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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION
Civil Case No. HBC 169 of 2009
BETWEEN:
SUSHIL CHANDRA GOUNDAR
son of Paniappa of Yalalevu, Ba, Fiji, Unemployed as the Administrator
of the Estate of Shanil Krishneel Goundar, Deceased.
Plaintiff
AND:
THE PERMANENT SECRETARY FOR
LABOUR, INDUSTRIAL RELATION & PRODUCTIVITY
at Government Buildings, Suva, Fiji.
1st Defendant
AND:
THE ATTORNEY GENERAL OF FIJI
2nd Defendant
Before: Master Anare Tuilevuka
Counsel: Messrs Mishra Prakash & Company for the Plaintiff
Attorney-General's Office for the Defendants
Date of Ruling: 19th November 2010
RULING
[1] The plaintiff is the administrator of the estate of his late son Shanil Krishneel Goundar. He sues the Labour Department and Ministry of Labour Industrial Relations & Productivity for an alleged negligent advice. The alleged negligent advice in question was purportedly given by a Labour Officer which caused the plaintiff to accept and receive a payment of $24,000 from his late son's former employer in settlement of a claim pursuant to the Workmen's Compensation Act.
[2] It is further alleged that pursuant to the said negligent advice, the plaintiff signed a section 14 Form – Regulation 3 under section 16 of the Workmen's Compensation Act.
[3] It is alleged that by signing that Form, the plaintiff effectively lost his right to take a common law negligence claim against his late son's former employer, 4R Electrical & General Contractor Limited and that this was not disclosed to him by the Labour Officer.
[4] Before me is the defendant's summons to strike out the statement of Claim filed on 17th June 2010 pursuant to Order 18 Rules 18 of the High Court Rules 1988. The application is supported by the affidavit of Atish Kumar, Labour Office in the Department of Labour in Ba. The plaintiff opposes the application. Kumar's affidavit deposes as follows:
3. That our office had claimed from the employer of the plaintiff's son compensation in the sum of $24,000.00 being workmen's compensation.
4. That the employer has since paid the plaintiff the $24,000.00. Annexed marked "AK1" is a copy of the payment voucher – G.P.-Form 2.
5. That the plaintiff in his Statement of Claim at paragraph 8 states that the "Labour Department advised the plaintiff to take Workmen's Compensation proceedings" and that "pursuant to their advice the plaintiff signed a Section 14 Form – Regulation 3 under Section 16 of the Workmen's Compensation Act" ("the Act").
6. The Statement of Claim went on to state at paragraph 13 that as a result of signing that form, the plaintiff has lost his rights to take proceedings for negligence and common law damages due to the provisions of Section 25 of the Act.
7. That Section 14 of the Act is about the Notice of an accident by the employer and the prescribed form it should be made on. The plaintiff or any dependant for that matter does not sign this Section 14 Form. This form is referred to as L.D. Form C/1. Annexed marked "AK2" is a copy of the L.D Form C/1 which was filled by the employer in this case. (my emphasis).
8. That Section 16 of the Act refers to injured workmen and not to the dependants of any injured or deceased workman. Section 2(3) is clear on the definition of "workman" in Section 16 in that it refers only to an injured workman and does not include a reference to a personal representative or dependants. (my emphasis).
9. That a Section 16 Form is referred to as L.D. form C/9.
10. That the Plaintiff never did sign any such Section 16 Form. (my emphasis).
11. That the only form ever signed by the plaintiff was the G.P Form 2 mentioned in 4 above and that is not a bar to any proceedings. (my emphasis).
12. That the defendants counsel had written to the plaintiff's counsel on 17/11/09 and 06/01/10 informing them of the same and advising them to discontinue the matter. Annexed marked "AK3" and "AK4" are copies of the said letter.
13. That the plaintiff is not barred under Section 25 to commence civil proceedings against the employer as no Section 16 form was ever signed in this case. (my emphasis)
14. That as such there is no reasonable cause of action against the defendants.
15. That I therefore pray to this Honourable Court that the Writ of Summons and Statement of Claim filed in this case be struck out with costs to the Defendants."
[5] The plaintiff has not filed any affidavit in opposition. Although none is required in any event under Order 18 Rule 18 (1) (a) as it involves purely a consideration of law not facts, perhaps the question of whether or not a form was signed and if so – which one - merits at least some response by affidavit from the plaintiff. The plaintiff has not filed any written submissions either.
[6] Ms Prasad has filed helpful submissions to the point which I reproduce in part below:
"The plaintiff's claim is generally based on Section 14, 16 and 25 of the Workmen's Compensation Act ("the Act"). The plaintiff's Statement of Claim states that he allegedly signing Section 14 and 16 forms without proper advice from the Labour Officers and under Section 25 of the Act he is now barred him from claiming damages in common law from the employer.
