Singh v Permanent Secretary for Labour, Industrial Relations & Productivity [2016] FJHC 727; HBC288.2007 (12 August 2016)

IN THE HIGH COURT OF FIJI WESTERN DIVISION AT LAUTOKA CIVIL JURISDICTION
					Civil Action No.288 of 2007
BETWEEN		:		GURUDAYAL SINGH of Ba Town, Fiji, Labourer
				PLAINTIFF
AND		:		THE PERMANENT SECRETARY FOR LABOUR, INDUSTRIAL RELATIONS & PRODUCTIVITY & ANR
				DEFENDANTS
Solicitors	:		M/s Mishra Prakash & Associates for the Plaintiff
			AG’s for the Defendant

R U L I N G

INTRODUCTION

1. I am being asked to strike out the claim of Gurdayal Singh, the plaintiff.
2. Singh’s claim against the Permanent Secretary For Labour is based on an allegation that the Labour Officer acted negligently and/or in breach of his statutory duty when he failed to warn Singh that, by accepting and receiving a certain monetary payment paid by Singh’s employer pursuant to the Workmen’s Compensation Act on account of some injuries that Singh sustained at work during and in the course of employment, Singh would thereby forfeit any potential common law claim against his employer.
   

THE INJURY & THE PAYMENT UNDER THE ACT

3. The background to this is set out in Singh v Emperor Gold Mining Company Ltd [2004] FJHC 512; HBC0011.2004L (8 December 2004). Singh was an employee of the Emperor Gold Mine Company Limited (“EGML”). He was injured at work on 29 March 2002.
4. Following the injury, all due notice and reporting processes were carried out by EGML to the Office of the Permanent Secretary for Labour as required under the Workmens Compensation Act. Suffice it to say that in due course of investigations, the injuries sustained by Singh were assessed and determined to have caused him a permanent partial incapacity of 30%. In that regard, a compensation sum of $12,012-00 was arrived at.
5. According to the defendants, Singh did not dispute the assessment, and EGM was prepared to settle. EGM paid the full assessed sum by cheque to the Labour Officer who then deposited it into a public account. Some three months or so later, the Labour Officer would prepare a Payment Voucher to the same amount which was then paid out to Singh when he came to the office of the Ministry of Labour.
   

AFFIDAVIT IN SUPPORT OF THE APPLICATION

6. Ashwin Dayal was the Labour Officer in question who attended to Singh. Like Singh, Dayal is a first speaker of Hindi. Dayal deposes as follows in paragraphs 3 to 9:
   
   3. The Plaintiff was employed as a driller offsider with Emperor Gold Mining Company and suffered personal injury on 29 March 2002 when a big rock dislodged and jammed the Plaintiff to the truck while joining the drilling rods at 2210 Main Drive, Shift Shaft. The Plaintiff had to be admitted to the Lautoka Hospital as a result of the injuries he suffered.
   4. On 17 April 2002, the Plaintiff’s employer reported the accident to the Labour Officer through the Ld Form C/1. The Plaintiff on 16 April 2002 had also requested the assistance of the Labour Department to investigate the alleged accident. The normal course of investigation was undertaken and the employer did not dispute the claim.
   5. On the 30 January 2003 the Labour Department wrote to the Plaintiff’s employer with an explanation as per the requirements of LD Form C-6 that the injuries to the Plaintiff were assessed at thirty (30) percent permanent partial incapacity which amounted to $12,012.00. In that letter, the Plaintiff’s employer was also given the chance to settle the matter in the sum of $12,012.00.
   6. On 11 March 2003, the Plaintiff’s employer agreed to settle the matter by sending an ANZ cheque in the sum of $12,012.00. This cheque was lodged into the Government Account with Colonial Bank on 13 March 2003.
   7. On 10 December 2003, the Plaintiff reported to the Labour Office, Ba to collect his compensation cheque. In compliance with the Act, the meaning of section 16 was explained to the Plaintiff in the Hindi language and after agreeing to it, the Plaintiff signed a section 16 agreement form in my presence and the compensation cheque was handed over to the Plaintiff by Assistant Labour Officer Mr. Sahid Ali.
   8. On 22 January 2004 after receiving compensation, the Plaintiff commenced common law proceedings in this Court seeking damages against the Plaintiff’s employer. The Plaintiff’s application in Gurudayal Singh v Emperor Gold Mining Company Limited HBC 0011 of 2004L was struck out on 8 December 2004, on the basis that the agreement under the Workmen Compensation Act was regular and in compliance with the requirements of section 16(1) and that by virtue of section 25 the application was stature barred. Annexed and marked “AD1” is a copy of the said judgment.
   9. On 19 September 2007, the Plaintiff commenced this proceeding in this Honorable Court against the Ministry of Labour. I am informed by Counsel and believe that the issues raised by the Plaintiff in this new action have been adequately addressed by this Honourable Court in Gurudayal Singh (supra).
      

