law of Remedy, an order of specific performance is an order of the court which

requires a party to perform a specific act, usually what is stated in a contract. While specific

performance can be in the form of any type of forced action, it is usually used to complete a

previously established transaction, thus being the most effective remedy in protecting the

expectation interest of the innocent party to a contract. It is usually the opposite of a

prohibitory injunction but there are mandatory injunctions which have a similar effect to

specific performance.

3. Account of Profits

An account of profits (sometimes referred to as an accounting for profits or simply an

accounting) is a type of equitable remedy most commonly used in cases of breach of

fiduciary duty. It is an action taken against a defendant to recover the profits taken as a

result of the breach of duty, in order to prevent unjust enrichment.

http://en.wikipedia.org/wiki/Equity_%28law%29

http://en.wikipedia.org/wiki/Court_of_Chancery

http://en.wikipedia.org/wiki/Common_law


http://en.wikipedia.org/wiki/Injunction

http://en.wikipedia.org/wiki/Specific_performance

http://en.wikipedia.org/wiki/Account_of_profits

http://en.wikipedia.org/wiki/Rescission

http://en.wikipedia.org/wiki/Declaratory_relief

http://en.wikipedia.org/wiki/Rectification_%28law%29

http://en.wikipedia.org/wiki/Estoppel

http://en.wikipedia.org/wiki/Constructive_trusts

http://en.wikipedia.org/wiki/Tracing_%28law%29

http://en.wikipedia.org/wiki/Subrogation

http://en.wikipedia.org/wiki/Security_interest#Equitable_Lien

http://en.wikipedia.org/wiki/Equitable_remedy

http://en.wikipedia.org/wiki/Court_order

http://en.wikipedia.org/wiki/Judicial_remedy



http://en.wikipedia.org/wiki/Fiduciary

http://en.wikipedia.org/wiki/Defendant

http://en.wikipedia.org/wiki/Profit_%28accounting%29

http://en.wikipedia.org/wiki/Unjust_enrichment


4. Rescission and Rectification

Rescission and rectification are remedies in relation to contracts (or, exceptionally, deeds) which may become available.

5.Constructive Trusts and Tracing

Constructive trusts and tracing remedies are usually used where the claimant asserts that property has been wrongly appropriated from them, and then either (i) the property has increased in value, and thus they should have an interest in the increase in value which occurred at their expense, or (ii) the property has been transferred by the wrongdoer to an innocent third party, and the original owner should be able to claim a right to the property as against the innocent third party.

6.Equitable Liens

Equitable liens normally only arise in very specific factual circumstances, such as unpaid vendor's lien.

6.2.2 Legal

A legal remedy (also judicial relief) is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will. In Commonwealth common law jurisdictions and related jurisdictions (e.g. the United States), the law of remedies distinguishes between a legal remedy (e.g. a specific amount of monetary damages) and an equitable remedy (e.g. injunctive relief or specific performance). Another type of remedy is declaratory relief, where a court determines the rights of the parties to an action without awarding damages or ordering equitable relief.

Examples of legal remedies

Damages, which may include: o Compensatory damages o Punitive damages o Incidental damages o Liquidated damages o Nominal damages o

Coercive relief o Specific performance o Injunctions o Restitution o Account of profits

Compensatory damages, also called actual damages, are paid to compensate the claimant for loss, injury, or harm suffered by (see requirement of causation) another's breach of duty.

Punitive damages (termed exemplary damages in the United Kingdom) are damages not

awarded to compensate the plaintiff, but to reform or deter the defendant and similar

persons from pursuing a course of action such as that which damaged the plaintiff.

http://en.wikipedia.org/wiki/Contract

http://en.wikipedia.org/wiki/Deed

http://en.wikipedia.org/wiki/Court_of_law

http://en.wikipedia.org/wiki/Civil_law_%28common_law%29

http://en.wikipedia.org/wiki/Right

http://en.wikipedia.org/wiki/Sentence_%28law%29


http://en.wikipedia.org/wiki/Commonwealth_of_Nations


http://en.wikipedia.org/wiki/United_States

http://en.wikipedia.org/wiki/Damages


http://en.wikipedia.org/wiki/Injunctive_relief


http://en.wikipedia.org/wiki/Declaratory_relief

http://en.wikipedia.org/wiki/Lawsuit


http://en.wikipedia.org/wiki/Compensatory_damages

http://en.wikipedia.org/wiki/Punitive_damages

http://en.wikipedia.org/wiki/Incidental_damages

http://en.wikipedia.org/wiki/Liquidated_damages

http://en.wikipedia.org/wiki/Nominal_damages



http://en.wikipedia.org/wiki/Restitution

http://en.wikipedia.org/wiki/Account_of_profits

http://en.wikipedia.org/wiki/Causation_in_English_law

http://en.wikipedia.org/wiki/United_Kingdom


http://en.wikipedia.org/wiki/Plaintiff



Incidental Damages are a type of legal damages, (money claimed by, ordered to be paid to,

a person as compensation for loss or injury), that are reasonably associated with or related

to actual damages.

