When DOSH fails in ensuring safe workplace - Employers can escape liability even in cases where death occurs?

When the Department of Safety and Health(DOSH) fails in its duties of ensuring OSH at the workplace, then employers may get off scot free even if a death of a worker happens.

DOSH is under a statutory duty to educate the employers and to ensure a safe workplace...Being a statutory body, DOSH has the statutory duty under s. 48 of OSHA to issue such notices if DOSH is of the opinion that the trailer is not safe to DOSH satisfaction. By not issuing such important notices, such inference can be gathered that the trailer is safe and does not risk the lives of the employees whilst using the trailer.

Could the family of the deceased worker then take an action against DOSH itself? Presumably YES...

DOSH really need to conduct a lot of visits and inspection of worksites, for their failure to identify RISKS and violations, and take necessary action to ensure a safe working environment - makes DOSH(the government) LIABLE for death and injury of workers caused in an unsafe working environment? 

 

JABATAN KESIHATAN DAN KESELAMATAN PEKERJAAN v. SRI KAMUSAN SDN BHD HIGH COURT SABAH & SARAWAK, SANDAKAN  

DOUGLAS CRISTO PRIMUS SIKAYUN JC 

[CASE NO: SDK-42 AC-1-4-2013] 22 NOVEMBER 2013

LABOUR LAW: Employment - Employer's liability - Employer's duty to provide safe working environment for employee - Employee died due to fall from tractor - Whether deceased exposed to risk - Whether incident occurred during working hours - Whether there was causal nexus between employer's breach and risk to deceased's safety - Whether employer rebutted duty imposed under s. 60 of OSHA on balance of probabilities - Occupational Safety and Health Act 1994, s. 15(1)

The Department of Occupational Safety and Health received a complaint which involved Junaidi ('deceased') who died while he was sitting on top of the tractor wheel cover and fell off from the tractor. The respondent was the employer of the deceased and was charged under s. 15(1) of the Occupational Safety and Health Act 1994 ('OSHA'). At the end of the defence case, the Sessions Court Judge ('SCJ') discharged and acquitted the respondent. Hence, the appeal.

Case(s) referred to: DPP v. PJ Carey (Contractors) Limited [2011] IECCA 63 (refd) Her Majesty The Queen v. Jamel Metals Inc [1999] CanLII 12390 SK PC (refd) Inspector John Sibilant v. Royal Automobile Club of Australia Incorporating Imperial Services Club Ltd [2008] NSWIRComm 87 (foll) R v. Gateway Foodmakers Ltd [1996] EWCA Crim 1786 (foll) Tesco Supermarkets Ltd v. Nattrass [1972] AC 153 (refd) Utumapu (Health and Safety Inspector) v. W Crighton & Son Ltd (NZDC Palmerston North) [2000] NZHSE 14 (refd) WorkCover Authority of New South Wales (Inspector Woodington) v. Australand Holding Limited and Sassall Glass & Joinery Pty Limited        [2008] NSWIRComm 153 (refd)

Legislation referred to: Occupational Safety and Health Act 1994, ss. 3, 15(1), 48, 55, 60 Health and Safety at Work Act 1974 [UK], s. 2(1) Occupational Health and Safety Act [AU], s. 8(1)

Counsel: For the prosecution - Natrah Mazman; DPP For the respondent - Francis Wong; M/s William Liaw, Chan & Co; Advocs

Reported by Sandra Gabriel

JUDGMENT

Douglas Cristo Primus Sikayun JC:
[1] This is an appeal by the appellant against the order of the learned Sessions Court Judge (SCJ) in discharging and acquitting the respondent at the end of the defence case for an offence under s. 15(1) of the Occupational Safety and Health Act 1994 ('OSHA').
[2] The brief facts of the case is that on 6 October 2010, the Department of Occupational Safety and Health ('DOSH') received a complaint about an incident occurred at Sri Kamusan on 5 October 2010, about 5pm. On 7 October 2010, two officers from DOSH went to Sri Kamusan estate to conduct accident investigation. From their initial investigation, it was found out that:

(i) The accident involved one victim, that was the late Junaidi bin Maswan (the deceased);
(ii) Before the accident, the deceased was sitting on the top of the tractor's wheel cover, and fell off from the tractor when the tractor passed through a sharp bend;
(iii) The deceased worked for Sri Kamusan Sdn Bhd (respondent);
(iv) The respondent had failed to supervise the use of tractor as a means of transportation of workers to the workplace, causing the deceased to ride on the said tractor and consequently fell off the tractor when the tractor passed through a sharp bend. The deceased was pronounced dead at 6.45pm on 5 October 2010.

[3] The respondent was then charged in court and the amended charge read as follows:

Bahawa kamu, pada 05 Oktober 2010, lebih kurang jam 5:00 petang di Phase 3, Sri Kamusan Estate, Locked Bag 34, 90009 Sandakan, Sabah sebagai majikan, telah gagal untuk menjalankan tanggungjawab kamu sebagai yang dikehendaki di bawah seksyen 15(1), Akta Keselamatan dan Kesihatan Pekerjaan 1994 iaitu gagal untuk memastikan setakat yang praktik, keselamatan, kesihatan dan kebajikan semasa bekerja semua pekerja kamu, semasa bekerja, iaitu traktor dan trailer yang disediakan sebagai pengangkutan pekerja khususnya Junaidi bin Maswan (No paspot: AN 854348) tidak selamat untuk digunakan ke tempat kerja. Dengan itu, kamu telah lakukan kesalahan di bahawa seksyen 15(1) Akta Keselamatan dan Kesihatan Pekerjaan 1994 dan jika disabitkan kesalahan boleh dihukum di bawah seksyen 18 Akta yang sama.

