DAA V. SERWAAH

MENSA BOISON J.

The two claimants are respectively the wife (as respondent) and mother (as appellant) of the late E. K. Butah. The late Butah was an employee of Oyoko Contractors Ltd. who were the defendants at the trial. It appears his death was a result of fatal injuries sustained in the course of his employment with the defendant company. Both claimants lay claim against the defendants as dependants of the late Butah.

A claim for compensation was made by the respondent on her own behalf as the wife of the deceased, and for her child of the marriage under the Workmen’s Compensation Act, 1963 (Act 174). The appellant, having registered her interest, insisted on proceeding against the defendant company in negligence at common law. Neither of the two dependants would compromise on the mode of claim. In due course the district labour officer took out a motion, before the district court, under Act 174 for an order distributing the assessed amount under the Act to the dependants. The motion was supported by an affidavit sworn to by the first claimant only. At the hearing, the second claimant, by her counsel, opposed the application on the grounds that as the second claimant elects to proceed at common law the payment of the compensation under the Act at the election of the first claimant only will bar proceedings at common law.

The learned district magistrate ruled against the contention holding that the compensation was payable to the dependant who claims, and that it did not operate as a bar to proceedings at common law at the instance of the second claimant. Against this ruling the second claimant has appealed. The material ground is that:

“By section 24 (3) of Act 174 a judgment at the suit of a dependant under the Act is a bar against claims by any other dependant in any proceedings independently of the Act and that the (trial) court erred in holding the contrary.”

Mr. Totoe, counsel for the second claimant founded his contention on section 24 (1) of the Act and more particularly on subsections (2) and (3). These provide (the emphasis is mine):

“24. (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) 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.

(3) 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.”

According to counsel, the right of option must be exercised by the dependants of the deceased as a class and not by individual dependants as the words underlined would literally seem to imply. His construction, he submitted, will enable the employer’s liability to be assessed once and for all. Otherwise the employer might have to face an action in negligence at the suit of one dependant, after he has satisfied a claim under the Act at the suit of another dependant.

He further submitted that section 24 (5) of the Act empowers the court to resort to the Act as a last resort, when a dependant has failed against the employer in negligence. There is no such saving where the dependant exercises his option under the Act. On this safe-guard counsel argued that section 24 (5) appears to give power to the court to stay proceedings under the Act until the outcome of the action in negligence has been determined.

I think if the dependants are to exercise the option as a class, there would not arise any resort to section 24(5) to stay other proceedings. The occasion for the stay advocated will only arise if the option is to be exercised by each dependant as an individual, which is just what counsel does not subscribe to. Counsel was unable to cite any authority for his construction because, as he said, the available reports did not cover the point. Nor did the learned state attorney, though with right on his side, refer the court to any decided case for his view in support of the ruling of the magistrate.

Act 174 appears to have been modelled after the English Workmen’s Compensation Act, 1952 (15 and 16 Geo. 5, c. 84). In respect of the point in issue section 29 of the English Act is in substance in pari materia with section 24 of Act 174. The English Act provides by section 29 (1):

“29. (1) Where the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under the Act or take proceedings independently of this Act; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid.”

By section 48 (3) any reference to a workman who has been injured shall, where the workman is dead, include a reference to his legal representative or to his dependants, or other person to whom or for whose benefit compensation is payable. By section 29 (2) of the English Act, which is identical to section 24 (5) of Act 174, provision is made giving power to the court to assess compensation under the Act if a claimant would have been entitled under it, even though the workman’s action in negligence against the employer is dismissed. It may be noted that in substance the English section 29 (1) gave the workman a choice between two remedies either by action independently of the statute or by proceeding under the statute. The latter half of the same subsection provides for a bar to the other alternative remedy after the option is “exercised. What then was expressed in section 29 (1) of the English Act is, in my opinion, in substance what Act 174 enacts in section 24 (1), (2) and (3).

Decisions on the English Act have settled the point that the following words of section 29 (1): “shall not be liable ... both independently of and also under this Act ...” have effect when the same workman or dependant takes two proceedings and it does not bar two separate individual dependants of a deceased workman, when one proceeds against the employer in negligence and the other under the Act.