Liquidated damages (also referred to as liquidated and ascertained damages) are

damages whose amount the parties designate during the formation of a contract for the

injured party to collect as compensation upon a specific breach (e.g., late performance).

Nominal damages are very small damages awarded to show that the loss or harm suffered

was technical rather than actual. Many times a party that has been wronged but is not able

to prove significant damages will sue for nominal damages. This is particularly common in

cases involving alleged violations of constitutional rights, such as freedom of speech.

6.2.3 Provisional Remedies

A provisional remedy is one that is adapted to meet a specific emergency. It is the temporary process available to the plaintiff in a civil action that protects him or her against loss, irreparable injury, or dissipation of the property while the action is pending. Some types of provisional remedies are injunction, receivership, arrest, attachment, and garnishment.

6.3 Crimes and Torts in Construction Industry

Among all types of the remedies in the law of torts, the most relevant remedies involved in

construction industry are damages and injunctions.

5.3.1 Damages

In law, damages are a type of legal remedy and refer to the money paid or awarded to a

person (either natural or legal) following a successful claim by that person in a civil action.

5.3.1Damages

In law, damages are a type of legal remedy and refer to the money paid or awarded to a

person (either natural or legal) following a successful claim by that person in a civil action.

Compensatory Damages

Compensatory damages, also called actual damages, are paid to compensate the claimant for loss, injury, or harm suffered by (see requirement of causation) another's breach of duty.

Consequential Damages

Consequential damages, otherwise known as special damages, are one kind of two types of damages, the other being direct damages, that may be awarded to plaintiff in a civil action who claims that terms of an agreement were not honored.

When a contract is breached, the recognized remedy for an owner is recovery of damages that result directly from the breach, such as the cost to repair or complete the work in accordance with the contract documents, the loss of value of lost or damaged work. Consequential damages (also sometimes referred to as indirect or “special” damages), include loss of product and loss of profit or revenue and may be recovered if it is determined such damages were reasonably foreseeable or "within the contemplation of the parties" at

http://en.wikipedia.org/wiki/Legal_damages

http://en.wikipedia.org/wiki/Contracts

http://www.answers.com/topic/process

http://www.answers.com/topic/civil-action

http://www.answers.com/topic/receivership

http://www.answers.com/topic/attachment

http://en.wikipedia.org/wiki/Law


http://en.wikipedia.org/wiki/Person

http://en.wikipedia.org/wiki/Natural_person

http://en.wikipedia.org/wiki/Legal_person


http://en.wikipedia.org/wiki/Law


http://en.wikipedia.org/wiki/Person

http://en.wikipedia.org/wiki/Natural_person

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the time of the contract. This is a factual determination that could lead to the contractor's liability for an enormous loss. For example, the cost to complete unfinished work on time may pale in comparison to the loss of operating revenue an owner might claim as a result of late completion.

Statutory Damages

Statutory damages are laid down in law. Mere violation of the law can entitle the victim to a statutory award.

For example, the possible remedies for misrepresentation in the United Kingdom are codified in the Misrepresentations Act.

Nominal Damages

On the other hand, nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual. Perhaps the most famous nominal damages award in modern times has been the $1 verdict against the National Football League (NFL) in the 1986 antitrust suit prosecuted by the United States Football League. Although the verdict was automatically trebled pursuant to antitrust law in the United States, the resulting $3 judgment was regarded as a victory for the NFL. Historically, one of the best known nominal damage awards was the farthing that the jury awarded to James Whistler in his libel suit against John Ruskin. In the English jurisdiction, nominal damages are generally fixed at £2.

Many times a party that has been wronged but is not able to prove significant damages will sue for nominal damages. This is particularly common in cases involving alleged violations of constitutional rights, such as freedom of speech.

Punitive Damages (Non-Compensatory)

Main article: Punitive damages

Generally, punitive damages, which are also termed exemplary damages in the United Kingdom, are not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff. Punitive damages are awarded only in special cases where conduct was egregiously invidious and are over and above the amount of compensatory damages. Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution.

