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Singh v Emperor Gold Mining Company Ltd [2004] FJHC 512; HBC0011.2004L (8 December 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0011 OF 2004L

BETWEEN:

GURUDAYAL SINGH
s/o Jagendra Singh
Plaintiff

AND:

EMPEROR GOLD MINING COMPANY LIMITED
Defendant

Counsel:
Mr. V. Mishra for the plaintiff
Mr. A.K. Narayan for the defendant

Hearing: 18 November 2004
Judgment: 8 December 2004

JUDGMENT

The defendant applies by way of Summons filed on 16^th April 2004 for orders that the plaintiff’s action and claim be struck out and dismissed. The application is made pursuant to Order 18 Rule 18, Order 33 Rule 7 of the Rules of the High Court and the inherent jurisdiction of the court.

Background

On or about the 29^th March 2002 the plaintiff was involved in an accident in the course of his employment with the defendant company. The injury was reported to the Ministry of Labour. The plaintiff was medically examined and an amount of compensation in the sum of $12, 012.00 was determined to be payable to him by virtue of the assessed percentage incapacity as a result of the injuries sustained in the accident.

The plaintiff accepted the compensation as determined by the Ministry of Labour, Industrial Relations & Productivity and entered an agreement with the defendant pursuant to section 16 of the Workmen’s Compensation Act.

On the 22^nd January 2004, the plaintiff commenced proceedings in this court seeking damages from the defendant with respect to the injuries and resultant disabilities that arose from the accident on or about the 29^th March 2002.

The Application

The defendant seeks to strike out the plaintiff’s action and to dismiss it in reliance of Order 18 Rule 18, Order 33 Rule 7 and the inherent jurisdiction of the court.

The reliance on Order 33 Rule 7 is sought in the alternate on the basis that the plaintiff’s action is statute barred by virtue of section 25(1)(c) of the Workmen’s Compensation Act.

Order 18 Rule 18(1)(a) provides:

“The court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that –

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delayed the fair trial of the actions; or

(d) is otherwise an abuse of process of the court.”

The defendant says that it relies on all the grounds available in Order 18 Rule 18.

It is not disputed that when an applicant relies on Order 18 Rule 18(1)(a), no evidence can be relied on and the courts determination is to be made on the assessment of the pleadings alone. This limitation does not apply however where the other grounds arising under Order 18 Rule 18 are relied upon.

Order 33 Rule 7 provides:

“If it appears to the court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just.”

Section 25 of the Workmen’s Compensation Act relevantly provides:

“25(1) – Where the injury was caused by the personal negligence or wilful act of the employer or of some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a civil court independently of this Act;

Provided that –

..........

(c) an agreement come to between the employer and the workman under the provisions of subsection (1) of section 16 shall be a bar to the proceedings by the workman in respect to the same injury independently of this Act.”

Section 16 of the Workmen’s Compensation Act relevantly provides:

“16(1) – The employer and workman may, with the approval of the Permanent Secretary or a person appointed by him, in writing, in that behalf, after the injury in respect to which the claim to compensation as a recent, agree, in writing, as to the compensation to be paid by the employer. Such agreement shall be in triplicate, one copy to be kept by the employer, one copy to be kept by the workman, and one copy to be retained by the Permanent Secretary.”

The section goes on to provide where the workman is unable to read and understand writing in the language in which the agreement is expressed, that it is to be explained to him and the agreement is to be endorsed to that effect.

Subsection 3 makes provisions for an agreement to be cancelled upon application by a party within 3 months after the date of the agreement upon certain stated circumstances.

The agreement entered into between the plaintiff and the defendant is annexure DL-7 to the affidavit of Dinny Laufenboeck sworn on 15^th April 2004 and relied on by the defendant.

This agreement is stated to be between Emperor Gold Mining and Gurudayal Singh and is expressed to be an agreement pursuant to section 16 of the Workmen’s Compensation Act. The agreement contains a certificate signed by the authorized person who explained the document in the Hindustani language to the defendant. The document also bears the endorsement “approved under section 16(1) of the Workmen’s Compensation Act” above the signature of the A/PS for Labour, IR & Productivity.