In Kinneil Cannel and Coking Coal Co., Ltd. v. Sneddon [1931] A.C. 575, H.L., Lord Warrington of Clyffe had this to say on the rights on dependents, when submissions similar to those now advanced before me were made at p. 587:

“The rights of the several dependants are not identical, and it seems to me quite impossible to hold that the independent action of one should deprive the others of the benefit of an option, conferred upon them by the Act, which option they have effectually exercised.”

Again at pp. 588-589 of their lordships’ judgement, Lord Thankerton repelled the same contention as offered here as follows:

“The appellant maintains that, whether the workman is alive or dead, there is only one option provided for by the section, and that the employer’s whole liability must be either under the Act alone, or entirely independently of the Act. In other words, when the workman is dead, the option is that of a class, and the definite exercise of that option by one or more members of the class exhausts the right of choice of the class and of all those who compose the class. It is not really material to this question that in the present case the stepson has obtained the whole of the lump sum compensation, though it may illustrate a possible hardship. But a consequence of the construction maintained by the appellant would be, for instance, that one member of the class, who has no right of action independently of the Act, can deprive the remaining members of the class of their independent rights of action, however well justified and valuable those rights may be.... I am therefore of opinion that each person, who is entitled to compensation under the Act on the death of the workman and who has a right of action independently of the Act, has an individual option under s. 29, sub-s. 1.”

The Kinneil case (supra) was a case where the widow on behalf of herself and children had exercised her option and brought an action in negligence against the employers of her deceased husband. While her action was pending, the stepson of the deceased husband who, by the law of Scotland, had no right to a common law action as a dependant, brought proceedings for compensation under the English Workmen’s Compensation Act, 1925 (15 and 16 Geo. 5, c. 84). The employers unsuccessfully moved a stay of the compensation proceedings until the decision of the widow’s action. The assessed compensation which the employers paid into court was £600, of which £300 was a lump sum, and the balance was the children’s allowances. The stepson obtained the whole of the lump sum of £300, being the maximum limit of compensation under that Act. At the trial of the widow’s action the employers sought a ruling on a point of law that having paid into court the maximum compensation payable under the Act and not being liable to proceedings independently of the said Act the widow’s action was barred. The objection was repelled, and on appeal to the House of Lords their lordships affirmed the ruling, stating that the proceedings by the stepson could not defeat nor stay the action of the widow.

The Kinneil case (supra) was followed in Taylor v. Arrol (Sir William) and Co., Ltd. [1937] 1 All E.R. 658. Following the accidental death of a workman, proceedings for compensation under the Workmen’s Compensation Act were brought by the infant dependants through their next of friend, an uncle. The dependant widow was not a party to those proceedings and she refused to join in them, and proposed to take proceedings in another court to recover damages. The proceedings for compensation were thereupon adjourned without any award having been made. Shortly afterwards the solicitors who represented the infant dependants in the compensation proceedings, commenced an action in the High Court on behalf of the widow claiming damages for herself (but not for any other dependants) under the Fatal Accidents Act, 1846 (9 and 10 Vict., c. 93), and the defendants contended that in the circumstances her action was not maintainable. Upon argument on this preliminary point of law it was held by Singleton J. that neither in law or in fact had the widow exercised her election under section 29 of the Act; that the plaintiff was entitled to bring the action although she was not in a position to bring it for the benefit of the infant dependants; and that if the plaintiff succeeded in recovering damages in her action, that would not deprive the infant dependants of compensation.

The foregoing authorities show that the option conferred on the dependants are separate and individual rights and they are not conferred upon them as an individual class. Section 24 (2) and (3) in my opinion, therefore, is intended to relate to cases in which two proceedings are taken by the same person. Accordingly, the subsections in my opinion do not deprive the second claimant of her right to damages at common law just because the first claimant, for herself and on behalf of her infant child, has secured compensation in proceedings under the Act to which the second claimant was not a party.

Does that mean that an employer can in some circumstances be liable to pay in two independent proceedings? The answer in my opinion is yes. It is borne out by the two cases cited above. The situation of what may loosely be termed “double payment” by the employer was engendered by the words in section 29 (1) of the English Act that state: “but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act ...” It has been held under that subsection that those words do not mean that the employer cannot in any circumstances be under a liability to pay as the result of two independent proceedings, and that those words are intended to relate to cases in which two proceedings are taken by the same person and they do not deprive a dependant of her right to damages because another dependent has secured compensation in proceedings to which she was not a party and in which she has not acquiesced. (See the Kinneil case, supra.)

