Electrical cables & wires: uncertified and substandard items are dangerous!


Structural defects to blame, stop history repeating itself !


Sniffing out signs of life: The K-9 unit of the City Fire and Rescue operations looking for possible victims at the site of the bridge collapse near Kampung Haji Abdullah Hukum in Kuala Lumpur.

KUALA LUMPUR: Structural failure possibly caused the collapse of an under-construction pedestrian bridge at KL Eco City near Kampung Haji Abdullah Hukum here.

Department of Occupational Safety and Health (DOSH) director-general Datuk Mohtar Musri said the initial investigation suggested that a defective structure could have led to the disaster on Wednesday.

He said the department would refer to the Construction Industry Development Board (CIDB) and Kuala Lumpur City Hall regarding the quality of materials used in the construction of the bridge.

Works Minister Datuk Seri Fadillah Yusof said a task force has been set up to probe the incident.

He said the result of the investigation was expected to be made public in a month, and that tough action could be taken against the developer if it was found to have flouted safety regulations.

“We can bring them to court, not just under DOSH but CIDB too. Under the CIDB Malaysia Act 1994, they can face a RM500,000 fine or a two-year jail sentence,” he said.

The RM7mil pedestrian bridge linking the planned KL Eco City project to the Gardens Shopping Mall in Mid Valley, which was still under construction, collapsed and killed one worker and injured five others on Wednesday.

The search-and-rescue operation at the site of the incident was halted after it was confirmed that there was no worker trapped underneath the mangled brick-and-iron structure.

City Fire and Rescue Department deputy operations chief Ruhisha Haris said K-9 teams had confirmed that there were no signs of a body.

However, the mystery of the missing construction worker remains.

“We first received information that a worker might have been trapped because a colleague saw him under the bridge minutes before it collapsed.

“A head count by the developer also revealed a missing worker, but they were unable to give us a name,” he said.

The dead victim has been identified as Tran Xuan Vang, 21, from Vietnam. Two other Vietnamese, Tran Van Hai and Luong Van Guyet, as well as Indonesian Nor Syamsi, Bangladeshi MD Jashim and Pakistan national Rais Aman Majid were injured and are currently being treated at Universiti Malaya Medical Centre.

Medical staff were forced to amputate Rais’ left leg on site to save his life.

In a statement issued on the day of the incident, SP Setia, the developer of the project, said it deeply regretted the incident and was working with the authorities in the investigation.

“The project team is still assessing the situation,” it said.

Work on the KL Eco City project – a mixed development comprising three residential towers, one serviced apartments tower, three corporate office towers, 12 boutique office blocks and one retail podium – started in 2011 and is scheduled to be fully completed by 2023.

Commenting on the incident, National Institute of Occupational Safety and Health chairman Tan Sri Lee Lam Thye said the time had come for players in the construction industry to practise their commitment to safety.

“All these accidents are preventable if the person in charge puts into practice good occupational and safety health measures and the site safety supervisor makes sure work is done properly,” he said.

By M. kumar and Nicholas Cheng The Star/Asian News Network

Stop history repeating itself

THE Consumers’ Association of Penang (CAP) is horrified with the news of the collapse of the incomplete pedestrian bridge meant to connect KL Eco City and Mid Valley Megamall in Bangsar, Kuala Lumpur.

Not even a month after a couple was crushed by a piling rig that fell on them at a construction site along Persiaran Astana, Klang, another tragic incident leading to serious injury and death has occurred.

If all the parties involved in the building industry – including the local councils, developers, contractors, architects, quantity surveyors, structural engineers, DOSH and all the others – had carried out their roles and functions efficiently, this could have been prevented.

Despite our repeated calls for the Government to conduct a full inquiry into the operations of the Department of Safety and Health (DOSH), it would seem like the relevant authorities are unable to comprehend the gravity of the situation.

When incidents like this happen, it becomes clear to us that DOSH and developers do not have their priorities right.

Instead of working on preventing such incidents, they wait until it happens before scrambling to take corrective measures to fix the problem.

The issue here is that there are no corrective measures that can be taken once a life is lost; that is not something that can be recovered.

Universiti Sains Malaysia’s (USM) Professor Datuk Dr Mahyuddin Ramli has been reported saying that incidents of this nature can happen when contractors do not comply with safety standards.

In this case, he said that concrete takes at least a week to dry and harden; the wet weather we have been experiencing means it will take even longer.

The USM professor also said that another way something like this can happen is if contractors do not use proper scaffolding during the construction process.

The distance between scaffolds and the size of the scaffolds used are very important as they will vary according to the structure they are meant to hold up.

