2-IMLAR AND OTHER v. NAGOOR PITCHAI TRANSPORTERS LIMITED

009-SLLR-SLLR-1986-V-2-IMLAR-AND-OTHER-v.-NAGOOR-PITCHAI-TRANSPORTERS-LIMITED.pdf


IMLAR AND OTHERSv.
NAGOOR PITCHAI TRANSPORTERS LIMITED
COURT OF APPEAL.
G. P. S. DE SILVA. J. AND BANDARANAYAKE, J.
A. 195/78(F).
C. COLOMBO 1/927/M.
JANUARY 22, 1986 (Submissions filed on 17.2.86 and 10.3.86).
Delict-Negligence-Workman while working for defendant at premises of another firm
killed by poonac bags falling on him when he was removing them-Duty of care.
I
The plaintiffs were the widow and children of the deceased labourer working for NagoorPitchai Transport Services, the defendant. The deceased had been sent to the B.C.C.by his employer.to work according to the instructions given by the officers of the B.C.C.This work included stacking of bags of poonac in the stores and bringing bags from thestores and loading them into lorries. The deceased was injured when carrying a bag to-be loaded into a lorry when owing to poonac bags falling on him he suffered the injuriesof which he died. Oh the instructions of the store-keeper of the B.C.C. the bags werebeing removed lengthwise which was dangerous. This was because the store-keeperwanted a part of the stores cleared for the purpose of re-arranging the stores.
Held-
Although the defendant was not contracted by the B.C.C. to clear the stores or tore-arrange the stores this work was reasonably incidental to the employment of thedeceased under the defendant and not independent of it. When the accident occurredthe deceased was working within the scope of his employment under the defendant.
' The two questions arising for decision were:
(a) was there a duty of care owed by the defendant to the deceased?
■(b) was there a breach of that duty?
The master who sends his workmen to the premises of another is still subject to hiscommon law obligation to take reasonable care for their safety by providing a safesystem of work on those premises. The defendant, as the employer was clearly under aduty of care to ensure that the premises where the labourers were required to workwere a reasonably safe place of work and that they were not exposed to unnecessaryrisks. An employer on whom the law casts a duty of care towards the employees cannotescape liability by entrusting the fulfilment of that duty to someone else who has failedto discharge the duty. The fact that it was the store-keeper of the B.C.C. who wasnegligent does not relieve the defendant of liability. The duty of care is the employer's
„ personal duty whether he performs or can perform it himself or whether he does notperform it or cannot perform it save by servants, or agents. The defendant was in breachof the duty of care he owed the deceased and was accordingly liable in damages.
Cases referred to:
Smith v. Charles Baker & Sons – (1891) A C. 325, 362.
General Cleaning Contractors Ltd. v. Christmas – (19531 A.C. 180.
– Wilsons & Clyde Coal Co. v. English – [1938] A.C. 57
Rose v. Plenty – [ 1976] 1 WLR 141.
APPEAL from judgment of the District Court of Colombo.
Chula de Silva with Miss S. Mivanapalana. and P. N. Caste Chetty forplaintiffs-appellants.
Mahes Kanagasunderam with Rohan Fernando for defendant-respondent.
Cur. adv. vult.
April 4. 1986.
P. S. DE SILVA (President; C/A)
The plaintiffs who are the minor children and the widow of thedeceased. Abdeen. filed this action against the defendant for therecovery of damages in a sum of Rs. 100.000 sustained by way of theloss of maintenance and support which the deceased had given themduring his lifetime. At the time of his death Abdeen was 32 years ofage, his widow was 26 years, and the two minor children were 7 and5 years of age.
It was averred in the plaint: that the deceased was employed as alabourer by the defendant and that he was required by the defendantto work at the premises of British Ceylon Corporation Limited(hereinafter referred to as BCC); that on 15th October 1974, whilethe deceased was working as a labourer under the defendant at thepremises of the BCC, several bags containing poonac fell on thedeceased causing serious injuries to him; that in consequence ofthese injuries he died on 8th May 1975; that the defendant as theemployer was under a duty to provide a safe place of work which thedefendant wrongfully failed to do.
