Rexallent Construction Sdn. Bhd v Berjaya Sompo Insurance Berhad (BA-12BC-7-05/2021)

Safetags Solutions Sdn. Bhd. (Safetags) is a developer of mixed development project in Pusat Bandar Putra Permai (Project).

Rexallent Construction Sdn. Bhd. (Rexallent) had been appointed to be the main contractor of the Project.

Rexallent had appointed Dexon Electrical Engineering Sdn. Bhd. (Dexon) to do electrical sub-contract works in the Project (Sub-Contract Works).

Dexon appointed Cytrix Engineering Sdn. Bhd. (Cytrix) for the Sub-Contract Works.

Mr. Chong Jiunn Fei (Jiunn Fei) is Cytrix’s director.

At the material time - (Cheng Voon); Policy” [Safetags’ Policy (BSI)] with Berjaya Sompo Insurance Bhd. (BSI) which insured Safetags, Rexallent, sub-contractors and their employees regarding any loss or damage due to the works in the Project (Works); and MSIG Insurance (Malaysia) Bhd. (MSIG) to indemnify Dexon, Safetags, Rexallent, sub-contractors and their employees for any loss or damage caused by the Works [Dexon’s Policy (MSIG)].

At about 11.45 am on 3.3.2016, at the Project’s construction site (Site) - (Incident); and (Cheng Voon’s Injuries). Cheng Voon was rendered unconscious in the Incident.

With regard to Cheng Voon’s Injuries, Cheng Voon filed this suit in SC (This Action) against the following four defendants (4 Defendants):

Cheng Voon’s Statement of Claim had pleaded three causes of action against the 4 Defendants as follows: Safety and Health Act 1994 (OSHA). Policy (MSIG) respectively. Consequently, in this case, Rexallent commenced third party proceedings against BSI and MSIG [Rexallent’s Third Party Proceedings (BSI and MSIG)]. Safetags under Safetags’ Policy (BSI) and Dexon’s Policy (MSIG) respectively. As such, third party proceedings were instituted by Safetags in this case against BSI and MSIG [Safetags’ Third Party Proceedings (BSI and MSIG)]. Third Party Proceedings (Jiunn Fei)]. Dexon’s Policy (MSIG) [MSIG’s Payment (Dexon)]. RM73,650.00 to Cheng Voon as a full and final settlement of This Action against Dexon and Cytrix [SC’s Consent Judgment (Cheng Voon, Dexon and Cytrix)]. Pursuant to SC’s Consent Judgment (Cheng Voon, Dexon and Cytrix), Dexon’s Third Party Proceedings (Jiunn Fei) were discontinued. -

Encik Shaharuddin Bin Mohd. Ali, the head of Investigation and Prosecution Section, Department of Occupational Safety and

Encik Zarir Ramiz Bin Mustafa (SP2), DOSH’s Investigating

Cheng Voon;

Encik Akamal Azhari Bin Biden, the Finance Manager of Kuala

Mr. Goh Toh Ming, sole proprietor of Kentat Hardware Trading;

Cheng Voon’s wife, Madam Lim Mooi See; and

Jiunn Fei;

Mr. Lim Shin Tsann, Senior Project Executive with Titijaya PMC Sdn. Bhd. (TPMC). TPMC had been appointed by Safetags to manage the development of the Project; and

Mr. Teh Kian Joo, TPMC’s Senior General Manager (Mr. Teh);

Mr. Goh Hong Ping, the Managing Director of Dexon;

Encik Saruji Bin Saari, Rexallent’s Mechanical and Electrical

Mr. Kua Che Leang, Rexallent’s Quantity Surveyor;

Encik Mohammad Syarif Bin Abd. Ghani (Encik Syarif), a Site Safety and Health Supervisor attached to Safety Practitioner Consultancy Training & Service Sdn. Bhd. (SPCTS). SPCTS had been appointed by Rexallent to supervise safety and health aspects at the Site;

Mr. Liu Loong Kwan, Rexallent’s Site Manager;

Encik Hairul Nazri Bin Bakar, Rexallent’s Site Manager; and

Mr. Fong Tuck Yong, Rexallent’s General Manager; Manager, testified on behalf of MSIG; and Ahmad Azhari bin Abdul Hamid (SCJ), delivered a draft judgment (SC’s Draft Judgment) through an email from the court interpreter, Ms. Ivy Cynthia Lim (Court Interpreter), to the email addresses of counsel for Cheng Voon, Safetags, Rexallent, MSIG and BSI (Court Interpreter’s Email). Rexallent (Mr. Goh Boon Yee) proposed certain amendments to SC’s Draft Judgment but the learned SCJ did not accept such proposals and sealed the judgment (SC’s Judgment). It is to be noted that for the present appeals to the High Court against SC’s Judgment, Safetags and Rexallent are represented by Mr. Gabriel Daniel.

Safetags and Rexallent are adjudged to be 100% liable to Cheng Voon for general damages and special damages totaling RM373,792.00 (Total Damages); and

with regard to the Total Damages, Safetags is adjudged to be 20% liable to Cheng Voon while Rexallent should bear 80% liability; Judgment; Cheng Voon; MSIG) with costs to be paid by Rexallent to BSI and MSIG. C. Six appeals to High Court against SC’s Judgment (6 Appeals) Civil Appeal no. BA-12BC-5-05/2021 regarding SC’s dismissal of Rexallent’s third party proceedings against MSIG with costs [Rexallent’s Appeal (MSIG)]; Voon)]; Rexallent’s appeal against the learned SCJ’s dismissal with costs of Rexallent’s third party proceedings against BSI [Rexallent’s Appeal (BSI)]; Appeal no. BA-12BC-8-05/2021 has been instituted by Safetags against SC’s dismissal of Safetags’ third party proceedings against MSIG [Safetags’ Appeal (MSIG)]; SC’s Judgment which adjudged Safetags to be 20% liable to Cheng Voon for the Total Damages [Safetags’ Appeal (Cheng Voon)]; and D.

does the definition of “remote communication technology” in s 2(1) of the Subordinate Courts Act 1948 (SCA) include emails?;

the effect of ss 101B(1) and 109 SCA;

the meaning of the terms “officer” and “proceeding” in O 1 r 4(1) of the Rules of Court 2012 (RC); and

the effect of O 42 r 1(1) and (5) RC;

there is a contradiction in SC’s Judgment as follows -

SC’s Judgment has adjudged both Safetags and Rexallent to be 100% liable to Cheng Voon; and

(ii) SC’s Judgment has also adjudged Safetags and Rexallent to bear 20% and 80% respectively of the liability to Cheng Voon; and

SC’s Judgment did not adjudge which party to pay the Total

in view of s 59(a) OSHA, whether Cheng Voon can rely on a breach of any provision in OSHA and/or subsidiary legislation of OSHA [Subsidiary Legislation (OSHA)] by Rexallent and/or Safetags regarding the Incident to claim for damages based on a tort of breach of statutory duty under OSHA and/or Subsidiary

can Rexallent and Safetags rely on s 31 of the Employees’ Social Security Act 1969 (SOCSO) when such a defence has not been pleaded in the defences of Rexallent and Safetags?;

did SC err in fact by deciding that the Incident happened at a “safe access” location at the Site?;

for the purpose of tort of occupier’s liability, whether the learned SC Judge had erred in deciding the following matters -

both Rexallent and Safetags had a sufficient degree of control of the Site at the time of the Incident to be “occupiers” of the Site;

(ii) Cheng Voon was an “invitee” to the Site; and

(iii) the falling of the Plank on Cheng Voon’s head constituted an “unusual danger” to Cheng Voon for which Rexallent and Safetags had failed to take reasonable care as occupiers of the Site to prevent such an unusual danger from causing Cheng Voon’s injuries;

had SC committed an error in finding Rexallent and Safetags to be liable in the tort of negligence for Cheng Voon’s Injuries? In this regard, whether the learned SCJ had correctly invoked “res ipsa loquitur” principle in favour of Cheng Voon against

did SC correctly decide that Safetags and Rexallent had breached reg. 5(1)(aa) and (bb) of the Occupational Safety and Health (Notification of Accident, Dangerous Occurrence,

regarding the allegation by Rexallent and Safetags that Cheng Voon was guilty of contributory negligence because at the time of the Incident, he did not wear the safety helmet properly (Cheng Voon’s Helmet), whether the learned SC Judge had erred in following previous cases in Malaysia, United Kingdom (UK) and Singapore that a motorcyclist’s failure to wear a crash helmet at the time of a motor collision, did not constitute contributory negligence on the motorcyclist’s part [Previous Decided Cases (Motorcyclist’s Failure To Wear Crash Helmet]. In this regard, should this court follow or depart from

in respect of the award of damages by SC (SC’s Damages Award), whether there is any basis for appellate intervention by the High Court regarding the -

award of special damages and general damages made by the learned SCJ;

(ii) quantum of special damages and general damages determined by SC; and

(iii) apportionment of liability between Rexallent and Safetags; -

did Dexon’s Policy (MSIG) cover Cheng Voon, an employee of

whether the learned SCJ had committed a legal error by deciding that MSIG could rely on clause 2 under the heading “Exceptions” in Dexon’s Policy (MSIG) [Exception 2 (MSI)] to exclude its liablity to Rexallent and Safetags under Dexon’s

can MSIG rely on s 31 SOCSO to exclude its liability pursuant to Dexon’s Policy (MSIG)?;

whether MSIG’s Payment (Dexon) could exclude MSIG’s liability to indemnify Rexallent and Safetags under Dexon’s

did SC err in applying “Endorsement W60” to Dexon’s Policy (MSIG) (Endorsement W60) to exclude MSIG’s liability to Rexallent and Safetags pursuant to Dexon’s Policy (MSIG)?; and

whether the learned SCJ had committed a legal error in determining that Rexallent and Safetags had failed to notify MSIG regarding their claims for indemnity within six months from the date of the Incident, as required by paragraph (a) under the title “Loss Notification Clause” {Paragraph (a) [Loss

whether this court should dismiss in limine Rexallent’s Appeal (BSI) and Safetags’ Appeal (BSI) by upholding a “preliminary issue” by BSI’s learned counsel that the two memoranda of appeal of Rexallent and Safetags did not specify “points of law or fact which are alleged to have been wrongly decided” by SC within the meaning of O 55 r 4(3) RC;

did Safetags’ Policy (BSI) apply to Cheng Voon, an employee of

did the learned SCJ err in deciding that BSI could rely on s 31 SOCSO so as to be excluded from liability to Rexallent and Safetags under Safetags’ Policy (BSI)? In this regard, was BSI estopped by the contents of BSI’s letter dated 29.11.2018 [BSI’s Letter (29.11.2018)] to Messrs Murali B. Pillai and Associates (Messrs MPA) that BSI “declined the insured’s claim based on breach of policy Condition No. 3 [Condition 3 (BSI)]”;

whether BSI was estopped by BSI’s Letter (29.11.2018) from relying on “Exception 2” in Safetags’ Policy (BSI) [Exception 2 (BSI)]; and

had Rexallent and Safetags breached Condition 3 (BSI) read with “Condition 10” of Safetags’ Policy (BSI) [Condition 10 (BSI)]? E. Can SC’s Draft Judgment be sent by way of Court Interpreter’s Email? “SCA s 2(1) In this Act, unless the context otherwise requires - … “remote communication technology” means a live video link, a live television link or any other electronic means of communication; … s 101B Court may conduct proceedings through remote communication technology

Without limiting section 101, the court may, in the interest of justice, conduct the proceedings of any cause or matter, civil or criminal, or hold any inquiry, through a remote communication technology. … s 109 Provision to prevent conflict of laws. In the event of inconsistency or conflict between this Act and any other written law in force at the commencement of this Act, the provisions this Act shall prevail. RC O 1 r 4(1) In this Rules, unless the context otherwise requires - … “Judge” means a Judge or Judicial Commissioner of the High Court and includes, where he is empowered to act, a Judge of the Sessions Court, a Magistrate or a Registrar, as the case may require; … “officer” means an officer of the High Court, Sessions Court or Magistrates’ Court and includes a Registrar, Court interpreter, bailiff, clerk, process server or other officer who is attached to a Court; … “proceeding” means any proceeding whether in open Court or in Chambers and includes an application at any stage of a proceeding which is deemed to have started when an action is filed; … O 42 Judgment and orders Delivering judgment r 1(1) Every judgment, after the hearing of a cause or matter in open Court, shall, subject to paragraphs (3) and (4), be pronounced in open Court either on the conclusion of the hearing or on a subsequent day of which notice shall be given to the parties. …