DOSH’s director-general, Datuk Mohtar Musri, has stated that their initial investigation suggested that the incident happened because the structure was defective.

He said that they need to look into the quality of the materials that were used to construct the pedestrian bridge.

Whatever the cause, the relevant authorities and the public need to be aware that this is just history repeating itself.

If the incident did truly happen because of a structural defect, then it needs to be made clear that nobody can plead ignorance.

DOSH safety officers and onsite safety inspectors should have known about the structural defects if they did exist.

This begs the question of whether or not proper safety inspections were done at the appropriate stages by the relevant parties.

We ask that the results of the investigation into the latest incident be shared with the general public.

CAP would also like to know what happened to the findings from the investigation of previous incidents.

Why has this information not been shared with the public when their lives are also put in danger by the conduct of those at construction sites?

In view of this, CAP calls for penal action to be taken against all parties who have been involved in the project. They should all be held accountable even if they were not directly involved.

By S. M. MOHAMED IDRIS President Consumers Association of Penang

[PDF]The Law of Construction Defects and Failures

 Worker killed in bridge collapse tragedy

https://www.youtube-nocookie.com/embed/3QFRF_5oRAY

The Star Graphics:  http://clips.thestar.com.my.s3.amazonaws.com/Interactive/midvalley/midvalley.mp4

KUALA LUMPUR: A Vietnamese construction worker was killed and five others were injured when a 70m yet-to-be-completed bridge near Jalan Kampung Haji Abdullah Hukum and Mid Valley Megamall collapsed.

The victim was buried in the rubble of the collapsed pedestrian bridge.

As of press time, rescue workers were still searching for a Bangladeshi worker believed to be trapped in the rubble.

The authorities have since mobilised the K9 unit to locate him.

The firemen and paramedics were seen changing shift as the rescue mission continued into the night. Some were heard saying that locating the victim would be challenging.

However, all the rescuers were resolute in their attempt to find the last victim, never once giving up hope.

The five injured workers – two Vietnamese, two Bangladeshis and an Indonesian – were sent to the Universiti Malaya Medical Centre for treatment.

Brickfields OCPD Asst Comm Sharul Othman Mansor said the bridge was 80% completed when the incident occurred.

“We are still investigating the incident.

“We were alerted at about 4pm of the incident and quickly mobilised a search-and-rescue team,” he said at the scene.

Four roads were also affected by massive jams due to the incident.

According to Star Media Radio Traffic, the affected roads were the Federal Highway from the arch, the Kerinchi Link after the Pantai toll plaza, Kerinchi Intersection from Bangsar South or Pantai Medical Centre and Jalan Syed Putra from the Kuen Cheng School till the Robson Intersection.

While the main reason for the traffic congestion was due to certain road closures to make way for rescue workers, traffic was backed up near the mall due to many motorists slowing down to see the collapsed bridge.

Mall patrons, construction workers and curious onlookers were seen crowding the area near the bridge, where it was cordoned off for safety precautions.

By Farik Zolkepli, Jastin Ahmad Tarmizi, and Austin Camoens The Star/ANN

Related:  

 Developer to investigate

‘The ground shook and the bridge came crashing down’

Pedestrian bridge collapse: Long road to recovery for injured victims

Bridge collapse: SAR operations stopped, one worker still missing 

Govt may handle workplace safety

Fadillah: Independent monitoring likely

KUALA LUMPUR: The Government would like to take over the job of monitoring safety at construction sites away from developers following a string of deaths as a result of mishaps in the last three months.

Those duties, said Works Minister Datuk Seri Fadillah Yusof, may be entrusted to third party organisations that will be given autonomy in the planning, execution and supervision of workplace safety at construction sites.

Usually, these jobs are handled by contractors hired by the project developers but Fadillah said that this would mean the monitoring process was not independent.

Speaking at the launch of the Sustainable Construction Excellence Centre (Mampan), the minister said the suggestion for independent monitoring was brought up by the experts at the centre.

Mampan is headed by the Construction Research Institute of Malaysia (Cream), a subsidiary of the Government’s Construction Industry Development Board (CIDB).

Fadillah said the proposal to appoint third party safety monitors would be implemented first in Government construction projects.

He added that he hoped the private sector construction industry would do the same.

Currently, the Department of Occupational and Safety Hazard (DOSH) monitors government projects but it is reportedly too understaffed to keep track of every project.

For now we will have to make do with existing laws. This is why we need a commitment from the industry players,” he told reporters after the launch.

For now we will have to make do with existing laws. This is why we need a commitment from the industry players. Datuk Seri Fadillah Yusof

He said that Mampan would be a key organisation under the Government’s environmental sustainability initiative for its Construction Industry Transformation Programme.

