064-NLR-NLR-V-77-D.-G.-AGNES-Appellant-and-The-PRESIDENT-MULTIPURPOSE-CO-OPERATIVE-SOCIETIES-U.pdf
KAJARATNAM, J.—Agnea v. The President, Multipurpose Co-operative 307
Societies Union, Ruwanwella
1973
Present: Rajaratnam, J.
G. AGNES, Appellant, and The PRESIDENT, MULTIPUR-POSE CO-OPERATIVE SOCIETIES UNION, RUWANWELLA,
Respondent
S.C. 9A/72—Workmen’s Compensation C3/PJ104/70
Workmen’s Compensation Ordinance—Section 3—Accident Arising outof and in the course of a workman’s employment—Quantum ofevidence—Death of the workman in consequence of violencecommitted on him—Liability of the employer to pay compensationto the widow of the deceased—Postponement of an inquiryregarding a claim for compensation—Duty of Court not to refuse.it unreasonably.
A watcher who was employed at a Co-operative Depot died asa result of violence committed on him during his watch hours.There was sufficient circumstantial evidence to prove that thedeceased was doing a watcher’s duty when he was killed by aperson who presumably hqd tampered with the locks of the Depotto burgle the stores.
Held, that the watcher was killed as a result of an “ accidentarising out of and in the course of his employment ” within themeaning of section 3 . of the Workmen’s Compensation Ordinance.His widow was, therefore, entitled to compensation.
In an application for compensation under the Workmen’sCompensation Ordinance standards expected in a criminal caseshould not be applied. Nor should be postponement of the inquirybe refused unreasonably if it is sought bone fide to enable theapplicant to prove his claim, if such claim is not of a vexatiousnature.
Appeal
from an order of the Deputy Commissioner of
Workmen’s Compensation.
N.Satyendra, as Amicus Curiae.
No appearance for the respondent.
Cur. adv. vult.
August 10, 1973. Rajaratnam, J.—
The question that arises in this appeal is whether the applicantwho was a widow of one K. A. Gunasekera, a watcher at a Co-operative Depot had discharged her burden of proving before theDeputy Commissioner that her late husband died as a result ofan accident arising out of and in the course of employment underthe respondent on the 20th of October 1970. I have perused theRecord in this case and I find that there was evidence that the
308 RAJARATNAM, J.—Agnes v. The President, Multipurpose Co-operative
Societies Union, Ruwanwetta
deceased went to work on this particular day to perform hisduties as a watcher. There was evidence that the clock waspunched up to 2 a.m. in the early hours of 20th of October 1970.There was evidence from one Aron Singho that the practice oftwo watchers being employed for the stores was discontinuedand there was only one watcher to perform the duties that night.There was evidence that the deceased died as a result of violencecommitted on him during his watch hours.
The Magistrate who visited the scene on the 20th found thebody of the deceased with cut injuries on his neck and head.There was a watchman’s punching clock still ticking. There wasa watcher’s stick, a torch and betel leaves presumably kept therefor use during the deceased’s night vigil. The padlock with anattached hasps seemed to have been wrenched off. There weretables inside the store giving the appearance that they had beenshifted from their position. The iron cross-bar in front of thesafe had been opened outward. There was a padlock which hadbeen opened and lying on a wooden counter close to the handleof the door of the safe.
The finding in the postmortem report was a verdict ofhomicide and that death was due to shock and haemorrhagefollowing a cut injury on the neck. According to the evidenceof the brother of the deceased, his relatives were asked to cometo the Co-operative Union on the 25th October 1970 to make anapplication for compensation. Thereafter the matter wasdiscussed and a request was made for Rs. 15,000.00 ascompensation. According to him the Committee met anddiscussed about it but was unable to arrive at a decision. Theywere however informed later that the Committee was unable tocome to a decision but was prepared to accept any amountordered by the Commissioner of Workmen’s Compensation. Hewas not cross-examined on these matters. The only question putto him is whether at the time of the murder he was at Badulla.The applicant made an application on the date of the inquirythat she had another witness and she could not bring him asshe did not know that it was necessary to bring him and there-fore moved for a date to bring this witness. The respondenthowever objected to this and I find that the Deputy Commissionermade an order that as the applicant had sufficient time to getready for the inquiry he must refuse the postponement. He madethis order at 12 noon and reserved judgment stating that hehas other cases. It is a matter for deep regret and comment thatan applicant should have been denied a date under thesecircumstances. About two months later the Deputy Commissionerarrived at a finding that he was not satisfied that the deceased
RAJARATNAM, J.—Agnes v. The President, Multipurpose Co-operative 309
Societies Union, Ruwanwella
died as a result of an accident arising out of and in the courseof his employment under the respondent. After having success-fully objected to the application by the applicant for a date therespondent placed no evidence before the Tribunal. In thecircumstances there was sufficient evidence that the deceasedwas a watcher, he was doing a watcher’s duty, and he came byhis death as a result of violence at the hands of person whopresumably had tampered with the locks of the Depot to burglethe stores. The circumstantial evidence led was sufficient toprove the above facts. There was nothing more the dependantsof the deceased could have proved and if there was anythingelse it was within the knowledge of the Co-operative authorities.On the evidence placed before the Deputy Commissioner therewas no doubt that the deceased died in the course of his employ-ment. The question now is whether the death was as a resultof an accident arising out of his employment.