[4]Section 15(1) of OSHA reads:

It shall be the duty of every employer and every self-employed person to ensure so far as is practicable, the safety, health and welfare at work of all his employees and that duty extends to:

a) The provision and maintenance of plant and systems of work that are, so far as is practicable, safe and without risks to health;
b) The making of arrangement for ensuring, so far as is practicable, safety and absence of risks to health in connection with the use of operation, handling, storage and transport of plant and substances;
c) The provision of such information, instruction, training and supervision as is necessary to ensure, so far as is practicable, the safety and health at work of his employees;
d) So far as is practicable, as regards any place of work under the control of employer or self-employed person, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of the means of access to and egress from it that are safe and without such risks;
e) The provision and maintenance of a working environment for his employees that is, so far as is practicable, safe, without risks to health, and adequate as regards facilities for their welfare at work.

[5] Although the appellant had raised nine grounds of appeal in its petition of appeal, the learned Deputy Public Prosecutor ('DPP') in her submission which I agree that the main issues in this appeal are that:

(i) Whether the appellant had proven beyond reasonable doubt against the respondent; and
(ii) Whether the respondent's defence had rebutted the duty imposed under s. 60 of OSHA on the balance of probabilities.

[6] Currently there are no reported cases in Malaysia pertaining to offences under s. 15(1) of OSHA. Nevertheless I will rely on relevant reported cases under s. 2(1) of the Health and Safety at Work Act 1974 of the United Kingdom and s. 8(1) of the Australia Occupational Health and Safety Act which are in pari materia with our s. 15 (1) OSHA. I will also refer to other jurisdiction such as New Zealand, Canada, Hong Kong and others. Although decisions in other jurisdiction are merely persuasive authority but it was followed by most if not all member states of the International Labour Organization which concerned the safety, health and welfare of employees.

[7] First, let me laid down the ingredients of the charge that has to be proved by the prosecution. Based on my reading of the charge, I am of the view that the elements of the offence under s. 15(1) OSHA is as follows:

a) The respondent was an employer of the deceased at the material time;
b) That the deceased being an employee of the respondent was exposed to risk to the health and safety;
c) That the deceased being an employee of the respondent was at work at that material time; and
d) There is a causal nexus between the respondent's breach and the risk to the deceased's safety.

[8] In arriving at the above elements of the offence, I placed reliance to the Australian case of Inspector John Sibilant v. Royal Automobile Club of Australia Incorporating Imperial Services Club Ltd [2008] NSWIRComm 87 (28 April 2008) where the elements of offence under s. 8(1) of the Occupational Health and Safety Act 2000 which is in pari materia with our s. 15 OSHA has been laid down.
 

[9] Now let me deal with the first issue. According to the charge against the respondent, it was stated that on 5 October 2010 at 5pm the respondent had failed in its duty to ensure the safety, health and welfare of its workers while at work. Hence, the prosecution must prove that the deceased was at work at the material time.
 

[10]Section 15(1) OSHA stated that the duty of the employer is to ensure safety, health and welfare at work for his employees. This would mean that the duty of an employer is to ensure the safety, health and welfare of its workers while they are at work and not when they are not working.
 

[11] Pursuant to the employment contract that was tendered as exh. P9, it is well written at cl. 4 that working hours commence from 6am to 2pm only. DW1 (mandur/supervisor) and DW2 (Assistant Estate Manager) confirmed that the working hours was from 6am to 2pm and thereafter the workers are on their own. DW2 further testified that the company has a standing procedure whereby for all overtime work, there must be a form to be filled up by the employee and must be approved by the company. In this case, there was no such requisition for overtime work.
 

[12] I hold that the learned DPP's contention in her submission that the workers were working because of the fruits needed to be sent to the mill within 24 hours is merely assumption as there was no evidence on this before the court. The deceased and other workers had gone on a frolic on his own and without the knowledge of the respondent as they were all not at work.
 

[13] Since the deceased was not working at the material time and there was no work carried out, I hold that what the deceased did that evening was not an activity that can be described as part of the employer's undertaking as they are free to do whatever they like after the working hours. As such, the respondent cannot be held liable for acts that had happened after the workers or the deceased work hours. The learned SCJ was correct in citing the UK Court of Appeal case of R v. Gateway Foodmakers Ltd [1996] EWCA Crim 1786, where the Court of Appeal held that the activity in question must be that can be described as part of the employer's undertaking. The Court of Appeal in this case held as follows:

"The duty under Section 3 is imposed on the employer himself by reference to a certain kind of activity, namely, the conduct by the employer of his undertaking" (1547B). The question, therefore, (the statutory defence apart) was simply "whether the activity in question can be described as part of the employer's undertaking" (1547H).
There is no reference in section 2(1) to the conduct of the undertaking, which is the basis for liability under Section 3(1), and so it is manifest that the content of the duty under section 2(1) is different from that under section 3(1). But in our judgment it is the same kind of duty: the company, as employer, is liable when the necessary conditions for liability are fulfilled. Having regard to the statutory qualification ("so far as is reasonably practicable"), the interpretation of section 2(1) in this way seems to us to be entirely consistent with the principle identified by Lord Reid in Tesco Supermarkets Ltd v. Nattrass [1972] AC 153. Parliament can be assumed to have balanced the need for regulation, achieved by making the employer liable, against the injustice of convicting a person who is blameless, hence the statutory defence (see page 169).

