Gelau Anak v.Lim Phek San & ORS
Facts of the case
The plaintiff was working at Andulau Brickworks (a company owned by the defendant) at the time he suffered injury from an accident in the factory. His responsibilities at the factory mainly entailed digging and moving clay, which would then be modeled into bricks, and assisting with the stacking and moving of the bricks themselves. On the fateful date when the accident happened, the plaintiff’s employers had asked him to clean the rollers on the moving belts which conveyed the clay around the factory using a stick when the engine was still running (“Group 5,” 1986). As he was discharging this task, the plaintiff’s lower right arm became trapped between the roller and the metal plate prompting the defendant to switch the engine off. In his defense, the defendant cited that it was very hard and even impossible to clean the roller with a stick. The injury led to the plaintiff being hospitalized for seventeen days and upon release, he was instructed to visit the hospital thrice weekly for follow-up purposes. The plaintiff lost a significant amount of movement in his right wrist and developed an ugly scar as a result of the injury (Group 5,” 1986). The estimated earnings for the plaintiff both before and after the accident were $500 monthly.
Issues of the case
Did the defendant breach the common law duty?
The court ruled that under the common law, the employer had a duty to provide a safe working environment for employees so as to minimize their risk of danger. In essence, an employer is not mandated to insure his employees, and also, he cannot protect his employees against all risks; however, he is expected to provide a reasonable safe system of work and to reasonably care for his workers (Mallal, 2004). Based on the facts of this case, it is evident that the employer failed to provide reasonable care to the plaintiff and failed to ensure that the work environment was safe for him. For this reason, he breached the common law duty. The plaintiff is also guilty of acting recklessly. His actions indicate that he also disregarded his safety and went on to perform the task knowing how risky it was. For this reason, the court found him liable for ¼ of the injuries and the defendant ¾ liable. The court thus awarded him ¼ worth of the total damages.
I do not agree with the court’s ruling in this case. In my opinion, the court should have held the defendant fully liable for the damages. All facts indicate that the employer was negligent as he failed to provide a safe working environment for this employee. He instructed him to clean the rollers being fully aware of the dangers it presented on the employee especially when the engine was on; he also failed to provide proper equipment for this work. There is nothing that the plaintiff could have done to prevent the accident as he believed cleaning the rollers was also part of his duty. Maybe he feared that voicing his concerns would have gotten him fired.
Borneo Insurance SDN. BHD. v. Martin LOH
Facts of the case
The plaintiff is an insurance company that hired the defendant to act as one of its agents in transacting motorcar insurance on its behalf believing that he was very good motorcar salesman due to his good reputation (Group 5,” 1986). Under the agency agreement, the agent was supposed to provide the insurance company with written notice of any item he disputed within 14 days from the time he received monthly statements from the company. Failure to do so would lead to the assumption that the balance due from the defendant was confirmed to be correct by him. The plaintiff instigated a lawsuit against the defendant requiring the court to instruct the defendant to pay the insurance company premiums amounting to $29, 587.35 that the defendant had collected on its behalf as its agent. The only witness for the plaintiff was its marketing manageress who provided evidence indicating that $ 29, 587.35 was the amount that the defendant owed the plaintiff (Merkin & Hjalmarsson, 2013). The defendant had received personally from her all the monthly statements and at no time did he dispute any of the statements he received, including the total of $9809 brought forward.
Issues of the case
Did the defendant have the duty to submit all the premiums as indicated by the plaintiff?
In its ruling, the court stated that the defendant had a duty to provide the insurance company with all the premiums it claimed. This is because at no time did the defendant challenge the monthly statements forwarded to him including the $9809 brought forward. As indicated in the agreement, failure to exercise his right to challenge the amount of $9809 insinuated that he agreed that the amount was correct. Therefore, the court ruled in the plaintiff’s favor affirming that the defendant was to give the plaintiff premiums amounting to $ 29, 587.35, with interest at 6% from 1st October, 1983.
I agree with this court’s ruling. The agency agreement clearly stipulated the terms that were going to guide the business dealings between the insurance company and the agent. Therefore, the agent’s silence regarding the amounts indicated in the monthly statements indicated he agreed to them. Therefore, it is only fair that he gives the plaintiff the amount of premiums owed to it.
Group 5 (1986). Retrieved from file:///C:/Users/monica/Downloads/group-5%20(1).pdf
Mallal, B.A. (2004).The Malayan Law Journal, Volume 1. Malaya Publishing House Limited
Merkin, R., & Hjalmarsson, J. (2013). Compendium of insurance law. CRC Press.