1 The plaintiff in this case claims damages for personal injuries suffered whilst at work in the defendants` factory as a result of the negligence of the defendants` servant or agent and in the alternative arising out of the breach of statutory duty of the defendants under s 22(1) of the Factories Ordinance 1958.

2 The short facts are these. The defendants are manufacturers of plywood and veneer. On 4 March 1966 the plaintiff was working with two other workmen at a band-saw in the defendants` factory sawing timber. While working the plaintiff was struck in the right eye by a piece of saw tooth which flew off from the band-saw. As a result the plaintiff lost the sight of his right eye.

3 The plaintiff`s evidence as to how the accident occurred was shortly this. Three persons were working at the band-saw. The plaintiff, and another person were at the front of the machine pushing the log core into the saw and one person (Teh Chin Guan) was at the rear of the machine pulling it. The log core had gone through the saw and Teh Chin Guan was pushing the log core back to the front for further sawing and in so doing the log core hit the saw which in turn struck the metal sawing platform and caused one of the teeth of the saw to break and fly out and hit the plaintiff`s right eye.

4 The plaintiff alleges that he and Teh Chin Guan were servants of the defendants but the defendants deny this.

5 The plaintiff`s evidence as regards his employment was shortly this. He had been working in various sawmills for eight years. Lim Chai Keng was the kepala employed by the defendants and Lim Chai Keng came to see him in Kuala Lumpur in February 1966 and told him that the defendants` factory was short of a foreman and he, Lim Chai Keng, was instructed to look for one. Lim Chai Keng invited him to come to Singapore to work and said that he would get on the average $300 per month for 20 working days a month. He came to Singapore on the 12 February and Lim Chai Keng brought him to the defendants` factory where he was interviewed by an officer of the defendant company. He asked about his terms of employment and was told that there would be a minimum of 20 working days a month for which he would get as much as $300 per month and extra pay would be given in respect of additional work done and if he worked for less than 20 days a deduction of $1 per day would be made. The officer told him that he must work properly and obey the instructions of the defendants` officers. He started work the next day, 13 February. Lim Chai Keng kept the record of the attendance and supervised the work of the workers, and was responsible for the sharpening of the saw blades. From time to time an officer of the defendants would also supervise the work of the workers and he, the plaintiff, was told by Lim Chai Keng to obey the instructions of that officer. Pay day was on 5 and 20 of the month. On 20 February he did not get his pay but he got an advance of $15 from Lim Chai Keng who also gave him some meal coupons. On 4 March this accident happened. He agreed that he was not the only person called by Lim Chai Keng to work in the defendants` factory. He also agreed that when he was working in Singapore for two years previously he worked as an independent labourer.

6 The defendants say that the plaintiff and Teh Chin Guan were not employed by them but by Lim Chai Keng.

7 The evidence of Guo Shih Hung, the production manager of the defendant company, was shortly this. He was in charge of contracts with labour contractors, sales and purchase of logs. There were two kinds of workers in the defendants` factory, one consisting of workers directly employed by the defendants and the other of workers supplied by labour contractors. The workers employed by the defendants were concerned with the loading and unloading of logs and the packing of processed timber and the clearing of saw dust whereas the workers supplied by the labour contractors were concerned with the sawing of logs and sharpening of saw blades. The cutting of logs had to be done according to the defendants` specifications. On or about 16 February 1966 the defendants entered into a contract with Lim Chai Keng. The contract was in Chinese (exh D8). The contract was signed also by Leow Ee Siang. This was done to enable Leow Ee Siang to collect the payments from the defendants on behalf of Lim Chai Keng. The contract covered three main points. They were:

8 The contract also provided for a minimum period of 20 days` work per month. The contract did not specify the number of workers the contractor was to employ. There were two payments made a month, one on 5 and the other on 20. Payments were made on terms of unit rate for each type of timber produced in proportion to the quantity and made to Lim Chai Keng and based on the total output of all the workers of Lim Chai Keng. Transportation, board and lodging and medical expenses of the workers were not the concern of the defendants but the defendants were responsible for the premium due under the workmen`s compensation policy. The defendants did not deal with the labourers of Lim Chai Keng but only with Lim Chai Keng himself. The defendants did not keep a record of the number of labourers supplied by Lim Chai Keng nor the particulars of the labourers. All the workers working at the eight band-saw of the defendants were Lim Chai Keng`s labourers. There was a canteen at the defendants` premises; it was not run by the defendants but by a caterer who issued meal coupons to enable the labourers without ready cash to have meals on credit.

9 Lim Chai Keng`s evidence was to this effect. He was a labour contractor in the timber section of the defendants` factory. Under the agreement exh D8 he was to supply a team of labourers to cut timber in the defendants` factory. Payments were made to him half-monthly by the defendants and he would in turn pay the workman according to the quantity of timber produced by each team of three workers at one machine and at the same rates paid by the defendants to him. He paid the workers at this rate - to the first worker $32 out of every $100 paid to the team, to the second worker $24 and to the third worker $20 and to the person who sharpened the saw $24. The plaintiff was the first worker. He was the person who sharpened the saw. The plaintiff was not paid a salary of $300 per month by the defendants. The average monthly income of the plaintiff would be between $320 and $330. On the signing of the contract he had ten workers; the number of workers was not fixed, it would depend on the quantity of timber to be cut. The division of work and labour was done by him and did not concern the defendants. The plaintiff was engaged by him to work under this contract and not by the defendants. The plaintiff was not interviewed by any officer of the defendants. He told the plaintiff that the plaintiff would be engaged under the contract labour system. He did not submit a list of the names of the workers to the defendants. The defendants did not have a supervisor to supervise the work of his workmen but there were two clerks of the defendants who would check the amount of timber produced every day. He had not been asked to dismiss any of his workers or to tell any of his workers to work harder or to replace any worker but if he was asked to do any of those things he could not refuse. The central provident fund contributions were his responsibility and not the defendants. It was he who supplied meal coupons to the plaintiff, he obtained the coupons from the canteen which was run by a contractor and not the defendants. The powers of supervision and dismissal were vested in him and not the defendants.