[14] Premised on the above authority, I hold that the learned SCJ was correct in finding that at the material time stated in the charge the prosecution had failed to prove beyond reasonable doubt the victim was at work.
 

[15] Now that I have found that the deceased was not at work at the material time, this will mean that the tractor and the trailer was never used by the deceased as a mode of transportation to his place of work. At the time of the accident at 5pm on that day, the deceased were riding on the tractor and not the trailer. Bear in mind that all witnesses both from the prosecution and the defence had given evidence that the respondent prohibit any worker riding on the tractor except the driver.
[16] Be it as it may it is necessary to determine whether the tractor and the trailer was safe and 

reasonable to be used in the plantation. The appellant submits that the tractor and trailer provided by the respondent as transportation for the employees to the workplace are unsafe to be used and that the trailer which was pulled by the tractor at Sri Kamusan Estate was used to transport oil palm fruit bunch and was also used to transport workers and was the main transport available at Sri Kamusan estate.
 

[17] The trailer that was used to transport oil palm fruit bunch and also used for the workers' transportation was not provided with proper seating or canopy as the workers have to sit on the floor of the trailer and this is not in accordance with s. 15 of the Code of Practice on Safety and Health Agriculture issued by the International Labour Organisation (COPSHA-ILO).
 

[18] Section 15 of COPSHA-ILO also provides that for trailers, to allow passengers to ride on it, it must be equipped with a braking system side panels, secured seating and canopies.
 

[19] The prosecution also relied on the evidence of the PW6 (officer from the Road Transport Department) and PW7 (officer from Forensic Engineering Division of DOSH of Putrajaya, to support that tractor and trailer are not safe and unsuitable to transport workers in the plantation. However, based on the evidence before me, PW6 and PW7 are not expert witnesses and their evidence is of no assistance to this case. PW6 admitted that he is not specialised in the field of agriculture and he was not in the position to give opinion as to the use of equipments in plantation. PW7 also admitted that he is not an expert in so far as to the use of the tractor and trailer in agriculture to qualify as an expert in that field. PW7 said that the trailer should be modified with seating and cover and modified for such use. However, he also said that modified or not, it is still unstable when the trailer is added to the tractor.
 

[20] Regardless of the evidence of PW6 and PW7, the facts remained that DOSH did not issue any notices under s. 48 OSHA to prohibit the use of trailers after the accident happened. Neither did DOSH issue any notices to demand that the trailer be modified to suit for such purposes. Even after the accident, DOSH did not issue any notice directing the respondent to install roof, brakes, seat etc on the trailer for the purpose to carry the workers. Being a statutory body, DOSH has the statutory duty under s. 48 of OSHA to issue such notices if DOSH is of the opinion that the trailer is not safe to DOSH satisfaction. By not issuing such important notices, such inference can be gathered that the trailer is safe and does not risk the lives of the employees whilst using the trailer.
 

[21] I must say that DOSH is under a statutory duty to educate the employers and to ensure a safe workplace. DOSH cannot be said not to be aware of trailers being used in the plantations in Sabah to ferry workers as well as to be used to transport the crops. In fact, the prosecution through PW6 and PW7 testified that they were aware of this. (see pp. 111 and 124 of the record of appeal). In any event, on the evidence before me, the trailer used by the respondent to ferry the workers to workplace was designed with a guard and all workers must sit on the floor of the trailer and this is in fact is allowed by COPSHA-ILO. I also take judicial notice that the International Labour Organization as well as the Safety and Health executive of UK guidelines for agriculture allows tractors and trailers to be used to ferry workers but must minimise the risk.
 

[22] In the final analysis, in view that DOSH did not prohibit or ban the use of the trailer and tractor as a mode of transporting workers before, after the accident and even as of the time of the trial in the court below and during the appeal before me, I hold that the prosecution had failed to prove beyond reasonable doubt the tractor and the trailer was not safe to be used to ferry workers in the plantation.
 

[23] Next, I move on to the second issue that is whether the respondent had rebutted the duty imposed under s. 60 of OSHA on the balance of probabilities. At this juncture is it important to determine the issue of burden of proof. Learned DPP submitted that the burden of proof falls on the respondent under s. 60 OSHA once the prosecution proved beyond reasonable doubt certain acts or omission to provide a prima facie case. The respondent disagreed and drawn my attention to the cases of:

a) WorkCover Authority of New South Wales (Inspector Woodington) v. Australand Holding Limited and Sassall Glass & Joinery Pty Limited [2008] NSWIRComm 153,
b) Utumapu (Health and Safety Inspector) v. W Crighton & Son Ltd (NZDC Palmerston North) [2000] NZHSE 14; and
c) DPP v. PJ Carey (Contractors) Limited [2011] IECCA 63

all of which were cases which dealt with among others the question of burden of proof. In the case of Inspector Woodington cited above, the court held that:

As in all criminal matters, the nature of the duty imposed does not relieve the prosecution of the necessity for it to prove the employer's failure beyond reasonable doubt: See State Rail Authority of New South Wales v. Dawson [1990] 37IR 110 at 120-121 where the Full Bench stated:

Although S. 15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt that the employer failed to meet the obligation cast on him by the section.