This rule shall apply to every judgment or order pronounced or delivered in the proceeding held through a remote communication technology.” (emphasis added). of this case should have been delivered in open court by a “Judge” (not by the Court Interpreter); RC]. The Court Interpreter had no jurisdiction, power and authority to deliver SC’s Draft Judgment by way of Court Interpreter’s Email; Court’s Registrar); Judgment made by learned counsel for Safetags and Rexallent; and Alam Sessions Court Civil Suit no. BA-B52C-56-10/2017 (Loke Wai Kuan’s Case): Court Judge, Puan Azian Bt. Othman; and SC’s decision (after trial) to all the learned counsel [SC’s Decision (Court Interpreter’s Email)]. SC’s Decision (Court Interpreter’s Email) was in favour of the plaintiffs against all the defendants. Golf & Country Resort Bhd. (D4), had filed Shah Alam High Court Originating Summons no. BA-24NCVC-519-04/2021 against the plaintiffs (D4’s OS). D4’s OS had sought for, among others, a declaration that SC’s Decision (Court Interpreter’s Email) was null and void on grounds which were similar to the grounds advanced by Mr. Gabriel Daniel to invalidate SC’s Judgment in this case. [Dismissal (D4’s OS)]. D4 did not appeal to the Court of Appeal against the Dismissal (D4’s OS). SC’s Draft Judgment had been lawfully sent to all learned counsel in this case by way of the Court Interpreter’s Email. These grounds are as follows: in s 2(1) SCA is identical to the meaning of “remote communication technology” in s 3 of the Courts of Judicature Act 1964 (CJA); “proceedings” as “any proceeding whatsoever of a civil or criminal nature”. The court’s power to conduct proceedings through a remote communication technology pursuant to s 101B(1) SCA includes the court’s power to email the court’s decision, judgment or order to all learned counsel and/or solicitors of the parties. The Court Interpreter is an “officer” of the court within the meaning of O 1 r 4(1) RC. The learned SCJ in this case was empowered under s 101B(1) SCA to direct the Court Interpreter (officer of SC) to send SC’s Draft Judgment by way of the Court Interpreter’s Email. It is to be noted that according to s 109 SCA, if there is a conflict between any provision in SCA [such as s 101B(1) SCA] and any other written law, the former shall prevail over the latter; Court either on the conclusion of the hearing or on a subsequent day of which notice shall be given to the parties”. According to O 42 r 1(5) RC, O 42 r 1(1) RC shall apply to every judgment “pronounced or delivered in the proceeding held through a remote communication technology”. When SC’s Draft Judgment had been sent in the Court Interpreter’s Email, there was no breach of O 42 r 1(1) and (5) RC because SC’s Draft Judgment had been “pronounced” in the Court Interpreter’s Email to all the parties (through their learned counsel); O 42 r 1(5) RC; SCJ to send SC’s Draft Judgment by way of the Court Interpreter’s Email. This is clear from the following evidence and reasons -

subsequent to SC’s Draft Judgment, SC’s Judgment (premised on SC’s Draft Judgment) was sealed by SC;

the written grounds for SC’s Judgment (GOJ) had been prepared by the learned SCJ. The GOJ clearly supported the contents of SC’s Draft Judgment; and

if the Court Interpreter had emailed SC’s Draft Judgment without any direction by the learned SCJ, the learned SCJ would have informed all the learned counsel of such a fact and disciplinary action would have been taken by the learned SCJ against the Court Interpreter; and Draft Judgment by way of the Court Interpreter’s Email -

there was no delegation of any jurisdiction, power and duty of the learned SCJ to the Court Interpreter;

the Court Interpreter did not usurp the jurisdiction, power and duty of the learned SCJ by sending SC’s Draft Judgment in the

there was no requirement that the Court Interpreter’s Email should have stated that -

the Court Interpreter’s Email had been sent on the direction of the learned SCJ; and

(ii) SC’s Draft Judgment had been prepared by the learned SCJ; and

the Court Interpreter’s Email was not required to be copied to the learned SCJ and Subordinate Court’s Registrar. SC’s Judgment without accepting any proposed amendment to SC’s Draft Judgment made by the then learned counsel for Safetags and Rexallent. Decision/Judgment/Order), especially after a trial, the court should deliver the Court’s Decision/Judgment/Order to all the parties, their learned counsel and/or solicitors through “Zoom”, the remote communication technology subscribed by our courts (Zoom Online Decision). I am of the view that a Zoom Online Decision is to be preferred to the delivery of the Court’s Decision/Judgment/Order by way of an email due to the following reasons: Court’s Decision/Judgment/Order during the Zoom Online Decision; and Email Exchange. F. Whether SC’s Judgment was ambiguous Matter (SC’s Judgment)]; and Matter (SC’s Judgment)]. The 1st Matter (SC’s Judgment) has provided that each of Safetags and Rexallent is 100% liable to Cheng Voon for the Total Damages. The 2nd Matter (SC’s Judgment) has stated that as between Safetags and Rexallent themselves, Safetags is only liable for 20% of the Total Damages while Rexallent should bear 80% of the Total Damages. For example, if Safetags has paid 100% of the Total Damages to Cheng Voon - Rexallent; and Damages from Rexallent. G. Rexallent’s Appeal (Cheng Voon) and Safetags’ Appeal (Cheng Voon) G(1). Is there a tort of breach of statutory duty under OSHA and Subsidiary Legislation (OSHA)? Appeal (Cheng Voon) on, among others, the ground that Rexallent and Safetags had committed a tort of breach of statutory duties under OSHA and Subsidiary Legislation (OSHA). Employers and Self-Employed Persons) and s 59 OSHA: “s 15 General duties of employers and self-employed persons to their employees.

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.

Without prejudice to the generality of subsection (1), the matters to which the duty extends include in particular -

the provision and maintenance of plant and systems of work that are, so far as is practicable, safe and without risks to health;

the making of arrangements for ensuring, so far as is practicable, safety and absence of risks to health in connection with the use or operation, handling, storage and transport of plant and substances;

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;

so far as is practicable, as regards any place of work under the control of the 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;

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.

For the purposes of subsections (1) and (2) -

“employee” includes an independent contractor engaged by an employer or a self-employed person and any employee of the independent contractor; and

the duties of an employer or a self-employed person under subsections (1) and (2) extend to such an independent contractor and the independent contractor’s employees in relation to matters over which the employer or self-employed person -

has control; or

(ii) would have had control but for any agreement between the employer or self-employed person and the independent contractor to the contrary. s 16 Duty to formulate safety and health policy. Except in such cases as may be prescribed, it shall be the duty of every employer and every self-employed person to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the safety and health at work of his employees and the organization and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees. s 17 General duties of employers and self-employed persons to persons other than their employees.

It shall be the duty of every employer and every self-employed person to conduct his undertaking in such a manner as to ensure, so far as is practicable, that he and other persons, not being his employees, who may be affected thereby are not thereby exposed to risks to their safety or health.

It shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons, not being his employees, who may be affected by the manner in which he conducts his undertaking, the prescribed information on such aspects of the manner in which he conducts his undertaking as might affect their safety or health. s 18 Duties of an occupier of a place of work to persons other than his employees.

An occupier of non-domestic premises which has been made available to persons, not being his employees, as a place of work, or as a place where they may use a plant or substance provided for their use there, shall take such measures as are practicable to ensure that the premises, all means of access thereto and egress therefrom available for use by persons using the premises, and any plant or substance in the premises or provided for use there, is or are safe and without risks to health.

A person who has, by virtue of a contract or lease or otherwise, an obligation of any extent in relation to-

the maintenance or repair of a place of work or any means of access thereto or egress therefrom; or

the prevention of risks to safety and health that may arise from the use of any plant or substance in the place of work, shall for the purpose of subsection (1) be deemed to have control of the matters to which his obligation extends. s 59. Civil liability not affected by Parts IV, V and VI. Nothing in Parts IV, V and VI and the relevant industry code of practice shall be construed as -

conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of those Parts;

conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings; or

affecting the extent, if any, to which a right of action arises or civil proceedings may be taken with respect to breaches of duties imposed by other legislations in regard to safety and health.” (emphasis added). OSHA cannot confer “a right of action in any civil proceedings” regarding such a breach. In other words, there cannot be a tort of breach of statutory duty under Part IV OSHA. If there cannot be a tort of breach of statutory duty under Part IV OSHA, then a fortiori there cannot be a tort of breach of statutory duty under Subsidiary Legislation (OSHA). G(2). Can Rexallent and Safetags rely on s 31 SOCSO? “s 31 Liability of employer and his servant. An insured person or his dependants shall not be entitled to receive or recover from the employer of the insured person, or from any other person who is the servant of the employer, any compensation or damages under any other law for the time being in force in respect of an employment injury sustained as an employee under this Act: Provided that the prohibition in this section shall not apply to any claim arising from motor vehicle accidents where the employer or the servant of the employer is required to be insured against Third Party Risks under Part IV of the Road Transport Act 1987 [Act 333].” SOCSO. This is because, according to Mr. Gabriel Daniel, Cheng Voon had received compensation from Social Security Organization in respect of Cheng Voon’s Injuries. Safetags cannot rely on s 31 SOCSO to support Rexallent’s Appeal (Cheng Voon) and Safetags’ Appeal (Cheng Voon). This is because the defences of Rexallent and Safetags filed in This Suit had not pleaded such a defence as required by O 18 rr 8(1)(a), (b) and 12(1) RC. I reproduce below the relevant parts of O 18 rr 8(1)(a), (b) and 12(1) RC: “Matters which shall be specifically pleaded O18 r 8(1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality -

which he alleges makes any claim or defence of the opposite party not maintainable;