Restitutionary Or Disgorgement Damages

In certain areas of the law another head of damages has long been available, whereby the defendant is made to give up the profits made through the civil wrong in restitution. The plaintiff thereby gains damages which are not measured by reference to any loss sustained. In some areas of the law this heading of damages is uncontroversial; most particularly intellectual property rights and breach of fiduciary relationship.

In England and Wales the House of Lords case of Attorney-General v. Blake opened up the possibility of restitutionary damages for breach of contract. In this case the profits made by a defecting spy, George Blake, for the publication of his book, were awarded to the British

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Government for breach of contract. The case has been followed in English courts, but the situations in which restitutionary damages will be available remain unclear.

The basis for restitutionary damages is much debated, but is usually seen as based on denying a wrongdoer any profit from his wrongdoing. The really difficult question, and one which is currently unanswered, relates to what wrongs should allow this remedy.

Liquidated Damages

Liquidated damages (also referred to as liquidated and ascertained damages) are damages

whose amount the parties designate during the formation of a contract for the injured party to

collect as compensation upon a specific breach (e.g., late performance).

Incidental Damages

Incidental Damages are a type of legal damages, (money claimed by, ordered to be paid to,

a person as compensation for loss or injury), that are reasonably associated with or related

to actual damages.

Reliance Damages

Reliance damage is the measure of compensation given to a person who suffered an

economic harm for acting in reliance on a party who failed to fulfill their obligation.

Treble Damages

Treble damages is a term that indicates that a statute permits a court to triple the amount of

the actual/compensatory damages to be awarded to a prevailing plaintiff, generally in order

to punish the losing party for willful conduct. Treble damages are a multiple of, and not an

addition to, actual damages. The ability to award treble damages is a typical feature in

legislation that recognizes the potentially willful nature of the prohibited acts.

5.3.2 Injunction

An injunction is an equitable remedy in the form of a court order, whereby a party is required

to do, or to refrain from doing, certain acts. The party that fails to adhere to the injunction

faces civil or criminal penalties and may have to pay damages or accept sanctions for failing

to follow the court's order. In some cases, breaches of injunctions are considered serious

criminal offences that merit arrest and possible prison sentences.

Basis of Injunctions

At the core of injunctive relief is a recognition that monetary damages cannot solve all problems. An injunction may be permanent or it may be temporary. A preliminary injunction, or an interlocutory injunction, is a provisional remedy granted to restrain activity on a temporary basis until the court can make a final decision after trial. It is usually necessary to prove the high likelihood of success upon the merits of one's case and a likelihood of irreparable harm in the absence of a preliminary injunction before such an injunction may be granted; otherwise the party may have to wait for trial to obtain a permanent injunction.

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Temporary Restraints

In the United States, a temporary restraining order (TRO) may be issued for short term. A temporary restraining order usually lasts while a motion for preliminary injunction is being decided, and the court decides whether to drop the order or to issue a preliminary injunction.

A temporary restraining order may be granted ex parte, that is, without informing in advance the party to whom the temporary restraining order is directed. Usually, a party moves ex parte to prevent an adversary from having notice of one's intentions. The order is granted to prevent the adversary from acting to frustrate the purpose of the action, for example, by wasting or hiding assets (as often occurs in dissolution of marriage) or disclosing a trade secret that had been the subject of a non-disclosure agreement.

Apprehended Violence Order

Sometimes, a court grants an apprehended violence order (AVO) to a person who fears violence or harassment from their harasser. A court can issue an apprehended violence order if it believes, on the balance of probabilities, that a person has reasonable grounds to fear personal violence, harassing conduct, molestation, intimidation, or stalking. If a defendant knowingly contravenes a prohibition or restriction specified in the order, he or she can be subject to a fine, imprisonment, or both.

Many states have injunction laws that are written specifically to stop domestic violence, stalking, sexual assault or harassment and these are commonly called restraining orders, orders of protection, abuse prevention orders, or protective orders.

Rationale behind Injunctions

This injunctive power to restore the status quo ante; that is, to make whole again someone whose rights have been violated, is essential to the concept of fairness (equity). For example, money damages would be of scant benefit to a land owner who wished simply to prevent someone from repeatedly trespassing on his land. Injunctions in U.S. labor law context

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http://en.wikipedia.org/wiki/Protective_order

http://en.wikipedia.org/wiki/Status_quo_ante

http://en.wikipedia.org/wiki/Trespass


6.4 Example of Cases Happened In Construction Industry

Liquidated Damages

Case 1

Boston Harbor Clean Up Project

The Boston Harbor Project is a billion dollar plus construction effort to construct wastewater treatment facilities

that will ultimately clean up the Boston Harbor. This project is Court ordered and must meet certain Court

established deadlines for completion. Like any large project, the Boston Harbor Project has numerous

construction contractors simultaneously working on the same site. In order to coordinate and complete this

complex project on time, each contractor must meet milestone and completion dates set in their respective

contracts. The MWRA has liquidated the damages associated with missing these dates.