Section 3 of the Workmen’s Compensation Ordinance providesinter alia that if personal injury is caused to a workman byaccident arising out of and in the course of his employment hisemployer shall be liable to pay compensation in accordance withthe provisions of the Ordinance. The term “ accident ” must beinterpreted according to its popular meaning. Where a workmanemployed to turn the wheel of a machine by an act of oyerexertion ruptured himself, it was held by the House of Lordsthat he suffered an injury by accident, Fenton v. Thorley & Co.Ltd.1 1903 A.C. 443! The term “ accident ” has been held to meanmishap or untoward event unexpected or designed. This caseoveruled the decision of Hensey v. White3 (1900) 1 Q.B. 481.Accident may also include occurrences intentionally caused byothers and personal injury to oneself resulting from an assault.In the case of Nisbett v. Rayne & Burn‘ (1910) 2 K.B. 689, C.A.,compensation was ordered to be paid in respect of the murderof a bank cashier who was murdered in a train while carryingmoney for his employer. The assault however must be connectedwith the employment of the deceased. It must be shown thatthe employment by its circumstances, involved a special riskof assault not incurred by persons not so employed or not soemployed under the same circumstances. The onus is on theclaimant to compensation to prove that the accident arose inthe course of the employment. When this has been done thepresumption ordinarily arises in the absence of evidence to thecontrary that the accident arose out of his employment. In thecase of R. v. National Insurance (ex-parte Richardson) * (1958)2 A. E. R. 689 evidence was given that the ‘ accident ’ did not arise
11903 A. O. 443.
1 (1900) 1 Q. B. 481.
(1910) 2 K. B. 689 O. A.(1958) 2 A. E. B. 689.
310 RAJARATIJAM, J.—Agnes v. The President, Multipurpose Co-operative
Societies Union, Ruuanwella
out of the employment. The applicant Clifford Richardson was anOmnibus conductor in uniform on the platform of his bus whenhe was injured in an assault by one in a gang of youths. It was notshown in evidence that he was singled out because of any circum-stances connected with his employment. There was however evi-dence that others had previously assaulted other persons. Theapplicant was not singled out because he was an Omnibus conduc-tor and he was wearing a particular uniform or had money onhim. There was evidence of indiscriminate acts and under thesecircumstances it was held in this case that the accident did notarise out of employment. In the case of de Silva v. Premawathie 150 N. L. R. 306, it was held, where a Government teacher one ofwhose official duties was to supervise the distribution of mid-daymeal to pupils in attempting to save the meal from being eatenby a cat which entered the kitchen got bitten in the finger andsubsequently died of hydrophobia, that he met with this accidentarising out of his employment and in the course of the employ-ment. The injuries sustained by the school master arose becauseof and not merely in the course of his employment. It wasdecided by Lord Shaw in the case of Craske v. Wigan’ (1909) 2
K.B. 635, that “ arising out of employment ” must refer to thenature, the condition, the obligations, and the incidents of em-ployment. It was said that “ if by reason of any of these theworkman is brought within the zone of special danger and soinjured and killed, the broad words of the Statute applies Inthis case the deceased watcher was brought within the zone ofspecial danger by the nature, condition, obligation and incidentsof his employment as a watcher. However, there was sufficientevidence of a circumstantial nature pointing to the murder beingcommitted to burgle the Co-operative Depot. There was noevidence placed whatsoever by the respondent to show other-wise. In Rowland v. Wright3 (1909) 1 K.B. 963, a stableman waseating his meal in the stable where he was entitled to be andwhich was his proper place when a cat suddenly and withoutprovocation sprung at him and bit him. The Court of Appealheld that the accident arose out of and in the course of thestableman’s employment because his duties took him into thestable where to his knowledge and his master’s knowledge therewas a cat habitually kept. “ If it had been a stray cat ’’ said theMaster of the Rolls, “ the case would have presented a totallydifferent aspect ”. In the present case the watcher’s risk to falla victim to the violent attentions of robbers is an occupationalhazard which must necessarily be within the knowledge of hisemployer. The risk was increased when the employer according
1 (,1948) SO N. L. R. 306.* (1909) 2 K. F. 635.
