The Ampang Municipal Council (MPAJ) is not liable for losses suffered by 73 residents of two condominium blocks in Highland Towers who had to evacuate after the collapse of block one 13 years ago killing 48 people, ruled the Federal Court today.

A three-member panel of judges presided by Chief Judge of Sabah and Sarawak Steve Shim Lip Kiong, Federal Court judges Abdul Hamid Mohamed and Arifin Zakaria ruled that MPAJ were not liable for the pre-collapse and post collapse of block one.

According to a Bernama report, the quorum unanimously ruled that local authorities such as MPAJ were given full immunity under Section 95 (2) of the Street, Drainage & Building Act 1974 (Act 133) from claims for pre-collapse period.

The court unanimously allowed MPAJ's appeal to set aside the Court of Appeal's decision holding MPAJ 15 percent responsible for pre-collapse of the block one condominium.

However, the quorum, in a majority 2-1 decision, dismissed the cross-appeal by the 73 residents of block two and three against the Court of Appeal's ruling in not holding MPAJ for post-collapse liability.

MPAJ was apportioned by the then High Court Judge James Foong (now Court of Appeal judge) for post-collapse liability after he held that MPAJ was indemnified from post-collapse liability but the Court of Appeal, which set aside the High Court's decision to apportion post-collapse liability instead held MPAJ for pre-collapse liability.

End of the line

President of the Highland Towers Owners and Residence Association Dr Benjamin George said they were saddened by the Federal Court's decision.

"It is the end of the line and we accept the decision. We're surprised (by the decision). We have to accept the final verdict," he said.

When asked whether the residents would pursue the other suits, he said the residents have yet to decide whether to pursue with the suits or end it.

Besides MPAJ, the High Court, on Aug 11, 2000 held Arab Malaysian Finance Bhd (AMFB) 30 percent liable for the collapse of block one, engineer Wong Yuen Kean (10 per cent), Metrolux Sdn Bhd and MBF Property Services Sdn Bhd (20 percent), developer Highland Properties Sdn Bhd (15 per cent), draughtsman Wong Ting Sang (10 per cent).

The 73 residents of Blocks 2 and 3 had sued 10 parties for between RM31 million and RM35 million to repair the two blocks which had to be evacuated after the collapse of block one on Dec 11, 1993.

Excessive water

The High Court held that the landslide was caused by soil on the hillslope being saturated with excessive water which triggered the failure of the high retaining wall within the Highland Towers compound causing retrogressive landslide resulting in the collapse of block one.

The trial judge concluded that the presence of the water was due to the existence of an inadequate drainage system and held that MPAJ had breached its duty of care in failing to maintain the stream on the hillslope behind Highland Towers which was diverted.

On Nov 3, 1997, the Coroner's Court returned a verdict of misadventure following an inquest into the tragedy which, among others, claimed the lives of Carlos Rashid and Rozita Abu Bakar, the son and daughter-in-law of former deputy prime minister Tan Sri Musa Hitam.

On July 29 last year, the board of engineers of Malaysia's Board of Appeal upheld its disciplinary board's decision to revoke the practising licence of engineer Wong Yuen Kean.

MPAJ has immunity

In his 34-page judgment, Steve Shim said even if MPAJ would be held responsible for negligence, it was however immunised against any liability under Section 95 (2) of the act.

Shim ( left ) said the Court of Appeal erred when it ruled that MPAJ was liable for losses suffered by the residents of the condominium and it (MPAJ) was not protected under Section 95 (2) of the act.

In holding that MPAJ was liable for post-collapse, Shim said he agreed with the High Court judge findings that MPAJ was negligent for failing to formulate and implement the promised master drainage plan for the affected area on the hill slope behind Highland Towers to ensure stability and safety of the two blocks.

"In my view, MPAJ could not seek shelter in Section 95 (2) of Act 133 because this is a case of negligence in failing to formulate and implement certain works or plans and not negligence in carrying out those works or plans.

"There was an assumption of responsibility by MPAJ to do what it had promised to do. The respondents (residents) alleged that its failure to do so had exposed MPAJ to liability for negligence," he said.

Shim said he did not think that it would be in the public interest that a local authority such as 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 residents of their rightful claims under the law.

Justices Abdul Hamid and Ariffin had dismissed the residents' s cross-appeal but Shim dissented.

Abdul Hamid in his 27-paged judgment said he agreed with Shim that MPAJ was protected from pre-collapse period but dismissed the cross-appeal by the residents while Arifin Zakaria concurred with the reasons and decision by Shim on the pre-collapse and the reasons given by Abdul Hamid on the post collapse liability.

The judgment was read by Federal Court Deputy Registrar Kamarudin Kamsun.