Fernando v. Aponsu.
1940Present : de Kretser J.
FERNANDO v. APONSU462—Workmen’s Compensation Case C 25
Workmen’s Compensation—Father’s claim to be dependant of son—Son’s wagesgo to the family fund—Father not a dependant.is a painter who called in his son (the deceased) to assist him wheneverwork was available.
work was available.rj
The deceased’s wages were paid to the claimant and he paid the son,whose wages were used to help the family fund. The claimant was aregular wage earner and he maintained the family, including the deceased.Held, that the claimant was not a dependant of the deceased son.
PPEAL from an order of the Commissioner under the Workmens’Compensation Ordinance.
Cyril E. S. Perera, for defendant, appellant.—The admitted facts provethat the deceased was a dependant of his father, the applicant. It wasthe father who obtained employment for him about three months in theyear. The mere fact that the deceased paid whatever he thus learnedinto the family fund is not sufficient to prove that the father was adependant. Montgomery v. Blows. ’
» (1916) 1 K. B. D. S99.
DE KRETSER J.—Fernando v. Aponsii.
Section 22 of the English Act of 1923 defines a partial dependant. Thecontributions must be for the provisions of the ordinary necessaries of lifesuitable for persons in his class and position.
The respondent informed the Commissioner that he had settled thematter with the employer, and the Commissioner had no power to re-opena claim that had been waived, and in any event the applicant is out of timeand no sufficient cause has been shown for the delay.
5. W. Jayasuriya, for applicant, respondent.—This is a case of partialdependency and our Ordinance follows the English Act of 1906 and thefact that the earnings of the deceased went into the family fund at thetime of his death is sufficient to establish partial dependency.
The fact that the deceased son was maintained by the father when hehad no employment, does not affect the respondent’s claim as there wasa duty cast on the father to maintain his children and under the EnglishAct of 1906 such a claim could be maintained. Main Colliery Co., Ltd. v.Davies' ; and Hodgson v. West Stanley Colliery Co. – The real test is thefinancial injury caused to the respondent by the death of the deceased.
The respondent was out of time, but his explanation for the delay hasbeen accepted and that finding cannot be questioned here as it is a questionof fact; and no claim was made as the employer held out a promise ofemployment.
Cur. adv. vult.
October 31, 1940. de Kretser J.—
The deceased workman met with an accident on March 12, 1938, anddied on the following day. Inquiry into the applicant’s claim did not takeplace till May 25, 1940, i.e., over two years after the death.
The Government Agent, Western Province, who is the Chairman of theProvincial Road Committee, informed the Commissioner of the death onMarch 17. The Provincial Road Committee was getting some paintingdone in its office and the deceased had touched a live electric wire whileat work and had met with his death as a result. He was working under acontractor at the time, one H. Lewis Fernando, according to the Govern-ment Agent. These proceedings, however, were against H. NimonisFernando who used to supervise the work for Lewis Fernando and who inhis evidence stated that Lewis Fernando was his brother and that theyworked together ; he added that Lewis worked on his behalf, and thatthe contract was in his (respondent’s) name. The Commissioner onMarch 23, 1938, issued a notice under section 20 (1) of the Ordinancerequiring the appellant (Nimonis) to submit within thirty days a statementon the form O enclosed, giving the circumstances attending the death ofthe workman and indicating whether he considered himself liable or notto deposit compensation. The appellant duly filled in the form anddisclaimed liability, forwarding, at the same time a report in form Q undersection 57 (1) of the Ordinance. He also gave a list of the funeral expensesamounting to Rs. 108.10, details of which were elaborated in a furthercommunication which the Government Agent ' obtained from LewisFernando, the amount now coming to Rs. 113.98.
1 (1000) A. C. 35S.* (1901) A. C. 229.
DE KRETSEK J.—Fernando v. Aponsu.
On June 16, 1938, the Commissioner wrote to the deceased’s father,the present respondent, stating that Nimonis had disclaimed liability andtelling him that if he wished to pursue the matter further he should makean application in duplicate on form B of which he enclosed two copies.He was acting under section 20 (4) probably. This letter was forwardedthrough the Vidane Arachchy of Dehiwala and was duly delivered to therespondent. No reply having been received, the respondent’s attentionwas invited to it on September 5, 1938, and an early reply requested.
