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Teeque
18-02-2006, 05:16 PM
In the NST today, a landmark decision frm the Federal Court on the Highland Towers tragedy absolving the local council from blame. No wonder the little emperors in the councils do not give us, their customers, two hoots. Without a need for accountability, what is stopping them to 'do whatever they want'?

http://www.nst.com.my/Current_News/nst/Saturday/Frontpage/20060218075157/Article/index_html

http://www.nst.com.my/Current_News/nst/Saturday/Frontpage/20060218074730/Article/index_html


‘Councils shielded from lawsuits’


Feb 18:
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THE majority of the Federal Court says local councils are shielded from lawsuits for certain damages because their main priority should be providing services to the public.

Providing these services "has priority over compensation for pure economic loss of some individuals who are clearly better off than the majority residents in the local area", said judge Datuk Abdul Hamid Mohamad.

The economic loss here arose from the loss of apartments in Blocks Two and Three of Highland Towers, which had not been damaged by the collapse of Block One.

The two buildings began listing later, and were condemned, because the hillslope there had not been stabilised.

Abdul Hamid held, with Datuk Ariffin Zakaria concurring, that public policy and circumstances were taken into account in deciding MPAJ should be shielded from liability.

Even if a council had the means to pay, it would deplete the resources it had to spend on services and basic infrastructure.

Moreover, it was not "fair, just and reasonable" for taxpayers’ money to be used to pay for such damages.

"I do not think that in the present circumstances, on the facts of this case, it is fair, just and reasonable to impose such a burden on local councils in this country in similar situations," he said.

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Chronology of Events leading to verdict

* 1975-1978
Highland Properties Sdn Bhd develops Highland Towers in front of a steep slope which it also owns, in Taman Hillview, Hulu Selangor.

* 1991
Developer transfers ownership of the hillslope to AmFinance Bhd due to unpaid loans. A water course, the East Stream, flows on it.

* Dec 11, 1993
A landslide occurs, causing Block One of Highland to collapse. Forty-eight people die, and more than a thousand people are made homeless.

* Dec 15 1993
The Highland Towers Owners and Residents Committee is set up, headed by Dr Benjamin George, to represent those affected.

* 1994 - 1996
Lawsuits filed against AmFinance, MPAJ and others by 139 parties.

* Aug 11, 2000
The High Court finds AmFinance 30 per cent liable, MPAJ 15 per cent liable, and the rest shared among five other defendants. AmFinance appeals.

* Dec 3, 2002
The Court of Appeal dismisses the appeal and ordered that damages be assessed.

* June 1, 2004
AmFinance settles out-of-court for RM52 million, requiring owners and residents to sign over their titles and the right to sue the developer. The settlement does not include MPAJ’s apportioned liability.

* June 23, 2004
MPAJ appeals to the Federal Court, 73 plaintiffs cross-appeal.

* Feb 17, 2006
The Federal Court rules MPAJ is not liable under the Street, Drainage and Building Act 1974.


Our ADUN Subang Jaya had this to say in the hardcopy version of the newspaper:

'Residents should be able to file a case against the council. They should be able to get a recourse. It is very unfair for the residents if the decision is absolute. It is important to amend such Acts, as councils do not have elections within the council.' - Datuk Lee Hwa Beng, MPSJ Councillor

Teeque
18-02-2006, 05:30 PM
Report frm The Star:

http://www.thestar.com.my/news/story.asp?file=/2006/2/18/nation/13435157&sec=nation

Feb 18 2006

Federal Court: MPAJ has full immunity from claims

By RAPHAEL WONG

PUTRAJAYA: Local councils cannot be held liable for losses suffered by anyone should a building collapse, the Federal Court has ruled.

The court said this when it held that the Ampang Jaya Municipal Council (MPAJ) was not liable for losses suffered by 73 residents of two blocks of the Highland Towers condominium who had to evacuate after the collapse of Block One 13 years ago, killing 48 people.


Justice Abdul Hamid: Projects will stall. The local council may go bust’
The three-member panel presided by Chief Judge of Sabah and Sarawak Justice Steve Shim Lip Kiong and Federal Court judges Datuk Abdul Hamid Mohamed and Datuk Arifin Zakaria ruled that the MPAJ was not liable in the pre-collapse period as well as post-collapse period of Block One.

They said local authorities such as the MPAJ were given full immunity under Section 95 (2) of the Street, Drainage & Building Act 1974 (Act 133) from claims for the pre-collapse period.

