IN THE MATTER OF THE WORKMEN S COMPENSATION ACT. BETWEEN CARRI ANNE JOSEPH residing at No 750 Cone Shell Drive, Bon Aire West, Arouca AND

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1 REPUBLIC OF TRINIDAD AND TOBAGO IN THE MATTER OF THE WORKMEN S COMPENSATION ACT WC 5 of 2009 BETWEEN CARRI ANNE JOSEPH residing at No 750 Cone Shell Drive, Bon Aire West, Arouca AND Applicant LOPARI LANDSCAPING COMPANY LTD of No 51 Salina Street, Lopinot Respondent Coram: Commissioner Master Margaret Y Mohammed Appearances: Mr Stephen Boodram for the Applicant Mr Glenford W George for the Respondent DECISION PRELIMINARY OBJECTION Background 1. The applicant Carri Anne Joseph ( Carri Anne ) sustained personal injuries on December 10, 2004 in a motor vehicle accident while driving the respondent s, Lopari Landscaping Company Limited ( Lopari ) vehicle. By her application filed on April 23, 2009 she alleged that on the aforesaid date of the accident she was employed as a workman with Lopari. Her claim ( the claim ) for workmen s compensation is in the sum of $68, According to the claim the accident arose out of and in the course of Carri Anne s employment with Lopari. At that time her wages were $ per fortnight, notice of Page 1 of 6

2 the accident and notice of the claim for compensation for the injuries she sustained as a workman were given to Lopari on the date of the accident and by a letter dated February 9, 2008 from her agent (a copy of the letter was not attached to the claim). She received compensation from Lopari on March 4, 2005 and March 29, 2005 in the sum of $2, Lopari s response filed on January 21, 2011 contends that Carri Anne s claim for workmen compensation is barred by section 11(1) of the Workmen s Compensation Act Chapter 88:05 ( the Act ) and section 5(1) and (2) of the Limitation of Certain Actions Act Chapter 7:09 ( the Limitation Act ). 4. Apart from the preliminary objection on the limitation point, Lopari has also denied that Carri Anne was acting in the course of her employment at the time of the accident, that notice of the claim for workmen s compensation by Carri Anne was given before August 11, 2010 at 3:30pm and that she failed to give notice of the accident as soon as practicable after it occurred and before she voluntarily left Lopari s employ on December 10, However, Lopari admitted paying Carrie Anne s salary up to December 31, 2004 and an ex gratia payment of $2, to Carri Anne. Lopari has also denied that the said sums paid to paying Carri Anne was workmen s compensation. Issue 5. Before the substantive issue can be examined attorneys for both parties addressed me on the preliminary limitation issue namely whether Carri Anne has complied with the requirements of the Act within the time prescribed in pursuing her claim for workmen s compensation. Submissions 6. Attorney for Carri Anne submitted that the instant application for workmen s compensation was properly filed for the following reasons: (a) There is a distinction between making a claim for compensation and the filing of an action for compensation. (b) A claim for compensation pursuant to section 11(1) of the Act requires that notice of the accident be given as soon as possible and that a claim for compensation be made within 1 year of the accident. Page 2 of 6

3 (c) A claim for compensation as defined in Powell v the Main Colliery Co Ltd 1 is a notice of claim for compensation sent to the workman s employer by the workman or his agent rather than the initiation of the proceedings before the tribunal responsible for assessing compensation. (d) Notice of the accident was given to Lopari since one of its directors was a passenger in the vehicle at the time of the accident. (e) A claim for compensation was not made within the requisite 1 year since Carri Anne was undergoing medical treatment and this constituted reasonable cause within section 11(1) of the Act. In support he relied on the authority of Baldeo Singh v Jack Ramoutarsingh 2. (f) The Act does not specify a limitation period for the initiation of proceedings. In support he relied on Terry Hollis Joseph v H & A Hardware and Supplies Ltd 3 (g) Lopari s payment of the $2, to Carri Anne is a part payment of the workmen s compensation and Lopari cannot now be permitted to adopt a different position. 7. On the other hand Lopari s attorney has contended that: (a) It had notice of the accident. (b) It was not given notice of a claim for compensation before service of the instant application on August 11, (c) As such the instant application was filed out of time since notice of a claim for workmen s compensation was not given within the 1 year period as set out in section 11 of the Act. (d) The letter dated February 9, 2008 which Carri Anne purports gave notice of the claim for workmen s compensation has not been produced to the court. (e) Carri Anne s submission that she failed to give notice of her claim for workmen s compensation within the 1 year time limit since she was undergoing medical treatment was not pleaded in the instant application and therefore cannot now be relied on by Carri Anne. (f) There is no information in the instant application to satisfy the exception for failure to meet the 1 year limit of mistake, absence from Trinidad and Tobago or other reasonable cause AC WC 388 of 1976 decision of Bernard CJ 3 WC 1 of 2005 decision of Master Doyle Page 3 of 6