The MWRA, through its construction manager ICF Kaiser Engineers, established liquidated damage provisions in

the various Boston Harbor Project construction contracts through straight forward proportioning calculations.

These proportioning calculations involved assigning the engineer's estimate of cost to each construction contract,

and then determining the percentage that each contract represented against the entire Boston Harbor Project

cost estimate. This percentage would then be applied against what the MWRA estimated would be its "extended

cost" during the life of the entire project. These extended costs included the costs of construction management,

design services, in-house project management costs, utilities, power, water and the wide variety of support

contractors on the site during the construction period. Hence each contract was assigned its proportionate share

of MWRA's extended costs based solely on each contract's cost estimate.

Case 2

Central Artery/Third Harbor Tunnel Project

The Central Artery/Third Harbor Tunnel Project is the largest project in New England. Like the Boston Harbor

Project, the Central Artery Project will have numerous contractors working within interdependent schedules.

Similarly, the Central Artery Project has an extensive and expensive management and support services burden

for the project construction.

Unlike the Boston Harbor Project, however, the Central Artery Project determined liquidated damages on a case

by case basis. The Mass Highway Department examined the scope of each individual contract, determines

where that contract fits in the procurement and scheduling of the entire project and estimates specifically how

much support services such as resident engineers, office engineers, field inspectors, and secretaries would be

needed if the project were to go beyond its contract completion dates. The MHD also considers costs associated

with permits, fees, licenses, right-of-way, and pest control and most importantly evaluates the impact late

completion of milestone or final project completion dates would have on other contractors.

The MHD considers the probability that the delay in one contract would have on an interfacing contract. This

impact is then classified as of no consequence, relating to non critical activities or causing a critical impact to

other contractors. In the event there is an impact on other contractors, the MHD then estimates the anticipated

cost that a delayed contractor may assert based on historical data of "general conditions" costs.


The MHD then discounts impact cost based on the probability of impact as measured by available float time

between the projects. Finally, the MHD considers project postponement and financing costs by application of

cost escalation factors.

Although one may disagree with the various rates, probability factors and historical data on which the MHD relies,

the systematic analysis of impacts on a contract by contract basis is rational, considers scheduling logic and

requires the exercise of engineering judgment.

Case 3

DBKL gets tough on errant contractors

Thursday August 20, 2009

By BAVANI M

CONTRACTORS beware! If you are involved in a Kuala Lumpur City Hall (DBKL) project make sure that there you are able to complete the project on time.

Failure to do so will result in contractors having to pay heavy fines, and penalties and probably even being blacklisted from future DBKL projects.

Kuala Lumpur mayor Datuk Ahmad Fuad Ismail said he was imposing a blanket rule on all contractors saying that he would no longer tolerate delays.

―There will be no more extensions. You had better make sure you complete the project in time or face the consequences. We mean business,’’ Fuad warned.

The mayor also said contractors who failed to complete the project on time would be charged liquidated ascertained damages (LAD) for late delivery and any Variation Order (VO) involving an increase in project cost would not be allowed.

Fuad spoke to reporters after making a visit to two project sites in Cheras yesterday. The first was a project to build an elevated junction along Jalan Cheras heading to Taman Len Seng and the other is the upgrade of the Jalan Cheras/Jalan Loke Yew roundabout.

Fuad also insisted that during the defect-liability period, contractors must ensure that maintenance work is carried out at the project site.

―Their responsibility does not just end after they have completed and handed over the project.

―Contractors must make sure that trees are replanted and the grass are maintained at the site.

During the first site visit, the mayor ticked off MTD Construction Sdn Bhd for not maintaining the cleanliness at the project site.

The project, costing some RM80mil, involves the building of a bridge, several underpasses, road-widening and completing a half completed pedestrian bridge. It is expected to be completed by October.

The mayor said any delay in completion would result in the contractors having to pay a whopping RM22,000 a day for late delivery.


DBKL would also not hesitate to retain the 5% bank guarantee, to be used for the benefit of the city and residents.

According to Fuad, there are eight on-going DBKL projects to build and upgrade the road network systems in the Cheras constituency alone.

―Most are 100% complete and once ready, it will help to easy traffic congestion in the area,’’ he said.