The court was unanimous in allowing the MPAJ’s appeal to set aside the Court of Appeal’s decision holding the MPAJ 15% responsible for the pre-collapse period.

As for the post-collapse liability, it dismissed with a 2-1 majority the cross-appeal by the 73 residents of Block Two and Three against the Court of Appeal’s ruling that the MPAJ was not liable for losses suffered during the post-collapse period. Justice Shim gave a dissenting judgment.

Justice Abdul Hamid Mohamad said that if the local councils were made liable, it would open the floodgates to further claims for economic loss, and this would deplete the council’s resources meant for the provision of basic services and infrastructure.

“Projects will stall. The local council may go bust. Even if it does not, is it fair, just and reasonable that taxpayers’ money be utilised to pay the ‘debts’ of such people?

“In my view, the answer is no,” he said.

In overturning the trial judge’s decision to allow the post-collapse claims, Justice Abdul Hamid said vandalism followed every disaster, natural or otherwise, in undeveloped, developing or developed countries.

http://www.thestar.com.my/archives/2006/2/18/nation/n_p8highlandtowe.jpg
TERRIBLE DISASTER: The two collapsed blocks of the Highland Towers condominium is shown in this file photograph taken on Dec 11, 1993.

“Recent events showed that even the most-powerful military and the best-equipped police force in the richest and most-developed country in the world were unable to prevent it,” he said.

“In my view, the provision of basic necessities for the general public has priority over compensation for pure economic loss of some individuals, who are clearly better off than the majority of the residents in the local council area,” he said.

He said a local council has an endless list of duties to perform for its residents and relied mainly on assessment rates and fees for licences.

Justice Arifin concurred with Justice Abdul Hamid’s findings.

In his dissenting judgment on the post-collapse liability, Justice Shim said the MPAJ could not seek shelter in Section 95(2) of the Street, Drainage and Building Act because this was a case of negligence in failing to formulate and implement the master drainage plan so as to ensure the stability and safety of the adjacent Blocks Two and Three.

He said there was an assumption of responsibility by the MPAJ to do what it had promised.

“I do not think it would be in the public interest that a local authority such as the MPAJ should be allowed to disclaim liability for negligence committed beyond the expansive shelter of Section 95(2) or other relevant provisions of the Act nor would it be fair, just and reasonable to deprive the respondents of their rightful claims under the law,” he said.

In 2000, High Court Judge James Foong ruled for the 73, and apportioned liability as follows: Arab-Malaysian 30%, Metrolux and MBf Property Services together 20%, Highland Properties 15%, MPAJ 15%, draughtsman Wong Ting San 10% and engineer Wong Yuen Kean 10%.

Related stories:
Ex-residents saddened (http://thestar.com.my/news/story.asp?file=/2006/2/18/nation/13438073&sec=nation)

pcyeoh
18-02-2006, 05:43 PM
Justice Abdul Hamid Mohamad said that if the local councils were made liable, it would open the floodgates to further claims for economic loss, and this would deplete the council’s resources meant for the provision of basic services and infrastructure.

“Projects will stall. The local council may go bust. Even if it does not, is it fair, just and reasonable that taxpayers’ money be utilised to pay the ‘debts’ of such people?

“In my view, the answer is no,” he said.
How can a party who is given full authority to decide on the approval of a project is shielded from bearing full responsibility for its action? And to give the reason it would deplete the council's resources is a very poor excuse. Haven't they heard of liability insurance. The local authority just have to buy liability insurance to protect themselves should anything goes wrong. If not, they are behaving in the most irresponsible manner. Simply approving all kinds of project whether safe or not and if it collapses and kills hundreds, don't care. We are not liable. Something is wrong here. Where is Justice Gopal Sri Ram? We need you here.

Teeque
18-02-2006, 05:56 PM
And the Sun's report:

http://www.sun2surf.com/article.cfm?id=13042

Feb 18

MPAJ not liable for Highland Towers tragedy
R.Surenthira Kumar

PUTRAJAYA: Seventy-three Highland Towers residents on Feb 17, 2006, lost their suit against the Ampang Jaya Municipal Council (MPAJ) for liability.

The Federal Court, in a 2-1 decision, dismissed the residents' cross appeal and allowed MPAJ's appeal against the Court of Appeal's ruling which upheld a High Court finding that MPAJ was 15% liable to the residents for negligence and nuisance.