4 (g) The cases referred to by Carri Anne s attorney recognize that the test in Powell must be satisfied before initiating proceedings, one of the conditions being notice of a claim for compensation must be made within 1 year from the date of the accident. (h) In Ashram Neeranjan v Caribbean Ispat and Phillip Hazel v Reed Monza Trinidad Limited 4 the Judicial Committee of the Privy Council was of the view that there is a time limit for bringing an action under the Act unless the proviso under 11(1) (b) of the Act is satisfied. Law and Analysis 8. Section 11 of the Act sets out the procedure and the conditions to be satisfied for an aggrieved workman to follow in order to pursue his employer for compensation for injuries sustained during the course of his employment. The workman is obligated to give his employer notice of the accident as soon as practicable after it has happened and before he has voluntarily left the employment in which he was injured. In the instant application this is not in issue since Lopari has conceded that it was notified of the accident on the same day of the accident. 9. The other condition is the injured workman must make his claim for compensation under the Act within 1 year from the accident. The workman is allowed to make the claim outside of the 1 year period only if it is due to his mistake, absence from Trinidad and Tobago or other reasonable cause. 10. It is common ground that the leading authority on what constitutes a claim for compensation under the Act was settled by the House of Lords in Powell which was referred to by both parties in their submissions. In that case the court defined the claim for compensation to mean notice of a claim for compensation sent to the workman s employer and not the initiation of proceedings before the court assigned to assess compensation. The purpose of this rather liberal interpretation was explained by Lord Sterndale MR in Craig v Crypte Electrical Co Ltd 5 when he said A claim is not necessarily the beginning of proceedings; it need not be in writing, and need not be for any specific sum; but, although these considerations are not essential, it must be made clear to the employer s mind that a claim is being made. This approach in workmen compensation applications has been adopted in this jurisdiction in the cases of Rupert Edwards v 4 Privy Council Appeals No 4 & 64 of (1922) 15 BWCC at 71 Page 4 of 6

5 Dipcon Engineering Services 6 and Terry Hollis Joseph v H & A Hardware and Supplies Ltd It appears to me that while the manner in which a claim for compensation is not as strict as in the pursuit of a common law remedy, a workman is obliged to take the steps set out in section 11 (1) of the Act within 1 year from the accident unless he satisfies the exceptions. It is clear to me that there is a distinction between the making of the claim for compensation and the initiation of the proceedings. While I agree with attorney for Carri Anne that there is no limitation period for the initiation of proceedings, I am of the view that there is a limitation for making the claim for compensation which is 1 year from the accident unless the workman can satisfy one of the exceptions to go outside of the 1 year limit. In my view a workman can initiate its proceedings to pursue a claim for workmen s compensation anytime but this is subject to the proviso that he has made his employer aware within 1 year from the accident of a claim for compensation. 12. Carri Anne has pleaded that she made her claim for compensation on the date of the accident. This allegation has been denied by Lopari in its response and instead contends that it first became aware of a claim for compensation in August 2010 which is beyond the 1 year limitation period. Carri Anne has also pleaded that she received workmen s compensation in March 2005 which Lopari has denied but has pleaded that the sums paid were an ex gratia payment. In the absence of any evidence before me I am unable at this juncture to make a determination on the veracity of each party s position on these allegations. 13. At paragraph 6 of the instant application Carri Anne has stated that her claim for compensation was given on the same day of the accident and by a letter dated February 9, She has not set out in her application that she was absent from Trinidad and Tobago, she had mistaken or she had reasonable cause for failing to make the claim for compensation before December 10, She therefore cannot now make such submissions of relying on the exception of reasonable cause which her attorney attempted to do in his submissions. Therefore, in the absence of her relying on the exceptions I am of the opinion that the February 9, 2008 letter does not satisfy the condition of making a claim for compensation from Lopari within 1 year from the date of the accident. 6 WC 157 of WC 1 of 2005 Page 5 of 6

6 14. It is Lopari s contention that it has not made any payments to Carri Anne as workmen s compensation. In this regard I am of the view that the Privy Council decisions in Ashram Neeranjan and Phillip Hazel referred to me by the attorney for Lopari are irrelevant to the instant application since they deal with the time period for an applicant bringing a common law action where compensation has been paid. In my view the nature of the payment of the $2, made by Lopari to Carri Anne in 2005 on the face of the pleadings remains a live issue. 15. In the circumstances, I make the following findings on the preliminary limitation point raised by the respondent: (a) At this stage of the proceedings I have no evidence before me to support Carri Anne s pleading that the claim for compensation was made on the day of the accident December 10, (b) If Carri Anne s only claim for compensation was made by the letter dated February 9, 2008 it was made out of time and long after the 1 year time limit as prescribed by section 11 of the Act. (c) Carri Anne did not set out in her application the reasons for her making claim in the letter dated February 9, 2008 and therefore now cannot rely on the exceptions as set out in section 11 of the Act. (d) If Carri Anne still wishes to pursue the instant application she must first satisfy the Commissioner that she made her claim for compensation within 1 year from the date of the accident. In this regard, I will entertain evidence on this narrow issue in order to make a determination before the substantive application can be dealt with. (e) Based on the pleadings the nature of the payment of $2, made on March 4, 2005 and March 29, 2005 to Carri Anne by Lopari is in dispute. In the absence of any evidence I am unable to make a determination on this issue. ORDER 16. The preliminary objection is dismissed. The substantive matter cannot proceed unless the court determines the issue of when did Carri Anne make the claim for workmen s compensation from Lopari. The parties are to lead evidence on this issue for the court s determination. Dated the 15 November 2011 Master Margaret Y Mohammed Commissioner Page 6 of 6