DEFENDANT’S ARGUMENT

7. According to the defendant, the Labour Officer did explain to Singh in hindi about the effect of section 16 of the Workmen’s Compensation Act before the cheque was paid out to Singh. After explaining, Singh then signed the necessary form, and the money was then paid out to him.
8. In an affidavit sworn by the plaintiff on 04 September 2008, he deposes as follows at paragraphs 2 to 6:

2. I confirm and verify the contents of my Statement of Claim in this action.

3. I was an employee of Emperor Gold Mining Company Limited.

4. I did sign a document in which it was explained that I was getting Workman’s Compensation. However it was not explained to me at any time that it will lead to the loss of my rights to sue for negligence under common law.
5. The issue in this case is different. There was a lack of care and negligence on part of the Defendant. I would not have signed if I had known that for all my injuries I would only get $12, 012.00 and would not be able to take further proceedings.
6. I only found out that my rights had may have been compromised by the Defendant when my lawyers advised me of the same. I am advised by my lawyers that the High Court subsequently ruled that my action for damages other than Workman’s Compensation could not proceed because I had signed the Certificate under Section 16 of the Workman’s Compensation Act. I personally have only limited formal education.
   

GURDAYAL SINGH v EMPEROR GOLD MINING CO LTD (HBC 0111 of 2004)

9. As Dayal highlights in his affidavit, shortly after Singh received the compensation sum on 10 December 2003, he would, on 22 January 2004, commence common law proceedings in the High Court seeking damages against EGML.
10. However, that case was struck out on 08 December 2004 on the application of EGML’s counsel who had argued that the agreement under the Workmen Compensation Act was regular and complied with the requirements of section 16(1) and that by virtue of section 25, the application was statute barred.
11. Before Mr. Justice Connors, the application to strike out was made both under Order 18 Rule 18 and also under Order 33 Rule 7 of the High Court Rules. Order 33 Rule 7 was sought in the alternate on the argument that Singh’s claim against EGML was statute barred under section 25(1)(c) of the Workmen’s Compensation Act.
12. Order 33 Rule 7 provides:
    

If it appears to the court that the decision of any question or issue arising in a cause or matter and tried separately from the cause or matter substantially disposes of the cause or matter or renders the trial of the cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment therein as may be just.

13. Section 25 of the Workmen’s Compensation Act provides that where an injury is caused by the personal (or vicarious) negligence or wilful act of the employer, nothing in the Act prevents the recovery of damages in a civil court independently of the Act^[1]. Section 25 however carries the proviso that where the employer and the workman have entered into an agreement under section 16(1), then the said agreement shall be a bar to any other proceedings by the workman in respect of the same injury independently of the Act^[2].
14. Section 16 provides that an employer and a workman may enter into a written agreement as to the compensation to be paid by the employer.
15. Section 16 vests the Permanent Secretary for Labour with powers to control the process, clearly, to ensure that any workman who enters into any such agreement with his employer is protected and treated fairly^[3]. Hence, section 16 would also provide:
    • (i) that such agreement must be approved by the Permanent Secretary (or a person appointed by him).
    • (ii) that any agreement entered into is in triplicate, with one copy to be kept by the employer, another copy by the workman and the third copy to be retained by the Permanent Secretary.
    • (iii) that the compensation agreed upon shall not be less than the amount payable under the provisions of the Act
      
16. Section 16 also provides that where the workman is unable to read and understand writing in the language in which the agreement is expressed, that it is to be explained to him and the agreement is to be endorsed to that effect.
17. In that regard, section 16(1)(b) relevantly imposes upon the Permanent Secretary a duty to read over and explain the agreement to the workman before the workman enters into such an agreement:

where the workman is unable to read and understand writing in the language in which the agreement is expressed the agreement shall not be binding against him unless it is endorsed by a certificate of a district officer or a person appointed by the district officer or Permanent Secretary, in writing, in that behalf, to the effect that he read over and explained to the workman the terms thereof and that the workman appeared fully to understand and approve of the agreement.

