133-NLR-NLR-V-61-K.-RATNASABAPATHY-Appellant-and-W.-ASLIN-NONA-and-OTHERS-Respondents.pdf
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Matnasabapathy v. Asilin Nona
1958Present: T. S. Fernando, 3.EL. RATNASABAPATHY, Appellant, and W. ASILIN NONA and others,
Respondents
3.C. 13— Workmen’s Compensation C 3j35j54
Workmen's Compensation Ordinance (Cap, 117)—“ Workman ”—“ Employmentof a casual nature ”—Question of fact—Test to be applied by Appeal Courtbefore interfering with finding of Commissioner.
The phrase “ employment of a casual nature ” appearing in the definition of“ workman ” in section 2 of the Workmen’s Compensation Ordinance wouldappear to infer something midway between the regular employment of a work*man and a simple engagement for a single day. When the state of facts ismidway between these two states, so that the question is really debatable, it isfor the Commissioner to decide.
When the Commissioner has made his decision on this question of fact, thetest to be applied in determining whether the Appeal Court should interferewith the decision would appear to be whether there was evidence before theCommissioner upon which he could well have reached the decision he did. Ifthere was evidence, and the Commissioner has not misdirected himself in.reaching bis decision, no appeal would lie.
55 0
T. S. FERJSTAXDO, J.—Hastnaaabapathy v. Asilin Nona
who had decided to have a residential house built for the use of himselfand his family, had reached that stage in the construction of the housewhen it became necessary to have the structure including the ceilingcolour-washed and snowcem and varnish applied. To enable him toget this part of the work done the appellant obtained, through a painterPiyadasa, the services of two men one of whom was the deceased.Fiyadasa, the deceased and the other man attended to the work, andthese persons were paid by the appellant at the rate of five rupees a day.The appellant was in the habit of making several visits a day to see forhimself the progress of the work. The payments were made to the menby the appellant, but when he could not be present himself, the moneywould be given to Piyadasa to be handed over by him to the other two.The tools, brushes and materials necessary for the work were suppliedby the appellant. A scaffolding had been erected to enable the men toattend to the work, but had been removed befoTethe date of the accidentwhen only ladders were being used. The accident, which took placein the fifth week of work, occurred as a result of a ladder upon whi ’h thedeceased was perched while colour-washing one of the walls slipping,causing the deceased to fall on the concrete floor. He was removedpromptly to hospital but died the same day.
It would also appear that the arrangement under which these threepersons worked was that they would be allotted work as and when workwas available. It would appear that if on a particular day there waswork sufficient for two persons only, then the first two to arrive wouldbe given work, while the third would have no work for the day andtherefore would not receive any payment. At the same time there wasno evidence that the deceased was ever refused work on this account.Piyadasa stated that the deceased and himself worked regularly forfour weeks, and that the accident occurred in the fifth week.
In the state of these facts it seems to me that the Deputy Commis-sioner had evidence before him upon which he could well have reachedthe conclusion that the deceased’s employment was not of a casual nature.Counsel for the appellant however contends that the Deputy Commis-sioner has misdirected himself in regard to what employment of a casualnature means.
He has referred me to the case of Hill v. JBegg1 in which the Court ofAppeal was called upon to consider whether a certain window-cleaneremployed by the occupier of a private house to clean his windows was aperson whose employment was of a casual nature and decided thatquestion in the affirmative. That case is distinguishable on the factsfrom the case before me. Here the deceased had been regularly em-ployed for four weeks and was in his fifth week of employment at the timeof the accident even if he had all along run the risk of losing employmentfor any particular day in case he had arrived late for work and foundthat there was work that day for two men only, and not for all three.In Hill v. Begg, Buckley L. J. found that the employment of the window-cleaner was of a casual nature because there was no stability of tenure
1 (2908) 2 K. S. 802.
T. S. FERNANDO, J.—Satnaaabapathy v. Asilin Nona
549
A
/APPEAL preferred tinder the Workmen’s Compensation Ordinance.
Banganathan, for the respondent-appellant.
C. Keerthisinghe, for the applicants-respondents.
Cur. adv. mdt.
March 10, 1958. T. S. Ebjbnaitdo, J.—-
This is an appeal preferred under the Workmen’s CompensationOrdinance (Cap. 117) against an order madeby a Deputy Commissionerholding that the appellant is liable to pay to the dependants of a de-ceased person named Appuhamy compensation calculated in terms ofthe Ordinance. An appeal under the Ordinance lies only on a point oflaw and the substantial question of law is stated to be whether the de-ceased was a “ workman ” within the meaning of the Ordinance. Asubsidiary question as to whether the accident giving rise to the claimmade by the applicants arose out of and in the course of the employ-ment of the deceased was mentioned by appellant’s counsel, but wasnot seriously pressed.