which, if not specifically pleaded, might take the opposite party by surprise; … Particulars of pleading O 18 r 12(1) Subject to paragraph (2), every pleading shall contain the necessary particulars of any claim, defence …” (emphasis added). At all material times, Rexallent and Safetags were legally represented at the Trial. Yet, Rexallent and Safetags did not apply to SC to amend their defences so as to include their reliance on s 31 SOCSO. It is trite law that a party is bound by the party’s pleading. I cite the following judgment of Azahar Mohamed FCJ (as he then was) in the Federal Court case of Saiman bin Umar v Lembaga Pertubuhan Peladang & another appeal [2015] 6 MLJ 492, at [40] and [41]: “[40] In our view, there is merit in the submissions of learned counsel for the defendant. It is a well-settled legal principle that the court should not decide on an issue that was not pleaded by the parties as had been decided in Yew Wan Leong v Lai Kok Chye where the Supreme Court cited Janagi v Ong Boon Kiat [1971] 2 MLJ 196 and agreed with the following passage of Sharma J which stated: The court is not entitled to decide a suit on a matter on which no issue has been raised by the parties, it is not the duty of the court to make out a case for one of the parties when the party concerned does not raise or wish to raise the point. In disposing of a suit or matter involving a disputed question of fact it is not proper for the court to displace the case made by a party in its pleadings and give effect to an entirely new case which the party had not made out in its own pleadings. The trial of a suit should be confined to the pleas on which the parties are at variance. [41] We should remind ourselves that parties to an action are bound by their own pleadings. It is therefore necessary to make the point that the court is also bound by the pleadings in as much as the parties themselves. ...” (emphasis added). Cheng Voon, Rexallent and Safetags had adduced oral and documentary evidence at the Trial. SC’s Judgment had already been delivered. It is now too late in the day for Rexallent and Safetags to invoke s 31 SOCSO in Rexallent’s Appeal (Cheng Voon) and Safetags’ Appeal (Cheng Voon). G(3). Where did Incident happen? and Encik Syarif that the Incident happened at a “safe access” at the Site [SC’s Factual Finding (Place of Incident)]. A safe access at a construction site means a place where workmen can work and pass through safely without any object falling on their heads. Factual Finding (Place of Incident). I am not able to do so because as a general rule, an appellate court shall not intervene regarding a trial court’s findings of fact, especially regarding findings on credibility of witnesses, unless there is a plain error of fact by the trial court which has caused an injustice and warrants appellate intervention - please refer to the judgment of Steve Shim CJ (Sabah & Sarawak) in the Federal Court case of Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309, at 317-321. It is to be emphasised that the trial court has the audio-visual advantage of listening to the oral testimonies of the witnesses and to assess their demeanour. I am not satisfied that SC’s Factual Finding (Place of Incident) constitutes a plain factual error which requires appellate intervention. It is to be noted that SP2 is a public officer without any interest in the outcome of this case. Hence, the learned SCJ did not err in attaching weight to the testimony of SP2, an independent witness. G(4). Whether SC had erred in finding Rexallent and Safetags liable to Cheng Voon under tort of occupier’s liability probabilities all the following three matters [3 Elements (Occupier’s Liability)]: “occupiers” of the Site [1st Element (Occupier’s Liability)]; Liability)]; and “unusual danger” to Cheng Voon for which Rexallent and Safetags had failed to take reasonable care as occupiers of the Site to prevent such an unusual danger from causing Cheng Voon’s injuries [3rd Element (Occupier’s Liability)]. G(4A). Was 1st Element (Occupier’s Liability) fulfilled in this case? E Lacon & Co Ltd [1966] AC 552, at 578: “Translating this general principle into its particular application to dangerous premises, it becomes simply this: wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an "occupier" and the person coming lawfully there is his "visitor": and the "occupier" is under a duty to his "visitor" to use reasonable care. In order to be an "occupier" it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be "occupiers." And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other. In Salmond on Torts, 14th ed. (1965), p. 372, it is said that an "occupier" is "he who has the immediate supervision and control and the power of permitting or prohibiting the entry of other persons." This definition was adopted by Roxburgh J. in Hartwell v. Grayson, Rollo and Clover Docks Ltd.34 and by Diplock L.J. in the present case. There is no doubt that a person who fulfils that test is an "occupier." He is the person who says "come in." But I think that test is too narrow by far. There are other people who are "occupiers," even though they do not say "come in." If a person has any degree of control over the state of the premises it is enough.” (emphasis added). Rexallent as the main contractor for the Project, had sufficient control of the Site to be an occupier of the Site [SC’s Factual Finding (Rexallent was Occupier of Site)]. It cannot be denied that a main contractor of a construction project clearly has a high degree of control of the project site so as to be an occupier of the site. Rexallent had “Safety Officers” at the Site to ensure the safety and health of all workmen. Furthermore, I cannot reverse SC’s Factual Finding (Rexallent was Occupier of Site) because such a factual finding is not plainly wrong. Occupier of Site)]. Safetags, as the employer of the Project, retained a sufficient degree of control of the Site to be an occupier of the Site (together with Rexallent as co-occupiers of the Site). This is due to the following evidence and reasons in this case: Safetags and Rexallent [Contract (Safetags-Rexallent)] to, among others, monitor Rexallent’s progress of Works at the Site. Safetags also had the right pursuant to the Contract (Safetags-Rexallent) to request from Rexallent for reports regarding the Works. There was nothing in the Contract (Safetags-Rexallent) which had assigned Safetags’ control of the Site to Rexallent; Works. In fact, Safetags had approved Rexallent’s appointment of Dexon for the Sub-Contract Works; (SO). The SO had control over the Works, including the Sub-Contract Works. In this manner, Safetags had control of the Site; Officer. The Safety Officer was required to report to Safetags regarding any safety concern at the Site; and Safetags in respect of any accident at the Site. Safetags had sent its representatives to attend meetings of the Site Safety Committee; In any event, I accept SC’s Factual Finding (Safetags was Occupier of Site) as such a finding of fact is not obviously erroneous. Liability): Federal Court case of Lembaga Kemajuan Tanah Persekutuan v Mariam & Ors [1984] 1 MLJ 283, at 285; and CLJ 611, at [30]. G(4B). Whether Cheng Voon was an “invitee” to Site Finding (Cheng Voon was Invitee to Site)]. Lumpur v Ong Kok Peng & Anor [1993] 2 MLJ 234, at 238, Peh Swee Chin SCJ has explained that a person (Y) is an “invitee” to a premises if Y enters the premises on business of interest to - (Cheng Voon was Invitee to Site) which is not plainly wrong. G(4C). Was there proof of 3rd Element (Occupier’s Liability)? Site to prevent an unusual danger in the form of the Plank from falling on Cheng Voon’s head. Site to prevent the unusual danger (the falling of the Plank on Cheng Voon’s head) from causing Cheng Voon’s Injuries [SC’s Factual Finding (Occupiers’ Failure to take Reasonable Care to prevent Unusual Danger to Cheng Voon)]. Yah & Ors [1983] 2 MLJ 51, at 54, George Edward Seah FJ has explained what constitutes an “unusual danger” to an invitee as follows: “In our opinion, a dangerous situation per se does not constitute "unusual" danger or risk. The invitor's duty is confined to protection against "unusual" dangers and in London Graving Dock Co Ltd v Horton [1951] AC 737 the House of Lords ruled that an "unusual" risk is one which is not usually found in carrying out the task which the invitee has in hand.” (emphasis added). Premised on Lee Lau & Sons Realty, I accept the contention by Ms. Esther Geetha that the falling of the Plank on Cheng Voon’s head constituted an “unusual danger” to Cheng Voon. This is because when a workman worked on a “safe access” in a construction site [please refer to the above Part G(3)], there was no usual risk or usual danger of any object (such as the Plank) falling on the workman’s head. I am of the view that Safetags and Rexallent had failed to take all reasonable care as occupiers of the Site to prevent the Plank from falling on Cheng Voon’s head so as to cause Cheng Voon’s Injuries. Lastly, SC’s Factual Finding (Occupiers’ Failure to take Reasonable Care to prevent Unusual Danger to Cheng Voon) is not a plain factual error on the part of the learned SCJ. G(4D). Whether Rexallent and Safetags are liable for tort of occupier’s liability G(4C), I have no hesitation to uphold SC’s decision that Safetags and Rexallent are liable for Cheng Voon’s Injuries pursuant to the tort of occupier’s liability. G(5). Were Rexallent and Safetags liable in negligence for Cheng Voon’s Injuries? Element (Negligence)]; Cheng Voon [2nd Element (Negligence)]; and Cheng Voon had caused Cheng Voon’s Injuries which were not too remote and were recoverable in law in the sense that Cheng Voon’s Injuries was reasonably foreseeable [3rd Element (Negligence)]. G(5A). Was 1st Element (Negligence) present? Bhd & Anor v Bank Kerjasama Rakyat Malaysia Bhd [2017] MLJU 201, at [50], I have followed Zainun Ali FCJ’s judgment in the Federal Court in Lok Kok Beng & Anor v Loh Chiak Eong & Anor [2015] 7 CLJ 1008 as follows: “[50] My understanding of Lok Kok Beng is as follows:

liability for negligent misstatement is based on the tort of negligence. In other words, there is no distinction between liability for negligent misstatement and liability for negligent acts/omission; and

in deciding whether a party (X) owes a duty of care to another party (Y), the Court shall consider the following -

whether there is “sufficient legal proximity” between X and Y. It is to be noted that Courts have also applied the test of whether it is reasonably foreseeable that Y will suffer loss or damage arising from X’s misstatement. In this respect, the following considerations are relevant -

the nature of relationship between X and Y;

(ii) whether X has voluntarily assumed responsibility to Y regarding X’s misstatement;

(iii) whether Y has relied on X’s misstatement;

(iv) whether there is physical proximity;

whether there is circumstantial proximity; and

(vi) whether there is causal proximity;

if there is “sufficient legal proximity” between X and Y, X owes a prima facie duty of care to Y. The next question is whether X’s prima facie duty of care is negated by policy consideration. The following matters are pertinent -

the factual matrix of the case;

(ii) whether there is a contract between X and Y; and

(iii) the relative bargaining positions of X and Y;

the Court should adopt an incremental approach by considering the facts of previously decided cases (which have recognized or rejected the existence of duty of care). However, the absence of a similar factual precedent, does not preclude the Court from recognizing the existence of a duty of care when it is just to do so; and

whether there exists a duty of care in a particular case depends on the facts of that case.” (emphasis added). (Negligence) in this case: Project) and Rexallent (as the main contractor of the Project) did not take reasonable care regarding the Works at the Site. There is also physical proximity, circumstantial proximity and causal proximity between Safetags and Rexallent on the one hand and Cheng Voon on the other hand. Accordingly, there was a prima facie duty of care owed by Safetags and Rexallent to Cheng Voon (Prima Facie Duty of Care); and G(5B). 2nd Element (Negligence) and application of res ipsa loquitur principle SCJ had applied res ipsa loquitur principle in favour of Cheng Voon against Rexallent and Safetags. Cheng Voon’s head; and

Rexallent and Safetags had taken all reasonable precautions at the Site to prevent the Incident; and

it was not reasonably foreseeable for the Plank to fall on top of Cheng Voon’s head. FJ (as he then was) in the Federal Court in MA Clyde v Wong Ah Mei & Anor [1970] 2 MLJ 183, at 188, as follows: “The next question which I have to consider is whether res ipsa loquitur applies to the circumstances of the present case. As Lord Guest said in Colvilles, Ltd v Devine [1969] 1 WLR 475 477; [1969] 2 All ER 53 56, the doctrine of res ipsa loquitur emanates from the following well-known passage of Erle C.J. in Scott v London and St Katherine Docks Co (1865) 3 H & C 596 601; 159 ER 665 667: "There must be reasonable evidence of negligence. But where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care." Thus, the principal requirement for the maxim to apply is that the mere fact of the accident having happened should tell its own story and raise the inference of negligence so as to establish a prima facie case against the defendant. The story must be clear and unambiguous; if it may tell one of half a dozen stories the maxim is inapplicable. In other words, where it applies, the maxim entitles the plaintiff to rely as evidence of negligence upon the mere happening of the accident. He need not allege or prove any specific act or omission of the defendant if the result, which he does prove, of some unspecified act or omission makes it more probable than not that the damage was caused by the negligence of the defendant. The fundamental basis of the maxim is that the rule that it is for the plaintiff to prove negligence and not for the defendant to disprove it, may cause hardship to the plaintiff if it is impossible for him to know what precise acts of omission led to his damage, and this is most obviously so where the cause of the damage is peculiarly within the means of knowledge of the defendant who caused it. This hardship can sometimes be avoided by the application of the maxim res ipsa loquitur. As Morris L.J. said in Roe v Minister of Health [1954] 2 QB 66 88, "there are certain happenings that do not normally occur in the absence of negligence, and upon proof of these a court will probably hold that there is a case to answer." The maxim, however, is not a principle of substantive law but a rule of evidence. In this connection, Lord Simonds in Woods v Duncan [1946] AC 401 439 said: "But to apply this principle is to do no more than shift the burden of proof. A prima facie case is assumed to be made out which throws upon him the task of proving that he was not negligent. This does not mean that he must prove how and why the accident happened: it is sufficient if he satisfies the court that he personally was not negligent. It may well be that the court will be more easily satisfied of this fact if a plausible explanation which attributes the accident to some other cause is put forward on his behalf; but this is only a factor in the consideration of the probabilities. The accident may remain inexplicable, or at least no satisfactory explanation other than his negligence may be offered: yet, if the court is satisfied by his evidence that he was not negligent, the plaintiffs' case must fail." If the facts are sufficiently known, the question ceases to be whether the facts speak for themselves, and the only question is whether on the facts as established, negligence is to be inferred or not.” (emphasis added). Suraya Bt Abdul Latib & Ors v Khairul Bin Sabri & Others [2020] 4 AMR 365, at [17]. R also has the initial evidential burden pursuant to s 102 EA to prove S’s negligence - Lilies Suraya.

R has suffered loss and/or injury (R’s Loss/Injury);

S has control or management of circumstances which have caused R’s Loss/Injury (S’s Control/Management); and

in the ordinary course of things, if S’s Control/Management has been exercised in a manner wherein S has fulfilled S’s duty to take reasonable care which is owed to R, R’s Loss/Injury would not have been happened; Negligence), Cheng Voon had been rendered totally unconscious by the Incident and was subsequently hospitalized due to Cheng Voon’s Injuries. Consequently, Cheng Voon did not know how the Incident happened. Rexallent and Safetags. I am of the view that Rexallent and Safetags had failed to discharge the evidential burden to prove that Cheng Voon’s Injuries were not caused by the negligence of Rexallent and Safetags. G(5C). Was there proof of 3rd Element (Negligence)? Rexallent and Safetags. Hence, the fulfilment of the 3rd Element (Negligence) in this case. G(5D). Are Rexallent and Safetags liable for tort of negligence? Voon for the tort of negligence. G(6). Whether Rexallent and Safetags had breached reg. 5(1)(aa) and (bb) OSHR “reg. 5 Notification and reporting of accident and dangerous occurrence.

Whenever any accident arising out of or in connection with work which caused any person either -

death; or

serious bodily injury, as specified in First Schedule, which prevents the person from following his normal occupation for more than four calendar days, or where a dangerous occurrence, as specified in Second Schedule, takes place in any place of work, the employer shall - (aa) forthwith notify the nearest [DOSH] office by the quickest means available; and (bb) within 7 days send a report thereof in an approved form.” (emphasis added). I refer to the following definitions of “employer”, “immediate employer” and “principal employer” in s 3(1) OSHA: “s 3 Interpretation.