Justices Abdul Hamid Mohamad and Arifin Zakaria allowed MPAJ's appeal but dismissed the residents' cross-appeal while Justice Steve L.K.Shim allowed MPAJ's appeal and the residents' cross-appeal for post-collapse liability.

The residents' cross appeal revolved around the Court of Appeal's decision that their cause of action against MPAJ for alleged post-collapse liability lay in the area of public law and not private law.

Shim, who is also the Chief Judge for Sabah and Sarawak said the arising questions postulated over:

* whether damages sustained or allegations of negligence are attributed to a particular defendant or when the negligent acts point to several defendants but it was not the main or actual cause which imposes them to be responsible;

* whether Section 95(2) of the Street, Drainage & Building Act, 1974 (Act 133) is wide enough to provide immunity to a local authority in approving the diversion of a stream and in failing to detect any damage or defect in the building and drainage plans relating to the development submitted to the local authority by the architect and/or engineer on behalf of the developer;

* whether pure economic loss is recoverable under the country's jurisprudence with reference to negligence and nuisance;

* in a case involving different acts of negligence by multiple defendants committed at different times, whether those defendants are joint offenders; and

* whether the Court of Appeal erred in provising a distinction between private and public law when finding that MPAJ was not responsible to the 73 respondents for the local authority's acts and omissions as determined by the High Court following the collapse of Block 1 of Highland Towers.

"The residents waited in vain for this promise or assurance to materialise. It never came," he said, referring to MPAJ's promise or assurance to the residents that after the collapse of Block 1, a master drainage plan for the affected area on the hill slope behind Highland Towers would be formulated and implemented so as to ensure the stability and safety of adjacent Blocks 2 and 3 occupied by the respondents.

"I do not think it would be in the public interest that a local authority such as MPAJ should be allowed to disclaim liability for neligence committed beyond the expansive shelter of Section 95(2) or other relevant provisions of Act 133 nor would it be fair, just and reasonable to deprive the respondents their rightful claims under the law".

Abdul Hamid said he agreed with Shim on the other issues and shall only deal with the issue of "post-collapse" liability of MPAJ.

He said the courts have to consider the effects of Section Three of the Civil Law Act 1956 and, considering the "public policy" and "local circumstances", whether it is fair, just and reasonable to allow it based on the facts and circumstances of the case.

"Recent event shows that even the most powerful military and the best equipped police force in the richest and most developed country in the world were also unable to prevent it (vandalism and theft).

"Even we ourselves cannot ensure that our own houses will not be broken into. I do not think it is fair, just and reasonable to hold MPAJ liable for it."

Arifin in his judgement said he too agreed with Shim on all the issues but on the "post collapse" liability, he agreed with Abdul Hamid's views.

The judgement was read out by the Federal Court deputy registrar Kamarudin Kamsun.

Counsels V.S. Viswanathan appeared for MPAJ while Rajendra Navaratnam and Yatiswara Ramachandran represented the residents.

One of the respondents Dr Benjamin George said: "We are surprised and saddened but accept the final verdict. We will have to decide on our three remaining appeals."


Highland Towers fact file:

Highland Towers comprised three blocks of 12-storey apartments, known as Block 1, 2 and 3, located on a steep slope in Hulu Kelang;

Built between 1975 and 1978;

Block 1 collapsed on Dec 11, 1993, killing 48 people;

Residents of the two other blocks were evacuated;

Suit filed by residents against MPAJ and various other parties for negligence and nuisance;

High Court finds MPAJ 15% liable for negligence but under Section 95(2) of the Street, Drainage & Building Act, 1974 (Act 133) indemnified MPAJ of any pre-collapse liability but provided no protection to the local authority for post-collapse liability;

Both parties appealed to the Court of Appeal which allowed MPAJ's appeal on post-collapse liability while the cross-appeal by the residents was also allowed against the High Court decision on the indemnity issue; and

Appeal at Federal Court yesterday.

Teeque
18-02-2006, 06:18 PM
Something is very wrong with the laws here.

The High Court has found the council (MPAJ) liable to the residents for negligence in the collapse. But just because there are no laws pertaining to claims frm local councils post tragedy, MPAJ is let off the hook. So who is to be accountable for the negligence then??? :confused:

It contradicts with the PJ residents' claims frm MPPJ on the Taman Desa apartment issue. They did claim frm the council didnt they?

