037-NLR-NLR-V-52-ALICE-NONA-Appellant-and-WIMALATUNGA-Respondent.pdf
1950Present : Nagalingam J.ALICE NONA, Appellant, and WIMALATUNGA, RespondentS. C. 931—Workmen’s Compensation No. C3jl01j4:9
Workmen's Compensation Ordinance (Cap. 117)—Right oj workman to recover
compensation from principal of contractor under whom he is employed—Section.
22, sub-sections (1) and (4)..
A was a building contractor wbo bad taken a contract under Governmentto repair the Okampitiya Hoad. B was given a sub-contract by A to performpart of the- contract. B employed n&rkmen to transport gravel in lorries andheap it on various sections of the road. While some of these workmen, ofwhom C was one, were travelling in a lorry loaded with gravel an accidentoccurred and C died. The destination, however, of the lorry, at the time of theaccident, was not any section of the Okampitiya Boad but Buttala where Arequired the gravel for some rooms he was putting up for himself.
In an application for compensation made against A by the mother of G—
Held, that the accident' which resulted in the death of the deceased occurred“ on, in or about the premises on which the principal has undertaken to executethe work or which are otherwise under his control or management ” withinthe meaning of sub-section 4 of section 22 of the Workmen’s CompensationOrdinance.
A
PPEAL from an order of the Deputy Commissioner for Workmen’sCompensation.'
’ JC. C. de Silva, for the applicant appellant.
No appearance for respondent.
'Gur adv. vult.
December 26, 1950. Nagalingam J.;
The appellant appeals from an order of the learned Deputy Commis-sioner for Workmen’s Compensation dismissing her application forcompensation in respect of the death of her son who she alleged had beenemployed under the respondent.
The learned Commissioner has found, and his finding has not beenchallenged, that the deceased was not in fact a workman employedby the respondent. But it is contended that compensation shouldhave been awarded on1 the basis of the alternative finding of the learnedCommissioner that the deceased had been employed by a contractor inthe employ of the respondent. ’ The learned Commissioner has heldthat it has not, been established that the accident which resulted in thedeath of the deceased “ occurred on, in or about the premises on whichthe principal has undertaken or usually undertakes to execute the workor which are otherwise under his control or management ” within themeaning of sub-section 4 of section 22 of the Workmen’s CompensationOrdinance.
The respondent in giving evidence described himself as a timber con-tractor and a building contractor and also stated that he was a regis-tered Government contractor and that at the date of the accident hehad taken a contract under Government to repair the Okampitiya Road,The deceased workman, according to him, was employed under a con-tractor of his named Albert Gunewardene who had been given a sub-contract to perform part of the contract which he had undertaken inregard to the repairs to the Okampitiya Road. The workmen, of whomthe deceased was one, were engaged in widening the road at its bends,loading the lorries with gravel or earth so obtained and heaping it onother sections of the road in order that the gravel or earth may be spreadon the surface of those sections. The transport of the gravel was bymeans of a mechanical tipper, that is to say, a lorry embodying a tippingmechanism.
The evidence discloses that the labourers had to do eight trips a day,four before the interval for the noon-day meal and four thereafter. It isin evidence that it was during the course of the fourth trip of the lorrywhen the workmen including the deceased were travelling in it whichwas then loaded with gravel that the accident occurred and that thedestination of the lorry on that occasion was not any section of theOkampitiya Road but Buttala where the respondent required the gravelor earth for some rooms he was putting up for himself.
It would thus be apparent that the deceased workman was not engagedin any work connected with the contract undertaken by the respondentin regard to the repairs to the Okampitiya Road, but it is dear that thesub-contractor was, in transporting gravel to the respondent’s premisesat Buttala, executing work for the respondent himself.
On this state of the facts, the question that arises is whether it couldbe said that the sub-contractor was executing work which is ordinarilypart of the trade or business of the principal. The respondent’s ownevidence is that he is also a building contractor, in other words, that thatis one line of trade or business in which he is ordinarily engaged. If so,in putting up a building for himself he would merely be acting as hisown contractor and in employing the sub-contractor the respondentcontracted with the sub-contractor for the execution by the latter ofpart of the work which is ordinarily part of his own trade or business.