In this Act, unless the context otherwise requires - … “employer” means the immediate employer or the principal employer or both; … “immediate employer”, in relation to employees employed by or through him, means a person who has undertaken the execution at the place of work where the principal employer is carrying on his trade, business, profession, vocation, occupation or calling, or under the supervision of the principal employer or his agent, of the whole or any part of any work which is ordinarily part of the work of the trade, business, profession, vocation, occupation or calling of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such trade, business, profession, vocation, occupation or calling, and includes a person by whom the services of an employee who has entered into a contract of service with him are temporarily lent or let on hire to the principal employer; … “principal employer” means the owner of an industry or the person with whom an employee has entered into a contract of service and includes -

a manager, agent or person responsible for the payment of salary or wages to an employee;

the occupier of a place of work;

the legal representative of a deceased owner or occupier; and

any government in Malaysia, department of any such government, local authority or statutory body; …” (emphasis added). According to s 21(1) IA (in Part I IA), terms and expressions used in a “subsidiary legislation” (defined in s 3 IA) have the same meaning as in the written law under which the subsidiary legislation is made. As such, by virtue of s 21(1) IA, the term “employer” in reg. 5(1) OSHR has the meaning as provided in the “Parent Act” of OSHR, namely, OSHA. and “principal employer”. Cheng Voon’s “immediate employer” [as defined in s 3(1) OSHA] is Cytrix. Section 3(1) OSHA has defined a “principal employer” to include an “occupier of a place of work”. As explained in the above Part G(4A), Rexallent and Safetags are occupiers of the Site. Hence, for the purpose of reg. 5(1) OSHR, Rexallent and Safetags are “principal employers” and “employers” of Cheng Voon. Rexallent had committed the following two breaches of reg. 5(1)(aa) and (bb) OSHR [2 Breaches (OSHR)]: “forthwith notify the nearest [DOSH] office by the quickest means available” as required by reg. 5(1)(aa) OSHR; and are founded - please refer to SP2’s evidence. Furthermore, such findings of fact are not plainly erroneous. Rexallent had concealed their commission of torts of occupier’s liability and negligence. Such a conduct is relevant under s 8(2) EA and supports SC’s factual findings that Safetags and Rexallent are liable for Cheng Voon’s Injuries. Section 8(2) EA states as follows: “The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.” (emphasis added). G(7). Should court draw an adverse inference against Rexallent and Safetags? Munusamy v Public Prosecutor [1987] 1 MLJ 492, at 494, an adverse inference may be drawn under s 114(g) EA against a party for suppressing material evidence. In Guthrie Sdn Bhd v Trans-Malaysian Leasing Corp Bhd [1991] 1 MLJ 33, at 34-35, Hashim Yeop Sani CJ (Malaya) in the Supreme Court affirmed the High Court’s decision which had made an adverse inference under s 114(g) EA against a defendant. (SC’s Adverse Inference). I concur with SC’s Adverse Inference because as explained in the above Part G(4A), Rexallent and Safetags had sufficient control of the Site at the time of the Incident. Safetags and Rexallent are liable for Cheng Voon’s Injuries pursuant to torts of occupier’s liability and negligence. H. Whether Cheng Voon was guilty of contributory negligence H(1). Did Safetags’ defence plead Cheng Voon’s contributory negligence? Hamizan bin Abd Hamid v Wong Kok Keong & Anor [1994] 3 MLJ 630, at 635: “From the aforesaid authorities, one element is certain and that is, the issue of contributory negligence must be brought to the court's consideration before it can be deliberated. If it is not, then apportionment of liability based on contributory negligence of the claimant cannot succeed. In a vast majority of cases where the cause of action is based on negligence, the defence normally pleads contributory negligence in their statement of defence. Once this is pleaded, it becomes an issue before the court which requires the court's consideration. As it has become an issue, there is no necessity for the plaintiff to plead the same. However, if the defendant does not plead contributory negligence in his defence, it does not become an issue before the court. In such an event, if the plaintiff is able to prove any degree of negligence against the defendant, he will succeed in his case despite the fact that he may have contributed towards it. He will be entitled to damages based on a 100% liability. The cases of Fookes v Slayton and Anuar bin Mat Amin v Abdullah bin Mohd Zain support this principle.” (emphasis added). H(2). Whether Rexallent can rely on Cheng Voon’s contributory negligence Industrial Research Institute of Malaysia”. Part G(4A)]; and (2), Rexallent could have easily obtained Cheng Voon’s Helmet on the day of the Incident and tender it as evidence at the Trial. Rexallent however did not do so. Hence, I have no hesitation to draw an adverse inference under s 114(g) EA against Rexallent for suppressing Cheng Voon’s Helmet as material evidence at the Trial - please refer to Munusamy and Guthrie. H(3). Should this court follow Previous Decided Cases (Motorcyclist’s Failure To Wear Crash Helmet? Esther Geetha on the Previous Decided Cases (Motorcyclist’s Failure To Wear Crash Helmet). According to the Previous Decided Cases (Motorcyclist’s Failure To Wear Crash Helmet), if a motorcyclist does not wear a crash helmet at the time of an accident which has caused injuries to the motorcyclist, the motorcyclist cannot be guilty of contributory negligence. Hence, even if it was assumed that Cheng Voon’s Helmet was not worn at the time of the Incident, Cheng Voon could not have been guilty of contributory negligence. Cases (Motorcyclist’s Failure To Wear Crash Helmet) as follows: Manufacturers Ltd [1961] 3 All ER 709, at 710, Ashworth J has decided as follows - “… having found that the ball went over the wall from time to time and had to be retrieved from the road, continued: It is convenient to dispose of the issue as to a crash helmet at once. Although the Highway Code now in force does contain the words: “Motor cyclists should always wear properly fitting protective helmets”, no such advice appeared in the edition current in February, 1959, and there are not yet any statutory regulations under which helmets are compulsory. I was informed that, in an unreported case, Havers J declined to hold that failure to wear a helmet was contributory negligence on the part of a motor cyclist, and I respectfully follow that decision. Moreover, in the present case, having regard to Mr Hilder's slow speed and relatively low height off the ground, I am by no means certain that, if he had been wearing a helmet, his skull would not have been fractured. Accordingly, if this claim succeeds, it succeeds in full.” (emphasis added); Yueh & Anor [1970] 2 MLJ 25, at 25, 27 Wee Chong Jin CJ held as follows - “The first respondent, who is the first plaintiff in the action, was involved in a collision on the 21st June 1966 with a motor car driven by the appellant, the defendant in the action. At the time of the collision the first respondent was riding a motor-cycle and was not wearing a crash helmet. … The trial judge held that the defendant was negligent and dismissed the defence of contributory negligence based on paragraph 3A of the amended defence in the following words:- "… all that I would say is that there is as yet no statutory regulation requiring motor cyclists to wear crash helmets. The Highway Code is also, I believe, silent on this point. I find no contributory negligence on the part of the first plaintiff for not wearing a crash helmet. The defendant is entirely to be blamed for this accident". … Counsel for the appellant argued the first ground in this way. He submitted, having regard to the fact that we are in Singapore a highly urbanised community and to the present day road conditions in Singapore, that it is unsafe for a motor cyclist and therefore negligent on his part to ride a motor cycle without wearing a crash helmet as a protection from head injury if he is involved in a collision. He contends that in law such a person owes a duty to himself to mitigate the damages he may suffer through the negligence of other users of the road and that, as a matter of fact, the first plaintiff's failure to wear a crash helmet constituted a failure to discharge that duty. So far as the proposition of law is concerned it is admitted that there is as yet no decided authority in support of it and counsel frankly invited us "to make new law". We are of the opinion, however, that if we accept the proposition put forward by counsel we would be making bad law for in law there can be no duty on a person to minimise the effects or probable consequences of any injury he may suffer, but which he has not as yet suffered, through the negligence of another. The law is clear that just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. In our opinion, for a motor cyclist to ride a motor cycle without wearing protective headgear such as a crash helmet cannot, as a matter of law, constitute a failure on his part, acting as a reasonably prudent man would act, to foresee that he might cause harm to himself. It may well be that a reasonably prudent man would foresee that the wearing of a crash helmet might result in less harm being caused by someone else to him if he is involved in a collision while riding a motor cycle. In any event, there was no evidence at all before the trial judge that the head injury suffered by the first plaintiff would have been less serious if he had been wearing a crash helmet at the time of the accident. The onus was on the defendant on paragraph 3A of his amended defence to introduce such evidence so as to enable the trial judge to make a finding of fact on this issue.” (emphasis added); Karim Mat Ali & Anor [1993] 3 CLJ 524, at 528, 529 and 530, Lamin J (as he then was) has followed Hilder and decided as follows - “In his written submission, learned Counsel for the defendants urged me to attribute 15% liability on the part of the deceased on the basis of his allegation that the deceased at the time of the accident, did not have his crash helmet on. … … In Hilder v. Associated Portland Cement Manufacturers Ltd. [1961] 3 AER 709, Ashworth J declined to hold that the failure to wear a crash helmet constituted contributory negligence on his part. … … In my view, if it is accepted that a plaintiff must be guilty of contributory negligence for not wearing a crash helmet, he must also be guilty of contributory negligence for not having it secured even though he had his helmet on. Since it is difficult if not impossible to ascertain in any given situation, whether the plaintiff had secured his helmet properly on his head before the accident, therefore, in view of those technical considerations, it would be impossible, in all honesty to quantify with “considerable” accuracy that “considerable protection” so that without it, there would not be that corresponding degree of contributory negligence that must be attributed to the plaintiff. Now let us look at our statute on road traffic and the rules made thereunder. Their application or otherwise in a civil claim was never canvassed by any of the Counsels before me. The urge to identify their role in the system failed to persuade me to abandon my examination of them. Rule 4 of our Motorcycles (Safety Helmets) Rules 1973 [P.U. (A) 43/1973, as amended] reads: Every person, other than a person exempted under rule 5, who drives or rides on a motor-cycle on a road shall wear a safety helmet on his head fitted and securely fastened in the manner required by the nature and construction of the safety helmet. Under the abovesaid rule, it appears that the wearing of crash helmet is mandatory because of the phrase, “shall wear”. But it must be remembered that nowhere in any of our statutes is there required to take into account the wearing or failure to wear a safety helmet for the purpose of quantifying the degree of negligence or contributory negligence or as the case may be in any civil suit. May it be noted that rule 4 expressly qualifies the wearing of a helmet, in that it must be “fitted and securely fastened in the manner required by the nature and construction of the safety helmet.” With that, rule 4 confronts squarely the problems as I have earlier indicated. It is made further complicated by the requirement that it must be secured “in the manner required by the nature and construction of the safety helmet.” … … In view of the attendant difficulties and uncertainties as I have discussed above for the purpose of ascertaining the degree of contributory negligence under our rule, and in the absence of express provisions in any of our statutes to the effect that the failure to wear or incorrectly wearing a safety helmet shall be a factor to be considered in ascertaining contributory negligence. I therefore, hold that our Motorcycles (Safety Helmets) Rules 1973 are made only in the nature of a “friendly advice” for the purpose of personal protection and not with the view to be used as a test to ascertain contributory negligence in a claim for damages. The failure to comply with rule 4, may very well be visited with a punishment under section 119 of the Act. But that is a different matter. … I have said all I need to say on the law regarding the wearing of a safety helmet. However, merely by viewing the scene, we only need to ask a simple question, could that safety helmet withstand the weight of the bus so as to give the deceased a “considerable” protection to his head, if he had properly worn one. I have no doubt in my own mind that with or without a safety helmet, the deceased’s skull would still be crushed and he would still die as a result. The defendant’s claim for a reduction in liability must fail. … Our law on the wearing of crash helmet, if I may repeat is not intended to influence the degree of responsibility or the quantum of damages of any party involved in a motor accident.” (emphasis added); and Malik Ishak J (as he then was) in the High Court in Chu Kim Sing & Anor v Abd Razak Amin [1999] 4 CLJ 448, at 454, 456 and 457, as follows - “Mr. S. Gunasegaran, learned counsel for the respondent, submitted quite rightly that it was not disputed that at the time of the motor vehicle accident the respondent:

…;

