“NEGLIGENCE IN CONSTRUCTION IS LESS CRITICAL AS COMPARED TO

THE OTHERS PRACTICE SUCH AS MEDICAL”

INTRODUCTION

Negligence is the bad act which is a failure to take reasonable care to avoid causing injury or

loss to another person. Sometime, even we always look out from the failure, it is still can be

occurred. It is because the person that do the job is not competence.

However, in term of the practice, the construction practice is differ with medical practice. In

the construction is more to provide that services in providing the infrastructure to the public

such as accommodation, road to moving to another place and etc. While, in medical practices,

is more in providing the services for health to the public such as consultation in health,

treatment for ill that undergone and etc. However, this two practice involved to the publics

and it is a critical issues when we talk about the negligence to the publics in term of safety,

health and welfares.

In this writing, the discussion on a what the negligence in construction and what negligence

in medical also a few of cases that have occurred and was recorded in any document such as

jurnal or article that due to the negligence in construction and medical negligence to find

which is less critical, either the construction or the medical practice.

NEGLIGENCE IN CONSTRUCTION

In construction, many expert or professional involved in construction which they have a duty

of care towards their client and sometimes toward third parties. They have to responsible with

this duty and if their breached of this duty, it is will resulting in loss or personal injury that

can result in claim against the negligence. In construction negligence, it is may occur because

of the negligence by the parties involved in the construction process which that contractors,

architects, quantity surveyors, engineers, project managers is the person usually accountable

for that negligence claims.

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Since the construction industry in improved their work process, many cases that already

reported through the judgement process in claimed of negligence or breached a duty. A lot of

accidents that occurred during the construction process or after complete the construction

because of the several factor that they not take it serious or just do the work with perfunctory.

Between the factors that occurring the negligence in construction is improper work process in

construct the project. Improper work process would be the work is doing by the wrong way

and that situation will exposed to the workers into the dangerous and hazard conditions.

The lack of safety monitoring on the site also be a factors in negligence. In failed to wearing

the proper personal equipment will exposed to accident and injury. Others than that, the

equipment and machineries also need to be check and maintenance before it used to ensure

that equipment or machineries is in safe condition to used it such as the scaffolding, crane,

and others have equipment or machineries.

The worker’s health level is importance to avoid the worker do the wrong work or not proper

follow the specification because cannot concentrate with the works. This will make the end

product in not really safe and have a defect that can occurring the accident in the future.

However, the most important is about the design that approved to used in construction. If the

design is not doing rightly it will bring the collapse of the building.

The negligent in construction is often happen that can result in claim for the injured party

based on their contract. However, if a contract does not provide for loss or damages due to

the lack of a contractual relationship, or for any other reason, then a case may be pursued in

what is known as the law of tort. This allows an innocent victim to make a non-contractual

claim provided the loss suffered is reasonably foreseeable and not too remote. Compensation

may not be able to reverse the effect of any loss or injury suffered but it can certainly go a

long way towards helping, particularly as the construction industry is heavily regulated and

strict safety and indemnity policies are supposed to be in place to prevent the effects of

construction negligence.

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CASES RELATED TO NEGLIGENCE IN CONSTRUCTION

In this part several case will discuss that related to the negligence that occurring in the

construction practice.

Collapse of roof Stadium Sultan Mizan Zainal Abidin, Terengganu.

In that case, the roof of Stadium is collapse because of the several factors. The investigation

is conducted to find the caused of that case and the result from the investigation had stated

that the main factor to collapse is:

The material and the quality of that material that used is not follow the specification.

The design is not satisfied and

The roof constructed is imperfectly

Lack of monitoring and quality control

Lack of skill workers

Lack of professional engineer and inexperience consultant

Take it easy attitude and negligent all over parties

Dr. Abdul Hamid Abdul Rashid & ORS vs Jurusan Malaysia Consultant

In that case, The plaintiffs, who were husband and wife, hired the defendant to construct a

double storey house on Lot 3007. About three and a half years later, the house began to

collapse due to landslide and the plaintiffs were forced to evacuate the premises and the

plaintiffs claimed against the defendants for breach of their contract with the plaintiffs.

The plaintiffs' claims against the first, fourth and fifth defendants were founded on contract

and tort. The plaintiff maintained that:

1. The defendants had failed to exercise reasonable care and skill in carrying out all

aspects of the engagement having regard in particular to the primary objective of the

plaintiffs

2. The defendants had failed to properly and adequately implement and examine Lot

3007, its soil condition and surroundings to ascertain the suitability of the slope for

the proposed house.