It is submitted on behalf of the plaintiff that the agreement entered into by the defendant is not an agreement between the plaintiff and the defendant as in the document, the employer is described as Emperor Gold Mining whereas the proper title of the defendant is Emperor Gold Mining Company Limited. The plaintiff however in his affidavit sworn on 11^th June 2004 admits the contents of paragraphs 1, 2, 3, 4, 5, 6 and 7 of the affidavit of Dinny Laufenboeck sworn on 15^th April 2004.

Paragraph 7 of the affidavit of Dinny Laufenboeck states:

“That after receipt of the payment the Labour Office prepared an agreement under section 16. This was executed on behalf of the defendant and also by the plaintiff. The said agreement was witnessed on behalf of the plaintiff by the Labour Officer and also approved and signed by the Assistant Permanent Secretary for Labour, Mr. Baleikanacea. I now produce marked “DL-7” a copy of the said agreement.”

In the light of this submission, I think it not possible for the plaintiff to successfully argue that the agreement entered into was not entered into with the defendant company.

Section 25(1)(c) is in clear and unambiguous terms. Counsel for the plaintiff submits that the court is obliged to interpret the Workmen’s Compensation Act in a way that is most favourably to the worker. Such a submission can only have merit where there is available to the court various interpretations of the section. There are no alternate interpretations of such a clear and unambiguous section as section 25(1)(c) available to the court. The section clearly provides that an agreement entered into pursuant to section 16(1) of the Act shall be a bar to proceeding by the workman in respect of the same injury independently of the Workmen’s Compensation Act.

There is little assistance available by way of authorities from this Court or the Court of Appeal. This is probably because of the clear and unambiguous nature of section 25(1)(c) of the Act.

There is however a reference to it in Vinod Patel and Company Limited v Yatendra Prasad f/n Kesho Prasad – Court of Appeal ABU00026B of 1998S where the court at paragraph 12 said:

“Unless, therefore, there was such an agreement as is specified by section 16(1), section 25(1) expressly preserves an employee’s right to recover damages from his employer under the common law.”

In the instant case however there is an agreement as specified by section 16(1) and accordingly section 25(1) does not expressly preserve an employee’s right.

Scott J. made reference to section 25 in Muni Lata (Administratrix of the estate of Raj Kumar deceased) v The Commissioner of Police and Ors – Civil Action HBC0003 of 2001S after considering section 2(3) of the Act:

“In other words, section 16 does not apply to a compromise agreed by a personal representative following the death of the workman and therefore section 25(1)(c) does not apply either.”

It is clear from His Lordship’s judgment that if section 16 did apply then section 25(1)(c) would be triggered and the action would have been barred.

Counsel for the plaintiff has referred the court to John Alexander Watson v Bish Limited 31 FLR 41 at page 47. The proceedings in this matter related to issues arising under section 24 of the Workmen’s Compensation Act and it is unhelpful to the issue for determination by the court.

Counsel for the plaintiff has also referred the court to William Harriman v Fiji Industries Limited – Civil Appeal No. 20 of 1972. This authority appears to not have any bearing on the operation of section 16 or section 25 of the Workmen’s Compensation Act and accordingly no help has been obtained from it.

Counsel for the defendant also referred the court to issues of estoppel however it would appear in the circumstances unnecessary to consider those issues to properly dispose off the application.

Conclusion

On the basis of the admissions made by the plaintiff, I am satisfied that the plaintiff and the defendant entered into an agreement pursuant to section 16(1) of the Workmen’s Compensation Act and that the entry into that agreement was indeed regular and in compliance with the requirements of the section. That being so, the clear and unambiguous words of section 25(1)(c) bar proceedings such as the plaintiff has commenced against the defendant and accordingly, the defendant’s application must succeed.

With respect to the question of costs, as the wording of section 25 is so clear and unambiguous, the proceedings should never have been commenced in this court and accordingly, I see no reason why the plaintiff, regrettably, should not be obliged to meet the defendant’s costs on a solicitor client basis.

Orders of the Court

1. The plaintiff’s action and claim against the defendant is struck out and dismissed.
   
2. The plaintiff is to pay the defendant’s costs of the action and of the summons filed on 16^th April 2004 on a solicitor client basis.
   

JOHN CONNORS

JUDGE

At Lautoka

8 December 2004