The substantial question would appear to me to be whether the em-ployment of the deceased was of a casual nature. If it was, then thedeceased and his dependants were outside the benefits of the Ordinance.The Deputy Commissioner has held by his order that the deceased wasa regular worker by which it must he taken he has held that the deceased’semployment under the appellant was not of a casual nature. In anappeal in a case—Hughes v. Walker1—that arose in England where aclaim for compensation under the Workmen’s Compensation Act of 1906which contains a definition of " workman ” in terms identical with thedefinition in our Ordinance had been unsuccessfully resisted before thecounty court judge on the ground that the claimant’s employment wasof a casual nature, Lord Hanworth, M. R. stated :—“ In the course ofthe many cases which have been decided it appears that the courts haveleant more generally to saying that the question of what is casual labouris a matter of fact to be determined by the county court”. In dis-missing the appeal that learned judge stated that there was evidencebefore the county court judge which would justify him in holding thatthe applicant was engaged in an employment that was not of a casualnature. The test to be applied in determining whether the appellatetribunal should interfere would appear to be whether there was evidencebefore the trial judge upon which he could well have reached the decisionhe did. If there was such evidence and the trial judge has not mis-directed himself in reaching his decision, no appeal would lie.
The facts relevant to the nature of the employment of the deceasedas found by the Deputy Commissioner may shortly he summarised asfollows :—The appellant, an assessor in the Income Tax Department,
1 {1926) 19 B. W. O. C. at 83.
T. S. FJsKNAHDO, J.—-Ratnasabapathy v. Asilin Nona
551
for that workman. In allowing the appeal he stated, “ I think the Actdistinctly intended that where employment was not in a trade or businessthe liability of the employer should be limited to the case of servantswhose employment was not casual but stable. The employment wasnot of that kind, and the case is, in my opinion, not within the Act ofParliament. ”
More to the point is a case from India to which I was referred bycounsel for the respondents, Ebrahim v. Jain x, arising under the IndianWorkmen’s Compensation Act, No. 8 of 1923, in which “ workman ”bears the same definition that is to be found in our Ordinance. In thatoase the applicant claimed compensation in respect of the death of herson who had been employed by the appellant to execute certain repairsto his building and who fell off a scaffolding and died as a result. TheCommissioner fonnd that the workman’s employment was not of a casualnature, but on the contrary he was regularly employed for an appreciableperiod of time by the same employer. After referring to certain Englishdecisions, notably Knight v. BuckniUthe learned judge (Patkar J.)stated as follows:—“ There is evidence in this case on which the Commis-sioner could base his finding that the deceased was regularly employedand that the deceased’s employment was not of a casual nature. Wethink therefore it is difficult to interfere with the finding of fact of thelower court on this point. ”
In Knight v. BuckniU (supra), Hamilton L. J. observed (see page 164)that the phrase “ of a casual nature ” would appear to infer somethingmidway between the regular employment of a workman and a simpleengagement for a single day, and he thought that “ casual ” is hereused not as a term of precision but as a colloquial term. He went on tosay that “ it may be inferred that when the state of facts is midwaybetween these two states, so that the question is really debatable, it mustbe for the county court judge to decide.”
In addition to the case of Hughes v. Walker (supra) already referred toby me, it is useful in this connection to examine the case of Stoker v.Wortham3 in which also the Court of Appeal held that where the questionwhether the employment was or was not “ of a casual nature ” wasreasonably debatable, it is for the county court judge to decide and hisdecision could not be interfered with. In the course of his judgment,Swinfen Eady, M. R.—(page 502)—observed:—
“ Where a statute is passed providing that a person whose employ-ment is of a casual nature shall not be included in the term ‘workmanI do not think it is for the Court to define exhaustively the personsthere referred to so as to'bind succeeding judges to say that onlythose persons who come within the definitions so laid down shouldbe within the Act, and that others shall he outside it. The true ruleis, I think, that laid down by Hamilton L. J. There is a class ofcases where it is quite clear the employment is regular, permanent,
1 A. I. S. {2933) Bomb. 270.8 {1913) 6 B. TP. O. C-. ISO.
3 (1919) 1 K. B. 499.
552
T. S. FEitNANDO, J".—Ratnasabapatky v. A:aHin Nona
stable and not casual. There is another class of cases on the otherside of the line 'where manifestly the employment is of a casual nature.Between these two it may heeome more and more difficult to say onwhich side of the line the individual case falls. In those eases it isa question of fact to be determined by considering not only the natureof the work but also the way in which the wages are paid, or the amountof the wages, the period of time over which the employment extends,indeed all the facts and circumstances of the case. *’
I would respectfully follow these observations of the learned Masterof the Bolls and, adopting the rule laid down by Hamilton L. J.1, Aiamisathis appeal with costs as I have already found that there was evidencebefore the Deputy Commissioner to warrant his decision in this case andas he has not been shown to have misdirected himself on any point, e.g.,
by adopting a wrong test, in reaching that decision.
There has been an earlier appeal in this same case, and Sansoniwho heard that appeal has directed that the costs of that appeal willin the discretion of the judge who ultimately hears* the final appeal,accordance with that direction, I would now order that the appellantpay to the respondents the costs of that appeal as well.
Appeal dismissed.
xin 6 B. TT. C. C. 160.
g'B’sr.1*