Radiniceva v The Labour Officer Compensation [2004] FJHC 300; HBC0373j.2002s (12 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 373 OF 20002

Between:

LAVINIA RADINICEVA as the administratrix
of the Estate of RATU RAKURO KAIYANUYANU
late of Somosomo in Taveuni (Deceased).
Plaintiff

and

1. THE LABOUR OFFICER COMPENSATION
2. THE ATTORNEY GENERAL
3. THE DIVISIONAL ENGINEER NORTHERN
Defendants

Mr. S. Valenitabua for the Plaintiff
Mr. Z. Sahu Khan for the Defendants

JUDGMENT

The plaintiff filed an Originating Summons seeking the following declarations and orders:

1. A Declaration that it is correct in law and in equity that the Dependants of a deceased worker/employee be paid compensation under the provisions of the Workmens’ Compensation Act, Cap. 94 pending final determination of a common law claim for negligence relative to the deceased worker’s/employee’s death during the course of his/her employment.
   
2. A Declaration that it is correct in law and in equity that the Defendants of a deceased worker/employee, who have been paid compensation under the Workmen’s Compensation Act, Cap. 94 for the deceased’s death during the course of his/her employment due to negligence of his/her employer, reimburse the deceased’s employer of such monies paid as compensation if the Defendants are successful in their common law claim.
   
3. An Order that the Defendants pay to the Plaintiff compensation for the death of Ratu Rakuro Kaiyanuyanu late of Somosomo in Taveuni (Deceased) under the provisions of the Workmens’ Compensation Act, Cap. 94 pending final determination of the Plaintiff’s common law claim for negligence relative to the Deceased’s death at his workplace being Labasa Civil Action No. HBC0029 of 2001.
   
4. An Order that the Plaintiff repays to the Defendant any monies paid to the Plaintiff by the Defendants under the provision of the Workmens’ Compensation Act, Cap. 94 upon final determination of Civil Action No. HBC0029 of 2001 IF the Plaintiff is successful in her Claim.
   

Background

This action gives rise to a claim for workman’s compensation claim. The Plaintiff Lavenia Radiniceva is the widow and Administratrix of the Estate of Ratu Rakuro Kaiyanuyanu. Ratu Rakuro was, up until his death, an employee of the Public Works Department (PWD).

On 14 February 2001, Ratu Rakuro was killed in a landslide whilst working as a tallyman at PWD’s FRUP III job site at Waitavala in Taveuni.

Not long after his death, the Plaintiff instituted the process of a claim for workman’s compensation with the Labour Compensation Office (LCO) under the Workmen’s Compensation Act, Cap. 94. Midway through the process however, the Plaintiff did not pursue her application in favour of a common law claim (Labasa High Court Civil Action No. 029 of 2001) for negligence against the Divisional Engineer Northern and the Attorney-General of the Fiji under the Compensation to Relatives Act, Cap. 29

The position regarding the said Action No. 29/01 is that the Statement of Defence was filed on 15 January 2002 and Reply to Defence on 2 July 2002. The Order on Summons for Directions was made on 3 October 2003 and Affidavit Verifying List of Documents by Plaintiff was filed on 9 December 2003. There has been no further developments since December 2003 in this action.

It is to be noted that during the pendency of the above action in the Labasa High Court, the present action i.e. the Originating Summons was issued in the Suva High Court on 6 September 2002.

Evidently the learned counsel for the plaintiff was keeping both the claim under the Workmen’s Compensation Act, Cap. 94 and the common law action in motion. He is on two ‘canoes’ the same time not knowing exactly which direction he wants to go. Counsel has taken no further steps in the civil action since 9 December 2003.

Plaintiff’s submission

The Plaintiff relies upon the following provisions in the Workmen’s Compensation Act, Cap. 94 (the “Act”).

Section 5(1) provides (inter alia):

5. – (1) If in any employment personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as herein provided, be liable to pay compensation in accordance with the provisions of this Act and, for the purposes of this Act, an accident resulting in the death or serious and permanent incapacity of a workman shall be deemed to arise out of and in the course of his employment, notwithstanding that the workman was at the time when the accident happened acting in contravention of any statutory or other regulations applicable to his employment, or of any orders given by or on behalf of his employer, or that he was acting without instruction from his employer, if such act was done by the workman for the purposes of and in connexion with his employer’s trade or business:

Provided that –

(a) the employer shall not be liable under this Act in respect of any injury which does not incapacitate the workman for a period of at least three consecutive days from earning full wages at the work at which he was employed;

(b) if it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall be disallowed:

Provided that where the injury results in death or serious and permanent incapacity, the court on consideration of all the circumstances may award the compensation provided for by this Act or such part thereof as it shall think fit.

Section 6 (a) provides (inter alia):

6. Where death results from the injury –

(a) if the workman leaves any dependants wholly dependent on his earnings, the amount of compensation shall be a sum equal to two hundred and eight weeks’ earnings: .....

