REPUBLIC OF TRINIDAD AND TOBAGO
IN THE MATTER OF THE WORKMEN’S COMPENSATION ACT
CHAPTER 88:05
WC105 of 2009
Application for Compensation by Dependants – (1)Rhonda GlasgowCaldiera for herself and on behalf of her two minor children (2)
Rhondell Dillon Wayne Junior Caldiera and (2)Delicia Ayisha Caldiera
residing at Haig Street, Carenage.
And
WC106 of 2009
Application for Compensation by Dependants – (1)Micellia Charles and
(2) Zorna Joseph residing at Beard Street, Carenage
And
WC107 of 2009
Application for Compensation by Dependants – (1) Joan Alexander for
herself and on behalf of her minor children (2) Jada Shanisa Carillo
and (3) Cletus Keisha Carillo and (4) Kadijah Carla Carillo residing
at 3½ mm Guaico Tamana Road, Cunaripo.
And
WC108 of 2009
Application for Compensation by Dependants – (1) Harry Hamlett, (2)
Victoria Hamlett, (3) Alana Hamlett and (4) Thomas Hamlett residing at
No. 3 The Crescent, East Dry River, Port of Spain.
Applicants
AND
Inter-Isle Construction & Fabrication Company Limited
And
Chag-Wharf Services Limited
Respondents
Before:
Commissioner Patricia Sobion Awai
Appearances:
Mr. Fyard Hosein,SC and Ms. Nyree Alfonso for the Applicants
Mr. Dave Cowie for the Respondents
1
BACKGROUND
1.
These four Workmen’s Compensation cases are being heard together
as they arise out of the same circumstances.
They are brought by
dependants ("the Applicants") of four deceased workmen, Wayne
Caldeira, Lester Charles, Eustus Carrillo and Anthony Hamlett.
The
workmen
were
employed
by
Inter-Isle
Construction
&
Fabrication Company Limited and Chag-Wharf Services Limited ("the
Respondents").
2.
On June 22, 2005, the workmen were aboard the vessel "Tradewind
Sunrise" conducting certain repairs when there was an explosion
caused
by
welding
works
being
undertaken
in
the
presence
of
hydrocarbon gases or residue. The workmen died as a result of
injuries sustained in that accident.
3.
On August 24, 2005, an admiralty action was commenced against the
Owners
Sunrise"
and/or
("the
Parties
Interested
Defendants
in
the
in
the
vessel
admiralty
"Tradewind
action")
by
the
Administratrix ad litem of the estate of the respective deceased
workmen ("the Plaintiffs in the admiralty action"). Inter Isle
Construction and Fabrication Company Ltd ("the Third Party/First
Respondent") was joined as a third party.
The action was made
pursuant to section 27 of the Supreme Court of Judicature Act and
the Compensation for Injuries Act.
4.
By order of Moosai J. dated September 2006 in the admiralty
action,
damages
totalling
$2,550,000.00
Plaintiffs in the admiralty action.
were
awarded
to
the
The order provided that the
Plaintiffs' claims were fully and finally settled and compromised
without prejudice of the right of the Defendants to proceed with
their claims against the Third Party/First Respondent. The order
also made reference to a settlement agreement which had to be
signed by the parties upon payment by the Defendants of the sums
due to the Plaintiffs.
2
5.
Another
settlement
Defendants in the
agreement
was
entered
admiralty action
into
between
and the Third
the
Party/First
Respondent in which each party discharged the other from all
future claims including contribution or indemnity in respect of
workmen’s compensation claims.
6.
On June 18, 2009 the Applicants filed applications for Workmen's
Compensation against the Respondents.
PRELIMINARY ISSUES
7.
These Workmen’s Compensation cases did not follow the usual route
which involves the Registrar taking evidence from the Applicants
to determine whether there is a prima facie case before serving
the Respondents with the applications.
at
the
request
of
the
parties,
Instead the Commissioner,
allowed
them
to
formulate
preliminary questions of law to be determined before any evidence
was taken.
8.