• (1909) 1 K. B. 963.
RAJAJRATNAM, J.—Agnes v. The President, Multipurpose Co-operative 311
Societies Union, Ruwanwella
to the evidence reduced the number of watchers from 2 to 1. Inthe present case the accident arose because of something in thecourse of his employment and because he was exposed by thenature of his employment to the peculiar danger of falling avictim to a murderous assault by intruders in pursuit of thegoods or cash in the stores. There was sufficient evidence in thiscase that the accident was in every sense during his employment,and also arising out of his employment. The risk that thedeceased faced was not a risk common to all mankind. In Simpsonv. Sinclair1 1917 A.C. 127, the House of Lords laid down as statedearlier that “arising out of employment” applies to the nature,condition, obligations and the incidents of employment. Inother words the accident was because of his employment.
I have considered the case of Krishnakutty v. Maria Nona*51 N^L.R. 66. In this case the deceased was a night watchmanreturning home every night for dinner. One night he wasmurdered on his way home on a high-way which did not formthe part of the premises in which he was employed to keepwatch. It was correctly held that this accident did not arise outof and in the course of his employment. I have also consideredthe case of Obeyesekera v. Jane Nona8 59 N.L.R. 41, where thedeceased had been employed as a watcher in an estate. He wasmurdered by some unknown person pounding him on his headwith a blunt weapon while he was sleeping alone in the hutin the estate. No witness was able to depose to the circumstancesof the murder of the deceased and the applicant’s statementwas that the deceased would not have been killed if he hadnot been on the estate as a watcher. H. N. G. Fernando, J. (asthen he was) held that the applicant’s statement that thedeceased would not have been killed if he did not live on theestate was a mere conjecture as a motive for a murder and inview of the failure of the applicant to establish the actual motivefor the murder there was no need to determine whether theinjury on the deceased was incidental to and casually connectedwith his employment. In the present case however there wasevidence that the deceased was watching the Depot store intowhich there had been an intrusion and there were sufficientcircumstances to causally connect the murder with theemployment.
It is a matter of great regret that the circumstances of thiscase should have presented any difficulty to the DeputyCommissioner for him to have denied the applicant of anappropriate compensation for the loss of her husband Who diedas a result of an accident in the course of and arising out of1 (1917) A. O. 127.a (1949) 51 N- L. S. 66.
(1957) 69 N. £. R. 41.
312 RATAR ATNAM, J.—Agnes v. The President, Multipurpose Co-operative
Societies Union, Ruwanwella
his employment. It is also a matter of regret that in cases ofthis nature, standards expected in a criminal case are applied.Deputy Commissioners of Workmen’s Compensation Tribunalsshould within the provisions of the Ordinance pursue relentlesslya course of justice and not permit employers to take undueadvantage of applicants who as in this case find considerabledifficulties in placing their cases before the Tribunal. I referto the application made by the applicant for a date on oneoccasion and the refusal for a date. This was not a case underthe circumstances in which it could be said that the applicationfor compensation was a vexatious application. It was a genuineapplication made by the widow whose husband met with hisdeath during his watch hours. There were circumstances whichled to a reasonable inference that the murder was committedwith the motive to burgle the Depot. In such a case it was notcorrect for a Deputy Commissioner to have refused a date andfor the respondent to object to it. Such refusals no doubt maybe justified in applications of a vexatious nature. The Tribunalmust have some appreciation of the merits of the case whenit refuses or allows a date. In this case the only assistance therespondent gave the Tribunal was to oppose to dates and placeobstacles in the way of the applicant proving her case. He choseto give no evidence. He relied on the helplessness of theapplicant.
I set aside the order of the tribunal dismissing the applicationand make order that the applicant is entitled to compensationon the basis that the deceased was killed as a result of anaccident arising out of and in the course of his employment.I send the record back to the Tribunal to enter order accordinglyand after notice to parties determine the compensation accordingto the provisions of the Ordinance. I direct that this order forpayment be given effect to as early as possible.
The appeal is allowed. The Registrar will take immediatesteps for the early disposal of this matter.
The Court wishes to place on Record its deep sense ofgratitude to Mr. Satyendra who was requested by me to actas Amicus Curiae in this matter as neither the appellant northe respondent was present at the hearing of this appeal.Mr. Satyendra as Amicus Curiae in the highest traditions of theBar was of invaluable assistance to Court.
Appeal allowed.