The centre will undertake research with Universiti Teknologi Malaysia, Universiti Kebangsaan Malaysia, Universiti Sains Malaysia and the Rehda Institute to instil better industry practices, certification and awareness in the construction industry.

“We don’t want to build bridges that have no resilience and collapse when there is a flood.

“Our short-term goal is to position Malaysia as a regional leader in sustainability in construction and to raise the perception of sustainability in construction here,” he said.

Fadillah witnessed the signing of a Memorandum of Understanding between Cream chairman Tan Sri Dr Ahmad Tajuddin Ali and academics from the four universities and research institutes which will be a part of the new centre.

By NICHOLAS CHENG The Star/ANN

Related:

Rehda: Not feasible to have third party monitor construction sites now …

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Building structural integrity & failure: problems, inspections, damages, defects, testing, diagnosis, repair 

 

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Malaysian Consumer Protection (Amendment) Act 2010 deals with unfair contract terms


Contracts

Remember our series of articles on unfair contract terms? Well, it now seems that the Malaysian Parliament is set to finally come up with a law addressing the issue in the upcoming Consumer Protection (Amendment) Bill 2010.

Preferring the approach of amending an existing statute to enacting a wholly new one, the Bill inserts a new Part into the existing Consumer Protection Act 1999, namely Part IIIA intituled Unfair Contract Terms. This Part contains new sections 24A to 24J all intended to address the issue of when businesses seek, via standard form contracts, to impose on consumers terms excluding or limiting their liability when they arise, as well as other terms thought generally considered unfair. Section 1(3) provides that the Part applies to contracts entered into after the coming into force of the Bill.

Section 24A deals with general interpretation in connection with the Part. The definition of a contract in section 2 of the Contracts Act 1950 is retained and a “standard form contract” is defined as a consumer contract that has been drawn up for general use in a particular industry, whether or not the contract differs from other contracts normally used in that industry. An “unfair term” is defined as a term in a consumer contract which, having regard to all the circumstances, causes a significant imbalance in the rights and obligations of the parties arising under the contract to the detriment of the consumer. Section 24B states that notwithstanding the Contracts Act 1950, the Specific Relief Act 1950 and the Sale of Goods Act 1957 as well as other provisions of the law for the time being in force, the Part shall apply to “all contracts”. This presumably addresses implied terms regarding sale of goods in the Sale of Goods Act 1957, specifically sections 14 to 16 of that Act regarding transfer of title and issues of merchantability and fitness for the purpose for which goods are bought. The section fails to mention the Hire Purchase Act 1967, of which section 7 also deals with implied terms in hire purchase agreements. Also should the Part really extend so broadly so as to include all contracts? Presumably if such is the case, a contract or contract term proscribed by law, such as those in the Schedules to the Housing Development (Control and Licensing) Regulations 1989, or financial or securities contracts, or contracts or bills of consignment or lading, be included as well?

Section 24C and 24D are probably the most important sections in the new Part. The Malaysian Parliament has preferred to split the question of unfair terms into two, dealing with terms that are procedurally unfair (section 24C) and substantially unfair (Section 24D). Section 24C(1) proscribes that a contract term is procedurally unfair when

i. It results in an unjust advantage to the supplier (ie. the business relying on the term in question) and/or;

ii. It results in an unjust disadvantage to the consumer;

iii. On account of the conduct of the supplier; or

iv. On account of the manner or circumstances that the contract is entered into between the supplier and the consumer.

Section 24D(1) holds that a contract term is substantially unfair when;

i. it is in itself harsh;

ii. it is oppressive;

iii. it is unconscionable;

iv. it excludes or restricts liability for negligence;

v. it exludes or restricts liability for breach of express or implied terms of the contract “without adaquate justification”.

The approach of splitting the dealing with such terms into procedurally unfair and substantially unfair is rather unique and this author knows not of any other jurisdiction within the Commonwealth that has chosen this approach. It is also, in this author’s view, rather needless and unneccessary. A substantially unfair contract term is neccessarily procedurally unfair as well. The two are not mutually exclusive. There is also the troubling question of what would about to inadaquate justification for breach of express or implied terms of a contract. When is the justification adaquate and when is it not? Presumably this follows the approach of determining if whether the exclusion of such terms are fair and reasonable or not, but for this to work the statute itself must give an account of what “adaquate justification” amounts to rather then just simply leave the matter for the courts. Such an approach would be in tandem with those used in other jurisdictions, such as the United Kingdom in their Law Commission’s proposed Unfair Contract Terms Bill 2005, specifically clase 14(1) which provides a test on how contract terms are deemed not fair and reasonable. It is also noted that Malaysia has decided that exclusion or limitation of liability for negligence is to be disallowed outright rather than having it hang on whether such an exclusion or limitation is fair and reasonable or as the Bill puts it “without adaquate justification”.