This procedure was adopted because the Applicants had benefitted
from damages recovered in the admiralty action and the question
arose as to whether the sums they received should be taken into
account
in
assessing
compensation
under
the
Workmen's
Compensation Act Chap. 88:05. Both sides agreed that the sums
recovered in the admiralty action exceeded the quantum expected
to be recovered as workmen's compensation. It followed that if
the moneys already received had to be taken into account, no
compensation
would
be
recoverable
under
the
Workmen's
Compensation Act.
9.
The parties filed an agreed statement of issues to be taken as
preliminary points.
The issues are as follows:
3
(i)
Whether the Applicants are entitled to maintain a claim for
Workmen’s Compensation notwithstanding that they obtained
damages against Tradewind Sunrise in HCA No A 5 of 2005 for
negligence in an admiralty action in rem.
(ii)
If
so,
whether
awarding
a
Court
compensation
(substitute
for
injury
“Commissioner”)
under
the
in
Workmen’s
Compensation Act is entitled “to take into account” any
damages recovered by the Applicants or any one of them in
respect of High Court Action No A 5 of 2005.
10.
An
agreed
including
bundle
the
of
documents
amended
writ
was
and
filed
the
on
April
2,
of
claim
statement
admiralty matter, the two settlement agreements and the
2014
in
order of
Moosai J. dated September, 2006.
THE WORKMEN'S COMPENSATION ACT
11.
The relevant sections of the Workmen’s Compensation Act
Chap.
88:05 are set out below.
2(2)Any reference to a workman who has been injured or has
been
disabled
include
a
shall,
where
reference
to
the
workman
his
legal
is
dead,
personal
representative or to his dependants or other person to
whom or for whose benefit compensation is payable.
4. (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
mentioned
below,
be
liable
to
pay
compensation
accordance with the following provisions:
.........
(2)
........
4
in
(3) Where compensation payable under this Act for injury
by accident arising out of and in the course of
employment is received as such by a workman who is
an adult, no action shall be brought against the
employer
for
compensation
independently
of
this
Act by such workman in respect of such accident
after the expiration of one year from the date on
which the cause of action accrued.
(4) In awarding compensation for injury under this Act a
Commissioner shall take into account any damages
recovered
by
a
workman
in
respect
of
the
same
injury.
5. (1) Subject to this Act, the amount of compensation
shall be as follows:
(a) where death results from the injury, a lump sum of
an amount calculated as follows:
(i)
if the workman leaves any dependants wholly
dependent on his earnings, the lump sum shall
be a sum equal to thirty-six months earnings;
(ii)
if the workman does not leave any dependants
wholly dependent on his earnings, but leaves
any dependants in part so dependent, the lump
sum shall be such sum not exceeding in any
case the amount payable under subparagraph (i)
as
may
be
agreed
agreement,
may
Commissioner,
proportionate
dependants;
5
upon
be
to
to
or,
determined
be
the
in
default
by
reasonable
injury
to
the
of
the
and
said
(iii)
if the workman leaves no dependants, the lump
sum
shall
expenses
be
of
the
aggregate
the
burial
of
of
reasonable
the
deceased
workman, not exceeding the sum of five hundred
dollars;
15.
Where
the
injury
for
which
compensation
is
payable
under this Act was caused under circumstances creating
a
legal
liability
in
some
person
other
than
the
employer to pay damages in respect of such injury—
(a) the workman may, subject to section 4(4), take
proceedings both against that person to recover
damages
and
against
compensation
under
any
person
this
liable
Act
for
to
pay
such
compensation; and
(b) if the workman has recovered compensation under
this Act, the person by whom the compensation was
paid, and any person who has been called on to
pay
an
indemnity
entitled
to
be
under
section
indemnified
by
14
the
shall
be
person
so
liable to pay damages, and all questions as to
the right to and amount of any such indemnity
shall, in default of agreement, be settled by
action
or,
by
Commissioner.
ANALYSIS
Whether the Act prohibits dual claims
6
consent
of
the
parties,
by
a
12.
Section
4(1)
provides
that
of
a
the
Workmen’s
workman
who
Compensation
sustains
Act
injury
Chap.
shall
88:05
recover
compensation from his employer. This of course is subject to the
provisions of the Act.
13.
By virtue of section 2(2) of the Act, a reference to workman
includes a reference to his legal personal representative or to
his dependants or other person to whom or for whose benefit
compensation is payable.