Consequential Damages

Case 1

Perini Corporation v. Greate Bay Hotel & Casino

Consequential or indirect damages are commonly thought of as losses or injuries that do not flow directly and

immediately from the act of the party, but only from some of the consequences or results of such act.

The most common and perhaps most costly example of consequential damages in a construction dispute are

lost profits.

The ramifications of being held liable for lost profits were best illustrated in Perini Corporation v. Greate Bay

Hotel & Casino. Perini served as the construction manager for major renovations to the Sands, an Atlantic City

hotel and casino. Perini's fee was $600,000 and its contract with the Sands contained no consequential damages

waiver. The project involved the construction of a large ornamental glass faç ade outside the casino, facing the

boardwalk. Although the faç ade would be nonfunctional, the Sands anticipated that this glitzy display would lure

customers away from the boardwalk and into the Sands. The contract called for the work to be substantially

complete by May 31, 1984. However, the faç ade was not completed until August 31, 1984, and the entire project

did not achieve substantial completion until September 14, 1984, approximately four months late.

In an arbitration, the Sands sought from Perini the lost profits it incurred as a result of the delay. Even though the

project was only delayed by about four months, the arbitration panel awarded Sands over $14.5 million in

damages, 24 times the contract fee. This amount represented the Sands' lost profits from the end of May until it

terminated Perini in December. Ultimately, the New Jersey Supreme Court affirmed the arbitrators' shocking and

substantial award.

Perini could have avoided such a harsh result by including a mutual waiver of consequential damages in its

contract with the Sands. Contractual waivers of consequential damages have become widespread throughout

the construction industry. Indeed, since 1997, the American Institute of Architects has included a mutual waiver

of consequential damages in its standard General Conditions for Construction.


Injunctions

Case 1

Mandatory injunctions: Amec v Universal Steels

09:00 04 May 2009

An injunction is granted at the discretion of the court to enforce a legal or equitable right. An

injunction may take various forms and usually requires someone to stop doing or to do a

specified act. An example of a prohibitory injunction would be one requiring a respondent to

stop tipping rubbish on the applicant's property. A mandatory injunction is one that requires

the respondent to take steps to reverse the effects of some wrongful act or to cease an

omission that causes the applicant damage.

The case of Amec Group Limited -v- Universal Steels (Scotland) Limited concerns an application by Amec for an

interim mandatory injunction requiring Universal Steels (USSL) to provide essential QA documentation in respect

of four jetty restraint piles and pile caps that it had contracted to fabricate and deliver for installation at a new

berthing facility at the Naval Dockyard in Clyde.

Due to problems with USSL's manufacturing sub-contractor in China between August 2007 and August 2008, the

delivery of the piles had been delayed and there were further problems encountered in finding an appropriate

shipping company. A dispute arose over whether a binding agreement was reached at a meeting on 29 August

2008 resolving the question of payments and an alleged waiver by Amec of its claim for damages against USSL.

As a result of a subsequent dispute over payment, USSL elected to retain the QA documentation it was required

to provide in accordance with its contract.

Case 2

Pedestrian bridge dismantled to make way for Subang-Kelana link

Thursday February 19, 2009

By LIM CHIA YING

THE pedestrian bridge standing in the way of the massive RM315mil Subang-Kelana link project in Jalan Kewajipan Subang Jaya has been dismantled to make way for it.

A court on Feb 6 this year had thrown out an injunction filed by the bridge’s concessionaire that had forced works on the link to subsequently to be stopped since February last year.

The case was taken to court after the bridge became a subject of contention between the Subang Jaya Municipal Council (MPSJ) and the bridge’s concessionaire.

The dispute arose when both parties could not come to a settlement on the relocation of the bridge.

The link’s main contractor Ahmad Zaki Resources Berhad (AZRB) then intervened in the injunction to get it lifted so that the company could resume the 5% of remaining works near the 3K Complex where the bridge stands.


Bakri Ishak, the executive director of Ahmad Zaki Sdn Bhd (AZSB), the construction arm of the group, was quoted as saying then that the company hoped the bridge issue could be resolved at the Feb 6 hearing, after several other fruitless previous hearings.

―Once this injunction is lifted, we can concentrate on completing the remaining works for the benefit of the general public and road users. The delay in project delivery, resulting from this injunction, has affected our company’s credibility even though the cause was beyond our control,‖ Bakri had said.

Many motorists who drive along the stretch had also complained of congestion and inconvenience due to the bridge.

Works on the link, a project of the Works Ministry, began in January 2005 despite objections from residents during the development stage in 2004.