[24] Hence, premised on the above cases, I am in agreement with the learned counsel for the respondent that the burden of proof is still on the prosecution to prove beyond reasonable doubt and never shift to the respondent.
 

Moving on, s. 60 of OSHA provides that:

In any proceedings for an offence under this Act or any regulation made thereunder consisting of a failure to comply with a duty or requirement to do something means to do something, it shall be for the accused to prove that it was not practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.

As to what "practicable" means, s. 3 OSHA provides as follows:

"Practicable" means practicable having regard to:

(a) the severity of the hazard or risk in question
(b) the state of knowledge about the hazard or risk and any way of removing or mitigating the hazard or risk;
(c) the availability and suitability of ways to remove or mitigate the hazard or risk; and
(d) the costs of removing or mitigating the hazard or risk.

In defending itself, the respondent relied on s. 55 of OSHA where it reads:

It shall be a defence in any proceeding against a person for an offence under this Act or any regulation made thereunder to satisfy to the Court that the offence was committed without his consent or connivance and that he had exercised all such due diligence to prevent the commission of the offence as he ought to have exercised, having regard to the nature of his functions in that capacity and to all the circumstances.

[25] The case of Her Majesty The Queen v. Jamel Metals Inc [1999] CanLII 12390 SK PC, the court must consider whether the accused had exercised due diligence or taken reasonable precaution to prevent the breached.
 

[26] The evidence of PW1, PW2, PW5, PW7, DW1 and DW2 shows that the respondent had muster call every morning where all workers were instructed on the safety aspect before they start work and to prioritise the aspect of safety during working hours. There are safety regulations of the respondent which the workers are briefed. Safety sign boards were put around the plantations. All workers were instructed to sit on the floor of the trailed when being ferried to work. In fact, disciplinary actions were taken against workers who breached the rules and regulations on safety. PW2 also testified that the respondent had done all that it can do to prevent such accident (see Q59 at p. 57 record of appeal). The prosecution's own witness PW5, concluded that based on his investigation, the negligence of the deceased workers himself resulting in his death.
 

[27] By virtue of the evidence adduced by the defence, the learned SCJ was right in holding that the respondent had indeed taken all the reasonable steps and due diligence to ensure the safety of each worker at the plantation and any hazardous foreseeable danger has been taken precaution by the respondent by putting up warning signage at the vicinity.
 

[28] With these, I conclude that the respondent has rebutted the duty imposed as stated under s. 60 of OSHA.
 

[29] In the light of the foregoing, I affirm the findings of law and fact of the court below and dismiss this appeal.
 

[2013] 1 LNS 1427

Migrant Worker Awarded about RM150,000 by High Court, loss of arm - a Judgment?

Migrant Worker, 27 year old, married with one child, who lost at arm in workplace accident, awarded RM150,000 by High Court. Just?

[2014] 1 LNS 90 - Current Law Journal Reference

ALAMGI v. CASS PRINTING & PACKAGING SDN BHD HIGH COURT MALAYA, KUALA LUMPUR YEOH WEE SIAM J [CIVIL SUIT NO: 22 NCvC-1150-09-2012] 27 JANUARY 2014

Legislation referred to: Civil Law Act 1956, ss. 7(3A), 12(1), (6), 28A(1)(a) Evidence Act 1950, ss. 102, 103, 114(g) Occupational Safety and Health Act 1994, s. 15 Workmen's Compensation Act 1952, ss. 2(1), 8(b), (c), 9, 26(1), (2)

Counsel: For the plaintiff - S Surendran (Fatin Irena with him); M/s Palani Aishah & Co For the defendant - Danny Ng Yeong Chong; M/s TS Liew Nurzila & Co Reported by Wan Sharif Ahmad(CLJ)

JUDGMENT

Yeoh Wee Siam J:
 
Plaintiff's Claim
 

[1] The plaintiff's claim in the writ of summons (encl. 1) and amended statement of claim ("amended SOC") (encl. 5) is made under s. 28A of the Civil Law Act 1956 ("the CLA") for, inter alia, general damages, special damages, interests and costs arising out of the plaintiff's personal injury suffered during an accident caused by the alleged negligence of the defendant.

Brief Facts

[2] The plaintiff, a national of Bangladesh, was employed as a factory worker ie, as a printing machine operator at the defendant's printing factory from the month of June 2011 till the time when the accident occurred on 8 December 2011.

[3] The plaintiff was not a foreign worker brought into work in Malaysia by the defendant. The plaintiff was already in Malaysia working in another printing factory prior to his employment with the defendant. The plaintiff came to the defendant's premises sometime in June 2011 asking for a job. He was met by the executive director of the defendant, Beh Wei Chun (DW3).