(ii) was not wearing a safety helmet; and … In my judgment, the fact that the respondent did not have a valid driving licence, and was not wearing a safety helmet and the fact that the motorcycle ridden by him was without a road tax, an insurance and was not fitted with a horn cannot in law make him negligent. There was no duty on the part of the respondent to minimise the effects or probable consequences of any injury that he may suffer, but which he has yet to suffer, through the negligence of another. It was not foreseeable for the respondent to foresee that harm would fall on others as to make him liable for actionable negligence by riding the motorcycle while those extraneous factors were contravened by him and neither would the respondent foresee that by riding the motorcycle with these extraneous factors being contravened by him would result in harm to himself and thereby contribute to the cause of the accident.” (emphasis added). (Motorcyclist’s Failure To Wear Crash Helmet). My reasons are 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: …” (emphasis added). In the Federal Court case of Henry Trading Co Ltd v Harun [1966] 2 MLJ 281, at 282, Wan Suleiman FJ has held as follows - “There are two points of law on which I feel I should comment. The first is a statement made in the judgment of the learned trial judge wherein he held that the doctrine of contributory negligence does not apply in this country. With that view I would respectfully disagree. The learned trial judge has clearly overlooked the provisions of section 12 [CLA].” (emphasis added). By virtue of s 12(1) CLA, if a motorcyclist (T) involved in a road accident, did not wear a crash helmet and had suffered injuries at an accident caused by another road user (U) -

U may prove at T’s negligence suit that T’s injuries had been caused “partly” by T’s fault because T did not wear a crash helmet at the time of the accident (T’s

T’s negligence claim “shall not be defeated” by T’s Contributory Negligence but T’s Contributory Negligence may reduce the amount of damages which may be awarded by the court in favour of T against U. Written law, such as s 12(1) CLA, shall prevail over any contrary case law. In any event, there was no reference to s 12(1) CLA in Ruhani and Chu Kim Sing. Hence, Ruhani and Chu Kim Sing may have been decided per incuriam of s 12(1) CLA; Bhd [1986] 2 MLJ 30, at 31-32, Syed Agil Barakbah SCJ has delivered the following judgment of the Supreme Court - “Now, the general rule is that all facts in issue and relevant facts must be proved by evidence. There are, however, two classes of facts which need not be proved, viz. (a) facts judicially noticed and (b) facts admitted. The exceptions are dealt with by ss 56, 57 and 59 [EA] under the title "Facts which need not be proved." In so far as judicial notice is concerned, the provisions of section 57 subsection (1) makes it mandatory for the Court to take judicial notice of all laws and regulations having the force of law, public Acts passed by Parliament, the course of parliamentary proceedings and other matters that are enumerated in subsection (1) (a) to (o) of the section. The list however is not exhaustive since it is impossible to make a really complete list although a long list of facts which the English courts take judicial notice has been prepared. The important point to note is that section 57 does not prohibit the courts from taking judicial notice of other facts not mentioned therein. The matter which the Court will take judicial notice must be the subject of common and general knowledge and its existence or operation is accepted by the public without qualification or contention. The test is that the facts involved must be so sufficiently notorious that it becomes proper to assume its existence without proof.” (emphasis added). The court can take judicial notice under s 57(1) EA regarding the problem of “Mat Rempit” motorcyclists in this country because such a fact is “sufficiently notorious” as explained in Pembangunan Maha Murni. If I have followed the Previous Decided Cases (Motorcyclist’s Failure To Wear Crash Helmet), the amount of damages to be claimed by any Mat Rempit motorcyclist who suffers injuries at an illegal road racing or motorcycle stunt performance without wearing a crash helmet, cannot be reduced due to the Mat Rempit’s contributory negligence. The courts should send a clear message to all motorcyclists, especially Mat Rempits, that any failure to wear a crash helmet, may constitute contributory negligence under s 12(1) CLA which may in turn reduce the amount of damages which may be recovered by the motorcyclists; Court judge’s decision - please refer to the judgment of Ong Hock Thye FJ (as he then was) judgment in the Federal Court case of Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211, at 213. Accordingly, from the view point of the stare decisis doctrine, I am not bound by Ruhani and Chu Kim Sing; and SCJ has erred in following the Previous Decided Cases (Motorcyclist’s Failure To Wear Crash Helmet) [SC’s Legal Error (Cheng Voon)]. SC’s Legal Error (Cheng Voon) was committed because none of the learned counsel had drawn the attention of SC to s 12(1) CLA. “Civil appeals to be by way of re-hearing 29. All civil appeals from a subordinate court shall be by way of re-hearing, and the High Court shall have the like powers and jurisdiction on the hearing of appeals as the Court of Appeal has on the hearing of appeals from the High Court. 72 Immaterial errors. No judgment or order of the High Court, or of any Judge, shall be reversed or substantially varied on appeal, nor a new trial ordered by the Court of Appeal, on account of any error, defect, or irregularity, whether in the decision or otherwise not affecting the merits or the jurisdiction of the Court.” (emphasis added). CJA, the High Court has a discretionary power to affirm SC’s Judgment against Safetags and Rexallent provided that SC’s Legal Error (Cheng Voon) does not affect the - Rexallent; and Judgment against Safetags and Rexallent because as explained in the above paragraphs 77, 79 and 80, the learned SCJ was correct in finding that Cheng Voon was not guilty of any contributory negligence in this case. I(1). Did SC err in awarding Total Damages against Rexallent and Safetags? SC’s Damages Award in respect of - SC. The above decision is premised on the following reasons: (Malaya) (as he then was) in the Federal Court case of Topaiwah v Salleh [1968] 1 MLJ 284, at 285; Court in United Plywood & Sawmill Ltd v Lock Ngan Loi [1970] 2 MLJ 237, at 238, I do not find SC’s Damages Award to be “so … inordinately high as to make the court exclaim, "Good gracious, is that the sum which has been awarded - that sum must be altered", or if it is so much out of line with the discernible trend or pattern of awards in reasonably comparable cases that it must be regarded as a wholly erroneous estimate”; and

I am of the view that SC’s Damages Award is “fair and reasonable” - please see the Supreme Court’s judgment delivered by Syed Agil Barakbah SCJ in Ngooi Ku Siong & Anor v Aidi Abdullah [1985] 1 MLJ 30, at 32. I(2). Whether SC had erred in apportioning 80%:20% liability as between Rexallent and Safetags Rexallent themselves, Safetags is only liable for 20% of the Total Damages while Rexallent should bear 80% of the Total Damages [SC’s Liability Apportionment (Rexallent-Safetags)]. can be made based on the extent of control of the Site by Rexallent and Safetags. As explained in the above paragraph 44, Rexallent as the Project’s main contractor has a far higher degree of control of the Site as compared to Safetags, the Project’s employer. Accordingly, I find no reason to set aside SC’s Liability Apportionment (Rexallent-Safetags). J. Outcome of Rexallent’s Appeal (Cheng Voon) and Safetags’ Appeal (Cheng Voon) F, G(1) to G(7), H(1), H(2), I(1) and I(2), I have no hesitation to dismiss Rexallent’s Appeal (Cheng Voon) and Safetags’ Appeal (Cheng Voon) with costs. K. Rexallent’s Appeal (MSIG) and Safetags’ Appeal (MSIG) Safetags and Rexallent against MSIG [Third Party Proceedings (MSIG)] on the following three grounds: Rexallent could not claim for an indemnity against MSIG with regard to Cheng Voon’s Injuries due to the application of Exception 2 (MSIG); and Notification Clause] to dismiss Third Party Proceedings (MSIG) on the ground that Safetags and Rexallent had failed to notify MSIG of the Incident within 6 months from the date of the Incident. “Paragraph 2 at the first page of Dexon’s Policy (MSIG) [Paragraph 2 (MSIG)] Now This Policy witnesses that if at any time during the Period of Insurance any employee in the Insured’s immediate service shall sustain personal injury by accident or disease arising out of and in the course of his employment by the Insured in the Business and if the Insured shall be liable to pay compensation for such injury either under the law(s) set out in the Schedule or at Common Law then subject to the Terms, Exceptions and Conditions contained herein or endorsed hereon [MSIG] will indemnify the Insured against all sums for which the Insured shall be liable and will in addition be responsible for all costs and expenses incurred with its consent in defending any claim for such compensation. … Exceptions [MSIG] shall not be liable under this Policy in respect of: … [Exception 2 (MSIG)] The Insured’s liability to employees of contractors to the Insured. … The Schedule … Item Occupation 1 On all workers engaged in connection with the [Project] … Insured’s Name [Safetags] as Principal, [Rexallent] as Main Contractor, [Dexon] as Nominated Sub-Contractor including its appointed sub-contractors F.T.R.R. & I … Subject to the following Endorsements, Warranties and Clauses printed in the policy or attached hereto - Loss Notification Clause Notwithstanding anything contained herein to the contrary, it is agreed that this Insurance will not be prejudiced by any inadvertent delays, errors or omissions in notifying [MSIG] of any circumstances or event giving rise or likely to give rise to a claim under this Policy provided:-

Such delay in notification shall not exceed 6 months from date of occurrence of loss. … Endorsement W60 It is hereby understood and agreed that subject otherwise to the Terms, Exceptions and Conditions of the Policy the indemnity herein granted is extended to cover the legal liability of the Insured to workmen in the employment of sub-contractors performing work for the Insured while engaged in the business and occupation in respect of which the within policy is granted, but only so far as regards claims under the Workmen’s Compensation Ordinance 1952 (Federation of Malaya) including subsequent amendments to the said Ordinance and Enactment passed prior to the date of this endorsement. The premium in respect of such extended insurance to be calculated at the relevant tariffed rate on the total earnings during each period of insurance of workmen engaged by such sub-contractors.” (emphasis added).

I am of the following view:

the meaning and effect of all provisions in insurance policies are questions of law -

to be decided objectively by the court; and

which cannot be determined by oral evidence of witnesses - please refer to the Court of Appeal’s judgment delivered by Gopal Sri Ram JCA (as he then was) in NVJ Menon v The Great Eastern Life Assurance Company Ltd [2004] 3 CLJ 96, at 103-104;

each written judgment of a previous case regarding the interpretation of an insurance policy depends on the particular wording of the policy in question. Accordingly, from the view point of the doctrine of stare decisis, a case on the construction of a particular provision in a policy, is only a binding precedent in respect of the court’s construction of that provision;

as decided by Salleh Abas LP in the Supreme Court case of Borhanuddin bin Haji Jantara & Anor v American International Assurance Co Ltd [1987] 1 MLJ 22, at 24, if there is any ambiguity in an insurance policy, the court may apply the “contra proferentem” rule of construction and interpret the ambiguity strictly against the insurer (who drafted the policy) in favour of the insured;

an insured has the initial burden to satisfy the court that the insured’s claim concerns a “peril insured against” as covered by the policy in question - please refer to the Supreme Court’s judgment delivered by Eusoff Chin SCJ (as he then was) in American Home

Assurance Co v Nalin Industries Sdn Bhd [1993] 2 MLJ 409, at If an insured cannot discharge the onus to prove that the insured’s claim concerns a peril insured against in the policy, the insured’s claim must be dismissed on this ground alone; and

if an insured can discharge the burden to prove that the insured’s claim concerns a peril insured against in the policy, the insurer is liable to the insured under the policy unless the insurer can rely on an exclusion of liability provision in the policy (Exclusion Clause), The insurer has the burden to persuade the court that the Exclusion Clause applies in the case - American Home Assurance Co.

Rexallent and Safetags cannot rely on the oral evidence of Puan Norlila and Mr. Teh regarding the interpretation of Dexon’s Policy (MSIG) - please refer to Menon.