In the English Workmen’s Compensation Act of 1924, the relevantprovision is more stringent. The first part of section 6 of the Act,corresponding to section 22 of our Ordinance, runs as follows: —
" Where any person (in the section referred to as the principal)in the course of or for the purpose of his trade or business contractswith any other person (in the section referred to as the contractor)for the execution by or under the contractor of the whole or any partof any work undertaken* by tJie principal… ”-
while under our Ordinance, for the words italicized the following isused:—
“ Which is ordinarily part of the trade or business of the principalEven under the English Act it has been held that the word “ undertaken ”
includes not only work which the principal usually undertakes for othersin the course of his own trade or business but also work which he maydo on his own. account, provided such work falls within the class of workhe ordinarily carries on as part of his trade or business ; for instance,it will include the case of a builder who wishes to build a house for himselfand engaged a contractor to do part of the work for him—per CozensHardy M. ft.1. Though our section 22 deviates as shown above in. regardto the first part of sub-section I thereof from the corresponding EnglishAct, yet sub-section 4 of our Ordinance introduces the notion suggestedby the word “ undertaken ” in the English Act by using that term insub-section 4 of the section in defining the premises where the accidentshould have occurred by enacting ‘that' the premises should have beenthat on which the principal has undertaken or usually undertakes toexecute the work. Notwithstanding the use of the term “ undertaken "in sub-section 4, the principle enunciated that a person who carries on aparticular trade or business may yet, in carrying out some work for himselfthat falls within the class of trade or business that he is already engagedin, be his own contractor would apply.
On the facts of this case it follows that the respondent was a contractorunder Government to carry out repairs to the Okampitiya Hoad andwas his own contractor in regard to the building of some rooms or, to bemore precise having regard to the evidence, to filling with earth the floorof certain rooms which he had built and the sub-contractor Albert wasemployed by the respondent to attend to part of the repairs of the Okam-pitiya Hoad and to filling up of the rooms with earth. The place towhich the gravel or earth was being transported at the time of theaccident was premises belonging to the respondent. The accident itselfdid not take place on, in or about the premises where the gravel or earthwas to be unloaded but while the lorry was yet on its way it was thatthe accident happened. Whether ft could be said that, as the accidenttook place while the lorry was travelling to its destination probably somedistance away from the place where the earth had to be unloaded, theaccident did take place on, in or about the premises of the respondentis a further question that arises.
In interpreting the words “ on, in or about the premises ” the EnglishCourts have given these words a wide interpretation. In the case ofRogers v. The Mayor, Alderman- and Burgesses of the Borough of Cardiff 2where the facts were that the Cardiff Corporation were the owners of asystem of electric tramways and they employed the workman to attend to.repairs, the workman, after attending to repairs at one particular spot wasproceeding to effect Repairs at another spot when he met w'ith the acci-dent. It was contended on behalf of the Corporation that as the workmanhad finished his task at one place and as he had not commenced work atthe other place it could not be said that the accident had been met withby him “ on, in or about the premises But the Court of Appeal heldthat the area of work was co-extensive with the tramway itself and thatthe workman was regarded as having been engaged on his task even whenlie proceeded to the new place of work after completing his job.
i (1910) 2 K. B. 903.2 (1905) 2 K. B. 832.
In the present case though the place at which the earth was to beunloaded may have been the only place owned by the respondent, never-theless the whole area from the place where the earth was cut to the placewhere the earth was to be transported must be deemed to be the premiseson, in or about which the respondent had undertaken to execute the workt
The respondent would on these facts become liable to pay compensationin respect of any workman who was engaged in the composite task ofrepairs to the road and -fining up of the rooms with earth. I thereforehold that the respondent is liable to pay compensation in respect of thedeceased workman. I set aside the order of the learned Commissionerand remit the proceedings to him fear assessment of compensation. Thepetitioner will be entitled to the costs of this appeal and of the proceed-ings had before the Commissioner. The further costs will be in thediscretion of the Commissioner.
Order set aside’.