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Further, the plaintiffs alleged that the defendants had breached a duty of care in failing to

take into serious consideration the stability of the slope on which the house was built.

The plaintiffs' claim against the second defendant was based on negligence and breach of

statutory duties under the Local Government Act 1976, Street, Drainage and Building Act

1974 and the Uniform Building By-laws 1984. It was argued that:

1. The plaintiffs' pleadings did not sufficiently disclose material facts to support their

claim for breach of statutory duty

2. The Uniform Building By-laws 1984 was not in force at the time it was said to have

been breached

3. The Street, Drainage and Building Act 1974 prevented the cause of action against

the second defendant to succeed even in the event of a breach of statutory duty by

the second defendant.

The cause of action against the third defendant was based on nuisance and negligence.

The third defendant was the contractor engaged in erecting a double storey bungalow on a

neighbouring land ('Lot 3008'). The third defendant was said to have unnecessarily allowed

infiltration or seepage of water into the ground and/or allowing it to overflow onto Lot 3007

causing saturation in the soil resulting in landslide which brought down the house.

NEGLIGENCE IN MEDICAL

Medical negligence (also known as medical malpractice) occurs when the treatment provided

by a health service provider (such as a hospital, doctor, dentist, pharmacist, etc.) falls below

an acceptable standard. Medicine is a complicated practice and health service providers are

not expected to be perfect. Medical treatment is sometimes unsuccessful and injuries can

sometimes result but that does not necessarily mean that there has been any negligence.

Negligent treatment is that which goes beyond being a simple reasonable mistake or error.

Negligent treatment may involve the following:

failing to or delay in diagnosing a condition

failing to or delay in providing the appropriate treatment or referral for the condition

failing to perform surgery with reasonable care and skill

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failing to report correctly on test results

failing to provide post-operative care with reasonable care and skill

Broadly speaking, two requirements must be shown in order to bring such a claim:

1. that there was negligent medical treatment

2. that this treatment caused an injury or some harm that would not have otherwise

occurred

This means that even where a person receives negligent treatment, they cannot bring a

compensation claim if they have not suffered a harm or injury as a result of that treatment.

Furthermore, the law sets a threshold determining how severe or significant an injury must

be, before a person is entitled to claim damages for the pain and suffering sustained as a

result of this injury.

Medicine is a complicated practice and health service providers are not expected to be

perfect. Medical treatment is sometimes unsuccessful and injuries can sometimes result but

that does not necessarily mean that there has been negligence. Negligent treatment goes

beyond being a simple reasonable mistake or error. Medical negligence can involve:

Obstetrics

Paediatrics

Gynaecology

Emergency medicine

Surgery

Orthopaedics

Misdiagnosis of medical conditions

Drugs and drug reactions

Cosmetic surgery

News coverage

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CASE RELATED TO NEGLIGENCE IN MEDICAL

In this part several case will discuss that related to the negligence that occurring in the

medical practice.

Dr Ismail Abdullah v Poh Hui Lin (administrator for the estate of Tan Amoi @ Ong Ah

Mauy, deceased)

The respondent is the administrator of the deceased's estate. She brought a claim against the

first and second defendants for medical negligence in, inter alia, failing to advise the

deceased of the risks of acute pancreatitis and acute respiratory distress syndrome ('ARDS')

after an operation by the first defendant on the deceased to remove kidney stones. The first

defendant stated, inter alia, that the deceased had been advised on and consented to the

operation. The sessions court did not hold the defendants liable for negligence when treating

the deceased but held that they were liable for failing to advise the deceased of the risks.

CONCLUSION

Based on the statement which is the negligence in construction is less critical than others

practice is no the real issues when we talking about the negligence. Regarding to the review

in the construction negligence and the medical negligence, both the practices it is same

important and critical issues due to the welfare of the publics.

With negligence in all practiser, it is can bring the losses and burden to all parties that

involved in that case whether the plaintiff or defendant. That why, all parties should be alert

about this and avoid from be negligent. And all parties that involved should prepare the

evidence so that they can defend own self.

However, because negligence cases are very fact-specific, this general definition does not

fully explain the concept of when the law will require one person to compensate another for

losses caused by accidental injury.

Further, the law of negligence at common law is only one aspect of the law of liability.

Although resulting damages must be proven in order to recover compensation in a negligence

action, the nature and extent of those damages are not the primary focus of negligence cases.

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