Whether Dexon’s Policy (MSIG) applied to Cheng Voon I cite the following judgment of Tan Ah Tah J in Singapore’s Court of Appeal case in Lim Chin Yok & Co Ltd v Malayan Insurance Co Inc [1975] 1 MLJ 101, at 105-106: “Paragraph 2 of the policy reads as follows:- "NOW THIS POLICY WITNESSETH that if at any time during the Period of Insurance any employee in the Insured's immediate service shall sustain personal injury by accident or disease arising out of and in the course of his employment by the Insured in the Business and if the Insured shall be liable to pay compensation for such injury either under the law(s) set out in the Schedule or at Common Law then subject to the terms, exceptions and conditions contained herein or endorsed hereon the Company will indemnify the Insured against all sums for which the Insured shall be so liable and will in addition be responsible for all costs and expenses incurred with its consent in defending any claim for such compensation. Condition 3 of the policy reads as follows:- "The Insured shall take reasonable precautions to prevent accidents and disease and shall comply with all statutory obligations." Condition 9 of the policy reads as follows:- "The due observance and fulfilment of the terms, conditions and endorsements of this Policy so far as they relate to anything to be done or not to be done by the Insured and the truth of the statements and answers in the Proposal shall be conditions precedent to any liability of the Company to make any payment under this Policy." … The learned trial judge held that the defendants were not entitled to succeed against the third party for two reasons. The first reason was that the plaintiff was not "an employee in the Insured's immediate service." The second reason was that the defendants were in breach of condition 3 of the policy in that they had not complied with their statutory obligations, to wit, the requirements of section 31 of the Factories Act. … In our opinion the word "immediate" in paragraph 2 of the policy gives rise to an ambiguity. The policy must therefore be construed "contra proferentes." … It is therefore necessary to construe the words "any employee in the insured's immediate service". These words may have more than one meaning. They may mean

any employee in the insured's immediate service as contrasted with temporary service; (ii) any servant of the insured; (iii) any servant but not a temporary servant of the insured; (iv) any person employed by the insured or (v) any servant, permanent or temporary of the insured. It is to be remembered that in the context of employment in Singapore there have always been persons who are employed on a daily basis. Their employment is on a day to day basis and in that sense any one so employed can be said to be a temporary servant or employee. Nevertheless as a temporary servant or employee of his employer he is in one sense when so employed "in the immediate service" of his then employer albeit his service or employment is only for one day. Accordingly, we are of the opinion that the learned trial judge should have applied the "contra proferentes" doctrine and should have held that the plaintiff was "an employee in the insured's immediate service" and that the defendants were covered by the policy in question. In dealing with the second reason, it is relevant to refer to Fraser v BN Furman (Productions) Ltd [1967] 3 All ER 57 where the condition was in these terms: "The insured shall take reasonable precautions to prevent accidents and disease." In that case Diplock L.J. (as he then was) said, at page 60:- "There are three considerations to be borne in mind on the wording of this condition. (i) It is the insured personally who must take reasonable precautions. Failure by an employee to do so, although the employer might be liable vicariously for the employee's negligence or breach of statutory duty, would not be a breach of the condition. That was established in, and was the ratio decidendi of, Woolfall & Rimmer, Ltd. v. Moyle and Another. (ii) The obligation of the employer is to take precautions to prevent accidents. This means in my view to take measures to avert dangers which are likely to cause bodily injury to employees. (iii) The third word to be construed in this context is 'reasonable'. 'The insured shall take reasonable precautions to prevent accidents.' 'Reasonable' does not mean reasonable as between the employer and the employee. It means reasonable as between the insured and the insurer having regard to the commercial purpose of the contract, which is inter alia to indemnify the insured against liability for his (the insured's) personal negligence. That, too, is established by the case that I have cited. Obviously the condition cannot mean that the insured must take measures to avert dangers which he does not himself foresee, although the hypothetical reasonably careful employer would have foreseen them. That would be repugnant to the commercial purpose of the contract, for failure to foresee dangers is one of the commonest grounds of liability in negligence. What in my view is 'reasonable' as between the insured and the insurer, without being repugnant to the commercial object of the contract, is that the insured should not deliberately court a danger, the existence of which he recognised, by refraining from taking any measures to avert it. Equally the condition cannot mean that, where the insured recognises that there is a danger, the measures which he takes to avert it must be such as the hypothetical reasonable employer, exercising due care and observing all the relevant provisions of the Factories Act, 1961, would have taken. That, too, would be repugnant to the commercial purpose of the contract, for failure to take such measures is another ground of liability in negligence for breach of statutory duty. What in my judgment is reasonable as between the insured and the insurer, without being repugnant to the commercial purpose of the contract, is that the insured, where he does recognise a danger, should not deliberately court it by taking measures which he himself knows are inadequate to avert it. In other words, it is not enough that the employer's omission to take any particular precautions to avoid accidents should be negligent; it must be at least reckless, i.e., made with actual recognition by the insured himself that a danger exists, not caring whether or not it is averted. The purpose of the condition is to ensure that the insured will not refrain from taking precautions which he knows ought to be taken because he is covered against loss by the policy." In the circumstances of the present case, condition 3 is in our opinion repugnant to the commercial purpose of the contract. The second reason is therefore also not a valid reason for dismissing the defendants claim against the third party.” (emphasis added).

Premised on Lim Chin Yok & Co Ltd, I am of the following view:

with regard to the meaning of the phrase “any employee in [Dexon’s] immediate service” in Paragraph 2 (MSIG), there are two possible meanings, namely -

the phrase “any employee in [Dexon’s] immediate service” in Paragraph 2 (MSIG) may only refer to Dexon’s employees at the Site; or

Cheng Voon was Cytrix’s employee at the time of the Incident but could fall under Paragraph 2 (MSIG) because Cheng Voon was at the “immediate service” of Dexon. This interpretation is supported by Item 1 {On all workers engaged in connection with the [Project]} in the Schedule to Dexon’s Policy (MSIG) and the contents of the “Insured’s Name” {[Safetags] as Principal, [Rexallent] as Main Contractor, [Dexon] as Nominated Sub-Contractor including its appointed sub-contractors F.T.R.R. & I}; and

in view of the above ambiguity regarding Paragraph 2 (MSIG) as explained in the above sub-paragraph (1), the contra proferentem rule of interpretation applies wherein the ambiguity in Paragraph 2 (MSIG) shall be construed strictly against MSIG (who drafted the policy) in favour of Rexallent and Safetags - please refer to Borhanuddin. Accordingly -

even though Cheng Voon was Cytrix’s employee at the time of the Incident, Paragraph 2 (MSIG) applies to Cheng Voon who was at Dexon’s “immediate service” at that time; and

Rexallent and Safetags had discharged the initial burden to satisfy the court that Cheng Voon was covered by Dexon’s Policy (MSIG). In view of the above reasons, I cannot accept the submission by MSIG’s learned counsel, Mr. Anpalagar A/L Suppiah, that Paragraph 2 (MSIG) does not cover Cheng Voon in this case. K(2). Can MSIG rely on Exception 2 (MSIG) in this case?

I am of the view that the learned SCJ had correctly dismissed the Third Party Proceedings (MSIG) with costs [SC’s Decision (MSIG)] based on Exception 2 (MSIG). Exception 2 (MSIG) clearly provides that MSIG “shall not be liable” under Dexon’s Policy (MSIG) for any liability of Dexon to employees of Dexon’s contractors (Cytrix), namely, Cheng Voon. In this regard, I am satisfied that MSIG has discharged the onus to satisfy the court regarding the application of Exception 2 (MSIG) in this case.

The following cases cited by Mr. Gabriel Daniel concerned insurance policies which have no provision which is similar to Exception 2 (MSIG):

Lim Chin Yok & Co Ltd;

the judgment of Lee Swee Seng J (as he then was) in the High Court case of Jan De Nul (M) Sdn Bhd v Berjaya Sompo Insurance Bhd [2019] MLJU 1594;

the decision of Anantham Kasinather JCA in the Court of Appeal in Jardine Lloyd Thompson Sdn Bhd v Berjaya Sompo Insurance Bhd [2014] 8 CLJ 265; and

the judgment of Ahmad Maarop JCA (as he then was) in the Court of Appeal case of Malaysia British Assurance Bhd v Syarikat Pembenaan Karun Sdn Bhd [2009] 4 CLJ 1. K(3). Whether MSIG can invoke s 31 SOCSO to support SC’s Decision (MSIG)

Mr. Anpalagar has relied on s 31 SOCSO to support SC’s Decision (MSIG). The GOJ are silent on the application of s 31 SOCSO in relation to Third Party Proceedings (MSIG). Reliance has been placed by Mr. Anpalagar on the following three cases:

the decision of Abdul Hamid FJ (as he then was) in the Federal Court case of Tan Peng Loh v Lee Aik Fong & Anor [1982] 1 MLJ 74;

Salleh Abas FJ’s (as he then was) judgment in the Federal Court in Sambu Pernas Construction & Anor v Pitchakkaran [1982] 1 MLJ 269; and

the judgments of James Foong FCJ and Abdul Malik Ishak JCA in the Court of Appeal case of Ramli bin Samad v Pacific & Orient Insurance Co Sdn Bhd [2010] 3 MLJ 23.

I am not able to accede to Mr. Anpalagar’s contention based on s 31 SOCSO due to the following reasons:

s 31 SOCSO applies in the following manner -

an “insured person” [defined in s 2(11) SOCSO as an “employee” in respect of whom contributions are, were or could be payable under SOCSO] (not a person insured pursuant to an insurance policy) has suffered an “employment injury” [within the meaning of s 2(6) SOCSO] as an employee. It is to be noted that s 2(5) SOCSO has provided for a wide definition of “employee”; and

the insured person who has sustained an employment injury and the insured person’s “dependent” [defined in s 2(3) SOCSO] are barred by s 31 SOCSO from recovering “any compensation or damages” from -

the insured person’s employer. Sub-sections 2(9) and (19) SOCSO have provided wide definitions of “immediate employer” and “principal employer” respectively; and

(ii) the insured person’s co-employee;

if s 31 SOCSO applies as explained in the above sub-paragraph (1), the insurance company which has issued a policy to provide coverage for the employee’s employment injury (Insurer) is also not liable to indemnify the employee’s “immediate employer” and “principal employer” [Immediate Employer/Principal Employer]. This is understandable because if an employee and the employee’s dependents are barred by s 31 SOCSO from claiming any compensation or damages from the Immediate Employer/Principal Employer regarding the employment injury, the Insurer cannot also be liable for the employment injury under the insurance policy in question; and

as explained in the above Part G(2), Cheng Voon was not barred by s 31 SOCSO from claiming for Cheng Voon’s Injuries from Rexallent and Safetags. In such exceptional circumstances, there is nothing in s 31 SOCSO which bars Rexallent and Safetags from claiming for an indemnity from MSIG under Dexon’s Policy (MSIG) regarding Cheng Voon’s Injuries. Section 31 SOCSO only applies if Cheng Voon cannot claim any compensation or damages from Rexallent and Safetags. The three cases cited by Mr. Anpalagar in the above paragraph 100 can be easily distinguished from this case because Cheng Voon is not barred by s 31 SOCSO from claiming for Cheng Voon’s Injuries from Rexallent and Safetags. K(4). Whether MSIG’s Payment (Dexon) excludes MSIG’s liability under

Dexon’s Policy (MSIG) Mr. Anpalagar has sought to persuade this court that by reason of MSIG’s Payment (Dexon), MSIG is not liable to indemnify Rexallent and Safetags for Cheng Voon’s Injuries. Mr. Anpalagar has relied on a “Discharge and Acceptance Form (Non-Motor)” dated 2.1.2018 (Discharge Form) which had been executed by Dexon and witnessed by Jiunn Fei (from Cytrix). Mr. Anpalagar has also cited the Federal Court’s judgment delivered by Abdul Aziz J in Kerpa Singh v Bariam Singh [1966] 1 MLJ 38.

I have no hesitation to decide that MSIG’s Payment (Dexon) cannot exclude MSIG’s liability to indemnify Rexallent and Safetags for Cheng Voon’s Injuries because firstly, Dexon’s Policy (MSIG) does not provide for such an exclusion of liability. Secondly, the Discharge Form only binds Dexon (not Rexallent and Safetags). In any event, MSIG has not discharged the burden to persuade the court that there is an exclusion clause in Dexon’s Policy (MSIG) which excludes MSIG’s liability to Rexallent and Safetags merely because of MSIG’s Payment (Dexon).

Kerpa Singh does not concern an insurance policy, let alone the application of an Exclusion Clause. K(5). Could MSIG rely on Endorsement W60?

I accept the submission by Mr. Gabriel Daniel that the learned SCJ had committed an error of law by relying on Endorsement W60 [SC’s 1st Legal Error (MSIG)] as a ground to dismiss the Third Party Proceedings (MSIG). The words in Endorsement W60 (subject otherwise to the Terms) have expressly provided for MSIG’s liability under Dexon’s Policy (MSIG) to be subject to the terms of Dexon’s Policy (MSIG), namely Paragraph 2 (MSIG). As stated in the above paragraphs 96 and 97, Paragraph 2 (MSIG) applies to Cheng Voon in this case. Hence, Endorsement W60 is subject to Paragraph 2 (MSIG) and cannot be a lawful basis for MSIG to avoid liability under Dexon’s Policy (MSIG). Alternatively or additionally, Endorsement W60 is ambiguous and in accordance with the contra preferentem rule of construction, this ambiguity has to be construed strictly against MSIG in favour of Rexallent and Safetags. Lastly, I am not satisfied that MSIG has discharged the onus to persuade the court that Endorsement W60 excludes MSIG’s liability pursuant to Dexon’s Policy (MSIG). K(6). Whether MSIG could rely on Paragraph (a) [Loss Notification

Clause] With regard to SC’s reliance on Paragraph (a) [Loss Notification Clause], Mr. Gabriel Daniel has correctly submitted that MSIG’s defence against the Third Party Proceedings (MSIG) did not plead Paragraph (a) [Loss Notification Clause]. As explained in the above paragraph 36, all parties, including third parties, are bound by their own pleadings. As such, an error of law [SC’s 2nd Legal Error (MSIG)] had been committed when SC relied on Paragraph (a) [Loss Notification Clause] to justify a dismissal of the Third Party Proceedings (MSIG). K(7). Should SC’s Decision (MSIG) be reversed by this court?