The authorities and politicians had hailed the project as a solution to the daily traffic chaos in Subang Jaya, but the residents were not convinced, claiming that the link would only bring in more traffic woes into an already congested USJ. The outcome is now left to be seen.

AZRB, when contacted, said it had obtained a consent order from the courts whereby the bridge concessionaire had agreed to the demolition the pedestrian bridge structure and two billboards.

Works have since restarted on Feb 14, following a written notice being served to the bridge concessionaire.

―Our launching of box girders will resume from early March onwards once all the demolition works are cleared and the gantry cranes are serviced and in good condition. The expected completion of the link is by the end of July this year,‖ Bakri said in an email.

The original scheduled completion date was initially fixed for December last year.

Case 3

Dispute over pedestrian bridge

Thursday January 8, 2009

By LIM CHIA YING

THE fate of a pedestrian bridge alleged to be obstructing the construction works of the Subang-Kelana link in

Jalan Kewajipan Subang Jaya will be known when the case comes up for hearing at the court next month.

The case was filed for mention after the bridge became a subject of contention between the Subang Jaya

Municipal Council (MPSJ) and the bridge’s concessionaire.

It is learnt that both the MPSJ and the concessionaire had not come to a settlement on relocating part of the

bridge, thus resulting in a delay on the works of the link for the past few months.

According to Subang Jaya assemblyman Hannah Yeoh, she had a meeting to discuss the matter with the link’s

main contractor Ahmad Zaki Resources Berhad (AZRB), the Public Works Department (PWD) and the MPSJ on

Dec 18 last year.


It was acknowledged during the meeting that there was an unforeseen delay in the project’s completion, after it

was first scheduled to finish last month, then by the middle of this year and, now, without a deadline due to the

court hearing.

―Residents have also voiced out that they want this contentious issue to be resolved quickly as it is causing

inconvenience to them when they drive along Persiaran Kewajipan,‖ Yeoh said.

Yeoh said this when briefing the press during a site visit on Tuesday. She was accompanied by councillors

Theresa Ratnam Thong of MPSJ Zone 1 and Ken Chia of Zone 2.

AZRB executive director Bakri Ishak, when contacted, said the project delay was caused by the court

injunction filed by the bridge concessionaire, forcing work to come to a halt since February last year.

―The progress status of the project is already 95% complete with just the remaining works left near the 3K

Complex where the bridge stands,‖ he said.

―We hope the bridge issue could be resolved at the next hearing so that once this injunction is lifted, we can

concentrate on completing the remaining works for the benefit of the general public and road users,‖ he said.

Bakri said that on its part, AZRB had since intervened with the injunction for a release so that works could

resume.

―The court mention has now been postponed to Feb 6. We hope the problem can be resolved by then as it has

affected our company’s credibility even though the cause was beyond our control,‖ he said.

The link is a federal government project built at an initial quoted cost of RM315mil. Work started in January 2005

despite objections from some residents in 2004 during the development stage.

On another matter, both the councillors are also requesting for a dedicated lane for motorists at the Millennium

Park near the Kewajipan roundabout for motorists turning into Persiaran Kewajipan from Bandar Sunway.

―With this extra lane, it will help to ease traffic a little so that vehicles can turn left without having to queue up at

the roundabout. I have already submitted a request letter on this to the MPSJ,‖ Theresa said.

Yeoh said she supported the request, but the PWD needed time to study matters pertaining to land acquisition

and underground cables.

Meanwhile, it is learnt that whatever remaining structures at the controversial Millennium Park will be demolished

and the land now remains as an open space.

The park, built at the turn of the millennium, had courted disdain among residents when RM3mil was spent at a

location that was considered unsuitable. Poor maintainence of the park had also led to it being called a white

elephant.


7.0 Limitation of actions (Statute of Limitation/Statute-barred)

7.1 Definitions

In Malaysia, the principal statute of limitation is the Limitation Act 1953, which was first enacted as the Limitation Ordinance 1953 (F.M. Ordinance No. 4 of 1953) on 9 February 1953 and is based on the English Limitation Act 1939 which has since been replaced in Britain by the Limitation Act 1980. Section 4 of the Act cautions that nothing therein shall operate as a bar to any action or proceeding unless expressly pleaded.

7.2 Limitation Periods

Limitation period in law, that is, there is a definite time frame for one to commence legal action, and to wait beyond such a frame would render the cause defeated for being time barred, or more accurately, statute barred. The reason why the term statute barred is more accurate is because usually such periods are never proscribed in common law but imposed by statute, because the state considers it good that there should be a definite end to litigation after a while, tho the doctrine of larches under equity could have played a contributory role as well.