Our application is to strike out this claim because it has no reasonable cause of action as the plaintiff did not sign any such form.
Section 14 of the Act states that:-
14-(1) Notice of an accident, causing injury to a workman of such a nature as would entitle him to compensation under the provisions of this Act shall be given in the prescribed form to the Permanent Secretary by the employer of such workman as soon as practicable, but in any event not later than fourteen days after the happening thereof. (Amended by 27 of 1975, s. 10).
(2) When the death of a workman from any cause whatsoever is brought to the notice of, or comes to the knowledge of his employer, the employer shall within one week thereafter, give notice thereof in the prescribed from to the Permanent Secretary. Such notice shall state the circumstances of the death of the workman if they care known to the employer.
(3) Any employer who, without reasonable cause, fails to comply with the provisions of subsections (1) and (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one hundred dollars.
Nothing contained in this section shall prevent any person from making a claim for compensation under this Act.'
The form which is relevant to Section 14 is a referred to as a LD Form C/1 and this is the form that is used by the employer to notify the Labour Department of any accident or injury to a workman. The only other person who could sign on this form is a doctor. There is no provision for any workman or any dependant of a workman to sign a Section 14 Form. Hence the plaintiff could not have signed a Section 14 form.
And Section 16 of the Act states that:
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 of which the claim to compensation has arisen, 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 by the Permanent Secretary.
Provided that-
(a) the compensation agreed upon shall not be less than the amount payable under the provisions of this Act; and
(b) where the workman is unable to read and understand writing in the language in which the agreement is expressed the agreement shall not be binding against him unless it is endorsed by a certificate of a district officer or a person appointed by the district officer or Permanent Secretary, in writing, in that behalf, to the effect that he read over and explained to the workman the terms thereof and that the workman appeared fully to understand and approve of the agreement.
(2) any agreement made under the provision of subsection (1) may, on application to the court, be made an order of the court.
(3) where the compensation has been agreed the court may,notwithstanding that the agreement has been made an order of the court under the provisions of subsection (2), on application by any party within three months after the date of the agreement, cancel it and make such order (including an order as to any sum already paid under the agreement) as in the circumstances the court may think just, if it is proved.
(a) that the sum paid or to be paid was or is not in accordance with the provisions of subsection (1):
(b) that the agreement was entered into in ignorance of, our under a mistake as to, the true nature of the injury; or
(c) that the agreement was obtained by such fraud, undue influence, misrepresentation or other improper means as would, in law, be sufficient ground for avoiding it.
(4) All agreements made under this section shall be exempt from the payment of stamp duty.
It is not contested that Section 16 is a bar to any further civil claim; however, it is relevant to state Section 2 at this point because it related to the meaning of "workman" in section 16.
Section 2 (3) states that:-
(3) Except for the purposes of section 16, any reference to a workman who has been injured shall, unless the context otherwise requires, where the workman is dead, include a reference to his personal representative, or to his dependants or any of them.
This Section is clear on the meaning of 'workman' in Section 16 of the Act. In Section 16, the meaning of 'workman' does not include the dependants of a dead workman. A Section 16 form which is referred to as a LD Form C/9 is only signed by workmen who have been injured and are alive. It is not signed by dependants of workmen who are dead.
The Plaintiff, who is the dependant of his dead son, never signed a Section 16 form.
Section 25 states that:-
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-
(a) a judgment in such proceedings whether for or against the employer shall be a bar to proceedings at the suit of any person by whom, or on whose behalf, such proceedings were taken, in respect of the same injury under this Act;
(b) a judgment in proceedings under this Act whether for or against the employer shall be a bar to proceedings at the suit of any person by whom, or on whose behalf, such proceedings were taken, in respect of the same injury independently of this Act;
(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 proceedings by the workman in respect of the same injury independently of this Act.
(2) If in proceedings independently of this Act or on appeal it is determined that the employer is not liable under such proceedings, the court in which such proceedings are taken or the appellate tribunal shall, if the plaintiff so chooses, proceed to determine whether compensation under this Act is liable to be paid to the plaintiff and shall assess the amount of compensation so payable, but may deduct from such compensation any extra costs which in the opinion of the court or appellate tribunal have been incurred by the employer by reason of the proceedings have been taken independently of this Act.
The exceptions in Section 25 do not apply to the Plaintiff as neither did he sign a Section 16 form/agreement, nor is there a judgment in proceedings.
Since the Plaintiff did not sign a Section 16 form/agreement as dependants do not sign such a form, he can still file for damages under a common law claim against the employer.