14.
By virtue of the conjoint effect of sections 2(2) and 4(1) the
dependant of a deceased workman is deemed to be a workman and as
a result is entitled to receive compensation under the Act.
15.
Two sections of the Act illustrate that a workman (including a
dependant) is not prohibited from making dual claims for damages
in the High Court and compensation under the Act.
16.
Section
4(4)
provides
that
a
Commissioner
shall
take
into
consideration any damages already received for the same injury
when compensating a workman under the Act. This means the two
types of claim may co-exist
but the quantum receivable may be
affected.
17.
Section 4 (3) also contemplates the making of a second claim as
it provides for a limitation period of one year for bringing an
action for damages in cases where compensation hass already been
received.
18.
The Act therefore does not preclude dual claims.
Whether the order of Moosai J. prohibited dual claims
7
19.
The Order of Moosai J. dated September 2006 in the admiralty
action,
awarded
claims
without
proceed
with
damages
in
prejudice
their
full
of
the
claims
and
final
right
against
of
the
settlement
the
of
the
Defendants
Third
to
Party/First
Respondent.
20.
The first point to note is the parties in the admiralty action,
with
the
different
exception
from
of
the
the
Third
parties
in
Party/First
the
Respondent,
workmen's
are
compensation
applications before me.
21.
The Plaintiffs in the admiralty action were administratrix ad
litem,
that
is
to
say,
persons
appointed
by
represent the estate of the deceased workmen.
the
court
to
By contrast, the
Applicants in these applications are dependants of the deceased
workmen who represent themselves, except in the case of minors
who are represented by their next friend.
22.
The Defendants in the admiralty action were the owners of the
vessel "Tradewind Sunrise".
The Respondents before me are the
employers of the deceased workmen.
23.
It follows that the order made by Moosai J. in the admiralty
action does not bind the Applicants in the workmen's compensation
cases because they were not parties in the earlier proceedings.
24.
Additionally, nothing in the substance of the order of Moosai J.
precludes the Applicants from the making
these applications for
workmen's compensation.
Whether the settlement agreements prohibit dual claims
8
25.
Like
the
order
of
Moosai
J.
in
the
admiralty
action,
the
settlement agreements are not binding on the Applicants who were
not parties.
to
be
Nonetheless in the event that the Applicants agreed
bound
by
the
terms
of
the
settlement
agreement,
I
considered the substance of the agreements as if they were so
binding.
26.
Clause 6(v) of the settlement agreement between the Plaintiffs
and the Defendants reserved the right of lawful dependants of the
deceased men to apply for workmen's compensation and provided
that no claim for workmen's compensation was maintainable against
the Defendants. Clause 6 (v) of the said agreement provided as
follows:
6(v).
It
is
mutually
understood
and
agreed
that
this
settlement is made and entered into without prejudice
to any action or claim as against such persons deemed
to be the employers of the deceased at the time of
their deaths by the Plaintiffs or such persons deemed
by any Court of Law to be the lawful dependents of the
deceaseds, to Workmen’s Compensation pursuant to the
Workmen’s
Compensation
Act
Chapter
88:05
or
statutory amendment or replacement thereto.
event
shall
a
claim
for
workmen
any
In no
compensation
be
maintainable against the Defendants named herein.”
27.
The
Applicants
argued
that
clause
(6)(v)
of
the
first
settlement agreement means that no deduction can be made for sums
received by the Applicants since the right to make a claim for
workmen's
compensation
is
expressly
preserved.
However
a
distinction must be made between the right to make a claim, which
was preserved by the agreement, and the question of deductions
which is a matter for a Commissioner to decide upon in accordance
with the Workmen's Compensation Act.
maintaining
a
claim
for
workmen's
disallowing deductions.
9
Clause 6(v) deals with
compensation,
not
with
28.
Clause 6(v) also provided that no workmen's compensation claim is
maintainable
against
admiralty
action
Sunrise".
This
employers
of
is
the
the
were
a
Defendants.
the
owners
non-issue
deceased
The
of
since
workmen
Defendants
the
the
and
vessel
such
no
the
"Tradewind
Defendants
as
in
were
not
claim
for
workmen's compensation is maintainable against them under the
Act.
