025-NLR-NLR-V-39-ELONONA-v.-FERNANDO.pdf
SOERTSZ J.—-Elonona v. Fernando.
71
1937Present: Soertsz
In re an Application under Section 39 of the Workmen'sCompensation Ordinance
ELONONA v. FERNANDO.Workmen’s Compensation Ordinance—Workmen injured while unloadingmachinery—Engaged previously in demolishing building—Not. entitledto compensation—Ordinance No. 19 of 1934, s. 39.
A workman, who was injured while he was engaged in loading into acart some dismantled machinery, which was being removed from an oldbuilding, which he was employed in demolishing the day previous tothe accident, is' not entitled to compensation under the Workmen’sCompensation Ordinance.
C
ASE submitted for the decision of the Supreme Court under section39 of the Workmen’s Compensation Ordinance, No. 19 of 1934.
J. E. M. Obeyasekera, C.C. (Amicus curiae).
Cur. adv. vult.
March 10, 1937. Soertsz J:—
This is a matter submitted for the decision of this Court by the Com-missioner for Workmen’s Compensation under section 39 of OrdinanceNo. 19 of 1934.
The question is whether the deceased who- was injured while he wasengaged in loading some dismantled machinery into a cart on April 8,1936, and who died in consequence of that injury on April 21, 1936, canbe said to have been employed “ in the demolition of a building ” whenthe accident took place, having regard to the facts- (1) that the machineryhe was loading into the cart was machinery which had been installed inan old building and was being removed to be set up in another building39/10
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SOERTSZ J.—Elonona v. Fernando.
in Bingiriya, (2) that the deceased had been employed before the day ofthe accident in demolishing the walls of that old building in which themachinery that was being removed, stood.
This question arises because only “workmen” who conform to thedefinition of “workman”, in the Ordinance and their dependants areentitled to compensation. The definition of “ workman ” in the Ordi-nance appears to have been evolved by (a) a general stipulation that hiswages shall not exceed Rs. 300 per mensem, (b) by an enumeration ofcertain categories of employment, (c) by an express exclusion of threeclasses of workmen.
It is, therefore, essential that a workman who claims or on whose behalfa claim is made for compensation should bring himself within one of thecategories of employment enumerated in the schedule.
I have no doubt it must have been the intention of the legislature toprovide for a case like that of the workman with whom we are concernedin this case, for I can conceive no equitable ground on which he couldhave been deliberately excluded, but unfortunately the enumeration inthe schedule is not exhaustive, and the plight in which this workman’sdependants find themselves is due to the fact that this is a casus omissusfrom the enumeration.
The only possible category, upon the evidence that can be said to be atall relevant to^this case is the one referred _to by the Commissioner. Itis No. 7 (a) in the schedule. It reads as follows:—“Any person who is. . employed in the construction, repair or demolition of anybuilding which is designed to be or is or has been more than one storey inheight above the ground or twenty feet or more from the ground level tothe apex of the roof …
Now the evidence in this case is that the workman had. been engaged inthe demolition of a building before the day of the accident. He does not,therefore appear to come within, the ambit of section 3 of the Ordinance• which provides “ if personal injury is caused to a workman by accidentarising out of, and in the course of his employment his employer shall beliable to pay compensation ” et cetera. The words “ in the coarse of hisemployment ” clearly means in the context “ in the course of his employ-ment in one of the classes of work enumerated in the schedule ”.
This view is supported by the fact that in the case of workmenemployed on buildings, repairing or demolishing, it is insisted that thebuilding should be of a certain type or certain dimensions, most probablybecause of the risk that attends upon workmen engaged on such buildings.■It would have been of no consequence to insist upon the type or dimensionsof a building, if it was intended to provide compensation for workmen who.had been engaged upon a building, but who were not so engaged, but wereengaged in some other kind of work, at the time the accident occurred.
In my opinion, it is therefore clear that in order to make an employerliable for compensation, the aceident should have happened while theworkman was in the course of working in one of the enumerated classesof work.
The workman in this case was injured not while he was engaged indemolishing the building but while he was loading machinery into a cart.The answer to the Question is in the negative.