Skrine’s Client Exonerated from Responsibility for Tanjung Bungah Work-Site Incident

On 6 December 2017, the Yang di-Pertua Negeri of Penang constituted a Commission of Enquiry (“Commission”) pursuant to the Commissions of Enquiry Act 1950 to inquire into an incident that occurred at a construction site in Tanjung Bungah, Penang (“site”) on 21 October 2017 that led to a loss of 11 lives at the site.
The terms of reference of the Commission included, inter alia, enquiring into the cause or causes of the failure of certain structures at the site and whether the failure of those structures were due to any negligence or recklessness of any person, company or authority.
Various stakeholders, including our client, a sub-contractor who carried out works at the site, participated in the Enquiry.
After the conclusion of the Enquiry, the Commission issued the Report of the Commission of Enquiry into the Work-Site Incident at Tanjung Bungah, in the State of Penang dated 22 July 2019 (“the Report”). The Report was submitted to the State Government of Penang and presented to the public by the Chief Minister of Penang on 28 August 2019.
Amongst others, the Commission concluded that –
  1. the slope-failure that led to incident was entirely preventable if the persons responsible has taken the necessary and proper steps to ensure the stability of the slope and safety of the workers; and
  1. certain persons and entities were primarily responsible for the incident and others were contributorily negligent for the slope-failure.
The Commission recommended, amongst other measures, that –
  1. the Board of Engineers Malaysia commences disciplinary action against an individual; and
  1. a criminal investigation be conducted by the police to determine whether an individual should be prosecuted under section 304A of the Penal Code for causing death by any rash or negligent act.
The Commission found that –
  1. our client had carried out their works in accordance with the engineer’s designs and were not at fault if any supervision by the engineer was lacking;
  1. no one had alleged, and no evidence was produced before the Commission, that our client had failed to construct according to the designs and drawings given to them; or that any variation which they had carried out was not done at the direction or instruction of engineers; and
  1. there was no reason to hold our client in any way responsible for the incident. 
Ashok Kumar Mahadev and Joanna Tan Li Pheng of our Occupational Safety and Health and Construction and Engineering Practice Groups represented our clients in the Enquiry.