18. As Connors J also noted, section 16(3) provides that such an agreement may be cancelled within three months after the date of the agreement as follows:

(3) ..... the court may, ...... on application by any party within three months after the date of the agreement, cancel it and make such order (including an order as to any sum already paid under the agreement) as in the circumstances the court may think just, if it is proved-

(a) that the sum paid or to be paid was or is not in accordance with the provisions of subsection (1);

(b) that the agreement was entered into in ignorance of, or under a mistake as to, the true nature of the injury; or

(c) that the agreement was obtained by such fraud, undue influence, misrepresentation or other improper means as would, in law, be sufficient ground for avoiding it.

Connors J’s Observations About The Agreement

19. The validity or otherwise of the agreement was the focal point before Connors J. To succeed in its striking out application, EGML’s solicitors had to establish inter alia that the agreement was validly made under section 16 and as such, it was a bar to the proceedings by virtue of section 25 of the Act.
20. One of the issues raised was whether the agreement was entered into with the EGML which entity was incorrectly described in the document.
21. Connors J found as follows:
    

This agreement is stated to be between Emperor Gold Mining and Gurudayal Singh and is expressed to be an agreement pursuant to section 16 of the Workmen’s Compensation Act. The agreement contains a certificate signed by the authorized person who explained the document in the Hindustani language to the defendant. The document also bears the endorsement “approved under section 16(1) of the Workmen’s Compensation Act” above the signature of the A/PS for Labour, IR & Productivity.

It is submitted on behalf of the plaintiff that the agreement entered into by the defendant is not an agreement between the plaintiff and the defendant as in the document, the employer is described as Emperor Gold Mining whereas the proper title of the defendant is Emperor Gold Mining Company Limited. The plaintiff however in his affidavit sworn on 11^th June 2004 admits the contents of paragraphs 1, 2, 3, 4, 5, 6 and 7 of the affidavit of Dinny Laufenboeck sworn on 15^th April 2004.

Paragraph 7 of the affidavit of Dinny Laufenboeck states:

“That after receipt of the payment the Labour Office prepared an agreement under section 16. This was executed on behalf of the defendant and also by the plaintiff. The said agreement was witnessed on behalf of the plaintiff by the Labour Officer and also approved and signed by the Assistant Permanent Secretary for Labour, Mr. Baleikanacea. I now produce marked “DL-7” a copy of the said agreement.”

In the light of this submission, I think it not possible for the plaintiff to successfully argue that the agreement entered into was not entered into with the defendant company.

................................................................

Conclusion

On the basis of the admissions made by the plaintiff, I am satisfied that the plaintiff and the defendant entered into an agreement pursuant to section 16(1) of the Workmen’s Compensation Act and that the entry into that agreement was indeed regular and in compliance with the requirements of the section. That being so, the clear and unambiguous words of section 25(1)(c) bar proceedings such as the plaintiff has commenced against the defendant and accordingly, the defendant’s application must succeed.

COMMENTS

22. The question is whether or not the issue is res judicata as regards the validity of the agreement. Generally, it is an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.
23. In Henderson v Henderson (1843) Hare 100 at page 115:-
    

"In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, anddjudication by, a court of t of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time."

(emphasis added)

24. In Fidelitas Shipping Co. Ltd v. V/O Export Chleb [1966] pages QB642 and 630 at paragraphs C to G and paragraph A to B (page 643) Lord Justice Diplock said:-
    

...Yet I take it to be too clear to need citation of authority that the parties to the suit are bound by the determination of the issue. They cannot subsequently in the same suit advance argument or adduce further evidence directed to showing that the issue was wrongly determined. Their only remedy is by way of appeal from the interlocutory judgment and, where appropriate, an application to the appellate court to adduce further evidence: but such application will only be granted if the appellate court is satisfied that the fresh evidence sought to be adduced could not have been available at the original hearing of the issue even if the party seeking to adduce it had exercised due diligence.

