Global Knowledge Management and Economy - Nik Zafri

The Star Global Malaysians Forum - Posted: 20 September 2006 at 5:31pm

The Star News (Courts) - September 20, 2006.

Judge: Firm did not commit offence

KUALA LUMPUR: It was a case of the wrong entity charged. A Sessions Court yesterday discharged and acquitted a subcontractor accused of a negligence that led to the death of corporate consultant Dr Liew Boon-Horng. In delivering his verdict, Judge Akhtar Tahir said he found that MWE Advance Structure Sdn Bhd had not committed any offence as framed against it under Section 20(3) of Occupational Safety and Health Act 1994.

(The section states that the person who erects or installs any plant for use by persons at work must ensure that nothing about the way it is erected or installed makes it unsafe or a risk to health when properly used.)

MWE Advance Structure was charged with failing to ensure the safe installation of a steel formwork by Higro Enterprise on the 20th floor of Block B, Plaza Damas. A representative of the company had on April 20 pleaded not guilty to the charge.

(Formworks are moulds into which concrete or similar materials are poured into at a construction site.)

Akhtar said Section 20(3) of the Act did not mention that the person who allowed the installation of the steel formwork to have committed an offence.

(The company had engaged Higro Enterprise as a specialist formwork contractor for the Plaza Damas condominium project).

Dr Liew, 35, managing consultant of Ethos Consultant, was killed when an iron mould, weighing almost two tonnes, fell onto his BMW as it was being driven into the car park of Plaza Damas last Dec 30. Akhtar said he was of the opinion that it was Higro Enterprise that had committed the offence under Section 20(3) of the Act.

"Based on the charge, the installation of the steel formwork was done by another party, which is Higro.

"It is my opinion that Higro had committed the offence and not MWE Advance Structure.

"Therefore, I have to give an acquittal to MWE Advance Structure because this offence did not exist," he said.

The judge gave his decision after hearing a preliminary objection raised by the company’s lawyer Rosli Dahlan on Sept 4, that the charge framed against MWE Advance Structure was defective. In the same court, supplier Simple Formwork Construction Sdn Bhd had claimed trial to failing to take the necessary steps to ensure that the steel formwork supplied to Higro Enterprise was safe for use.
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It's NOT my intention to question the judge's final ruling and I respect the court's final decision. (unless both Higro/Simple Formwork wish to contest the decision)

Alas, I'm a bit confused on charges especially being made on Simple Formwork and Higro Enterprise. I might be wrong but :

What is the real problem actually?

"Based on the charge, the installation of the steel formwork was done by another party, which is Higro.

"It is my opinion that Higro had committed the offence and not MWE Advance Structure.

"Therefore, I have to give an acquittal to MWE Advance Structure because this offence did not exist," he said.

MWE is the main contractor - (thus, it's a lesson for them that in the future), they should have a system that takes into account :

a) Criterions of selection of sub-contractors (including Higro),

b) Sample submission/inspection and test results (prior to installation) from Higro to MWE (as part/parts of contract requirements),

b) Criterions of annual performance appraisal of the sub-contractors,

c) Monitoring system during installation process.

Remember, failure in sub-contractor's work may also reflect the failure of the main contractor as well.

And where does The Client's (Client to MWE) responsibility fall under?

Excerpts from New Straight Times - 03/01/2006

On Sunday, visiting the Sri Hartamas crime scene — for that is what it may well out turn out to be — Fong had occasion to see red. Seven warnings had been served for various safety violations in the 26 months since work on the office and apartment building began. Residents, as in many other instances, complained of flying debris and noise. The contractor’s delinquency seems to have been evident enough to leave nothing amiss in the Department of Occupational Safety and Health’s inspection procedures, which gave the company a "D" for compliance. "This clearly indicated no commitment on the part of the management to adhere to the regulations and prioritise safety," said Fong.

Another excerpt - NST 02/01/2006

Failed: seven out of nine worksite inspections. That’s the safety record of the construction company in charge of the worksite from which a cement mould fell 20 storeys and crushed a management consultant to death in his car.The company, MWE Advance Structure Sdn Bhd, was served seven stop-work orders in the 26 months since construction work on Block B of the Plaza Damas serviced apartments began. It was allowed to resume work after each breach was rectified, said Human Resources Minister Datuk Seri Dr Fong Chan Onn.

The company is a unit of listed group MWE Holdings Bhd.

"MWE (Advance Structure) did not have a good safety history," said Fong.

The company was given a safety rating of D, E being the lowest rating by the Department of Occupational Safety and Health. Fong did not say what the ranking indicated.The company had also been served three compounds for safety breaches since work started on Oct 28, 2003. The last inspection before Friday’s tragic accident was on Sept 27, 2005. Among the main offences were unsafe scaffolding and the absence of guardrails. Also, load platforms had not been designed by certified engineers, and they had used unregistered heavy machinery.

On Simple Formwork - they were separately being charged for failing to take the *necessary steps* to ensure that the steel formwork supplied to Higro was safe to use.