Section 25(1) provided (it is referred to in full):

25. – (1) Where the injury was caused by the personal negligence or wilful act of the employer or of some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a civil court independently of this Act:

Provided that –

(a) a judgment in such proceedings whether for or against the employer shall be a bar to proceedings at the suit of any person by whom, or on whose behalf, such proceedings were taken, in respect of the same injury under this Act;

(b) a judgment in proceedings under this Act whether for or against the employer shall be a bar to proceedings at the suit of any person by whom, or on whose behalf, such proceedings were taken, in respect of the same injury independently of this Act;

(c) (c) an agreement come to between the employer and the workman under the provisions of subsection (1) of section 16 shall be a bar to proceedings by the workman in respect of the same injury independently of this Act.

(2) If in proceedings independently of this Act or on appeal it is determined that the employer is not liable under such proceedings, the court in which such proceedings are taken or the appellate tribunal shall, if the plaintiff so chooses, proceed to determine whether compensation under this Act is liable to be paid to the plaintiff and shall assess the amount of compensation so payable, but may deduct from such compensation any extra costs which in the opinion of the court or appellate tribunal have been incurred by the employer by reason of the proceedings have been taken independently of this Act. (emphasis mine)

Mr. Valenitabua submitted that section 25(2) provides an alternative to a claim under common law. He argues that if the common law claim is unsuccessful, then section 25(2) “imposes on the court a mandatory duty to process compensation payable under the Act”.

He argues that there is therefore no bar for payment of compensation in favour of the dependants under the Act in the absence of a final judgment in a civil claim.

Mr. Valenitabua also argues that to withhold compensation pending a common law claim is “not only inhuman, it is also cruel and somewhat unlawful”. He argues that since the Plaintiff knows that she is entitled to compensation, to withhold that compensation from her amounts, in light of her present financial hardship, to “mental and emotional torture” which he argues is contrary to section 25(1) of the Republic of Fiji Constitution 1998.

He therefore submits that compensation under the Act ought to be paid to the Plaintiff notwithstanding her pending common law claim.

Mr. Valenitabua relies on the case of Fox v Wood (1980) 25 SASR 138 to support his submissions.

Defendants’ submission

Mr. Sahu Khan for the defendants submits that the present action amounts to multiplicity of actions.

Counsel refers to Order 4 Rule 1(1) of the High Court Rules 1988 which provides that:

“Proceedings must ordinarily be commenced in the High Court registry located in the Division in which the cause of action arises”.

He says that since the cause of action arose in Taveuni, this Action ought to have been filed, if at all, in the Labasa High Court where the Writ of Summons in Civil Action No. 029 of 2001 was filed.

He further submits that since there was that existing action the institution of the present Action in Suva amounts to multiplicity of legal proceedings and this ought to be avoided.

Counsel submits that the present action was a “gross abuse of the court process” on the grounds that it was wrongly brought outside the jurisdiction where the action arose and that the issues raised herein could, and ought, to have been brought within the existing action in Labasa.

In the event that this Court was minded to hear this action, the Defendant’s counsel submits alternative arguments.

Mr. Sahu Khan argues that although a workman is entitled to compensation for injury or death under the Act, it is not however “automatic”. The workman (or where the case may be his dependants) must follow the procedure laid down under the Act and must not breach the proviso under section 5 thereof.

Counsel further submits that section 12 of the Act provides for the distribution of compensation. It states (inter alia) in s.12(1):

12. – (1) Compensation payable where the death of a workman has resulted from an injury shall be paid into court, and the court may order any sum so paid to be apportioned among the dependants of the deceased workman or any of them in such proportion as the court thinks fit, or in the discretion of the court, to be allotted to any one such dependant, and the sum so allotted to any dependant shall be paid to him or be invested, applied or otherwise dealt with for his benefit in such manner as the court thinks fit.

Furthermore in section 12(4) it is provided:

Nothing in this section shall prevent an employer from making any payment to a workman pending the settlement or determination of the claim and the court may order that the whole or part of such payments shall be deducted from the amount of compensation payable to him under the provisions of this section.

Counsel submits that the Plaintiff is only entitled to benefit from part payment of compensation, pending settlement or determination of her claim, if she is claiming compensation under the Act.

As to the effect of claiming compensation independently of the Act, counsel concedes that the Act does not preclude a workman or claimant from bringing a common law action against his employer. Section 25(1) does allow for proceedings to be brought independently of the Act. He also refers to s25(2) (supra) in this connection.

Counsel argues bearing in mind s25(2) of the Act, claiming independently of the Act operated as a stay of all proceedings under the Act. The Court, it was submitted, could not therefore proceed to determine the workman’s entitlement under the Act until the claim made independently of the Act was concluded.

