Raja Azlan Shan FJ:

The appellants in this case are the defendants in an action before the High Court in which they are sued by the respondent for damages for injuries sustained in the course of employment arising from an alleged unsafe system of work. By his statement of claim the respondent alleges that the appellants were guilty of negligence in not providing a safe system of work.

Since the accident occurred in Samarinda, Kalimantan, Indonesia, a place outside the jurisdiction of our courts, the question of jurisdiction was in issue The respondent's cause of action, as the learned trial judge held, arose from the submission of the appellants to the jurisdiction of the Court. The appellants had entered unconditional appearance. They took objection but the matter was not pursued at great length and no serious discussion was taken in the Court below. They further argued that it was for the respondent to establish that his claim was justifiable and/ or actionable in the place where the wrong was committed and it was not for the appellants or the Court to establish that the wrong complained of was or was not actionable or justifiable in the place where the wrong was committed. Phillips v. Eyre [1870] LR 6 QB 1 28-29 and Boys v. Chaplin [1971] AC 356 were relied upon in support of the proposition.

Indeed that was one of the grounds of appeal argued before us. In view of what I am going to say in a moment, I think other considerations relating to the appeal need not at this juncture be gone into.

The respondent is a citizen of Malaysia. The appellants are carrying on business under the name and style of Hon San Timber Co. atNo. 149, Jalan Imbi, Kuala Lumpur. The facts are sufficiently stated in the judgment of the learned trial judge. The respondent was employed as a logging lorry driver. Logs were loaded on to his lorry and he was required to drive the lorry from the site of loading to a point of discharge. The loading was done by the use of a bulldozer or tractor which pushed the logs on to the lorry. In order to facilitate this, another log was positioned behind a lorry. The traction was provided by a winch which was part of the lorry. In the course of the loading one of the logs slipped, struck the respondent and inflicted on him injuries which incapacitated him from work for about 15 months, fractured his spine and destroyed one of his kidneys.

The learned trial judge found for the respondent and awarded him $8,000 special damages and $19,000 general damages.

It was Willes J who expressed the proposition some 100 years ago in Phillips v. Eyre, supra, a case concerning the jurisdiction of English courts in cases of foreign torts. The first branch of the statement was derived from the decision in Liverpool, Brazil, and River Plate Steam Navigation Co. Ltd. v. Banham ("The Halley")(3) although in that case the Privy Council held that the defendant was not liable in England for an act done abroad by another defendant, not because of the character of the act according to English law, but because the person who did it was not one for whose defaults the defendant was liable according to English law. This branch of Willes J's statement of the law is free from ambiguity. It is the second branch of his statement, expressed by the phrase "not justifiable", that has provoked criticism. The respondent claimed that he needed only to establish the first branch of