[4] At that point of time, the Government of Malaysia ("the government"), through its initiative to legalise foreign workers working in Malaysia without a valid working permit, had introduced the 6P Program. Under this program, foreign workers, without a valid working permit (Pekerja Asing Tanpa Izin ("PATI")) but who have submitted an application for a working permit, are allowed to work under the named employer until further instruction from the government.

[5] DW3 decided to employ the plaintiff and had engaged the service of a foreign worker agency, IMI Services Sdn Bhd, to make an application to the government, on behalf of the defendant, to have the plaintiff registered under the 6P Program.

[6] IMI Services Sdn Bhd proceeded to make the 6P Program application for the plaintiff. During this time, the plaintiff was already working at the defendant's printing factory.

[7] On 8 December 2011, the plaintiff was working on a night shift together with another co-worker at the printing machine, known as the Heidelberg Sormz ("the printing machine" or "the machine"), when his right hand was caught between the rollers of the machine. As a result of this industrial accident ("the accident"), the plaintiff suffered an injury which later resulted in the amputation of his right arm from the shoulder.

[8] The plaintiff's claim is that the defendant, as the employer, was negligent because the defendant:

(a) failed to ensure that the machinery in the defendant's factory was in safe working condition;
(b) failed to ensure that proper training was provided to operate and/or repair the machines;
(c) failed to repair the auto stop switches in the machine ("the auto stop switch") that the plaintiff was working on.

[9] The crux of the plaintiff's case is that the defendant had removed the safety grill or grill cover ("the grill cover") from the printing machine that the plaintiff was working on, and despite the plaintiff's repeated requests to replace the grill cover and to repair the auto stop switch, the defendant had failed to do so.

[10] The defendant's defence is that it was the plaintiff who had removed the grill cover and that the plaintiff was working in an area of the machine that was unsafe and therefore the resulting injury was brought on by himself.

Issues

[11] The main issues are:

(a) whether the defendant was negligent;
(b) whether there was contributory negligence by the plaintiff;
(c) whether the plaintiff should be governed by the Workmen's Compensation Act 1952 ("the WC Act") or whether the plaintiff can file these proceedings in court, and the law on compensation or damages applicable in this case.

Whether The Defendant Was Negligent

[12] As provided in ss. 102 and 103 of the Evidence Act 1950, the burden of proof is on the plaintiff to prove the defendant's negligence as alleged.

[13] The plaintiff himself (PW1) was his only witness. He testified that from the start of his work, the printing machine had no grill cover and the auto stop switch was not working. He had raised this issue before with the defendant but the defendant did not install the grill cover and the auto stop switch was still not working. That was why, while working on the machine, the plaintiff's hand got caught in the machine resulting in his arm being crushed and had to be amputated.

[14] The question is whether the grill cover was installed and in place at the machine, and the auto stop switch was in good working condition, when the accident happened to the plaintiff.

[15] The only evidence adduced by the plaintiff of the defendant's negligence is his own oral evidence.

[16] However, the defendant's own witness, Lim Min Long (DW1), the supplier of the printing machine to the defendant, under cross-examination, testified that soon after the accident, when his engineer was asked to check the machine, the engineer found that the grill cover was not on the machine, but it had been taken off. In DW1's own words:

My Engineers, that time Mr. Tan he told me that the grill is not fixing on the machine...
That means the whole grill was not with the machine....
That means that they had already taken out. Once the grill is taken out the safety switch is free and it can be run.

[17] In re-examination, DW1, further stated that after the incident, the grill cover was found somewhere in the factory, and his engineer, Tan Chai Eng ("Tan"), fixed it back onto the machine.

[18] Tan was not called as a witness by the plaintiff and the defendant. From DW1's testimony, the court finds that on the instructions of DW1, Tan had gone to check the machine immediately after the accident. Even without Tan's evidence, the court accepts DW1's evidence since DW1 was Tan's employer and Tan had informed DW1 that the grill cover was not on the machine when he went to check the machine.

[19] According to DW1, the removal of the grill cover is a complicated process and it is done by DW1's engineers. There is no evidence that the plaintiff himself had removed the grill cover. It is not probable that the plaintiff would remove the grill cover considering that he had made repeated requests to the defendant to fix the grill cover.

[20] Counsel for the defendant submitted that the defendant had nothing to benefit from removing the grill cover. I am of the view that, similarly, the plaintiff had nothing to gain from removing the grill cover. From the evidence of the plaintiff and DW1, the court finds that it is more probable that the grill cover was not fixed onto the machine. That is why the accident happened and the plaintiff was injured. If the grill cover had been fixed as required, the accident would not have happened.

[21] The plaintiff did not call his co-worker, who was then working with him, as a witness, to support his evidence. This is because the plaintiff's co-worker is a foreign worker and cannot now be traced. In view of this reasonable excuse, the court does not think that the adverse inference in s. 114(g) of the Evidence Act 1950 should be invoked against the plaintiff.

[22] Even without the co-worker's evidence, the plaintiff is able to have benefit of DW1's evidence which support the plaintiff's allegation that the grill cover was not fixed onto the machine. According to DW1, the accident was caused by the grill cover being taken out, and not because the auto stop switch was faulty.