Sections 24C(2) and 24D(2) at least partially follow the approach of Clause 14 of the UK Bill  (specifcally Clause 14(4) )when they list the considerations to be had when determining when a contract term is procedurally or substantially unfair. The considerations are mostly the same between the soon to be Part IIIA of the Consumer Protection Act 1999 of Malaysia, and Clause 14(4) of the Unfair Contract Terms Bill 2005 of the United Kingdom, and again the latter does not contain needless distinction between what is substantively and what is procedurally unfair. The new section also fails to provide an example of a list of terms that can be thought unfair unlike the corresponding Clause in the UK Bill.

Section 24E states that it is for the supplier (ie the business) to prove that the contract term is with adaquate justification. This is the same as Clause 16(1) of the UK Unfair Contract Terms Bill 2005. Section 24F provides that a court or the Tribunal established by the 1999 Act may deal with any issue of any unfair contract term even if none of the parties has raised the matter, again similar to Clause 21 of the UK Bill.

Section 24G(1) enacts that a court or the Tribunal may declare an unfair contract term under sections 24C and 24 D to be void and subsection (2) is not unlike Clause 24 of the UK Unfair Contract Terms Bill which provides that other clauses of the contract affected are to continue in force without the offending term. Section 24H further provides that a term of a contract can still be held void even if it has been partially or wholly executed. This is a novel idea as it provides more certainty as to the position of the parties in the midst of a continuing contract.

Section 24I makes the contravention by “any person” (as defined under subsection (1)) of the Part an offence. The section is silent on how exactly is the Part contravened. First of all, why “any person”? Is it possible for the consumer to commit an offence under the Part? Or is the inclusion of any unfair contract term by a supplier/business to be made an offence? If this is so, it should have been clearly spelt out. There is also a host of other matters that arise by making unfair contract terms an offence, for instance, it could inhibit freedom of contract. The high penalties involved (RM 250,000 for a first offence and RM 500,000 for a subsequent offence, as well as RM 2,000 a day in which the offence continues) could also be pontentially crippling for small businesses. Other jurisdictions have so far not seen the need to make any inclusion of an unfair contract terms an offence and while the merits of such a move are debatable, it is suggested that a comprehensive study on the move be done at first.

Section 24J empowers the Minister to make Regulations in connection with the Part. This section could provide an avenue to remedy two important defects discovered so far, namely the failure to indicate the extent of the application of the Part and the types of contracts involved and secondly, the failure to provide an list of examplary contract terms that might be thought unfair.

The proposed new Part IIIA of the Consumer Protection Act 1999 as will be introduced by the Consumer Protection (Amendment) Act 2010 contains many weaknesses, all of which could and should be addressed by enacting a single comprehensive piece of legislation on unfair contract terms, rather then by simply amending an existing statute. It does not, for example, include unfair notices. Thus while a consumer can now worry less about whether he or she may claim under a defective contract, the same might not be said for a notice, for example, one notice excluding liability for negligence when using a swimming pool or car park, for example, is not covered by the new Part on a plain reading of the Bill, which clearly limits its scope to standard form contracts, and does not mention notices. This is in spite of Domestic Trade and Cosumer Affairs Minister Datuk Seri Sabri Yaakob’s claims to the contrary.

The Bill also makes an unneccesary distinction between procedural and substantive unfair contract terms. It fails to make provision as to what types of contracts exactly are covered by the Part and extending the application to “all” contracts could possibly have unexpected and unfavourable ramifications. It crucially also fails to address the issue of application taking into account where the contract is concluded (ie whether in or outside Malaysia) or what happens when a contract applies foreign law. A test for determining what amounts to “without adaquate justifiaction” is absent, as well as a list of examples of unfair contract terms. What offence created is not clearly defined and the potential effects not carefully studied.

On the other hand, initiative is demonstrated by providing that a term of a cotinuing contract can also be struck down on account of being unfair. On the whole, it is remarked that some form of bulwark against unfair contract terms in consumer contracts is better then nothing but there is room for improvement. It is hoped that those that be can revisit the issue in the future and consider seperate, more comprehensive legislation on the matter instead. It would be interesting, however, to see how the Malaysian courts react to the new legal provisions on unfair contract terms, especially concerning if they would follow the approach of their foreign counterparts in deducing unfair terms, or create their own notions based on the new provisions.

5 July 2010 by

THE LEGAL IMPLICATIONS OF THE CONSUMER PROTECTION

Consumers Association of Penang

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