The Act proscribes different periods of limitations depending on different types of causes of action that arise. For actions relating to torts and contracts generally the period is six years from when the cause accrued, imposed by section 6. The effect could be potentially unjust, as can be gleamed from the case of Loh Wau Lian v SEA Housing Corp Sdn Bhd [1984] 2 MLJ 280. In that case, a house was delivered late, namely, delivered on 7 November 1977 instead of 18 September 1975 as promised. The plaintiff claimed the agreed liquidated damages of 8% per annum for late delivery and filed his or her action on 9 September 1982. The defendant contended that the action should be considered time barred. The apex court agreed with the defendant.

Where there has been a fraud or concealment. however, the Limitation Act 1953 provides for an exception. Section 29 of the Act states that where an action is based upon the fraud of the defendant or his agent or where any fact relevant to the plaintiff‟s cause of action was delibrately concealed or where such an action is based on mistake, the time of six years does not run until the discovery of the fraud, concealment or mistake by the plaintiff. The effect of this section is plainly seen in the case of Lim Yoke Kong v Sivapiran s/o Sabapathy [1992] 2 MLJ 571 where the defendant‟s insurers took great pains to conceal themselves from the knowledge of the plaintiff and thus the latter‟s claim was not held statute barred as a result. Limitation periods also do not run where a plaintiff is under disability until the expiry of such a disability under section 24 of the Act.

It should be noted that generally courts do not have power to enlarge the limitation period when asked (See Lee Lee Cheng v Seow Peng Kwang [1960] 26 MLJ 1) but there are circumstances where the limitation period itself is renewable, such as in the instance where debt is acknowledged or part payment is made in respect thereof under section 26 of the Act. Section 27 further qualifies this however, by stating that such acknowledgment must be in writing. The claimant is required to specifically plead this acknowledgment or else it would be struck out as held in the case of Mat bin Lim & Anor v Ho Yat Kam & Anor [1967] 1 MLJ 13.


Section 9 of the Act states that where an action is made in respect of land and the recovery thereof, the period of limitation would be 12 years. However this does not apply in delays for an action of specific performance, for example, because the owner would already have equitable title in the land. In Chee Hock Lai v Tan Swee Thai & Ors [1990] 2 MLJ 477 the plaintiff purchased land from an administrator of an estate and entered into possession more than 40 years before the filing of the action by the plaintiff. The plaintiff was never given title to the land despite several requests. Hence, the court opined that the delay was justified and ordered specific performance. In Ungku Sulaiman Bin Abd Majid & Anor v Director of Lands and Mines, State of Johor & Anor it was held that where property was wrongly acquired, time remained at large and the law of limitation would be inapplicable.

Section 20 of the Act bars action in respect of recovery of rent arrears after the expiry of six years on which they become due.

Although the Limitation Act 1953 is the principal statute of limitations within Malaysia, it is indeed not the only statute of limitation in force. Section 3 of the Act provides that the Act is inapplicable where the Government is involved and indeed the Government protects itself by virtue of section 2 of the Public Authorities Protection Act 1948 which reads;

Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced within the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect.

„ the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty six months next after the ceasing thereof…‟

This provision was tested in the case of Lee Hock Ning v Government of Malaysia [1972] 2 MLJ 12 where the Government failed to make good some payments in respect of some building contracts. The Government contended that such contracts were made pursuant to a public duty and the plaintiff‟s claim was statute barred with reference to section 2 of the Public Authorities Protection Act 1948. The court opined that non payment of monies owed was not in pursuance of a public duty and accordingly allowed the claim.

7.3 Limitation Acts 1953 (Adapted from http://www.hbp.usm.my/aziz/)

7.3.1 Sections of laws

Section 3 3. Saving for other limitation enactments. This Act shall not apply to any action or arbitration for which a period of limitation is prescribed by any other written law or to any action or arbitration to which the Government of any State is a party and for which if it were between subjects a period of limitation would have been prescribed by any other written law. Section 4 4. Limitation not to operate as a bar unless specially pleaded. Nothing in this Act shall operate as a bar to an action unless this Act has been expressly pleaded as a defence thereto in any case where under any written law relating to civil procedure for the time being in force such a defence is required to be so pleaded.