Its like - I smashed into your car and killed your wife and kids. I am guilty of negligence in driving under the influence of alcohol. But I dont hv to pay for it by going to jail, or compensating you for the loss because the law didnt say so. What the h*ll is wrong man??? :mad: :confused:

pcyeoh
18-02-2006, 06:34 PM
Don't worry Teeque. I am very sure our NGO legal eagle Derek Fernandez has something to say about this. Afterall in the Taman Desa case, he was the one who nailed all those MPPJ officials who were found dipping their hands in the files and adultrating all the records. As he has speculated, in order to prepare themselves to compensate the plaintiff, the assessment rates for MPPJ this year is taking a hike and Derek is asking them to go fly kite.

joker2107
18-02-2006, 07:01 PM
Something is very wrong with the laws here.

The High Court has found the council (MPAJ) liable to the residents for negligence in the collapse. But just because there are no laws pertaining to claims frm local councils post tragedy, MPAJ is let off the hook. So who is to be accountable for the negligence then??? :confused:

b4 more blunders n unfair comments r posted, pls note that mpaj was saved by s95(2) of act133. for d uninitiated, d clause is reproduced here :

"The State Authority, local authority and any public officer or officer or employee of the local authority shall not be subject to any action, claim, liabilities or demand whatsoever arising out of any building or other works carried out in accordance with the provisions of this Act or any by-laws made thereunder or by reason of the fact that such building works or the plans thereof are subject to inspection and approval by the State Authority, local Authority, or such public officer or officer or employee of the State Authority of the local authority and nothing in this Act or any by-laws made thereunder shall make it obligatory for the State Authority or the local authority to inspect any building, building works or materials or the site of any proposed building to ascertain that the provisions of this Act and any by-laws thereunder are complied with or that plans, certificates and notices submitted to him are accurate."

prima facie n without d benefit of d full text of d judgement, d verdict does seem justified. so far we dont know 4 sure if d "special capacity" of sri ram is similarly employed in this judgement. none d less, i too find grounds 2 offer a dissenting voice agst d reasons for d judgement as published by d print media.

i m drafting a more "politically correctly worded" analysis of d statements published. that will find its way into this forum 4 sure. in d mean time, perhaps there will b some more learned counsel n enterprising forumers who cud provide an unemotional commentary on d proviso of this s95(2) which actually offers immunity only in so far as obligations r under this same act vis-a-vis d plethora of other legislations which are similarly "specific acts".

also, wud there b anyone who dare 2 challenge d constitutionality of d immunity accorded in s95(2)? even our royalty does not hv such blistering freedom.

a nite 4 d reds, teeque ...

USJ27Resident
18-02-2006, 11:44 PM
Abdul Hamid held, with Datuk Ariffin Zakaria concurring, that public policy and circumstances were taken into account in deciding MPAJ should be shielded from liability.

"I do not think that in the present circumstances, on the facts of this case, it is fair, just and reasonable to impose such a burden on local councils in this country in similar situations," he said.

I WAS THERE with the MRCS/SAR team, for 10 days... I remember talking to Tan Sri Musa Hitam, keeping vigil for his missing son and DiL. I saw Dr George sitting on the side of the road -stunned and crying! I saw Brandon parents standing in the rain...

What a load of BULLsh!t :mad: .... I wonder (LOUDLY!) what these learned men would say or conclude if their family members were buried in that almighty pile of rubble.

God help us all if liabilities are shafted under legal technicalities! :mad:

Teeque
19-02-2006, 02:30 AM
...a nite 4 d reds, teeque ...

Sweet revenge and blood spilling heroics of one Crouch-ing giraffe...

Erm...back to topic. Spawn forth all you legal eagles and spit your piece here abt this one - Immunity frm legal recourse of 'the little emperors'!

Teeque
20-02-2006, 03:04 AM
[B]What a load of BULLsh!t :mad: .... I wonder (LOUDLY!) what these learned men would say or conclude if their family members were buried in that almighty pile of rubble.

