Workmen'S Compensation Act 1952 · Updated to 22 Jul 1982 · Part III · The Commissioner and Arbitrators
41. Limitation of workman’s right of action
Feedback & supportNothing contained in this Act shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted and is prosecuting a suit for damages in respect of that injury in any court against his employer or if he has recovered damages in respect of that injury in any court from his employer;
workman
“workman”, subject to the proviso to this subsection, means any person who has, either before or after the commencement of this Act, entered into or works under a contract of service or of apprenticeship with an employer, whether by way of manual labour or otherwise, whether the contract is expressed or implied or is oral or in writing, whether the remuneration is calculated by time or by work done and whether by the day, week, month or any longer period: Provided that the following persons are excepted from the definition of “workman”— (a) any person employed otherwise than by way of manual labour whose earnings, calculated in accordance with section 9, exceed five hundred ringgit a month; (b) a person whose employment is of casual nature and who is employed otherwise than for the purposes of the employer’s trade or business, not being a person employed for the purposes of any game or recreation and engaged or paid through a club; (c) a domestic servant; (d) any person who is a member of the armed forces or of any visiting force lawfully present in Malaysia; (e) any person in the civil employment of Her Britannic Majesty’s Government in the United Kingdom, or in any other country of the Commonwealth whose contract of service was not made in Malaysia nor in Singapore; (f) a person employed, or selected for employment, in a civil capacity by the Government of Malaysia or by the Government of any State or by any local authority before 1 April 1953 in the application of this Act in Peninsular Malaysia, and before 1 January 1957 in the application of this Act in Sarawak where, in consequence of injury received by any such person in the discharge of his duties, a pension, gratuity or other allowance which would not be payable if such injury were received otherwise is paid to him or, in the case of his death, to any of his dependants as defined in this Act under any written law for the time being in force in Malaysia or any part thereof providing for the grant of such pension, gratuity or other allowance (this paragraph shall not apply in Sabah); (g) any police officer, and any other person engaged to perform police duties in accordance with the provisions of any written law while so performing such duties; (h) an out-worker; (i) a tributer; (j) any member of the family of the employer who dwells with him in his house; *(k) any class of persons whom the Minister may declare not to be workmen for the purposes of this Act. *NOTE—see P.U.…
and no suit for damages shall be maintainable in any court by a workman against his employer in respect of any injury—
employer
“employer” includes the Government of Malaysia and the Governments of each of the States; in respect of civilian employees engaged in Malaysia or in Singapore of any visiting force lawfully present in Malaysia or of any person in the civil employment of the Government of any Commonwealth country, whose contract of service was made in Malaysia or in Singapore, the Government of that Commonwealth country; any local authority; any person or body of persons whether statutory or incorporated or not; the legal personal representative of a deceased employer; and in relation to a person employed for the purpose of any game or recreation and engaged or paid through a club, the manager or members of the managing committee of the said club: Provided that where the services of a workman are temporarily lent or let on hire to another person by the person with whom the workman has entered into a contract of service or apprenticeship, the latter shall, for the purposes of this Act, be deemed to continue to be the employer of the workman whilst he is working for that other person;
if he has applied to the Commissioner to settle any question in respect of the injury under subsection 27(2); or
if an agreement has been come to between the workman and the employer and such agreement has been recorded under section 28; or
if he has recovered damages in respect of the injury in any court from any other person.
If a suit is instituted in any court to recover damages independently of this Act for injury caused by any accident, and it is determined in such suit or on appeal that the injury is one for which the employer is not liable in such suit, but that he would have been liable to pay compensation under this Act, the suit shall be dismissed; but the trial court, or if the determination is given on appeal, the appellate court shall, if the workman so choose, proceed to assess such compensation, but may deduct therefrom all or part of the costs which, in its judgment, have been caused by the workman instituting the suit instead of proceeding under this Act: and in any proceedings under this subsection, when the trial court or appellate court assesses the compensation, it shall
46
give a certificate of the compensation it has awarded and the direction it has given (if any) as to the deduction of costs and such certificate shall have the force and effect of an Arbitrator’s order.
Arbitrator
“Arbitrator” means a person appointed by the Minister to be an arbitrator for workmen’s compensation for such area as may be specified in that appointment;