Baby Nona,' v. Arthur Silva
Present: Nagalingam A.C.J.
BABY NONA, Appellant, and ARTHUR SILVA, RespondentS. C. 943—Workmen’s Compensation Application No. C 25jl[51
Workmen’s Compensation Ordinance—Distinction between workman and independentcontractor.
Where a person was employed to work in quarries and was paid accordingto the quantity of metal that was delivered by him to the employer—
Held, that he was a workman within the meaning of the Workmen’sCompensation Ordinance, and not an independent contractor.
-^^-PPEALi from an order of the Commissioner for Workmen’sCompensation.
S. J. V. Chelvanayakam, Q.C., with N. Nadarasa, for the appellant.
K. C. de Silva, with M. L. de Silva, for the applicant respondent.
Otvr. adv. vult.
(1950) 52 N. L. R. 91.
(1949) L. J.R. 1022.
XAGALIXG-All A.C.J.—Baby Nona v. Arthur Silva
March 12, 1952. Naoaungam A.C.J.—
The appellant who is the employer prefers this appeal against an orderof the Assistant Commissioner for Workmen’s Compensation dated 21stAugust, 1951, by which he adjudged the appellant liable to pay a sum ofRs. 2,875 to the applicant, the widow of one Lewis Singho, alleged tohave been a workman under the appellant. The question for decisionis whether the deceased person was a workman within the meaningof the Workmen’s Compensation Ordinance or whether he was anindependent contractor.
On behalf of the appellant it has been contended that there were severalcircumstances evidence of which was given before'the Commissionerall of which point in the direction of the view that Lewis Singho was onewho fell under the category of an independent contractor rather than thatof a workman under the appellant. The circumstances relied uponare that the deceased person was paid according to the quantity of metalthat was supplied by him to the employer, that he 'was not paid by theday or week or according to the period of employment. It was furtherstressed that though the bare fact of payment according to the quantumof metal that was supplied may not be decisive and in fact not inconsistentwith the deceased person having been a workman under the appellantthere was no evidence of a contract of service from which any inferencecould be drawn that he was a workman within the meaning of the Ordi-nance. Mr. Chelvanayakam rightly contended that there must be someproof of a contract of service.
Mr. de Silva for the applicant pointed to the fact that the deceasedperson had worked for a number of months in quarries within the UrbanCouncil limits of Hatton in respect of which quarries the appellant it waswho obtained licences to work them. This, no doubt, is a very strongcircumstance and would normally lead to the reasonable inference that theworkman was employed by the licensee of the quarry to work for himthough payment to the workman was made on a piece work basis. Itwas, however, pointed out by Mr. Chelvanayakam that at the date whenthe deceased person met-with the accident which resulted in his deathhe was not working in any of the quarries in respect of which the appellanthad obtained a licence but that the deceased person was working ina quarry outside the Urban Council limits and situate on a neighbouringestate. He also pointed out further that there was evidence to shewthat permission from the estate authorities was obtained by the deceasedperson.
The absence of either a licence in favour of the appellant or of evidenceshewing that the appellant had interested himself in securing the quarryfrom which the metal was to be obtained does not conclude the matter.Suppose, for instance, a firewood dealer asked a wood-cutter to cut andsupply him with firewood from any forest or jungle from which he couldobtain supplies and offered to pay hlnr) for the quantity of firewoodsupplied, there oan be little doubt that the answer to the question whetherthe wood-cutter was a workman of the firewood dealer would not benegatived by the fact that the wood-cutter was free to collect firewood
ISTAGALINGAM A.C.J.—'Baby Nona v. Arthur Silva
from any place lie liked which was never under the control of the dealer ;the test would have to be, as Mr. Chelvanayakam himself suggested,was there or was there not a contract of service %
Mr. Chelvanayakam relied upon the case of Templeton v. WilliamParkin and Company Limited 1. There the facts were different, and onenoteworthy feature of the contract between the parties was that theworkman had to pay rent for the room of the employer which he occupiedin order to perform his services and he was free to employ servants anddismiss them and take work from outside, although the employer had afirst call on him. Mr. Chelvanayakam also referred to the Irish case ofCrowley v. Limerick 3 where the circumstances were very similar to thepresent case and in that case the workman was held to be an independentcontractor. The report of this case is not available, and it is hardlysatisfactory to go by a brief note of the case. Mr. de Silva pointed toother cases digested on the same page where a contrary view wouldappear to have been taken by the English Courts on similar facts. I donot think any of these cases can be depended upon as a binding authority.Each case has to be decided upon its own facts.
In this case -the learned Commissioner has accepted the evidenceof the widow that her husband was employed under the appellant,and has been influenced in that acceptance by the evidence given bya fellow worker of the deceased person who is now employed under theappellant in a similar capacity, and Who was described as a workmanof the appellant. It is true that the appellant denied there was a contractof service. The learned Commissioner had the advantage of the testof the eye and on this appeal it is difficult to say that the finding of factarrived at by him is wrong. The burden is on the appellant to prove thata finding is not warranted by the evidence and that the inference drawncannot be sustained. The appellant has failed to satisfy me on this point.
I therefore affirm the order of the learned Commissioner and dismiss theappeal with costs.
(1929) 140 L. T. 519.
(1923) 2 I. R. 78, digested in BuMerworth:Digest of Leading Cases, 1938 edition,
BABY NONA Appellant, and ARTHUR SILVA ,Respondent