The application of that statement of the law was strikingly illustrated by the case of Avery v. London and North Eastern Ry. Co. [1938] 2 All E.R. 592, H.L., the headnote of which states:

“Several workmen were fatally injured in a collision due to the negligence of a fellow-servant. The widow in each case brought proceedings against the employers under the Employers’ Liability Act, 1880, and the children proceeded under the Workmen’s Compensation Act, 1925:- Held:

(i) the widow in each case was entitled to recover the whole amount of damages which she proved herself to have sustained within the terms of the Act of 1880.

(ii) the children in each case were also entitled to recover compensation without limitation within the maximum prescribed by the Act of 1925.”

The case is significant in that it reversed the Court of Appeal’s decision on two holdings and restored the decision of the County Court. The headnote to the Court of Appeal decision [1937] 2 All E.R. 777 stated inter alia at pp. 777-778:

“Held:

(i) the widow in each case could recover only her proportionate share of the whole amount recoverable under the 1880 Act, irrespective of whether the children did or did not take their share.

(ii) the children in each case could recover only their proportionate share of the whole amount recoverable under the 1925 Act, irrespective of whether the widow did or did not take her share.

(iii) he widow in each case, by electing to proceed under the Employers’ Liability Act, 1880, had not precluded the children from proceeding under the Workmen’s Compensation Act, 125.”

Under Act, 174, I think section 24 (2) and (3) provides for what the English Act provides in section 29 (1) prohibiting the same person from claiming twice against the employer. If my view is right then the learned magistrate was wrong in giving to the first claimant and the infant their proportionate share of the whole amount assessed under the Act.

At p. 596 of the Avery case (supra), Lord Atkin stated the position as follows:

“The claiming dependants [under the Act] must be named. The judge is given notice that there are or may be other dependants [these having been cited as respondents]. It seems to me very clear, however, that, if the dependants named as respondents continue at the hearing to neglect or refuse to join in the application, the judge’s duty is to ignore them, and to distribute amongst those who do make the application the lump sum compensation available in accordance with the provisions of the Act. I can see no reason at all for thinking that the judge should in any way take into account the claims of persons who neglect or refuse to apply for compensation.”

The second claimant has exercised her option under section 24(1) not to apply for compensation under the Act. The amount of N¢1,071 if it represented the lump sum compensation ought in my opinion to be distributed only to the first claimant and her infant daughter without taking account of the second claimant. The magistrate therefore erred in apportioning the sum of N¢300.00 to Afua Daa the second claimant.

In the Avery case at p. 597, Lord Atkin suggested a way out of the administrative difficulty in cases where failure to recover in an action independently of the Act will lead to an award under the Workmen’s Compensation Act, 1925, that is, in the present case under section 24(5). He thought in that case it may be proper for the judge in the compensation proceedings to withhold the final apportionment of the lump sum until the proceedings have ended. This is the result of the magistrate’s order that the apportionment made should be retained in court pending the outcome of the negligence action.

With the unavoidable delay with which cases are tried in our courts, the common law action may well take three years to conclude. The first claimant with her infant daughter, might well have elected to proceed under the Act, by reason of its being expeditious and to avoid the very delay now forced on her. No doubt she requires the money for the maintenance of herself and her infant daughter now. In my opinion postponing the award, to solve the administrative difficulty raised, is impracticable in the present case as it may work hardship.

In the result I shall set aside the apportionment of the trial court and the order of the trial magistrate that the payment of the compensation abide the outcome of the common lawsuit. Instead, I direct the court below to apportion the whole of the lump sum paid as compensation to the first claimant and her infant daughter and further direct the court below to order payment thereof regardless of the institution by the second claimant of her action in negligence or of its outcome. Save as directed, the appeal is dismissed, with costs of N¢35.00 against the applicant, i.e. the appellant.

SGD

MENSAH-BOISON J

JUSTICE OF THE HIGH COURT

COUNSEL

T.A. TOTOE FOR THE APPELLANT;

C.S.K. AGBANU STATE ATTORNEY FOR THE RESPONDENT.