Questions :

"Who charged Simple Formwork? Higro?", "What's the relationship between Higro and Simple Formwork? - Is Simple Formwork another supplier to Higro?"

The *necessary steps* as I understand them are (not limited to the following) :

method statement, work/manufacturer's instruction, standards and codes of practice, monitoring and follow-up, sample submission, proper inspections, specification adherence etc.

If Simple Formwork seem to have all these, then check again, it may be problems of insufficient/unsuitable installation methods or monitoring/follow-up from them on Higro during installation process.

On Higro, if I read the first news right, it says something like :

(The company had engaged Higro Enterprise as a specialist formwork contractor for the Plaza Damas condominium project).

and

In the same court, supplier Simple Formwork Construction Sdn Bhd had claimed trial to failing to take the necessary steps to ensure that the steel formwork supplied to Higro Enterprise was safe for use.

It's odd that Higro failed to realize during installation that the 'formwork is NO GOOD?" being a specialist?

The charges on Higro is 'fail to ensure steel formwork properly installed'

The charges for Simple Formwork is 'formwork is found not safe to use?'

How do I connect the two?

Actually, nobody thought that the tragedy will happen on the first place - that's why too many parties 'took for granted' on the 'specs' I've mentioned above. When everybody got the 'sudden electrical shock' due to this unexpected fatal accident, I hope it's not the typical 'finger pointing' under the pretext of law that is happening at the moment.
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Posted: 22 September 2006 at 9:37pm

Well, it appears that my last message has drawn so many attention from so many parties. Some were good, some were inquisitive/curious and some simply asked me to 'reconsider' my comments. Please register as GMN members and put your comments here and we can start a whole new 'show' in a more healthier way. The following is one of them (good ones) that appeared in another forum.

Assalaamu'alaikum wbr.

Terlebih dahulu, izinkan saya merakamkan tahniah kepada tuan/puan semua kerana terlibat dalam forum ______. Ini merupakan tanda betapa tingginya keprihatinan/perjuangan tuan/puan semua terhadap keselamatan dan kesihatan pekerjaan di Malaysia.

Walaupun saya tidak pernah terlibat secara aktif dalam forum ini, namun kita semua mempunyai matlamat yang sama demi 'menyelamatkan seberapa banyak nyawa' di tempat kerja menerusi sistem pengurusan keselamatan dan kesihatan pekerjaan yang dipayungi oleh Akta Keselamatan dan Kesihatan Pekerjaan 1994.

Saya ingin menarik perhatian kepada e-mail yang dihantar oleh saudara____ (____) dan pendapat beliau serta lain-lain pendapat bernas dalam forum ini hasil daripada komen saya di Global Malaysian Forum di bawah kelolaan akhbar The Star. (saya sarankan _____ membaca lain-lain komen dalam forum yang sama dan tidaklah hanya melihat kepada komen berkenaan sahaja, kerana saya telah mengikuti kes ini semenjak ianya bermula lagi)

a. Saya tidak mewakili dan tidak pernah terlibat dengan mana-mana pihak dalam Plaza Damas,

b. Pendapat saya adalah pendapat peribadi serta bukanlah ingin mempersoalkan kes yang sedang dibicarakan atau mempersoalkan keputusan mahkamah sepertimana dakwaan ______ (perkara ini juga telah saya jelaskan kepada beberapa pihak tertentu yang memberikan maklumbalas terhadap komen saya dan semuanya saya kira telah diselesaikan) Pendapat saya lebih kepada mengingatkan kontraktor utama supaya menyemak semula sistem untuk ditingkatkan (terutamanya dalam aspek pemantauan dan penilaian yang lebih efektif)

c. Saya tidak pernah mengenali mangsa secara rapat - cuma kebetulan mendiang pernah terlibat dalam pembikinan KPI untuk GLC di mana saya juga terlibat dalam perkara yang sama tetapi menerusi firma perundingan yang berbeza,

d. Saya bersetuju dan telah menyimpulkan dalam pendapat berkenaan bahawa - kemungkinan ada elemen 'tuding-menuding' atau 'tuduh-menuduh' (blaming culture/fingerpointing) sedang berlaku (seperti kebiasaan). Saya harap undang-undang dapat menyelesaikan masalah ini seadil-adilnya supaya tidak ada pihak yang tidak bersalah tiba-tiba dipersalahkan pula.

e. Cuma saya juga mengharapkan agar pihak klien - kontraktor utama - sabkontraktor/vendor/pembekal tidak mengamalkan sikap mengambil mudah terhadap pelaksanaan keselamatan & kesihatan pekerjaan - walaupun telah ada ribuan sijil/persijilan sekalipun atau dokumentasi yang 'canggih' atau pernyataan dasar yang begitu indah dan lain-lain.

Walaubagaimanapun, saya ingin merakamkan ucapan terima kasih sekali lagi kepada tuan/puan semua dan _____ kerana sudi membaca pendapat saya yang tidak seberapa itu.

Wassalaamu'alaikum wbr.

Salam Hormat Seperjuangan
Nik Zafri