The respondent, a lorry driver, was employed by the appellant on 20 March 1978 at a daily wage of RM15 per day. Three days later, i.e. on 23 March 1978 whilst he and his lorry attendant, another employee of the appellants, were unloading bundles of carpets from the appellants' lorry No. BAN 171, the bundles sprang and rolled down and fell on the respondent knocking him down. As a result of this accident the respondent suffered serious injuries which rendered him paralysed from the waist downwards.

He sued the appellants for damages on account of negligence. The learned trial Judge agreed with him that the appellants were negligent in failing to provide a safe system of work in unloading the goods from their lorry. But in their alternative defence the appellants maintained that the respondent being an "insured person" within the meaning of s. 2 of the Employees' Social Security Act 1969 by virtue of s. 31 thereof was not entitled to receive damages under the common law. The learned trial Judge heard the evidence and arguments on this issue and after considering them came to the conclusion that s. 31 of the Act had no application to the case. Thus he awarded the following damages in favour of the respondent:

(1) RM70,000 for pain and suffering and loss of amenities with interest at 6% per annum;

(2) RM24,570 for actual loss of earning for 4 years with interest at 3%;

(3) RM4,800 for reimbursement of nursing expenses incurred for 48 months with interest at 3%;

(4) RM1,200 special damages with interest at 3%;

(5) RM66,330 for loss of future earnings; and

(6) RM13,000 for future nursing care.

In this appeal before us the appellants only raised the issue of applicability of s. 31 of the Act. This section reads as follows:

31. An insured person or his dependants shall not be entitled to receive or recover from the employer of the insured person:

(i) any compensation under the Workmen's Compensation Ordinance 1952, or

(ii) damages under any other law for the time being in force,

in respect of an employment injury sustained as an employee under this Act.

(Emphasis added)

Thus in order to deprive the respondent of his entitlement to damages under the common law, the appellants must show that:

(a) the respondent is an insured person; and

(b) the injuries suffered by him is an employment injury sustained by him as an employee.

Condition (b) as regards this appeal is irrelevant because what is in dispute is not the nature of the injuries, i.e. whether employment injury or not, but the question whether the respondent was at the time of the accident an insured person. We now proceed to consider this question.

Under item (11) of s. 2 of the Act an insured person is defined as:

a person who is or was an employee in respect of whom contributions are or were payable under this Act and who is, by reason thereof, entitled to any of the benefits provided by this Act.

Thus to be an insured person, two constituent elements have to be proved, namely:

(i) that the respondent was an employee on the date of the incident; and

(ii) that on that date contributions were payable in respect of him.

The expression "and who is, by reason thereof, entitled to any of the benefits provided by this Act" is not a third element of the definition, but merely a consequence of being an insured person. The Act contemplates that among the consequences of being an insured person are that (a) he is entitled to receive benefits under the Act and that (b) he is debarred from receiving benefits under Workmen's Compensation Ordinance or any other written law for the time being in force.

Definition of "employee".

The first constituent element of the definition of "insured person" requires us to determine whether the respondent was at the time of the accident an employee. For this purpose we have to refer to item (5) of s. 2 of the Act which defines this term as follows:

(5) 'employee' means any person who is employed for wages under a con