[23] Heng Bak Hin (DW2), the plaintiff's supervisor at the printing factory for quality control of printed material, informed the court that the machine could not stop automatically when the plaintiff's hand got caught between the rollers because when the grill cover was lifted, the auto stop switch could not work.

[24] Regarding training, the court finds that the defendant did not provide training to the plaintiff on how to operate the machine. This is because, according to DW3, when the plaintiff first approached him asking to be employed, the plaintiff was already experienced in working with printing machines. In fact, the plaintiff was employed in his previous job to operate printing machines. DW3 stated that from the commencement of his employment, the plaintiff was able to operate the defendant's machine on his own.

[25] The court is of the view that since the plaintiff is an experienced printing machine operator, and he was employed by the defendant based on his experience, there is no negligence on the defendant's part in not providing the plaintiff with proper training to work on the defendant's printing machine.

[26] It is to be noted that DW3 admitted that the defendant did not report the accident as required under the Factories And Machineries Act 1967. It was the plaintiff himself who reported the accident to the Department of Safety and Health. The question arises as to why the defendant, as the employer of the plaintiff, failed to report the accident as required by law. Had the defendant reported the accident, proper investigations would have been conducted by the relevant authorities on the matter. Furthermore, under s. 15 of the Occupational Safety and Health Act 1994, "It shall be the duty of every employer and self-employed person to ensure, so far as is practicable, the safety, health and welfare of all his employees."

[27] From the totality of the evidence adduced, on a balance of probabilities, the court is satisfied that the defendant was negligent when it breached its duty of care in not ensuring that, at all times, the grill cover was fixed onto the machine when the plaintiff was working. The plaintiff was injured in the accident as a result of the defendant's breach of duty of care.

Whether There Was Contributory Negligence By The Plaintiff

[28] The plaintiff's accident happened at the back of the machine ie, at the middle portion ("the middle portion"). According to DW1 and DW2, the correct way to clean the paper dust off the machine should be at the front portion of the machine, and not at the middle portion which the plaintiff did. DW1, under cross-examination, stated that the reason why machine operators clean paper dust off the roller at the middle portion of the printing machine is because they are lazy and it is convenient for them.

[29] The plaintiff testified that he was instructed by his supervisor to clean the rollers at the centre portion to prevent wastage of paper and ink. However, this evidence was rebutted by DW1 and DW2 who stated that there would be not much difference in terms of wastage whether machine was cleaned at the front portion or the middle portion of the machine.

[30] DW2, as the plaintiff's supervisor, testified, inter alia :

- That the rollers must not be cleaned at the middle portion of the machine because the machine will not stop even if there is something caught in between the rollers. The back of the machine, ie, at the middle portion, is equipped with a grill cover for the safety of the machine operator and if this grill cover is lifted, the machine could not be switched on. If the grill cover is lifted whilst the machine is running, it will stop automatically.
- The machine operator will not be able to switch on the machine with the grill cover lifted unless the two holes on the machine which are to be filled by part of the grill cover, are stuffed with other items, creating a false indication that the grill cover has been lowered down ie, fixed onto the machine.
- The back part of the grill cover can be lifted for the purposes of taking out the rollers for washing after finishing printing.
- The printing machine has three auto off switches and a safety bar at the roller to avoid accident.
- After the accident, he discovered that the two holes on the plaintiff's printing machine were stuffed with paper.
- DW2 is of the view that the accident would not have occurred if the grill cover was not lifted and that the rollers were cleaned from the front part of the machine.
- DW2 confirmed that the printing machines owned by the defendant are without modifications.
- DW2 personally had seen the plaintiff lifting the grill cover while printing was ongoing on several occasions and had warned him of the danger.

[31] The defendant did not adduce any evidence of DW2 or any other employee of the defendant who, at the material time, had seen the plaintiff lifting the grill cover, or removing it from the machine, to make his job easier, or that he had stuffed paper into the two holes on the machine to enable the machine to continue to run even if the grill cover is lifted or removed from the machine.

[32] As for working at the wrong portion of the machine to clean the rollers ie, at the middle portion, it is highly probable that despite DW2's oral warnings, the plaintiff continued to work at the middle portion since it was easier to do the cleaning. The plaintiff is an experienced printing machine operator. DW2 was only his supervisor for controlling the quality of the printed material, that the printing is clean and good. However, as DW2 stated, DW2 was not the plaintiff's supervisor for safety aspects. The plaintiff, in view of his experience, ought to know that for his own safety, he should be cleaning the rollers at the front portion of the machine rather than at the middle portion, more so when he could see for himself that the grill cover was lifted and not in place and yet because the holes were stuffed with paper, the machine could still run and it would be dangerous and to his detriment if he were to work at that middle portion of the machine. The plaintiff should have heeded DW2's previous oral warnings for his own good. It is highly improbable for DW2 to instruct the plaintiff to work at the middle portion of the machine just because he wanted the printing to be of good quality.

[33] Section 12(1) and (6) of the CLA provide as follows:

Apportionment of liability in case of contributory negligence
12.(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage:
(6) In this section "fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.

[34] The court finds that the plaintiff had partly by his own fault in cleaning the rollers at the wrong portion of the machine, ie, at the middle portion, contributed to the accident. He should be made 50% liable for contributory negligence.