The defendant in its answer pleaded;
that at the material time the deceased was. not under thecontrol of the defendant and was not acting within the scope of anyemployment under the defendant. (fc>) that with the consent andacquiescence of the deceased he was engaged at the material timein work upon the directions of the BCC and its officers.
After trial the learned District Judge held, inter alia, that at the timethe deceased met with his death he was not an employee of thedefendant; that the injuries were not caused as a result of thenegligence of the defendant and accordingly dismissed the plaintiffsaction. The plaintiffs have now appealed.
It was not denied by the defendant that the deceased while'engagedin the removal of bags of poonac at the stores of the BCC receivedinjuries by reason of some bags falling on him. He sustained severespinal injury and after lying in a paralysed condition from 15.10.74died on 8.5.1975._
One of the witnesses called by the plaintiffs was Hassan who was alabourer working at the stores of the BCC along with the deceased onthe day in question. The trial judge has accepted Hassan's evidence.According to Hassan this particular stores known as "Hanger SiteStores" was 200 feet long and 70 feet wide. On this day bags ofpoonac were stacked to a height of about 28 feet but there were hopillars or other devices to prevent the bags toppling over. TheStore-keeper of the BCC, Rajapandian, had directed them to removethe bags from the portion of the stores so as to enable the stacking ofa new lot of bags and in accordance with the instruction given byRajapandian the deceased was removing the bags lengthwise when hecame by these injuries. The evidence showed that the manner ofremoving the bags lengthwise was dangerous and the bags fell on thedeceased owing to the dangerous manner in which the bags werebeing removed.
On the issue as to whether the deceased was an employee of thedefendant, it is very relevant to note that when the widow was givingevidence an admission was recorded that it was the defendant whomade the payments for the bags carried by the labourers including thedeceased. The defendant's witness, Rajapandian, in the course,of hisevidence stated that the deceased worked as an employee of thedefendant. The defendant's manager, Jabbar,- admitted that thedefendant was a contractor of the BCC and that he was aware that thedefendant's employees were working at the premises of the BCC. Atno stage of his evidence did Jabbar state that the deceased was notan employee of the defendant. Jabbar's positiomwas that when thedefendant wanted labourers, the defendant informed one Jailan whoin turn obtained them for the defendant. The evidence of the twofellow workers called by the plaintiffs, namely Ahamed and Hassan
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was that they and the deceased were employed under the defendant;that their wages were paid directly by the defendant. According to theaccident report. P5. prepared by the storekeeper of the BCC thereis an endorsement to the effect that the labourers were N.P.T.labourers which means "Nagoor Pitchai Transport Services" labourers,i.e. labourers of the defendant-Company.
On a consideration of the totality of the evidence on record, itseems to me that the trial judge was in error when he held that at thematerial time the deceased was not an employee under thedefendant. The evidence, properly evaluated, clearly points to thedeceased being an employee of the defendant at all material times.
Since this was an action based on negligence, the two questionsthat arose for decision were:
(a).Was there a duty of care owed by the defendant to thedeceased? and {b) Was there a breach of that duty?
There is no doubt that under the English Common Law, the masteris under a duty to take reasonable care for his servants' safety. Thenature of the duty was well explained by Lord Herschell in Smith v.Charles Baker & Sons (1):1
"It is quite clear that the contract between the employer andemployed involves on the part of the former the duty of takingreasonable care to provide proper appliances, and to maintain themin a proper condition, and so to carry on his operations as not tosubject those employed by him to unnecessary.risk."
Commenting on the above dicta Salmond and Heuston on the Law ofTorts (18th Ed.) states:
"the duty is imposed upon the master himself and if he
entrusts the performance of it to another instead of performing ithimself he is liable for the negligence of that other. The duty remainspersonal to the master".
The master who sent his workmen to the premises of another was stillsubject to his common law obligation to take reasonable care for theirsafety by providing a safe system of work on these premises. (VideGeneral Cleaning Contractors Ltd. v. Christmas (2)).
Fleming on the Law of Torts, 5th Ed., dealing-with.the employers'common law duties states
"Today it is well settled that an employerowes to his men an
over-riding managerial responsibility to safeguard them fromunreasonable risks in re'gard to the fundamental Conditions ofemployment-the safety of plant, premises and method of workWilsons & Clyde Coal Co. v. English (3).