29.
The only possible liability of the owners of the vessel under the
Workmen's Compensation Act would be to indemnify a person who has
paid compensation under the Act pursuant to section 15.
Section
15 applies to persons who are under a legal liability to pay
damages in respect of an injury for which compensation is payable
under the Act.
The owners of the vessels were found to be
legally liable in the admiralty action to pay damages to the
deceased workmen and as such section 15 may apply to them.
30.
However
the
issue
of
indemnifying
the
Respondents
for
compensation they may be found liable to pay does not arise at
that this time and may not arise at all before a Commissioner,
unless the consent of the parties is obtained: section 15 refers.
Certainly
the
owners
of
the
vessel
are
not
now
before
the
Commissioner and have not so consented.
31.
I turn now to the settlement agreement between the Defendants in
the admiralty action i.e. the owners of the vessel and the Third
Party/First Respondent.
discharges the
This agreement provided that each party
other from any claim whatsoever including but
without limitation for contribution or indemnity in respect of
the Workmen’s Compensation Act.
32.
The Respondents submitted that it was an abuse of process for the
Applicants
to
pursue
the
regard to this agreement.
workmen's
compensation
claim
having
Alternatively, they argue that the
10
terms of the agreement are illegal, null and void since they
purport
to
contract
out
of
the
provisions
of
the
Workmen’s
Compensation Act.
33.
With respect to the abuse of process argument, this must be
rejected because neither the Plaintiffs not the Applicants are
parties to this settlement agreement.
34.
As to the invalidity of the agreement, I do not find the mutual
discharge from liability of the parties to be repugnant to the
provisions of the Workmen’s Compensation Act.
Section 15 of the
Act provides that an employer may be indemnified by a person
under legal liability, such as the owners of the vessel in this
instance, but section 15 specifically provides that the right to
and the amount of any such indemnity may be agreed upon by the
parties.
to
It seems to me therefore that the parties are entitled
discharge
each
offending the Act.
other
from
liability
to
indemnify
without
The agreement is therefore not illegal, null
and void.
35.
In summary, I conclude that the present applications are not
precluded by the settlement agreements.
Section 4(4)and the principle of double recovery
36.
I
come
now
to
the
second
issue,
namely
whether
the
damages
received by the Applicants in respect of the admiralty action
should be taken into account in awarding compensation under the
Act.
37.
Section 4 (4) of the Act provides that a Commissioner shall take
into consideration damages awarded to an applicant for the same
injury. This section incorporates the principle that a person
should
not
recover
more
than
recovery rule.
11
he
has
lost,
i.e.
the
double
38.
In Hodgson v Trapp [1989] 1 AC 807, the court explained the basic
rule that in assessing damages for negligence it was the net
consequential
Receipts
to
loss
and
which
expense
an
injured
that
the
person
court
would
must
not
measure.
otherwise
be
entitled, have, prima facie, to be deducted from an award.
In
determining
to
whether
a
deduction
should
be
made
one
had
consider what was just, reasonable and in accordance with public
policy.
These propositions were enunciated by Lord Bridge at
pages 819-820 of the judgment as follows:
“My
Lords,
it
cannot
be
emphasised
too
often
when
considering the assessment of damages for negligence that
they are intended to be purely compensatory.
Where the
damages are essentially financial in character, being the
measure
on
the
consequential
one
loss
of
hand
of
the
earnings,
injured
profits
plaintiff’s
or
other
gains
which he would have made if not injured, or on the other
hand, of consequential expenses to which he had been and
will be put which, if not injured, he would not have needed
to
incur,
the
consequential
measure.
basic
loss
rule
and
is
that
expense
it
which
is
the
the
court
net
must
If, in consequence of the injuries sustained, the
plaintiff
has
enjoyed
receipts
to
which
he
would
not
otherwise have been entitled, prima facie, those receipts
are to be set against the aggregate of the plaintiff’s
losses and expenses in arriving at the measure of damages.
All this is elementary and has been said over and over
again.
To this basic rule there are, of course, certain
well established, though not always precisely defined and
delineated exceptions. .........