Whether The Plaintiff Should Be Governed By The WC Act Or Whether The Plaintiff Can File These Proceedings In Court, And The Law On Compensation Or Damages Applicable In This Case

[35] The question is whether the plaintiff is a "workman" within the meaning of the WC Act.

[36] The meaning of "workman" is given in s. 2(1) and proviso (a) thereto of the WC Act as follows:

2.(1) In this Act, unless the context otherwise requires, the expression "workman", subject to the proviso to this subsection, means any person who has, either before or after the commencement of this Act, entered into or works under a contract of service or of apprenticeship with an employer, whether by way of manual labour or otherwise, whether the contract is expressed or implied or is oral or in writing, whether the remuneration is calculated by time or by work done and whether by the day, week, month or any longer period:
Provided that the following persons are excepted from the definition of "workman":

(a) Any person employed otherwise than by way of manual labour whose earnings, calculated in accordance with section 9, exceed five hundred ringgit a month'.

[37] In the plaintiff's PATI registration slip under the 6P Program (CBOD part B p. 23), the plaintiff was registered under the Manufacturing Sector (Perkilangan).

[38] In the plaintiff's specialist report dated 14 August 2012 prepared by Dr Chee Chia Shing of Teo Orthopaedic Clinic Sdn Bhd (CBOD Part A pp. 11 and 12), the plaintiff had informed his specialist doctor that he was a factory worker at the material time of the accident.

[39] The defendant, through the evidence of Cindy Mak Kah Wai (DW4), had adduced evidence that the plaintiff was registered as a general worker under the Factory Sector (Perkilangan).

[40] The term "manual labour" has not been defined in the WC Act.

[41] According to the Concise Oxford Dictionary, 9th edn., Thumb Index Edn., the word "manual" means "of or done with the hands", whilst the word "labour" means "physical or mental work; exertion; toil".

[42] Applying the above Oxford Dictionary meanings, the court is of the opinion that the plaintiff does not fall within proviso (a) to s. 2(1) of the WC Act which excludes coverage of non-manual workers earning more than RM500 a month, but instead was employed by the defendant by way of manual labour under the substantive provision of s. 2(1) of the same Act, and earning more than RM500 a month. Accordingly, the plaintiff is governed by the WC Act.

[43] However, according to DW3, until the plaintiff's work permit under the 6P Program was approved by the government, the defendant could not purchase an insurance policy for the plaintiff. This was confirmed by DW4, the foreign worker agent.

[44] It is to be noted that s. 26 of the WC Act makes it mandatory for the employer to insure the plaintiff as his workmen. Section 26(1) and (2) of the Act provide as follows:

Compulsory insurance by employer
26.(1) Every employer shall insure and keep himself insured with an insurer within the meaning of the Insurance Act 1963 [Act 89] in respect of any liability which he may incur under this Act to every workman employed by him.
(2) Notwithstanding subsection (1) the Minister may by order approve an insurance scheme, and upon the coming into force of the order, every employer shall insure and keep himself insured under the approved insurance scheme in respect of any liability which he may incur under this Act to every workman employed by him.

[45] The defendant, as employer, was therefore caught in an ambiguous situation in the interim period until the plaintiff's work permit is approved by the government. Had the defendant insured himself under ss. 26(1) or (2) of the WC Act, then his liability to the plaintiff would have been governed by such insurance policy and the WC Act.

[46] In the absence of any such insurance, the plaintiff is therefore not precluded from filing this claim under s. 28A of the CLA. In fact, even if the plaintiff had been insured by the defendant, the plaintiff is also not precluded from making this civil claim. This is allowed under s. 28A(1)(a) of the CLA which provides:

Damages in respect of personal injury
28A.(1) In assessing damages recoverable in respect of personal injury which does not result in death, there shall not be taken into account:
(a) any sum paid or payable in respect of the personal injury under any contract of assurance or insurance, whether made before or after the coming into force of this Act;

[47] Knowing that the plaintiff could not be insured pending the approval of his work permit, the defendant took a risk in employing the plaintiff. In the absence of any insurance coverage for the plaintiff as a workman, the defendant is liable for damages for the plaintiff's personal injury (see also the decision of Dato Abdul Malik bin Hj Ishak J (as he then was) in Tai Siat Fah (The Lawful Widow and Dependant of Chang Keng Looy, Deceased) & 4 Ors. v. The Lawful Personal Representative of Badrul Hisham bin Hashim [1995] 2 CLJ 649 where it was held, inter alia, that compensation under the WC Act will not bar a dependency claim under s. 7 of the CLA in respect of loss of support and damages for bereavement under s. 7(3A) of the CLA, nor will such compensation be said to be deductible).

[48] However, in determining the quantum of damages to be awarded, this court, while not being bound by the provisions of the WC Act ("the Act") on compensation, in particular ss. 8 and 9 which are relied upon by the defendant, has the discretion to consider the principles contained in the provisions of the Act, as a guide, since the Act applies to plaintiff as a workman. This is for the reason that the Act would have applied to him had the defendant insured him, in which case ss. 8 and 9 of the Act would have applied.

