Don Aslin v. Samarakone Bros.
1938Present: Soertsz J.
DON ASLIN v. SAMARAKONE BROS.
Workmen’s compensation—Building contract—Deceased workman employed bysub-contractor—Liability of building contractor—Casual workman—
. Ordinance No. 19 of 1934, ss. 2 and 22.
The appellants who were building contractors entered into a contractfor erecting a market and for sinking a well in the market premises. Inthe course of sinking a well, blasting operations became necessary, whichwere entrusted to a sub-contractor, and the latter employed a workmanwho met with his death as the result of an explosion caused .by dynamite.
Held, that the deceased workman was employed in work in the courseof an enterprise in which the appellants were engaged as part of theirbusiness as building contractors and that they were liable to paycompensation.
A person “ whose employment is of a casual nature ” within the■ meaning of section 2 of the Workmen’s Compensation Ordinance meansone whose work is casual when regarded in relation to the employer'strade or business.
HIS was an application under section 34 of the Workmen’sCompensation Ordinance, No. 19 of 1934. The application was made
by the mother of the illegitimate children of the deceased workman forcompensation on account of his death which was the result of an explosioncaused by the use of dynamite which was found necessary to blast rockthat was encountered in the sinking of a well.
The Commissioners' held that the appellants as contractors were liableto pay a sum of Rs. 1,500 as compensation even though the appellants hadengaged a sub-contractor who had employed the deceased, as the sub-contractor’s work was within the scope of the contractor’s employment.
C. Seneviratne, for appellants.—Section 2 of the Workmen’s CompensationOrdinance, No. 19 of 1934, defines '‘workman” and specially excludes
SOERTSZ J.—Don Aslin v. Samarakone Bros.
“ casual ” workman who are employed otherwise than for the purpose
of the employer’s trade or business. The sinking of a well is not witMtr
the ordinary scope of a building contractor’s work and in this case where
rock was encountered in the sinking of a well, a contractor duly licensed
to carry out blasting operations had to be engaged and such blasting
operations are not part of the trade or business of a building contractor.
The engagement by the sub-contractor of an umbrella-maker workingon the roadside clearly excludes the class of workman for whom compen-sation is provided in the Ordinance. Such a workman is a “ casualworkman employed otherwise than for the purposes of the employer’strade or business ”, and therefore is specially exempted from claim tocompensation. In terms of section 22 of Ordinance where the principalcontractor’s work does not include blasting operations and is not ordi-narily part of his trade or business the sub-contractor if any, and notthe principal is liable. In this case even if the principal was called uponto pay any compensation that may be due by the sub-contractor, undersection 22 the principal was entitled to be indemnified by the sub-contractor.
Cur. adv. vult.
February, 1938. Soertsz J.—
This is an appeal from an order of the Commissioner of Workmen’sCompensation declaring that in terms of Schedule IV. of OrdinanceNo. 19 of 1934, the dependants of a deceased workman are entitled tocompensation in a sum of Rs. 1,500, and calling upon the appellants todeposit that amount forthwith in order that the distribution of compen-sation may be considered under section 12 (2) of the Ordinance.
The facts are as follows : The appellants carry on the business of buildingcontractors. They entered into a contract with the Urban DistrictCouncil of Dehiwala for erecting a market, and fof sinking a well on themarket premises. In the course of sinking this well, they encountered .rock, and blasting operations became necessary. They gave one Boteju asub-contract for this purpose, and he employed the deceased workman tocarry out that work.
On February 22, 1937, while the deceased was engaged on it, there wasan explosion in which he received injuries that resulted in his death fourdays later. The respondent who is the mistress of the deceased, there-upon, applied to the Commissioner for compensatipn on behalf of thedependants of the deceased, namely, three illegitimate children of his ofthe ages of 9 years, 6 years, and 4 months, at the date of her application.The Commissioner made the order I have already referred to.
The appellants contend that they are not liable to pay compensationbecause (1) the deceased was not employed by them, (2) he was not aworkman within the meaning of section 2 of the Ordinance.
In regard to the first of the contentions, the argument advanced wasthat section 22 (1) which would ordinarily have applied, did not apply inthis instance, because the work entrusted for execution by or under thecontractor Boteju, was not work that was * ordinarily part of the tradeor business of the appellants. On the evidence I find it impossible tosustain this argument. It is admitted that the appellants are buildingcontractors. The fact that in- their contract to build a market, they, also39/30
SOERTSZ J.—Don Asltn v. Samarakone Bros.
undertook to sink a well clearly indicates that they did not regard thatwork as foreign to their business. The evidence shows that it was onlywhen they met rock in the course of excavation, that they found it moreconvenient to entrust blasting operations to Boteju. This blasting wassomething that became necessary in the course of an enterprise they wereengaged in as part of their business as building contractors.
The second contention is based on the ground that the deceased was nota “ workman ”. It was urged that he came within the description of “ aperson whose employment is of a casual nature and who is employedotherwise than for the purpose of the employer’s trade or business”, andwas, therefore, outside the definition of '• workman ” in section 2.
Counsel for the appellants relied upon the evidence that the deceasedwas an umbrella mender at the time he undertook this job of blasting,and. submitted that he was, therefore, employed in employment of acasual nature when he was carrying out blasting operations. But in myview, the whole of that part of the definition must be considered inexamining this question, and not only the words “ whose employment is ofa casual nature ”. Section 2 provides that “ a person whose employmentis of a casual nature and who is employed otherwise than for the purposesof the employers trade or business ” is not a workman. In this case, asI have already observed, the work the deceased was engaged in at the timeof the accident was work which was ordinarily part of the appellants’business. If the appellants can be regarded as his employers, then clearly,the work done by the deceased was work for the purposes of the em-ployer’s trade or business. Now although the appellants did notdirectly engage the services of the deceased, yet by virtue of section 22of the Ordinance, the deceased must be treated, in regard to the matter ofcompensation, as if he had been a workman immediately employed bythem, because he was engaged in work which had by them been entrustedto Boteju “in the course of or for purpose of.their trade or business”.The deceased therefore escapes from the second condition of the section Ihave quoted above. But to put him outside the definition of ‘’workmen’.’both conditions must be satisfied, namely, (l)fcthat his employment wasof a casual nature, (2) that it was otherwise than for the purposes of theemployers trade or business.' In this -instance even if his employmentmust be held to be of a casual nature it was nevertheless for the purposesof the employer’s trade or business. But in my opinion the word casualmust be interpreted with reference to the words “ and who is employedotherwise than for the purposes of the employer’s trade or business ”.
Those words serve to determine the meaning of the word casual in thiscontext. Viewed in that way the words “a person whose employment isof' a casual nature ” mean, I think, a person whose work is casual whenregarded in relation to the employer’s trade or business. They do notmean a person who. is employed in work that is not his usual or habitual■Work. If that is the meaning to be given to these words then a “ jack ofall trades ” can never be a workman for the purposes of the Ordinance.There is no reason for thinking that the Legislature intended to punishversatility in this manner. I have no doubt that the Commissionerreached a correct conclusion. I dismiss the appeal.
DON ASLIN v. SAMARAKONE BROS