George Seah FJ:

This is an appeal from a judgment of the High Court at Kuala Lumpur.

The facts may be briefly stated and they are as follows:

(a) The appellants, Lee Lau & Sons Realty Sdn. Bhd. operated and may still be operating a brick-making factory at Desa Jaya, Kepong, Selangor. They also owned a forklift machine which was under the management of the late Tan Kam Sing (hereinafter referred to as the deceased) at the material time.

(b) On 15 July 1978 at about 11 a.m. the deceased complained to Lee Swee Meng (DW1), a "Kepala" of the appellants, that the fan belt of the forklift had been broken. This was duly replaced by Chow Kwan Meng (DW2) a foreman of the appellants in charge of general repairs. At about 3 p.m. the same afternoon, the deceased lodged another complaint that the hydraulic pump of the forklift was leaking. At the request of the foreman, the deceased jacked up the forklift mechanically to a height between 5 to 6 feet and used 2 rubber tree stumps to support the heavy horizontal iron bar of the forklift. The foreman went under the raised forklift and saw that the oil ring of the hydraulic pump was leaking badly. While the foreman was away to get a spanner, the deceased went under to have a look at the hydraulic pump, the 2 rubber tree stumps gave way, the forklift collapsed and the heavy horizontal iron bar fell onto the deceased causing him serious injuries from which he later died without recovering consciousness.

(c) A claim for damages was instituted in the High Court by the (i) 1st and 2nd respondents who are the natural parents of the deceased; (ii) 3rd respondent, who is the lawful widow of the deceased and (iii) 4th respondent, who is the infant son of the deceased. All the four respondents claim to be dependants of the deceased.

(d) The learned Judge Ajaib Singh J gave judgment in favour of the respondents and awarded a total sum of RM69,864 as general damages and RM1,022 as special damages.

According to the statement of claim the case of the respondents was grounded on the fact that the deceased was an employee of the appellants and that the accident on 15 July 1978 was caused solely by the negligence of the appellants or their servant or agent. Alternatively, the respondents also averred that the appellants were in breach of their statutory duty under the Factories and Machinery Act 1967 and the regulations made thereunder.

The appellants in their defence denied that the deceased was their employee and averred that the deceased was at all material times an independent contractor. They also denied that they or their servant or agent had been negligent or in breach of any statutory duty. They lastly averred that the accident was caused or contributed to by the negligence of the deceased himself.

After hearing the evidence adduced the learned Judge ruled that there was insufficient evidence to say that the deceased was an employee of the appellants. He also held that the appellants were not in breach of any of the provisions in the Factories and Machinery Act 1967 and the regulations made thereunder. The effect of these rulings is that the respondents had not succeeded in proving their case as pleaded and there was no cross-appeal by the respondents against these findings of the Court below. In our opinion there was ample evidence to support these findings.

However, the learned Judge found as a fact that the deceased was an independent contractor and might be regarded as an invitee. In Pearson v. Lambeth BO. [1950] 2 KB 353 at p. 366 Asquith LJ said:

... It is more exact to say that an invitee is a person who comes on the occupier's premises with his consent on business in which the occupier and he have a common interest.

This requirement of community of interest is to be found in many of the cases and was approved by the House of Lords in Jacobs v.LCC. [1950] AC 361 in which the question was whether a customer at a shop, occupied by a tenant of the defendants, who suffered personal injuries