This is but an example of a specific application of the general rule of public policy, nemo debet bis vexari pro una et eadem causa. The determination of the issues between the parties gives rise to what I ventured to call in Thoday v. Thoday an "issue estoppel." It operates in subsequent suits between the same parties in which the same issue arises. A fortiori it operates in any subsequent proceedings in the same suit in which the issue has been determined. The principle was expressed as long ago as 1843 in the words of Wigram V.C in Henderson v. Henderson which were expressly approved by the Judicial Committee of the Privy Council in Hoystead v. Commissioner of Taxation. I would not seek to better them:

25. Henderson however would appear to apply only where the issue of the validity of the agreement is being re-opened between the same parties.
26. This case before me again challenges the validity of the agreement – albeit indirectly. In my view, Singh’s allegation that the Labour Officer had not read over and explained the agreement to Singh before the latter entered into the section 16 agreement – is tantamount to an attack on the validity of the agreement.
27. In my view, clearly, Singh is, in this case, dissatisfied with the amount of compensation he received under the section 16 agreement he signed with EGML. He obviously began to form that view immediately after receiving the cheque because in just a little over four weeks after the section 16 agreement (which he had signed on 10 December 2003), Singh’s solicitors had already filed on 22 January 2004 the claim against EGML in the High Court.
28. If Singh was dissatisfied with the amount of compensation under any of the grounds set out in section 16(3) of the Workmens Compensation Act, it was open to him to, within three months after the agreement (i.e. by 10 March 2004), apply to Court to cancel the agreement altogether. Once the agreement was cancelled, the coast would have been clear then to him so to speak to mount the claim against EGM. In other words, the problem based on the undisputed facts, is not because the Labour Officer did not advise him (an issue upon which I make no finding). Rather, the problem is that he was mounting a claim against EGM at a time when he should have been applying to Court to cancel the agreement.
29. To reiterate, section 16(3) provides that such an agreement may be cancelled within three months after the date of the agreement if:

(a) the sum paid or to be paid was or is not in accordance with the provisions of subsection (1);

(b) the agreement was entered into in ignorance of, or under a mistake as to, the true nature of the injury; or

(c) the agreement was obtained by such fraud, undue influence, misrepresentation or other improper means as would, in law, be sufficient ground for avoiding it.

30. Singh, in my view, is obviously of the view that he is entitled to more compensation under common law. His solicitors submit:
    

..the Defendant has said the requirements of section 16 of the Workmens Compensation Act was explained to him. There are conflicts of facts. We submit there is no res judicata or estoppel. The plaintiff did sue his employer for common law negligence. This action was dismissed as the Plaintiff lost due to the section 16 Certificate he had signed. He had signed the Certificate/Agreement upon the advice of the First Defendant who had acted for him in the Workers Compensation case. This is negligence which led to the Plaintiff losing his common law right to approximately $150,000-00 in damages.

There was a duty to give correct advice which was breached.

31. In paragraphs 4 and 5 of his affidavit opposing the strike out, Singh deposes:

I did sign a document in which it was explained that I was getting Workman’s Compensation. However it was not explained to me at any time that it will lead to the loss of my rights to sue for negligence under common law.

The issue in this case is different. There was a lack of care and negligence on part of the Defendant. I would not have signed if I had known that for all my injuries, I would only get $12,012-00 and would not be able to take further proceedings.

32. In my view, the above (paragraphs 4 and 5 of Singh’s affidavit) would be enough to sustain a ground to apply to cancel the agreement under section 16(3)(b) of the Act i.e. that the the agreement was entered into in ignorance of, or under a mistake as to, the true nature of the injury.
33. Singh clearly had sought independent legal advice between 10 December 2003 (the time he signed the section 16 agreement) and 22 January 2004 (the date he filed the common law claim against EGML). Clearly, he was well within time then to have applied to Court to cancel the agreement before pursuing the common law claim against EGML. Clearly also, his solicitors owed him a duty then to advise him so. When the issue came before Connors J, what was placed before Connors J was a perfectly valid agreement. Had the agreement been cancelled by application under section 16(3), I have every belief that Connors J would have not have struck out Singh’s claim against EGML.
34. I also believe that, if Singh is to be believed i.e. that the Labour Officer did not explain his common law rights to him prior to the section 16 Agreement, then Singh could also have relied on section 16(3)(c) as a ground for cancelling it due to undue influence, misrepresentation or even as a result of a mistake of fact or of mixed fact and law.
    

STRIKE OUT THE CLAIM?