Section 6 6. Limitation of actions of contract and tort and certain other actions. (1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say - (a) actions founded on a contract or on tort; (b) actions to enforce a recognisance; (c) actions to enforce an award; (d) actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture. In short, an action founded on simple contract or tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. Section 9 9. Limitation of actions to recover land. (1) No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person. Section 20 20. Limitation of actions to recover rent. No action shall be brought, or distress made, to recover arrears of rent, or damages in respect thereof, after the expiration of six years from the date on which the arrears became due. Section 30 30. Application of Act and other limitation enactments to arbitrations. (1) This Act and any other written law relating to the limitation of actions shall apply to arbitrations as they apply to actions. Section 33 33. Application to the Government. (1) Save as in this Act otherwise provided and without prejudice to the provisions of section 3 of this Act, this Act shall apply to proceedings by or against the Government in like manner as it applies to proceedings between subjects and for the purpose of this Act a proceeding by petition of right shall be deemed to be commenced on the date on which the petition is presented :


Provided that this Act shall not apply to any proceedings by the Government for the recovery of any tax, duty or interest thereon or to any forfeiture proceeding under any written law in force in Malaysia relating to customs duties or excise or to any proceedings in respect of the forfeiture of a ship. (2) For the purpose of this section proceedings by or against any Government Department or any officer of any Government as such or any person acting on behalf of the Government shall be deemed to be proceedings by or against the Government. (3) In this section the expression ―the Government‖ shall be deemed to include the Government of any State. 7.3.2 When Time Begun To Run? Tan Swee Lan v. Engku Nik Binti Engku Muda & ors [1973] 2 M.L.J. 106 Section 9(1) Limitation Act 1953 P claimed for specific performance of a sale & purchase agreement. The agreement made on 12.4.1958 and P wrote to D claiming performance of the agreement on 2.3.1970. On 16.31970 d replied that they were not taking steps to effect the transfer. The writ of action issued on 16.4.1970. Held; The period of limitation ran from the date the D threatened to infringe the P‟s right (that they refuse to effect the transfer). Therefore the defence of limitation failed. Cheah Kim Tong & anor v. Taro Kaur [1989] 3 M.L.J. 252 Section 9(2)(b) Limitation Act 1953 P was the registered owner of a piece of land brought an action (in September 1980) against D alledged the D’s house was encroaching on their land. D’s house was built in 1968 and P had became the registered owner in July 1980. D raised the issue of limitation under section 9(1) of Limitation Act 1953. Held: By virtue of section 9(2)(b) of Limitation Act and section 341 of National Land Code 1965 (adverse possession of land shall not constitute a bar for any length of time to the bringing of action by the proprietor), the defence of limitation failed. Vadha Ratnam v. See Ah Tee [1994] ! M.L.J. 634 Section 6 Limitation Act 1953 Sales and purchase of land P purchased 2 pieces of land from D by 2 agreements signed on 15.10.1975. On 23.12. 1987 P filed a writ of summons applying for a declaration and order to complete the transfer. D applied under Order 18 Rule 19(1)(b) & (d) of the high Court Rules 1980 to strike out P’s claim. Held: The action brought was based on contract and therefore section 6 of Limitation Act 1953 applicable and P‟s action was time-barred, as it was brought outside the six-year time limitation.


Mak Koon Yang & anor. V. Municipal Councillors, Malacca [1967] 1 M.L.J. 256 Time would therefore begin to run for the purpose of the Public Authorities Protection Act 1948, from the time when the act was caused, not from the time when the injury or damage caused, or in the case of a continuing injury or damage, when the act causing the injury or damage ceased. Mutiah v. Nateson [1973] 2 M.L.J. 182 Section 6 Limitation Act 1953 Cause of action accrued on 17.6.1963. Summons and statement of claim was presented at the Sessions Court on 16.6.1969 with payment of fees & etc. But the summons was signed by the Registrar on 17.6.1969. Held: P‟s cliam was not statute-barred. 7.3.3 Extension Of Time Banca Popolare di Novara v. John Livands & Sons Limited (1973)117 S.J. 509 If a plaintiff is in genuine difficulties in meeting the time limit, and cannot obtain an extension from the defendant, he may apply to the court for an extension of time, and the court has power to extend the period within which a plaintiff is required to do any act in any proceedings (Order 3 Rule 5(1) Rules of Supreme Court (UK) See Section 24 Limitation Act 1953 & Order 3 Rule 5, Rules of High Court 1980 and Order 3 Rule 5, Subordinates Court Rules 1980.


8.0 References :

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Work." University of Baltimore Law Review 31 (spring). 6. Dodson, Robert D. 2002. "Rethinking Private Nuisance Law: Recognizing Esthetic Nuisances in the New

Millennium." South Carolina Environmental Law Journal 10 (summer). 7. Fischel, William A. 1985. The Economics of Zoning Laws: A Property Rights Approach to American Land Use

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RMK 254 Tort & Criminal

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