No reasonable cause of action
The law in the application of Order 18 on the facts is stated in the Notes to Order 18 Rule 19/10 in The Supreme Court Practice 1999 Vol I p349 that: "a reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v British Medical Association [1970] 1 ALL E.R. 1094, C.A.). So long as the statement of claim or the particulars (Davey v Bentinck [1892] UKLawRpKQB 216; [1893] 1 Q.B. 185) discloses some cause of action, or raise some question fit to be decided by a judge or a jury, the mere fact that the case is weak, and not likely to succeed is no ground for striking it out (Moore v Lawson) (1915) 31 T.L.R. 418, C.A.; Wenlock v Moloney [1965] 1 W.L.R. 1238 [1965] 2 All E.R. 871, C.A.)..."
The allegation in this claim is that the Plaintiff allegedly signed a Section 16 form and now is barred from claiming for damages under common law from the employer. There is no chance of success for this claim since the Plaintiff has never signed such a form. Hence, we submit that there is no reasonable cause of action against the Defendants as the form/agreement does not exist. If such a form does not exist then there is no possibility of success of this claim (Lata v Simione [2009] FJHC 242: HBC004.2009).
Relevant case law
Conclusion
Plaintiff has no reasonable cause of action against the Defendants.
The Plaintiff alleges in his Statement of Claim that he signed a Section 16 form/agreement which has barred him from instituting a common law claim against the employer. In fact he did not sign any such form. Moreover, Section 2(3) of the Act is clear that Section 16 interpretation of "workman:" does not include dependants of a deceased workman. Hence, the Plaintiff could not have in any circumstances signed such a form/agreement as he is a dependant of a deceased workman.
Therefore we submit that the Plaintiff has no reasonable cause of action against the defendants and this claim should be struck out with costs to the Defendants'.
[3] In Siqila v Fiji Development Bank [2000] FJHC 86; HBC0348J.1998S (25 July 2000), Madam Justice Shameem said as follows:
The effect of section 25 is to create a statutory bar to civil action against the employer in respect of the same injury provided section 16 was complied with. The provisions of section 16 are mandatory and must be strictly proved (Vinod Patel & Company -v- Yatendra Prasad Civil App. No. AB00026B/98). In that case, a decision of the trial magistrate that an action was not statute-barred because the agreement under section 16 of the Act had not been approved by the Permanent Secretary or a person appointed by him, was upheld on appeal by the High Court and the Court of Appeal.
[4] This view was in fact to be endorsed later by the Fiji Court of Appeal in Siqila v Fiji Development Bank [2002] FJCA 43; ABU 0059U.2001S (15 November 2002).
Section 25(1)(c) is plainly a conclusive bar to the appellant's present claim and Shameem J was correct to enter judgement for the respondent. In short, as we have endeavored to explain to the appellant, his acceptance of a lump sum for his permanent incapacity includes compensation for the on-going consequences, pain and suffering resulting from his injury"
[5] In Singh v EGM Ltd [2004] FJHC 512; HBC 0011L (8th December 2004) Mr. Justice Connors cited the following passage from the Fiji Court of Appeal decision on Vinod Patel v Yatendra Prasad (see above):
"There is however a reference to it in Vinod Patel and Company Limited v Yatendra Prasad f/n Kesho Prasad – Court of Appeal ABU 0026B 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 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 HBC 0003 of 2001 S 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
[6] The above authorities all reaffirm the letter of the law in sections 16 and 25 of the Workmen's Compensation Act, that if the workman had entered into an agreement as is specified by section 16(1) of the Act, the workman thereby forfeits his or her right to recover damages under the common law.
[7] The gist of Ms Prasad's submissions lie in two crucial points. First, she highlights that the plaintiff in this case in fact did not sign any agreement pursuant to section 16 of the Act. On this, as discussed above, Mr. Mishra has not filed any affidavit to assert the contrary. I must therefore accept that as a given rather than postpone this as a triable issue. Therefore, if the plaintiff has not signed any section 16 agreement, then his right to recover damages from his late son's former employer is preserved. Therefore – there is no cause of action against the Labour Officer.
[8] Secondly - (and this is also part of the reason why I
would not postpone the above as a triable issue), section 16 appears to contemplate only agreements entered into personally by the
injured workman. In other words, it does not contemplate an agreement entered into by the administrator of the estate of a workman
who has died in the course of employment. It must mean therefore that the right of the administrator of such a deceased workman to
recover damages against the employer at common law is preserved and not within the contemplation of section 25.
[9] The above is clearly the view expressed by Mr. Justice Scott in Muni Lata (Administratrix of the estate of Raj Kumar (deceased) v The Commissioner of Police (cited in Singh v EGM Ltd (see above).
[10] In the final, I grant order in terms of the application to strike out the statement of claim and award costs in the sum of $500-00 (five hundred dollars) to be paid in 21 days of the date of this ruling.
Anare Tuilevuka
Master
At Lautoka
19th November 2010.
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