35. Order 18 Rule 18(1) of the High Court Rules 1988 provides:
    

Striking out pleadings and endorsements (O.18, r.18)

18.-(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

36. The Courts will exercise this jurisdiction under Order 18 Rule 18 rather guardedly. The reason why they would do so is best explained by Mr Justice Kirby in Len Lindon –v- The Commonwealth of Australia (No. 2) S. 96/005 as follows:-
    

It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.

37. The same principles are further reinforced in Fiji under section 15(2) of the 2013 Constitution which gives to every party to a civil dispute the right to have the matter determined by a court of law.

Access to courts or tribunals

15.—(2) Every party to a civil dispute has the right to have the matter determined by a

court of law or if appropriate, by an independent and impartial tribunal.

38. To demonstrate the extent to which the Court must adopt a guarded attitude, Kirby J went on to say as follows in Len Lindon:
    

An opinion of the Court that a case appears weak and such that is unlikely to succeed is not, alone, sufficient to warrant summary termination... even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and arguments and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment

.......

If, notwithstanding the defects of pleadings it appears that a party ave have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleading

style='text-iext-indent:0ptgin-top:0pt; margin-bottom:ttom:0pt;' value='39' value="39">In Bullen, Leake and Jacobs: Pleadings and Precedents 12th edn at 145, it is there stated that a pleading or an action is fris frivolous when it is without substance, is groundless, fanciful, wasting the Court's time, or not capable of reasoned argument.
40. A pleading is vexatious when it is lacking in bona fides, is hopeless, without foundation, and/or cannot possibly succeed or is oppressive.
41. The Courts will strike out a claim for abuse of process if its processes are not being used in good faith and for improper purposes. For example, the use of the court’s process as a means of vexation or oppression or for ulterior purposes ore its process is being misg misused will be ground to strike out a claim for abuse of process.
    

CONCLUSION

42. It is clear to mt Singh was not satisfied with the amount he received underunder the Workmen’s Compensation Act. He realised that within one month after receiving that compensation from EGML.
43. It was open to him to apply to cancel the said agreement within three months of signing it. Rather than doing that, his solicitor instead filed a common law action against EGML barely a month after the section 16 agreement.
44. When that common law action was struck out more than four months later on account of the agreement, the time to apply to cancel the agreement under section 16 had lapsed. It was at that point in time that Singh decided to pursue a claim against the Labour Officer.
45. I am of the view that, based on the facts as pleaded, there is no reasonable cause of action against the Labour Officer. Even if the Labour Officer had failed to advise Singh, it was open to him to apply to cancel that agreement accordingly. He did not do so.
    

...............................

Anare Tuilevuka

JUDGE

12 August 2016

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^[1] Section 25 provides:

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;

^[2] The proviso reads as follows:

Provided that –

..........

(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 the proceedings by the workman in respect to the same injury independently of this Act.”

^[3] Section 16 provides:

Agreement as to compensation

16.-(1) The employer and workman may, with the approval of the Permanent Secretary or a person appointed by him, in writing, in that behalf, after the injury in respect of which the claim to compensation has arisen, agree, in writing, as to the compensation to be paid by the employer. Such agreement shall be in triplicate, one copy to be kept by the employer, one copy to be kept by the workman, and one copy to be retained by the Permanent Secretary:

Provided that-

(a) the compensation agreed upon shall not be less than the amount payable under the provisions of this Act; and

(b) where the workman is unable to read and understand writing in the language in which the agreement is expressed the agreement shall not be binding against him unless it is endorsed by a certificate of a district officer or a person appointed by the district officer or Permanent Secretary, in writing, in that behalf, to the effect that he read over and explained to the workman the terms thereof and that the workman appeared fully to understand and approve of the agreement.

(2) Any agreement made under the provisions of subsection (1) may, on application to the court, be made an order of the court.

(3) Where the compensation has been agreed the court may, notwithstanding that the agreement has been made an order of the court under the provisions of subsection (2), on application by any party within three months after the date of the agreement, cancel it and make such order (including an order as to any sum already paid under the agreement) as in the circumstances the court may think just, if it is proved-

(a) that the sum paid or to be paid was or is not in accordance with the provisions of subsection (1);

(b) that the agreement was entered into in ignorance of, or under a mistake as to, the true nature of the injury; or

(c) that the agreement was obtained by such fraud, undue influence, misrepresentation or other improper means as would, in law, be sufficient ground for avoiding it.

(4) All agreements made under this section shall be exempt from the payment of stamp duty.