10 The evidence of Francis Tan, the office manager of the defendants, was shortly this. In accordance with the agreement with Lim Chai Keng the defendants paid the insurance premium to cover Lim Chai Keng`s workmen under their workmen`s compensation policy and the workers were classified in the policy as the contractor`s employees.

11 It is clear from the evidence that the plaintiff and Teh Chin Guan were not employed by the defendants. The evidence shows that there was (and still is) a contract between the defendants and Lim Chai Keng under which Lim Chai Keng was to supply labourers to work at the defendants` eight band-saws and that the plaintiff and Teh Chin Guan were working in the defendants` factory under this contract at the time of the accident. The question arises whether the plaintiff and Teh Chin Guan were servants of the defendants.

12 It is convenient now to consider the test to be applied in deciding whether a man be a servant or an independent contractor.

13 The word `servant` is defined in Salmond on Torts (14th Ed) p 648 as `any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done.` In 25 Halsbury (3rd Ed) p 447, the characteristics of the relationship of master and servant are stated thus:

14 At p 498 of the same volume of Halsbury the following passage appears:

15 The following passage in Smith`s Master & Servant (8th Ed) p 254, is useful:

16 MCardie J in Performing Right Society v Mitchell & Booker [1924] 1 KB 762 said (at p 767):

17 In Honeywill & Stein Ltd v Larkin Bros [1934] 1 KB 191 Slesser LJ who delivered the judgment of the Court of Appeal, said (at p 169):

18 To decide whether the plaintiff and Teh Chin Guan were or were not servants of the defendants I have to consider the agreement exh D8 as their relationship with the defendants rested upon this document.

19 The agreement provides that Lim Chai Keng was to provide the labour needed to cut the timber which the defendants required. The defendants certainly were not concerned with the number of labourers employed by Lim Chai Keng. What the defendants were concerned were the quantity and type of timber to be cut and the standard of the output and they could only give directions as to what work was to be done. Payment was to be made to Lim Chai Keng on the collective output of the labourers and the defendants were not concerned with the arrangement made by Lim Chai Keng with the labourers as regards payment to the labourers. The agreement provides that the cost of food, transport charges, provident fund, vacation, sick leave and medical charges of the labourers were the responsibility of Lim Chai Keng. The intention of the parties to the agreement is clear that the labourers were to be the employees of Lim Chai Keng and not the defendants.

20 Another matter to be taken into consideration is the power to dismiss. The defendants say that they have no power to dismiss the labourers working at the band-saws. It is, therefore, necessary to examine the terms of the contract in this respect.

21 Clause 6 of the contract provides as follows:

22 Rest and Work Stoppage

23 Clause 7 provides as follows:-

24 Go slow, engaging workmen; dismissal

25 Clause 8 provides as follows:

26 Trial period

27 It seems reasonably clear from the agreement that the defendants have no power to dismiss any of the labourers, such power is with Lim Chai Keng.

28 Taking all these circumstances into consideration I have come to the view that the plaintiff and Teh Chin Guan were not servants of the defendants. The claim of the plaintiff for damages at common law therefore fails.

29 I now come to deal with the alternative claim of the plaintiff based on a breach of statutory duty by the defendants.

30 In the statement of claim the particulars of the breach of statutory duty of the defendants was pleaded as `contrary to s 25 of the Factories Act the defendants failed to completely encase the said machinery`, but at the trial the section relied upon is s 22(1) of the Factories Ordinance 1958.

31 Section 22(1) provides:

32 Provided that, in so far as the safety of a dangerous part of any machinery cannot by reason of the nature of the operation be secured by means of a fixed guard, the requirements of this subsection shall be deemed to have been complied with if a device is provided which automatically prevents the operator from coming into contact with that part.

33 The case of the plaintiff is that the defendants failed to fence the saw so as to prevent the danger of a tooth from the saw which has broken off from being ejected by the machine and causing injury.

34 For the defendants it is submitted that the obligation to fence under s 22(1) is an obligation only to protect against direct injury by contact with the dangerous part of the machine and not against injury from something that flies off from the machine.

35 On consideration of the terms of s 22 I am of the opinion that the obligation to fence imposed by sub-s (1) is an obligation to provide a guard against contact with any dangerous part of a machine and that it does not impose any obligation to guard against dangerous materials or articles ejected from the machine (See Nicholls v Austin (Leyton) [1946] 2 All ER 92 and Close v Steel Co of Wales [1961] 2 All ER 953).

36 From the evidence that I have, I am of the view that the defendants have complied with, s 22(1) in that every precaution has been taken for the safe operation of the band-saw. It is true that the exposed part of the saw was not fenced but the nature of the operation prevents a guard to be fixed and there is no danger of the workmen coming into contact with the exposed saw as they would be standing some distance away from the saw when working and they do not have to get near the saw at all. No fencing would be sufficient to prevent a broken tooth of the saw from flying out.

37 This accident is unusual and it is not one which could have been foreseen by the defendants.

38 In the result the plaintiff`s claim fails and is dismissed with costs.

39 Claim dismissed.