●●
for the employer to enforce the instant
indemnity provisions, it must understand
that the onus and burden of proof is on it,
namely it must show that:
●●
>> there is an express stipulation in the
contract in regard to instant liability;
>> the Workmen’s Compensation Act
1952;79 and/or
>> the express stipulation is valid and
enforceable at law;
>> the Employee’s Social Security Act
1969;80 and/or
>> the ingredients/elements of the said
provision are satisfied, ie the contractor
is in default, etc;
>> any other applicable law.
>> the said ingredients/elements are
proven to the required standard of
proof;78
>> the exceptions to liability (if any) do not
apply; and
Such loss and/or expense to be
indemnified would encompass not only the
compensation actually paid to the workmen
but any loss and expense incurred by the
employer in defending the workmen’s legal
action.81
>> the heads of liability and their quantum
are particularised and proven to the
said standard of proof.
(3) Category III: Claims By Workmen
A recent development in the country is for a
third category of indemnity to be incorporated in
the conditions of contract. Typical examples of
which include Clause 18.3 PAM Contract 2006
(With Quantities), PAM Contract 2006 (Without
Quantities); Clause 19.3 PAM Sub-Contract 2006;
Clause 24.5 JKR Sarawak Form (2006); etc. The
following features, characteristics and principles
need to be appreciated:
●●
the new category is essentially in regard to
the contractor’s liability pertaining to claims
by workmen for compensation or damages
payable at law due to any accident or injury
caused to such workmen;
it generally permits the employer to
contractually compel the contractor to
reimburse it for any loss and expense
incurred by it due to any claim made
against it by any workmen in respect of
compensatory payments at law eg under:
●●
this category appears to be confined merely
to claims by:
>> workmen employed in and for the
execution of the works; and/or
>> other person in the employment of the
contractor, nominated sub-contractor or
any sub-contractor.
Hence, generally, these cover all the
contractor’s and sub-contractor’s persons
employed for the purposes of carrying
out the works under the contract but
also those individuals who fall under the
definition of workmen under the Workmen’s
Compensation Act 1952 and employees
under the Employees’ Social Security
Act 1969 expressly 82 or by necessary
implication. It excludes workmen directly
engaged by the employer, its employees,
its agents or its servants.
78
79
80
81
Which is the civil standard, ie more probable than not probable.
(Act 273) (Revised 1982).
(Act 4).
See also Sundra Rajoo, WSW Davidson, Harbans Singh KS The PAM 2006 Standard Form of Building Contract at
293.
82 See cl 24.5 JKR Sarawak Form (2006).
73