Award On Damages

[49] In view of the earlier finding by this court that the plaintiff is liable for negligence, the damages to be awarded are to be calculated as follows:

Whether Compensation Under The WC Act Should Prevail

[50] Regarding the amount of compensation under the WC Act, the defendant submitted as follows:
Section 8(b) and (c) of the WC provides:

Amount of compensation
8. Subject to this Act the amount of compensation shall be as follows, namely:

(a)...
(b) where permanent total disablement results from the injury:

(i) in the case of an adult who has completed the eighteenth year of his age, a lump sum equal to sixty months earnings or twenty-three thousand ringgit, whichever is the less;
(ii) in the case of any other adult, a lump sum equal to eighty-four months earnings or twenty-three thousand ringgit, whichever is the less; and

(c) where permanent partial disablement results from the injury such percentage of the compensation which would have been payable in the case of permanent total disablement as is proportionate to the permanent loss of earning capacity caused by the injury:

Provided that in the case of an injury specified in the First Schedule the compensation payable shall not be less than such percentage of the compensation which is payable in the case of permanent total disablement as is set opposite to that injury in the said Schedule...

Part II of the First Schedule to the WC Act for "List Of Injuries Deemed To Result In Permanent Partial Disablement" under Serial No. 2 states that for "Amputation below shoulder with stump less than 8" from tip of acromion" the "Percentage of loss of earning capacity is 80%".

[51] The plaintiff's specialist report stated that the plaintiff had suffered amputation of the right upper limb at the level of proximal third of right humerus.

[52] The defendant submitted that the plaintiff is only entitled to compensation under the WC Act as follows:

RM23,000 x 80% = RM18,400.

[53] I have considered the provisions of the WC Act as a guide for this court to determine the amount of compensation to be paid to the plaintiff. However, the court notes that the WC Act was enacted in 1952. Sections 8, 9 and the First Schedule of the Act were last amended by Amendment Act A947 which came into force from 1996. For the past seven years, no amendment had been made to take into account the yearly inflationary rate. In the light of this and, in the interest of justice, I do not think that this court should be bound by the compensation to be awarded under the WC Act, which is unrealistically low and not appropriate for injuries caused in modern day industrial accidents. This is more so considering that the defendant did not insure the plaintiff as required by the Act and the plaintiff's claim in made under the CLA, and not under the WC Act.

General Damages

Pain And Suffering

[54] The undisputed specialist medical report of Dr Chee Chia Shing of Teo Orthopedic Clinic Sdn Bhd (CBOD Part A pp. 11 and 12) states as follows:

Mr Alamgir had sustained severe trauma to his right upper limb as a result of the alleged industrial accident on 8.12.2011.
His crush injury of right upper limb had healed with the following residual disabilities:

(1) Permanent loss of right upper limb due to amputation at the level of proximal third right humerus.
(2) Total loss of function of his right upper limb due to the amputation.

Permanent Disabilities

[55] "The above stated disabilities resulted from the accident and they are permanent disabilities." (emphasis added);

He is not fit to resume his former job as a Factory worker due to his above residual disabilities. (emphasis added).

[56] Based on the guidelines in the Compendium of Personal Injury Awards (2010) (as agreed upon between the Judiciary and the Bar Council) (see Circular No. 258/2010 dated 26 October 2010) at pp. 8 and 9 of the compendium, the court agrees with the plaintiff's submission that an award of RM80,000 is fair and reasonable for the injury and disability suffered by the plaintiff.

Loss Of Earning And Loss Of Earning Capacity

[57] At the time of injury, the plaintiff was 27 years old, married and with one child. As a result of the injury, plaintiff cannot return to his original occupation due the amputation to his right arm.

[58] The plaintiff's loss of amenities, loss of earnings, and future loss of earnings are to be based on the following calculations:

(a)Multiplier

Section 28A(2)(d)(i) of the CLA provides:

28A. (2)(d) in assessing damages for loss of future earnings the Court shall take into account that:

(i) in the case of a person who was of the age of thirty years or below at the time when he was injured, the number of years' purchase shall be 16;";

The multiplier is 16 years of purchase.
16 x 12 months per year = 192 months;

(b) Multiplicand

Plaintiff's average salary (as pleaded and as evidenced by his payslips)	RM3,014.37
Less 1/3 deduction from RM3,014.37 for plaintiff's own living expenses	RM1,004.79
Less current salary	RM 900
	RM1,109.58;

(c) 192 months x RM1,109.58 = RM213,039.36;

100% liability

[59] On the basis of 100% liability, the claim to be allowed should be as follows:

(a) General Damages

(i)	Permanent Disability Pain and Suffering	RM 80,000.00;
(ii)	Loss of Amenities, Loss of Earnings and Loss of Future Earnings	RM213,039.36;

(b) Special Damages

(i) Fees for Expert Medical Report RM530

50% liability

[60] In view of the 50% contributory negligence by the plaintiff, the sums to be awarded should be reduced by 50%.

Decision

[61] Based on the above considerations, the court allows the plaintiff's claim in prayer 9 of the amended SOC as follows:

(a) General damages:

(i)	Permanent Disability and Pain and Suffering	RM 40,000.00
(ii)	Loss of Amenities, Loss of Earnings and Loss of Future Earnings	RM106,519.68

(b) Special damages RM 265.00
(c) Interests at 5% per annum from the date of filing of the writ of summons until the date of full realisation;
(d) Costs of RM20,000.

[2014] 1 LNS 90