Notwithstanding SC’s 1st Legal Error (MSIG) and SC’s 2nd Legal Error (MSIG), premised on s 29 read with s 72 CJA, I affirm SC’s Decision (MSIG) with costs because -

the learned SCJ was justified to dismiss the Third Party Proceedings (MSIG) based solely on Exception 2 (MSIG) - please refer to the above paragraphs 98 and 99; and

SC’s 1st Legal Error (MSIG) and SC’s 2nd Legal Error (MSIG) do not affect -

the jurisdiction of SC to try the Third Party Proceedings (MSIG); and

the merits of SC’s Decision (MSIG) which are premised on an application of Exception 2 (MSIG). L.

Rexallent’s Appeal (BSI) and Safetags’ Appeal (BSI) In paragraphs 54 to 60 GOJ, SC had dismissed third party proceedings commenced by Safetags and Rexallent against BSI [Third Party Proceedings (BSI)] solely on the ground that BSI could rely on s 31 SOCSO to avoid any liability to indemnify Safetags and Rexallent for Cheng Voon’s Injuries [SC’s Decision (BSI)]. L(1). Whether memoranda of appeal of Rexallent and Safetags (2 MA’s) have breached O 55 r 4(3) RC

BSI’s learned counsel, Mr. Gurmukh Singh, has raised a “preliminary issue” regarding the 2 MA’s. According to Mr. Gurmukh Singh, the 2 MA’s have failed to specify “points of law or fact which are alleged to have been wrongly decided” by SC as required by O 55 r 4(3) RC. Mr. Gurmukh Singh has relied on the Court of Appeal’s judgment delivered by Kamaludin Md. Said JCA in Ikumi Terada v Jemix Co Ltd & Ors and another appeal [2019] 1 LNS 881.

Firstly, notwithstanding Mr. Gurmukh Singh’s use of the phrase “preliminary issue”, he has prayed for a dismissal of Rexallent’s Appeal (BSI) and Safetags’ Appeal (BSI) with costs solely on the ground that the 2 MA’s have not complied with O 55 r 4(3) RC. It is clear to me that a preliminary objection (PO) to Rexallent’s Appeal (BSI) and Safetags’ Appeal (BSI) has been raised on behalf of BSI.

Ruling 11.04 of “Rules and Rulings of the Bar Council” (BC Ruling 11.04) states as follows: “11.04.

An Advocate and Solicitor [A&S] shall give written notice to the [A&S] representing all the other parties in the litigation, of his/her intention to raise a [PO] at any hearing before any court, tribunal or other body.

Such written notice shall be given to the other [A&S] within a reasonable time before the hearing and in any event not later than 4 clear working days before the hearing, to enable the other [A&S] to properly prepare themselves and to secure instructions from their clients with regard to the proposed [PO].

Such written notice shall set out the following details:

the nature of the proposed [PO];

a list of authorities that the [A&S] raising the [PO] intends to rely on; and

the proposed relief that the [A&S] raising the [PO] will seek before the court, tribunal or other body.

Only in exceptional circumstances may an [A&S] raise a [PO] during the hearing of any matter without giving the written notice required in this Ruling. In such event the [A&S] representing the other parties are entitled to request for an adjournment of the [PO] and the [A&S] raising the [PO] is precluded from objecting to such a request.

Nothing in this Ruling shall affect the general discretion of the relevant court, tribunal or other body to deal with preliminary objections, including making orders for costs.” (emphasis added).

I have decided as follows in MKP Builders Sdn Bhd v PC Geotechnic Sdn Bhd [2021] AMEJ 976, at [16]-[19], as follows: “[16] Firstly, PCG’s solicitors did not comply with Ruling 11.04(2) which required them to give a written notice of PCG’s PO to MKP’s solicitors not later than 4 clear working days before the hearing of this OS. [17] Secondly, PCG’s solicitors could not rely on Ruling 11.04(4) as there were no exceptional circumstances to exclude any compliance with Ruling 11.04(2). [18] Thirdly, when an A&S (X) does not comply with Ruling 11.04(2) in raising a PO on behalf of X’s client (Y) -

Y is considered to have waived Y’s right to raise the PO. I rely on the following judgment of Low Hop Bing J (as he then was) in the HC case of Malaysia Building Society Bhd v Univein Sdn Bhd [2002] 2 CLJ 81 (MBSB’s Case), at 95 and 96-97 - …; and

X’s breach of a Ruling may render X liable for disciplinary sanction by the Disciplinary Board (DB) under s 94(1) and (3)(k) of the Legal Profession Act 1976 (LPA). … … [19] As PCG’s solicitors have not complied with Ruling 11.04(2), in accordance with MBSB’s Case, PCG is considered to have waived its right to raise PCG’s PO regarding MKP’s 2 Written Submission. As such, I cannot accede to PCG’s PO.” (emphasis added).

I will now decide the PO on the assumption that BSI’s solicitors have given written notice of the PO to the solicitors for Rexallent and Safetags [in compliance with BC Ruling 11.04(1) and (2)].

I reproduce below O 1A, O 2 rr 1(2), 3 and O 55 r 4(3) RC: “Regard shall be to justice O 1A In administering these Rules, the Court or a Judge shall have regard to the overriding interest of justice and not only to the technical non-compliance with these Rules. O 2 r 1(2) These Rules are a procedural code and subject to the overriding objective of enabling the Court to deal with cases justly. The parties are required to assist the Court to achieve this overriding objective. Preliminary objection for non-compliance of rules not allowed O 2 r 3 A Court or Judge shall not allow any preliminary objection by any party to any cause or matter or proceedings only on the ground of non-compliance of any provision of these Rules unless the Court or Judge is of the opinion that such non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured either by amendment or an appropriate order for costs or both. O 55 r 4 Record of appeal

In the case of an appeal from a decision after trial, the appellant shall within one month from the date of filing of notice of appeal prepare and file the requisite number of copies of the record of appeal in the High Court and the record shall contain copies of - …

the memorandum of appeal; …

The memorandum of appeal shall be substantially in Form 112 and shall set forth concisely and under distinct heads, without argument or narrative, the grounds of objection to the decision appealed against, and specifying the points of law or fact which are alleged to have been wrongly decided; such grounds to be numbered consecutively. Notwithstanding rule 8 of this Order, where a supplementary record of appeal is to be filed pursuant to rule 4(2) above, the appellant may if necessary also include in the supplementary record of appeal an amended memorandum of appeal, without leave of the High Court.” (emphasis added).

In accordance with O 1A and O 2 r 1(2) RC, the requirement in O 55 r 4(3) RC regarding the contents of a memorandum of appeal should be administered with regard to the overriding interest of justice and not only to the mere technical non-compliance with O 55 r 4(3) RC [Breach (MA)]. Furthermore, by virtue of O 2 r 3 RC, a PO regarding a Breach (MA) can only be accepted by the court if the Breach (MA) has occasioned -

a “substantial miscarriage of justice”; or

prejudice that cannot be cured by an appropriate order for costs.

A perusal of the 2 MA’s has revealed the following grounds of appeal against BSI:

Safetags’ MA has stated as follows, among others -

SC had failed to consider that Safetags’ Policy (BSI) was applicable to all contractors who worked at the Site - paragraph 3;

the learned SCJ did not give effect to the Schedule to Safetags’ Policy (BSI) which had provided for BSI’s liability under Common Law in all circumstances - paragraph 4;

SC had erroneously relied on s 31 SOCSO in making SC’s Decision (BSI) - paragraph 5; and

the learned SCJ should have decided that Safetags had not breached Condition 3 (BSI) - sub-paragraph 6.3; and

the following matters, among others, are contained in Rexallent’s MA -

SC should have decided that with regard to Cheng Voon’s Injuries, Rexallent was entitled to be indemnified by BSI pursuant to Safetags’ Policy (BSI) - paragraph 2;

the learned SCJ should have decided that Safetags’ Policy (BSI) was applicable to all contractors who worked at the Site - paragraph 4;

SC did not give effect to the Schedule to Safetags’ Policy (BSI) which had provided for BSI’s liability under Common Law in all circumstances - paragraph 5; and

Rexallent had not breached Condition 3 (BSI) - sub-paragraph 6.3.

In my view, the contents of the 2 MA’s (as stated in the above paragraph 116) have not breached O 55 r 4(3) read with O 1A and O 2 r 1(2) RC. In any event, even if it is assumed that the 2 MA’s have breached O 55 r 4(3) RC, I will still dismiss the PO pursuant to O 2 r 3 RC because no “substantial miscarriage of justice” has been caused to BSI. This is because BSI has filed two detailed written submissions to oppose Safetags’ Appeal (BSI) and Rexallent’s Appeal (BSI).

It is to be noted that the Court of Appeal in Ikumi Terada, at [59], did not dismiss the appeal on the ground that the two memoranda of appeal by the two appellants in that case had failed to specify that the High Court’s decision was perverse. On the contrary, in Ikumi Terada the Court of Appeal had considered in extenso the various grounds advanced in favour of the two appeals but did not find favour in any of those grounds. L(2). Did Safetags’ Policy (BSI) apply to Cheng Voon?

I reproduce below the relevant provisions in Safetags’ Policy (BSI): “NOW THIS POLICY WITNESSES that is at any time during the Period of Insurance, any employee in the Insured’s immediate service shall sustain personal injury by accident or disease arising out of and in the course of his employment by the Insured in the Business and if the insured shall be liable to pay compensation for such injury either under: the Law(s) set out in the Policy or at Common Law then subject to the terms, exceptions and conditions contained herein or endorsed hereon [BSI] shall indemnify the Insured against all sums for which the insured shall be so liable … [Paragraph 1 (BSI)] … EXCEPTIONS [BSI] shall not be liable under this Policy in respect of: …

the Insured’s liability to employees of contractors to the Insured [Exception 2 (BSI)]. … CONDITIONS …

The Insured shall take reasonable precautions to prevent accidents and disease and shall comply with all statutory obligations [Condition 3 (BSI)]. …

The due observance and fulfilment of the terms, exceptions, conditions and endorsements of this Policy so far as they relate to anything to be done or not to be done by [Safetags] and the truth of the statements and answers in the Proposal shall be conditions precedent to any liablity of [BSI] to make any payment under this Policy. … POLICY SCHEDULE … The Insured: [TPMC] as Principal, [Rexallent] as Main Contractor and All Nominated Contractors F.T.R.R. & I” (emphasis added).

Mr. Gurmukh Singh has submitted that Paragraph 1 (BSI) only provides insurance coverage for “any employee in [Safetags’] immediate service”. As Cheng Voon was employed by Cytrix and not by Safetags, Mr. Gurmukh Singh has invited the court to decide that Safetags’ Policy (BSI) did not cover Cheng Voon who was not in the “immediate service” of Safetags.

Paragraph 1 (BSI) is similar to Paragraph 2 (MSIG) and the coverage provision in Lim Chin Yok & Co Ltd. Based on Lim Chin Yok & Co Ltd, I am of the following view regarding the meaning of Paragraph 1 (BSI):

the phrase “any employee in [Safetags’] immediate service” in Paragraph 1 (BSI) has two possible meanings as follows -

the phrase “any employee in [Safetags’] immediate service” in may only mean employees of Safetags at the Site; or

the contents regarding who were the “Insured” in the Schedule to Safetags’ Policy (BSI), namely, “[TPMC] as Principal, [Rexallent] as Main Contractor and All Nominated Contractors F.T.R.R. & I” [Definition (Insured)], included all employees of contractors who worked at the Site. In other words, Cheng Voon as an employee of Cytrix (a sub-contractor at the Site at the time of the Incident), could fall under Paragraph 1 (BSI) read with the Definition (Insured) because Cheng Voon was at the “immediate service” of Safetags; and

in view of the above ambiguity regarding Paragraph 1 (BSI) as explained in the above sub-paragraph (1), I have no hesitation to apply the contra proferentem rule of construction and decide that the ambiguity in Paragraph 1 (BSI) shall be resolved strictly against BSI (who prepared the policy) in favour of Rexallent and Safetags. Consequently -

although Cheng Voon was Cytrix’s employee at the time of the Incident, Paragraph 1 (BSI) applies to Cheng Voon who was at Safetags’ “immediate service” at that time; and

Rexallent and Safetags had discharged the initial onus to satisfy the court that Cheng Voon was covered by Safetags’ Policy (BSI). L(3). Was BSI estopped by contents of BSI’s Letter (29.11.2018)?