Counsel submits that section 5 of the Act provides the workman with the right to compensation so long as the accident occurred in the course of his employment. The Act then provides for the procedure to be followed in processing the claim.

He argues therefore that a claim for compensation under the Act could not run simultaneously with a claim for compensation made independently of the Act.

In response to Mr. Valenitabua’s submission, Mr. Sahu Khan submits that section 22 of the Republic of Fiji Constitution 1998 does not apply because the Plaintiff did not take steps to mitigate her losses and suffering.

He submitted that compensation under the Act is based on the satisfaction of the conditions stated in section 5(1)(a), 5(1)(b), 5(2) and 5(3) of the Act. The Applicant has not satisfied these conditions and it cannot be satisfied whilst there is still a pending court action. He says that “equity does not allow one to approbate and reprobate at the same time”.

Defendant’s counsel argued that the case of Fox v Wood can be distinguished from the present case because the facts were not the same, the issues “being canvassed” were not same, the case was one on appeal from a lower court and finally in that case the Defendant had already satisfied the conditions of the Act which allowed her to receive weekly payments of compensation before she concluded her common law claim for compensation.

For these reasons counsel submits that the Plaintiff’s action ought to be dismissed.

The issue

The issue for determination by the court is whether the Plaintiff in the circumstances of this case is entitled to be paid compensation under the Act pending the final determination of her common law claim in the High Court at Labasa.

Determination of the issue

(i) Procedure to apply for compensation under the Act

There is no doubt that the plaintiff has the statutory right to apply for compensation as provided under section 5 of the Act. But she must follow the procedure as set out in section 13 which requires that notice of accident must be given to the employer by the dependants of the deceased within 12 months of the time of death.

By section 14, the employer is then obliged to provide a notice of the accident in the prescribed form to the Permanent Secretary within one (1) week of the employer becoming aware of accident or, where the case may be, on becoming aware of the death of the workman. The employer’s failure to do this does not however bar the dependants from proceeding with the claim for compensation under the Act.

By section 17, where an employer who has received notice of the accident from the dependants of the deceased workman fails to pay or agree to pay the quantum of compensation which the workman is entitled under the Act, the dependants may apply to the court, in the prescribed form and manner, to enforce the claim.

In this case there is no evidence that the plaintiff has followed the procedure of applying for compensation under the Act. There is no evidence that the employer has ever deposited any moneys with the Permanent Secretary (now called Chief Executive). If anything, it appears that the plaintiff has not pursued her application for compensation under the Act and instead has brought this action by way of originating summons claiming the reliefs referred to hereabove.

For these reasons the Court cannot decide in her favour without the plaintiff first complying with the procedural requirements of section 13, 14 and 17 of the Act.

In a nutshell, the plaintiff has not invoked the provisions of the Act by following the procedure for her claim. How can she then expect compensation to be paid under the Act. There is nothing that this Court can do to order payment of compensation in these circumstances unless the plaintiff follows the procedure under the Act, and if she does that then if the ‘employer’ fails to comply with Section 14, then section 17 could be invoked by the dependants by applying to the court to enforce the claim.

(ii) Payment of compensation pending determination of common law action

On payment of compensation pending determination of common law action the relevant provision under the Act is s25(1)(a) (supra) which allows for institution of proceedings to recover damages in a civil court independently of the Act.

However, this section s25(1)(a) is a statutory bar to a civil action against the employer in respect of the same injury after judgment in the civil claim has been made.

The plaintiff is not therefore barred to present a claim under the Act as her said common law claim (Labasa C.A. No. 29/01) is still pending and no judgment has yet been given therein. The only thing is that she has to pursue her claim under the Act about which she has done nothing.

In these circumstances the proper approach for the plaintiff is that she ought to proceed to pursue her common law action with due diligence and ought to conclude that first.

Only if she is unsuccessful in her common law action she could invoke the provision of s25(2) of the Act to determine her claim under the Act.

Conclusion

I conclude as follows:

(a) As for declaration sought in item ‘1’, the plaintiff fails particularly because she has not proceeded with her claim under the Act by following the procedure laid down. It is not automatic that money is readily available immediately after the accident or injury.

(b) As for declaration under ‘2’, there is ample provision in the Act for that; but that situation does not arise for the reasons given in (a) above. Hence there is no need to make any declaration in that regard.

(c) As for an order under ‘3’ for the reasons already given an order cannot be made without the plaintiff complying with the requirements of the Act particularly in regard to sections 13, 14 and 17.

(d) As for order under ‘4’, the question does not arise as nothing has been paid under the Act. It is for the plaintiff to pursue her pending common law action and thereafter if she is unsuccessful she can invoke the provisions of s25(2) of the Act for the Court to consider compensation under the Act.

For these reasons the plaintiff’s summons is dismissed with costs to the defendants’ counsel in the sum of $250.00 (two hundred fifty dollars) to be paid within 21 days.

D. Pathik
Judge

At Suva
12 July 2004