094-NLR-NLR-V-64-S.-PARUPATHY-Appellant-and-THE-ADDITIONAL-CONTROLLER-OF-ESTABLISHMENTS-Resp.pdf
622 T. S. FERNANDO, J.—Parupathy v. The Addl. Controller of Establishments
1962Present: T. S. Fernando, J.
PARUPATHY, Appellant, and THE ADDITIONAL CONTROLLEROF ESTABLISHMENTS, Respondent
S. C. 7 of 1961—Workmen's Compensation Application C. Zj5j58
Workmen's Compensation Ordinance {Cap. 139)—Section 3—Accident—“ Arising
out of employment '*—Act done by workman with employer's tacit permission
Liability of employer.
A workman, who was employed undor tho Government in tho capacity of anoffice labourer, died by accidental electrocution when he openod a refrigerator.It was not denied that tho occidont arose in tho course of deceased’semployment. Tho application of the doceasod’s widow for compensationwas refused on tho ground that tho deceased had no right, in the course ofhis duties, to open the refrigerator. The evidence led at the inquiry showed,however, that the decoased had boon tacitly permitted, and indeed beenexpected, to have access to the refrigerator.
Held, that tho accidont arose “ out of the workman’s employment " withintho moaning of section 3 of the Workmen’s Compensation Ordinance.
“ Whero an omployor, in spite of a prohibition of a practice imposed byliimself, has tacitly permitted tho practice to bo followed, * winked ’, as itis called, at the disregard of his orders, he cannot bo permitted to shioldhimself from liability. ”
A E-PEAL under the Workmen’s Compensation Ordinance.
12. S. R. Coomarasivamy, with E. B. Vannitamby, for the applicant-appellant.
V. S. A. Pullenayegum, Crown Counsel, for the Attorney-General.
’Cur. adv. vull.
April 11, 19G2. T. S. Fernando, J.—
One Siruiathamby Sivapuniam was employed under the Governmentin the capacity of an office labourer at tho Divisional Agricultural Office,Trincomalco. He died by accidental electrocution on 10th April 1958.Electrocution resulted from an attempt by Sivapuniam to open a refri-gerator which was in the dispensary attached to the office of the VeterinarySurgeon which is situated in the same building as tho DivisionalAgricultural Office. At the time of this unfortunate accident, it wouldappear that this refrigerator was being operated by means of a connectionunauthorised by the Government’s electricity supervisor. There wasno earth connection to this refrigerator and it is admitted that itsoperation in this way was highly dangerous. Why the officers of thoGovernment whose business it was to maintain this refrigerator permittedthe unauthorised connection has not been investigated, but this mannerof unauthorised operation appears to have gone on for some time.
T. S. FERNANDO, J.–Parupaihy v. The AdtU. Controller oj Establishments 623
As office labourer the deceased’s work was that of an odd-job man.He had, inter alia, to cany letters to the post-office and to otherGovernment offices. When there was no peon or messenger available,he attended to the work of messenger as well. He attended to thesweeping of the office and its compound and did “ out-door ” work.According to the testimony of the administrative officer, if a clerk orother officer required a packet of cigarettes or a g‘ass of water it was partof the duties of the deceased to fetch them.
Although the veterinary surgeon stated that none save himself, hispeon and the vaccinator had a right of access to the refrigerator, it wasdisclosed in evidence that water was also normally kept in this refrigeratorby the deceased who was in the habit of fetching coded water from itfor the use of officers who called lor water. The Food Productionc verseer, Nadarajah, had seen the deceased going towards the refrigeratorshortly before the accident with a glass in his hand. Not long after thatthe deceased was seen lying fallen at the foot of the refrigerator clutchingits door as well as a broken glass. Nads rajah concluded that the deceasedmet with his der th in opening the refrigerator for the purpose of obtainingwater, but he was unable to say whe it was who wanted the water onthis occasion. No officer came forward to saj' that he had requestedthe deceased to fetch him some water. It dees not matter, in my opinion,whether the deceased was en this occasion fetching water for an officerworking at the Agricultural Office or pouring it out for himself. Itappears to have been the practice to store water in bottles in thisrefrigerator for the use of all officers without distinction based on rank.
It is interesting to note that the Administrative Officer of the DivisionalAgricultural Office, when he reported the accident, after inquiry, to theDirector of Agriculture, stated that “the accident occurred in the courseof the deceased's employment as an office labourer in the office Thelanguage employed in the report is relevant when one bears in mindthat the liability to pay compensation under the Workmen’s CompensationOrdinance arises under section 3 where injury is caused by accidentarising out of and in the course of his employment. Whei thisAdministrative Officer gave evidence at the statutory inquiry on theapplication made by Sivapuniam’s widow fer compensation, he explainedthat by the above description given in his report lie meant that the accidentoccurred during office hours and whilst the deceased was in service! Ihave experienced some difficulty in appreciating this subsequentrefinement in explanation. 1
The application for compensatior was dismissed, and the dismissalappears to have resulted from the finding by the Deputy Commissionerthat the deceased had not been given permission to open or meddlewith the refrigerator, i.e., ir other words, that the deceased had noright in the course of his duties to open the refrigerator which wasmaintained by the Government principally for the storage of vaccines.
524
Per era v. Sent
The question the Commissioner was called upon to decide was whetherdeath was caused by accident arising out of and in the course of theWorkman’s employment. Where an employer, in spite of a prohibitionof.a practice imposed by himself, has tacitly permitted the practice to befollowed, “ winked ”, as it is called, at the disregard of his orders, hecannot be permitted to shield himself from liability—see per LordAtkinson in Barnes v. Nunnery Colliery Co., Lid?- Such evidence as hasbeen led at the inquiry on the application I am concerned with hereshows that the deceased was permitted, and indeed expected, to haveaccess to the refrigerator. He was, therefore, exposed to a peril arisingout of his employment. It was not denied that the accident arose, in thecourse of the deceased’s employment. The dismissal of the application,therefore, resulted from the misdirection on the part of the Deputy Com-missioner that the mere transgression of the practice laid down by theveterinary surgeon had the effect of taking the deceased outside thebenefits conferred by the Workmen’s Compensation Ordinance. Thetransgression in the circumstances cf this case did not have the effectof taking the conduct of the deceased outside the sphere of hisemployment.
I would set aside the order dismissing the application and hold thatissue No. 1 (Did the deceased die as a result of an accident arising outof and in the course of his employment under respondent ?) shouldhove been answered in the affirmative. As the amount of compensationhas not been determined, I direct that the proceedings be now remittedto the Commissioner for that determination. The applicant is entitledto the costs of the inquiry already held and the costs of this appeal.
Order set aside.: