JUDGMENT

Salleh Abas FJ:

The plaintiff was employed as a sawyer at the defendants' sawmill at Kijal, Kemaman, Trengganu. On 13 November 1976, at about 8.00 whilst attempting to drag a piece of partially sawn log with another co-worker on to a waiting table for the purpose of further sawing it into planks, the log fell on his right hand. As a result of this accident he lost three fingers of his right hand, and because of the injuries he was refused further employment at the defendants' sawmill. He was out of work for one whole year until he finally found his present employment at Trengganu Development and Management Bhd. (herein referred to as TDMB) as a labourer. He has been at this new job for the last four years, earning RM7.55 per day. When he was a sawyer at the defendants' sawmill his earning was about RM15 a day. He sued the defendants and claimed general and special damages.

The defendants denied liability contending that the plaintiff was not their employee but an employee of one Lim Yoke Yin (in this judgment referred to as Lim) who was the defendants' contractor within the meaning of s. 19 of the Workmen's Compensation Ordinance 1952. Further by way of alternative, the defendants pleaded that even if the plaintiff was held to be their employee, the defendants were still not liable, because the accident was wholly caused by the plaintiff's own negligence. The defendants also pleaded contributory negligence by the plaintiff.

As to the question whether the plaintiff was an employee of the defendants or that of Lim Counsel for the plaintiff relied heavily upon Exhibits P4, P5 and P6. P4 is a letter dated 13 November 1976, by the defendants addressed to the Assistant Director of Labour, Dungun, informing him of the accident and injuries to the plaintiff. P5 is a copy of a letter dated 13 November 1976, by the defendants to the American Insurance Company informing the latter of this accident. In both these letters the plaintiff was described by the defendants as "seorang pekerja potong papan", meaning a workman sawing planks.

Although these two letters do not say whose employee the plaintiff was, anybody reading them would certainly presume that the plaintiff was defendants' employee because the sawmill was the defendants' sawmill and it was the defendants who reported the accident. But a clearer picture, however, is to be found in Exhibit P6. This exhibit consists of a Labour Department's form PP1 and PP2 which the defendants were required to fill pursuant to the report they made in P4. The defendants filled in the blank against the "Nama dan alamat majikan yang penuh" with the defendants' own name, namely "Syarikat Jaya Seberang Takir Sdn. Bhd., Kijal, Kemaman, Trengganu". The form was signed on behalf of the defendants' by the late father of the present director of the defendants in charge of the daily affairs of the defendants' sawmill (DW1). In my view exhibits P4 and P5 and P6 constitute a clear admission by the defendants that the plaintiff was their employee and this admission despite the evidence given by witnesses for the defendants remains unrebutted.

I now proceed to consider the evidence in rebuttal.

The defendants claimed that the plaintiff was the employee of Lim (PW2) and that Lim was the defendants' contractor. Under cross-examination Lim claimed that there was a written contract between him and the defendants as to the engagement of workmen at the defendants' sawmill but he kept that document at home. If what he said is true, I would have expected the defendants to produce it, as this would naturally help their case. On the other hand the present director in charge of day to day affairs of the defendants (DW1) said nothing of the existence of such written agreement. It is thus obvious that Lim was lying when he said that there was a written agreement between him and the defendants.

Further DW1 appeared to be unsure of the true position of Lim in relation to the defendants' sawmill. Under cross-examination DW1 sai