POYSER S.P.J.—Rosa Maria v. Jayawardene.
Present: Poyser S.P.J.
ROSA MARIA v. JAYAWARDENE.
362—P. C. Colombo.
Workmen’s compensation—Claim by sister of deceased workman—Test ofdependency—Ordinance No. 19 of 1934.
The deceased workman contributed to the maintenance of his sister,the applicant, till two years before his death, When he obtained employ-ment in mines at Anuradhapura. After obtaining employment heceased to contribute to her support. Shortly before his death thedeceased had written to his -sister and aunt saying that he was comingfor the New Year with money.
Held, that the evidence was not sufficient to establish that the appli-cant was a dependant of the deceased.
PPEAL from an order under the Workmen’s Compensation Ordi-
J. R. Jayawardana (with him R. G. C. Pereira), for appellant.tyo appearance for respondent.
November 11, 1938. Poyser S.P.J.—
This is an appeal under Workmen’s Compensation Ordinance, No. 19of 1934. The Commissioner found that the applicant was a dependentof the deceased workman and the only question that arises on this appealis whether there was sufficient evidence before him to justify such finding.
The relevent facts as found by the Commissioner are as follows: —Thedeceased workman contributed to the maintenance of the applicant, hissister, till two years before his death. The deceased then obtainedemployment in the mines at Anuradhapura and after obtaining suchemployment ceased to contribute to his sister’s support. That evidenceof itself is certainly not sufficient to establish that the applicant was infact a dependant of the deceased. Dependency, however, may exist incertain cases without any actual payment being made at the timfe depend-ency is claimed. In deciding whether or not there is. dependency thefacte to be considered are past events and future probabilities, see Lee v.George Munro There were in this case payments to the applicant in
B. W. C. C. 401.
Miguel Appuhamy v. Appuhamy.
the past, but what were the future probabilities that the deceased wouldresume such payments? The only evidence on this point is that thedeceased had written a letter to his sister and aunt saying he was comingin the New Year with money. There was no evidence that he was goingto give such money to his sister or to resume payments to her. I do notthink this evidence is sufficient to bring the case within the principles laiddown by Lord Justice Sankey in the case above referred to. It shouldbe noted that in Lee v. George Munro (supra) the facts were very different.It was a claim by a widow and the deceased workman had supported hiswife regularly and continuously, but at the time when he met with hisaccident, he was only earning a very small amount, which did not permitof his supporting his wife. In the other case referred to by the Com-missioner, namely, Robertson v. Hal Brothers Steamship Co.1, the factsalso are very different to those in this case. In that case a father claimedto be a dependant of his son. The son had for some four years contributedtowards his father’s upkeep, but did not during the last two or threemonths before his death make any contribution, but during such time hewas mostly out of England. It was held that there was sufficient evidenceto find that the father was in fact a dependant.
In this case, as stated before, I do not think there was sufficient evidencebefore the Commissioner to justify his finding. The appeal is accordinglyallowed and the award in favour of the applicant set aside.