...........The
recognised,
difficulty,
is
jurisprudential
to
which
articulate
principle
by
which
has
a
to
been
single
precise
distinguish
deductible from the non-deductible receipt.
12
widely
the
As Lord Reid
said in Parry v Cleaver [1970] A.C. 1, 13: “The common law
has
treated
this
matter
as
one
depending
on
justice,
reasonableness and public policy.” (Underlining mine)
39.
One means of determining what payments should be deductible is
the “like for like approach”.
in
Support for this approach is found
Trinidad and Tobago Electricity Commission v. Keith Singh CA
180 of 2008 where
the court ruled that payments made in respect
of workmen's compensation did not fall to be deducted from an
award
of
damages
general
did
earnings.
not
damages
for
compensate
pain
the
and
workman
suffering
for
since
future
such
loss
of
There was in effect, no double recovery and it was
just and reasonable to make no deduction.
At paragraph 30 of the
judgment, Mendonca J.A. held as follows:
"The
authorities
fundamental
rule
therefore
(questions
demonstrate
of
exemplary
that
and
as
a
aggravated
damages apart) a plaintiff cannot recover more than he has
lost.
There
is
to
be
no
double
recovery...
It
is
also
recognised by the authorities and is an application of the
common law principles of justice and reasonableness that a
plaintiff should only give credit for all payments received
by him in consequence of his injury against like equivalent
damages
which
he
claims.
So
that
for
instance
where
a
plaintiff is in receipt of benefits that compensate him for
loss of earnings those should not be set off against an
award of general damages for pain and suffering. When the
nature of the benefits is considered not to take them into
account does not offend against the principle of double
recovery and is just and reasonable."
40.
The issue in this case therefore is whether sums received by the
Applicants as damages in the admiralty action are equivalent in
nature to compensation payable to dependants under the Workmen's
13
Compensation Act so that it is just and reasonable to take them
into
consideration
in
determining
the
quantum
of
such
compensation under the Act.
41.
In this regard, one must consider the nature of a dependant's
loss
as
opposed
Compensation
to
Act,
a
an
workman's
injured
loss.
workman
Under
is
the
Workmen's
compensated
for
his
inability to work and for that reason any sum to be deducted must
be referable to damages for loss of earnings or future earnings.
On the other hand, a dependant's injury is the loss of financial
support from a deceased workman.
42.
It is significant that section 5(1)(a)(ii) of the Act , which
relates
to
awarded
as
partial
dependants,
compensation
to
provides
such
proportionate
to
a
that
the
dependant
the
injury
sum
is
to
to
be
what
is
"reasonable
and
the
said
dependant".
In other words, one has to determine what a partial
dependant has lost in terms of support and compensate him for
such loss.
43.
Where
as
a
result
of
High
Court
proceedings
for
negligence
resulting in the death of a workman, a dependant receives damages
which he would not have received had the workman not died, in my
opinion, it is just and reasonable that such damages should be
taken into account when assessing compensation for the dependant
under the Workmen's Compensation Act as both the damages and the
compensation
replace
the
financial
support
that
was
lost.
Failing to take the damages received into account would result in
double compensation to the dependant and would be contrary to
section 4(4) of the Act.
44.
In this case, the Applicants have benefited from damages awarded
in the admiralty action and that money ought reasonably be taken
into
account
in
determining
compensation.
14
the
quantum
of
workmen's
CONCLUSION
45.
I therefore rule on the preliminary issues as follows:
Issue 1
Whether
the
Applicants
are
entitled
to
maintain
a
claim
for
Workmen’s Compensation notwithstanding that they obtained damages
against Tradewind Sunrise in HCA No A 5 of 2005 for negligence in
an admiralty action in rem.
Ruling
Yes.
The claim for workmen's compensation is maintainable.
Issue 2
If so, whether a Commissioner in awarding compensation for injury
under the Workmen’s Compensation Act is entitled “to take into
account” any damages recovered by the Applicants or any one of
them in respect of High Court Action No A 5 of 2005.
Ruling
Yes.
A
Commissioner
ought
reasonably
to
take
into
damages received by the Applicants in HCA No. A 5 of 2005.
Dated this 26th day of September, 2014.
P. Sobion Awai
Master of the High Court
15
account