God help us all if liabilities are shafted under legal technicalities! :mad:

I think our nation is crumbling under all those archaic laws and prehistoric servants of Justice! :mad:

joker2107
20-02-2006, 11:31 PM
here is some of my tots re what d judgement holds 4 d future. s said, it is based solely on what has been attributed by d media s stmts of d judgement.

basis for verdict
there was a time when judges used reason that no matter how much their emotions tend 2 move them towards a decision, they have 2 rule otherwise as they r bound by d meaning of d written law as they translate it. ministers n mps may swear that they intended differently but d judge wud just respond, thank u very much but go rewrite d law 2 say exactly what u intend.

times hv changed, n law being d living discipline that it is, must evolve n try to keep pace with d times. not only hv judges been giving gd advice 2 d ags office on improving d written law, i believe this is not d only judgement where a decision is made in tandem with consideration 4 d consequences of d judgement. "projects will stall. d local council may go bust..."

effect of s95(2) of act 133
tis law is but a licence to be negligent. it clearly provides 4 no obligation of duty. it is contradictory 2 fiduciary duty imposed by other specific legislation. i do not know if d hearing made ref 2 any other written law, n i do not hv d other construction / development laws on hand. i wud not b surprised if somewhere there is a requirement 4 accountability which contradicts s(95)2.

effect of judgement
quote :
if the local councils were made liable, it would open the floodgates to further claims for economic loss, and this would deplete the council’s resources meant for the provision of basic services and infrastructure.
unquote

quote :
“the provision of basic necessities for the general public has priority over compensation for pure economic loss of some individuals, who are clearly better off than the majority of the residents in the local council area,” he said.
unquote

if these grounds 4 d judgement r applied again, it cud effectively accord immunity 2 all custodians of public funds. that d govt is absolved from paying damages bcos damages r surely "compensation" for losses, "economic" or otherwise, is a 4gone conclusion. d legally correct inference will than b that if d govt doesnt pay compensation 2 individual plaintiffs, they just might hv sufficient financial resources 2 bring clean piped water n electricity 2 remote areas.

what then about human rights
shud any ruling be made agst d marginalised communities? how can a judgement be made agst a bankrupt who has already gone bust? in liquidation matters wud it then be fair priortise d economically n socially deprived over secured creditors? can it b argued that since "some individuals, who are clearly better off than the majority of the residents in the local council area", d converse that all individuals who r clearly extremely in need shud not b made 2 compensate d rich (bankrupts paying banks) wud hold true? or that since employees r entitled 2 fair wages d deprivation of which is grossly cruel n cud destroy livelihoods n families then they must hv 1st priority n full immediate compensation in liquidation cases (where will d chain end, i cant imagine).

adding salt to injury
quote:
"... some individuals, who are clearly better off than the majority of the residents ...,"
unquote

this stmt is bound 2 raise goosebumps of victims. there were victims who ended up in debt. there r victims who lost their loved ones (some even lost their entire families). it cannot b denied that all d victims had 2 endure extreme hardship 2 regain a footing on life. some had 2 find a new meaning 2 life, a new purpose 4 staying alive. financial compensation 4 actual losses suffered is scant justice 4 d gravity of their non-compensable losses. in d face of such tragedy, who can these victims b better off other than, perhaps, victims of d tsunami?

is it a fact proven in d course of d hearing that some of d claimants r economically n socially better off? if i had been counsel 4 d claimants, i wud hv had vehemently objected 2 d mention of financial capacity of d claimants n demanded it be expunged. in d absence of such evidence, any reference 2 d financial competency of d claimants wud b vexatious heresay. again i qualify myself, this observation is based solely on stmts published in d media.

rich or poor, everybody has a constitutionally-guaranteed right 2 seek legal redress 4 a wrong done unto them. y then were bness tycoons awarded RM10-20 mil in defamation litigation agst obviously "lesser-financially endowed" defendants?

immunity
nobody is above the law. thats constitutional. even d royalty does not enjoy absolute freedom. wud a law that gives unquestionable freehand 2 d local authorities be constitutional? cud there be a judicial review on a question of law?

quote :
" is it fair, just and reasonable that taxpayers’ money be utilised to pay the ‘debts’ of such people? "
unquote

if docs, lawyers, engineers, architects, bankers (by virtue of bafia) n other professionals r bound by personal-to-holder liability, when will d time come when it is right 2 sue d pants off those abuse their position or neglect their obligation 2 d very people who pay them?

whither d clarion call transparency, for accountability, for personal-to-holder liability?

tempuadua
22-02-2006, 01:33 AM
The judges were very transparent in making their decision. They give the grounds and reasoning for making such decision and clearly in making such decision, they have put more emphasis on public interest than individual interest. If the court's decision is bad, then it is up to parliament to pass new laws to put things right. In this case, don't critisize the court, but put pressure to your MP to bring this matter up in Parliament, so that Parliament can introduce new laws for judges to follow should similar case appears in the future.