Counsel for the defendant-respondent stressed: (i) that thedeceased was working not at the premises of the defendant but at thestores of the BCC at the time he met with his death; (ii) that at thestores of the BCC he worked under the directions of the storekeeper ofthe BCC; (iii) that the bags toppled over and injured the deceasedbecause the bags were being removed lengthwise on the directions ofthe storekeeper of the BCC: in other words a dangerous manner ofremoval of bags was adopted by reason of the request of thestorekeeper; (iv) the bags were being removed in this manner becausethe storekeeper wanted a part of the stores cleared for the purpose ofre-arranging the stores; (v) the defendant was not contracted by BCCto clear the stores or to re-arrange'the stores.
Counsel therefore contended that the deceased ventured beyondthe scope of his employment under the defendant into theemployment and control of the BCC and its storekeeper in providinghis labour for the clearing and re-arranging of the stores. It was thesubmission of counsel that the District Judge rightly held that at therelevant time of the 'accident' the deceased was not under theemployment of the defendant and that he was not engaged in workwithin the scope of his employment under the defendant.
On the other hand, the evidence of Ahamed was that it was thedefendant who sent the labourers to work at the stores of the BCC;they were told by the defendant to work according to the instructionsgiven by the officers of the BCC; that their work.included stacking ofbags of poonac in the stores and bringing bags from the stores andloading them into the lorry; that at the time the deceased was injuredhe was carrying a bag to be loaded into the lorry. Jabbar who wascalled by the defendant admitted that the deceased was engaged inwork in accordance with the contract between the defendant and theBCC.
On a careful consideration of the entirety of the evidence on record.
I find myself unable to agree with the submission that at the time of the'accident' the deceased had strayed out of his employment under thedefendant. It seems to me that the "clearing of the stores' referred toby counsel .for the defendant-respondent is work which is reasonablyincidental’to the employment of the deceased under the defendantand is not independant of it. Moreover, today courts are reluctant todissect employment into its component parts such as loading,unloading, clearing etc. A broad approach is now preferred-fffose v.Plenty (4)).
The defendant, as the employer, was clearly under a duty of care toensure that the premises where the labourers were required to workwere a reasonably safe place of work and that they were not exposedto unnecessary risks. The evidence disclosed that on the day inquestion the bags of poonac were stacked to a height of 28 feet butthere were no pillars or other devices to prevent the bags fromtoppling over. An employer on whom the law casts a duty of caretowards the employees cannot escape liability by entrusting thefulfilment of that duty to someone else who has failed to discharge theduty. The fact that the trial judge found that it was the storekeeper ofthe BCC who was negligent does not relieve the defendant of liability.The true position was admirably explained by Lord Wright in Wilsons &Clyde Coal Co. v. English (supra). In the following terms:
"There is perhaps a risk of confusion if we speak of the duty asone which can, or cannot, be delegated. The true question is, whatis the extent of the duty attaching to the employer? Such q,duty isthe employer's personal duty, whether he performs or can performit himself, or whether he does not perform it or cannot perform itsave by servants or agents. A failure to perform such a duty is theemployer's personal negligence.. .1 think the whole course ofauthority consistently recognizes a duty which rests on the employerand which is personal to the employer, to take reasonable care forthe safety of his workmen, whether the employer be an individual, afirm or a company, and whether or not the employer takes any sharein the conduct of the operations".
I am satisfied that, had the District Judge correctly addressed hismind to the relevant issues arising in this action-an action in tortbased on negligence-he could not have failed to hold that thedefendant owed a duty of care to the deceased, that the defendantwas in breach of that duty and was accordingly liable in damages.
On the quantum of damages, the District Judge himself hasassessed the damages at Rs. 28,800 in the event of the appellatecourt holding that the defendant is liable in damages. The DistrictJudge'has given cogent reasons for his assessment and I am of theview that the award of a total sum of Rs. 28,800 is fair andreasonable in all the circumstances.
For these reasons, the appeal is allowed, the judgment and decreeof the District Court are set aside, and we direct that decree beentered in favour of the plaintiffs in a sum of Rs. 28,800. The plaintiffsare entitled to costs of action in the District Court fixed at Rs. 525 andcosts of appeal fixed at Rs. 315.
BANDARANAYAKE, J.-l agree.
Appeal allowed.
Damages awarded.