Ong Beng How v Guan Seng Sawmill (Pte) Ltd

• Jurisdiction: Singapore
• Judge: Choor Singh J
• Judgment Date: 27 November 1975
• Neutral Citation: [1975] SGCA 12
• Citation: [1975] SGCA 12
• Defendant Counsel: KE Hilborne and Patrick Ong (Ong & Chellam)
• Published date: 19 September 2003
• Plaintiff Counsel: HE Cashin (Murphy & Dunbar)
• Date: 27 November 1975
• Docket Number: Civil Appeal No 24 of 1975
• Court: Court of Appeal (Singapore)
• Subject Matter: Tort,Whether employer breached duty to fence dangerous part of machinery,Employee injured by dangerous part of machinery,Employment Law,Whether employee contributorily negligent,Contributory negligence,Statutory duties,Dangerous part of machinery unfenced,Negligence,Section 22(1) Factories Act (Cap 123, 1970 Rev Ed,Employers’ duties

Cur Adv Vult

This appeal arises from a claim made by the appellant against the respondents for damages for personal injuries which were alleged to have been caused by the negligence and breach of statutory duty of the respondents in the conduct and management of a sawmill on their premises.

The appellant who was 17 years of age at the time of this accident, was employed by the respondents as a factory hand at their sawmill at Lorong Bistari, Singapore. On 16 April 1973, the appellant was cutting pieces of timber by means of a power saw when his left forearm came into contact with its circular saw blade and he received an injury which necessitated the amputation of his left hand above the wrist.

The power-driven circular saw blade which injured the appellant was clearly a `dangerous part` of the power saw unit within the meaning of s 22(1) of the Factories Act (Cap 123, 1970 Ed). This section is similar to s 14(1) of the English Factories Act 1937 and it imposes on an employer an absolute duty to securely fence any dangerous part of any machinery so that the operator of the machinery does not come into contact with the dangerous part. See the decision of the House of Lords in John Summers & Sons v Frost [1955] AC 740 and the decision of this court in Ng Kay Thiam v Redhill Paper Converters [1971] 2 MLJ 256 . It is, however, clear on the authority of Caswell v Powell Duffryn Associated Collieries [1940] AC 152 that it is open to the court to find an element of contributory negligence in the conduct of the plaintiff in an action based upon a breach of statutory duty as in an action based on common law negligence.

The trial judge found that the respondents were in breach of their statutory duty under s 22(1) of the Factories Act in that they had not securely fenced the power-driven circular saw blade. This was in fact conceded by counsel for the respondents in his submissions at the close of the case for the respondents. The only issue before the trial judge, as it is again before this court, was whether, on the evidence, the appellant was guilty of contributory negligence.

The trial judge found the appellant contributorily negligent to the extent of 50% and it is against this finding that the appellant now appeals. It is therefore necessary to examine the evidence in this case to see whether the trial judge`s finding is supported by the evidence.

The power saw unit on which the appellant was working comprises, inter alia, an electric motor, connecting gear and a circular saw blade and as can be seen from the photographs tendered at the trial as exhibits this unit is mounted immediately above and to the rear of a bench in front of which the operator stands. The unit is a traversing one in that it is designed so that the operator can by pulling a handle affixed to the unit, cause the circular saw blade to move forward horizontally over the bench and by pushing the handle cause it to resume its position at the rear of the bench. The circular saw blade has a cover or guard mounted over it which does not go right down to the level of the bench....