The respondent informed the Commissioner on September 27, 1938, thathe had settled the matter and had decided not to proceed any further ; theletter was received on the 28th and is marked P 2 in the file ; it is not adocument given by the respondent to the appellant, as described by theCommissioner in his order. The Commissioner wrote in reply asking forthe terms of the settlement. He does not specify under what provisionof the Ordinance or regulations he acted, and I have not been able to findany. The respondent by his letter dated October 24, stated that thefuneral expenses were met by the contractor (appellant) and were notdeducted out of his salary, and because he was employed under thecontractor himself he had settled the matter “ for his future prospect ”.
The Commissioner now proceeded to take up with the Chairman of theProvincial Road Committee the question of his liability for the accident,and in the course of the correspondence he took up the position that' compensation should not be paid otherwise than by deposit with him ;he referred to section 11 (1). This is the first indication there is as to the• reason which prompted the Commissioner not to accept the decision ofthe respondent.
Now, section 11 (1) expressly refers to the payment of compensation byan employer who seeks to fulfil his obligation in this way. It has nothingto do with the right of the claimant to drop his claim. The very fact thatthe’ Ordinance prescribes a period within which a claim should be madecarries with it the implication that the employer’s liability is not soabsolute that it must be discharged irrespective of the wishes of theclaimant. The appellant had not reported the payment of any compenrsation by him ; in fact he had disclaimed liability. Nor had the claimantreported the payment of any compensation ; he had given reasons why hedid not wish to pursue the matter. He was the best judge of .his owninterests. In effect what he said was that his employer had been exceed-ingly kind to him in his time of distress and that he did not wish to spoilhis chances of future employment. One can well understand that hemay have preferred to secure employment rather than force a claim andso find himself out of employment.
Section 20 (4) alone applied, and that had been complied with and therewas no call upon the Commissioner to pursue the matter further.Solicitude for the workman is commendable, but it should not be carriedto such a point that it may be construed as encouragement, if not incite-ment, to a workman to prefer a claim. The Ordinance has the welfare ofthe workman before it quite prominently and it makes ample provisionfor his protection, and I can find no justification for the Commissionergoing outside the bounds of the Ordinance.
DE KRETSER J.—Fernando v. Aponsu.
Alter protracted correspondence with the Chairman of the ProvincialRoad- Committee, apparently the Chairman’s position that he was notliable was acknowledged to be correct, but as the Chairman’s liability waslaid under section 22 the correspondence referred to the liability of theappellant.
The return (P 3) shows that between March, 1937, and October of thesame year the deceased was more often absent than at work ; and fromJune to September he earned nothing. And on this return the Commis-sioner decided that compensation should be assessed in terms of section7 (1) (c). That was on July 6, 1939. On September 11, the respondentwrote to the Controller of Labour inquiring whether the latter couldcompensate him. There was still no formal claim..-
On October, 28, the Commissioner drew his attention to his previousletter and inquired whether he had now changed his mind and wished tomake a claim for compensation against the contractor, adding “ youshould also explain why you delayed so long to make the applicationOn November 18, the respondent replied that he had changed his mind,that he had signed the letter at that time not knowing its contents at allas the contractor promised to compensate him, and that the delay wasdue to his “ patient and hopeful expectation ” that *he contractor wouldkeep his promise. (The later correspondence is typed.) Then the Com-missioner, by his letter dated December 13, informed him that he mightmake an application (sending him the forms) and also told him that heshould be able to show that the delay was due to sufficient cause. Theclaimant then made the present application on January 21, 1940. Healleged he was the only dependent of the deceased workman. Theappellant filed an answer to this claim, and the inquiry took place onMay 25, 1940.
In his evidence the claimant stated that the deceased did not get workevery day but only whenever work was available. The claimant was apainter, and whenever the appellant had work requiring extra hands theclaimant called in his son (deceased) whose wages were paid to theclaimant, and he paid the son whose earnings “ always used to help thefamily fund ”. The appellant then gave evidence to the effect that thedeceased had been employed by him off and on. The Commissioner thenframed issues, after which evidence was again called.