BSI had initially exercised its right of subrogation under Safetags’ Policy (BSI) and appointed Messrs MPA to defend Safetags in This Action. Subsequently, BSI’s Letter (29.11.2018) was sent to Messrs MPA. I reproduce below the relevant part of BSI’s Letter (29.11.2018): “[Rexallent] … Upon your recent disclosure that [DOSH] had issued a punitive notice dated 28/04/2016 (was given to our lawyers on 24/11/2018) which states that you have breached Sections 15 and 17 [OSHA] whereby under these sections you have an obligation to conduct your undertaking in such a manner so as to ensure, so far as practicable, that employees are not exposed to risks to their safety or health. Hence, you have failed to maintain a safe system and/or environment. We also note that you have failed to ensure that [Cheng Voon] was provided with a safety helmet that conformed to safety regulations and/or ensure that he used only a safety helmet that conformed to safety regulations. Kindly note [Condition 3 (BSI)] provides that: … Further, [Condition 10 (BSI)] stipulates that: … Hence not only are you in breach of the government regulations but also of mandatory condition precedent of the Policy. Further, by failing to comply with Sections 15 and 17 [OSHA], you have put the workman and in particular [Cheng Voon] in danger which has or may have contributed to and/or caused the accident that occurred on 3/03/2016. Therefore, pursuant to [Condition 10 (BSI)], we regret to inform you that we are hereby denying liability on the claim on the basis that you have breached [Condition 3 (BSI)]. As such, all benefit under the Policy is forfeited and we will not be defending you in [This Action] and/or making any payment on your behalf in [This Action]. We reserve our rights in law and our right to rely on other terms and conditions of the Policy, including our right to rely on further grounds of repudiation which presently are or may later become available to us. Kindly note that our solicitors will be writing to Court to seek an adjournment of the Trial and withdrawing themselves from acting for you in [This Action] pending appointment of your own solicitors but we cannot guarantee that any adjournment will be granted. You are advised to immediately appoint solicitors to represent you in [This Action] and to protect your interest.” (emphasis added).

I am of the following view regarding the effect of BSI’s Letter (29.11.2018):

in BSI’s Letter (29.11.2018), BSI had relied on the alleged breach of Condition 3 (BSI) by Rexallent as the sole ground to avoid liability for Cheng Voon’s Injuries under Safetags’ Policy (BSI); and

although BSI’s Letter (29.11.2018) stated that BSI reserved its right to rely on other terms and conditions of Safetags’ Policy (BSI) to repudiate its liability under Safetags’ Policy (BSI), it is unjust and inequitable for BSI to rely on any other Exclusion Clause in Safetags’ Policy (BSI). My reasons are as follows -

BSI had initially accepted liability under Safetags’ Policy (BSI) and had exercised its subrogation right to appoint Messrs MPA to defend Rexallent in This Action; and

Messrs MPA had access to all the relevant evidence in this case. Hence, there is no “fresh evidence” or “subsequent evidence” which would justify BSI’s reliance on an Exclusion Clause other than Condition 3 (BSI) and Condition 10 (BSI). In view of the above reasons, it is only just and equitable for the court to apply the doctrine of equitable estoppel to bar BSI from relying on any ground except for Condition 3 (BSI) and Condition 10 (BSI), so as to avoid liability under Safetags’ Policy (BSI). In the Federal Court case of Boustead Trading (1985) Sdn Bhd v Arab-Malaysian Merchant Bank Bhd [1995] 4 CLJ 283, at 294-295, Gopal Sri Ram JCA (as he then was) has explained that the equitable estoppel doctrine has a wide application.

I accept the submission by Mr. Gabriel Daniel that the learned SCJ had failed to consider at all the effect of BSI’s Letter (29.11.2018) [SCs’ 1st Error (BSI)].

Whether SC had erred in applying s 31 SOCSO In paragraphs 9 to 33, the learned SCJ had found Rexallent and Safetags to be liable for Cheng Voon’s Injuries without any discussion regarding the application of s 31 SOCSO. Inexplicably, SC decided to dismiss Third Party Proceedings (BSI) based only on the invocation of s 31 SOCSO. As explained in the above paragraph 101, if Cheng Voon was not barred by s 31 SOCSO from claiming for Cheng Voon’s Injuries from Rexallent and Safetags, s 31 SOCSO could not therefore bar Rexallent and Safetags from claiming for an indemnity from BSI under Safetags’ Policy (BSI) regarding Cheng Voon’s Injuries. Accordingly, the learned SCJ had committed an error of law in relying solely on s 31 SOCSO as the basis for SC’s Decision (BSI) [SCs’ 2nd Error (BSI)]. L(5). Can BSI rely on Exception 2 (BSI)?

With respect to Mr. Gurmukh Singh’s submission regarding Exception 2 (BSI), I have a different view. My reasons are as follows:

BSI had drafted Safetags’ Policy (BSI) and could not therefore disclaim any actual knowledge of the existence of Exception 2 (BSI);

with actual knowledge of the application of Exception 2 (BSI), BSI had initially accepted liability under Safetags’ Policy (BSI) and had exercised its subrogation right to appoint Messrs MPA to defend Rexallent in This Action; and

BSI’s Letter (29.11.2018) only relied on a breach of Condition 3 (BSI) and Condition 10 (BSI) for BSI’s repudiation of its liability under Safetags’ Policy (BSI). In view of the above reasons, it is only just and equitable for BSI to be estopped from relying on Exception 2 (BSI) to resist the Third Party Proceedings (BSI). L(6).

Whether BSI can rely on Condition 3 (BSI) and Condition 10 (BSI) Mr. Gurmukh Singh has submitted at length that Condition 3 (BSI) and Condition 10 (BSI) would exclude BSI’s liability under Safetags’ Policy (BSI). I am not able to accede to this contention due to the following reasons:

Condition 3 (BSI) and Condition 10 (BSI) are similar to the provisions in the insurance policies which have been interpreted in the following two cases -

Fraser v BN Furman (Productions) Ltd (Miller Smith & Partners, Third Parties) [1967] 3 All ER 57, at 60; and

Lim Chin Yok & Co Ltd, at p. 106;

the judgment of Diplock LJ (as he then was) in UK’s Court of Appeal case of Fraser has been followed in Lim Chin Yok & Co Ltd. In the above paragraph 96, I have cited the relevant part of Fraser which has been applied in Lim Chin Yok & Co Ltd. For the sake of completeness, I quote the following passage in Diplock LJ’s judgment in Fraser, at p. 60 (concurred by Winn and Willmer LJJ) - “I turn now to the policy, and I will read first the definition of the risk. … There then follow certain supplementary matters into which I need not go. The employers' liability to the plaintiff in the action was clearly covered by the words that I have read, and they were prima facie entitled to indemnity. I must, therefore, read the second proviso, which is as follows: “Provided further that the due observance and fulfilment of the conditions of this policy which conditions are to be read as part of this policy shall be a condition precedent to any liability of the company under this policy.” The conditions referred to are seven in number, of which condition 4 is in the terms which I have already read: “The insured shall take reasonable precautions to prevent accidents and disease.” If, therefore, this policy had been entered into, and the Eagle Star company had sought to deny liability, the onus would lie on them to prove that the condition had not been fulfilled. The first point to consider is the question of construction of that condition. It must be construed, of course, in the context of a policy of insurance against specified risks. The risks so specified, which are “liability at law for damages”, are liability for breach of statutory duty for which the owner or occupier of the factory would always be personally liable, negligence at common law of the employer, for which he would be personally liable, and also the negligence of his servants, for which he would be vicariously liable. Therefore, when one approaches the construction of the condition, one does so in this context and applies the rule that one does not construe a condition as repugnant to the commercial purpose of the contract.” (emphasis added);

premised on Fraser and Lim Chin Yok & Co Ltd -

the commercial purpose of Safetags’ Policy (BSI) was for BSI to indemnify Safetags and Rexallent for personal injuries suffered by an employee of any contractor due to an accident which had occurred at the Site [Commercial Purpose (Policy)];

Condition 3 (BSI) and Condition 10 (BSI) should not be construed in a manner which was repugnant to the Commercial

Condition 3 (BSI) only imposed obligations on Rexallent and Safetags to take “reasonable precautions” which was not repugnant to the Commercial Purpose (BSI’s Policy), namely, where Rexallent and Safetags knew of or recognized the existence of a danger, Rexallent and Safetags -

should not deliberately court the danger by taking measures which Rexallent and Safetags knew were inadequate to avert the danger;

(ii) should not be reckless in not caring whether to avert the danger or not; and

(iii) should not refrain from taking precautions which Rexallent and Safetags knew ought to have been taken because Rexallent and Safetags were covered by Safetags’ Policy (BSI); and

Condition 3 (BSI) did not impose any duty of care on Rexallent and Safetags as required by OSHA, Subsidiary Legislation (OSHA), tort of negligence and/or tort of occupier’s liability;

I accept Mr. Gabriel Daniel’s submission that Condition 3 (BSI) as construed in the above sub-paragraph (3) had been complied with by Rexallent and Safetags in this case. I rely on the following evidence and reasons -

safety nets had been installed at the Site;

“fall protection system” had been implemented at the Site;

safe walkways had been prepared at the Site;

“catch platforms” had been erected at the Site;

weekly toolbox meetings were held at the Site;

a penalty system had been enforced for workmen who failed to adhere to safety requirements at the Site;

warning notices had been placed at the Site;

with regard to the Incident, Rexallent and Safetags had not been prosecuted for any offence under OSHA and/or Subsidiary Legislation (OSHA). It is to be emphasized that DOSH’s two notices dated 28.4.2016 and 3.3.2016 regarding the Incident merely made recommendations for Rexallent to improve certain safety aspects at the Site; and

there was no evidence that Rexallent and Safetags knew of or recognized the existence of a danger at the Site whereby

would deliberately court the danger by taking measures which Rexallent and Safetags knew were inadequate to avert the danger; or

(ii) were reckless in not caring whether to avert the danger or not; and

(iii) would refrain from taking precautions which Rexallent and Safetags knew ought to have been taken because Rexallent and Safetags were covered by Safetags’ Policy (BSI);

there was no evidence that Rexallent and Safetags had failed to comply with “all statutory obligations” within the meaning of Condition 3 (BSI); and

as there was no breach of Condition 3 (BSI) by Rexallent and Safetags, there was no room to invoke Condition 10 (BSI). If I have accepted the above contention by Mr. Gurmukh Singh, Condition 3 (BSI) and Condition 10 (BSI) would have been interpreted in a manner which is repugnant to the Commercial Purpose (BSI’s Policy).

In any event, I am not satisfied that BSI has discharged the burden to prove the application of Condition 3 (BSI) and Condition 10 (BSI) in this case. L(7). Should SC’s Decision (BSI) be reversed?

I am constrained to reverse SC’s Decision (BSI) due to the following reasons:

SC’s 1st Error and SC’s 2nd Error have been committed - please refer to the above paragraphs 123 to 125; and

as explained in the above paragraphs 126 to 128, BSI cannot rely on Exception 2 (BSI), Condition 3 (BSI) and Condition 10 (BSI). M.

Outcome of 6 Appeals Premised on the above evidence and reasons -

Rexallent’s Appeal (Cheng Voon) is dismissed with costs;

Safetags’ Appeal (Cheng Voon) is refused with costs;

Rexallent’s Appeal (MSIG) is dismissed with costs;

Safetags’ Appeal (MSIG) is refused with costs;

Rexallent’s Appeal (BSI) is allowed with costs; and

Safetags’ Appeal (BSI) is allowed with costs.

I end this judgment with my gratitude to all learned counsel for their able assistance in these 6 Appeals. WONG KIAN KHEONG Judge High Court of Malaya Shah Alam, Selangor Darul Ehsan DATE: 28 JULY 2022 Counsel for Safetags Mr. Gabriel Daniel & Rexallent: (Messrs Paul Ong & Associates) Counsel for Chong: Ms. Esther Geetha Jayaraja & Mr. Lee Hiang Siang (Messrs Chew Das & Jayaraja) Counsel for MSIG: Mr. Anpalagar A/L Suppiah & Ms. Leena A/P Subramaniam (Messrs Anad & Noraini) Counsel for BSI: Mr. Gurmukh Singh (Messrs Isharidah Ho Chong & Menon)