According to the IEM president Datuk Lim Chow Hock, Malaysia is short of 50,000 experienced engineers to meet the requirements in the construction and infrastructure sectors (see http://www.thestar.com.my/Business/Business-News/2015/11/09/Malaysia-short-of-50000-experienced-engineers/?style=biz). Now, that is quite a substantial lack of talents for the industry, and such a lack impacts potential construction dispute cases.
After all, engineers would usually be the principal consultants in any construction contract. Their duties may include:
- obtaining approvals of authorities
- detailed designing of the works
- preparation of tender documents
- preparation of contract documents
- supervision of works
- administration of the contract and certification of works done
- acceptance or rejection of the works
- issuing stop-work orders
- determining defects and calling for rectification works
- approving rectification works
- commissioning systems
- resolution of final account
Can you imagine if due to a lack of engineers, any of the above works are delayed? Or worse still, inadequately carried out? For example, if the design of the works were inadequate, this could lead to severe safety issues when the building is eventually constructed in accordance with the drawings and plans. Or if the contract documentation was inadequate, this could lead to a substantial amount of variation works, which would increase the costs for the employer significantly.
Of even greater concern to employers is the fact that engineers would for all intents and purposes be construed as an agent of the employer in law (R v Peto; Wallis v Robinson; Kimberley v Dick). So whilst the employer may sue a negligent engineer, the employer on the other hand may end up being sued by its contractors for any mistake that the engineer makes.
Ordinarily, construction disputes are between employers, their main contractors, and the sub-contractors. If indeed Malaysia is facing a substantial lack of qualified professionals like engineers, it may not be long before we see lawsuits involving engineers coming into play, whether the party suing is the employer (for breach of contract or negligence), or the contractor (for negligence only).
In fact, we were retained to represent an engineer in a suit by a contractor for the engineer’s alleged negligence in his plans and drawings leading to the collapse of one part of the works. Whilst suits against professionals like architects and engineers by contractors, are still few and far in between, nevertheless this trend may well reverse in the future.
We sincerely hope not.
Kheng Hoe Advocates
Building contract and construction contract dispute lawyers
PS: If you have any building contract and construction contract related issues, I invite you to take advantage of my free one-to-one consultation to explore your next steps. There is totally no obligation on your part, and regardless whether you engage me or not, I guarantee that you will walk away with a clear idea as to where your case stands and how to take your case forward. To schedule an appointment, e-mail me with a brief description of your issue at firstname.lastname@example.org.