The claimant had already stated that he used to go fishing sometimesbut that his son did not. His witness said that the son used to be takenby the father when additional labour was required, that the son had noother employment, and that when he had no work he was maintained byhis father. The appellant gave evidence to the effect that he paid thewages of the deceased to his father (claimant) who was regularly employedby him and brought in his son to assist him.
The Commissioner held that the deceased and his father used to go towork together, that the deceased’s earnings were paid into the family fund.Therefore the claimant was a dependant of the deceased but that therewere other dependants, viz., deceased’s mother, his younger brother andunmarried sister. He held that the amount paid for the funeral was not42/12
DE KRESTER J.—Fernando v. Aponsu.
by way of compensation, and that the claimant had sufficient cause fordelaying to make his application because he was expecting to be paidsomething more by way of compensation and was not so paid.
In the petition of appeal it was submitted that deceased was not aworkman within the meaning of the Ordinance, but this point had beenconceded before the Commissioner and so was not mentioned in appeal.The chief point argued before me was that the claimant was not a depend-ant of the deceased. It was also contended that the omission to make aclaim in time had not been sufficiently explained nor was there any reasonwhy the letter P 2 should not have been given effect to.
The question as to whether a person is a dependant or not is a questionof fact, and each case must be decided on its own merits. This wasdecided by the House of Lords in the case of The Main Colliery Co., Ltd.v. Davies.* In that case the son was a regular wage-earner and gave theparents all his wages, they providing him with food, lodging, clothes andpocket money ; the father was held to be a dependant. In Hodgson v.West Stanley Colliery Co.1, a father and his two sons were regularlyemployed in a colliery and were killed in one and the same accident.Their earnings had formed a common fund out of which the whole house-hold were maintained. The mother was held to have been dependantupon the earnings of her sons. In Montgomery v. Blows1, the claimantwas a married woman who lived with her husband and children. Herfather, the deceased workman, had lodged with them, paying a fixed sumevery week towards the household expenses. It was held that thehusband provided the home and the whole means of living, apd if therewas any profit it belonged to him ; and therefore if anybody could be saidto be a dependant it was the husband who, however, was not entitled toclaim.under the Act.
Now, in the present case the mere use of a phrase like “ the family fund ”does not decide the issue. It is quite plain that the father, i.e., theclaimant, was a regular wage-earner and maintained the family, includingthe deceased. Such earnings as came from the deceased were occasionaland were due to the father’s taking him on as an assistant. In other wordsthe deceased' depended on his father even for employment. It is truethat when the deceased did earn something, to that extent the father wasrelieved, but in my opinion it was entirely wrong to say that the fatherwas in any way dependant on the earnings of the son.
The terms of the Ordinance are neither those of the English Act of 1906nor of the amending Act of 1923. I have considered cases under theformer Act as they would be the cases most favourable to the respondentand have endeavoured to show that the respondent would not be entitledto claim. Each case must depend on its own facts. Therefore, on thefacts before the Commissioner I hold that the claim should not have beenallowed and this appeal will be allowed with costs.
This decision obviates the necessity for deciding the other points whichwere raised. I may state, however, that in section 2 of the English Actthe words are “ unless the claim for compensation with respect to suchaccident has been made ’’/whereas in our Ordinance we have the phrase
1 (1900) A. C. 35S.3 (1910) A. C. 229..
3 (1916) IK .B. 899.)
WIJEYEWARDENE J.—The King v. Seneviratne.. Ill
“ unless the claim has been instituted Under the English Act it washeld that the term “ claim for compensation ” referred to the notice of aclaim for compensation sent to the employer and not to the initiation ofproceedings before the tribunal for assessing the amount of the compen-sation—Powell v. Main Colliery Co.1, and provision was made in theEnglish Act that failure to make a claim within the specified periodshould not be a bar if it were found that it was due to mistake, absencefrom the kingdom, or other reasonable cause. Under our law theCommissioner is empowered to admit the claim if he is satisfied that thefailure was due to sufficient cause. What the effect of these differences inphraseology is may be left to be determined on another occasion. Sufficeit to say that there is no evidence in this case of notice of any claim havingbeen sent to the appellant other than the notice sent by the Commissionerunder the regulations, and that if the matter had heen open I should havefound it difficult to say that the explanation offered by the respondentcould stand examination.
FERNANDO v. APONSU