IN THE HIGH COURT OF JUSTICE TRINIDAD AND TOBAGO. WC 45 of Seeram Roopnarine 1½ Mile Mark, Penal Rock Road #8 Rampersad Drive, Penal.

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1 IN THE HIGH COURT OF JUSTICE OF TRINIDAD AND TOBAGO WC 45 of 2010 Seeram Roopnarine 1½ Mile Mark, Penal Rock Road #8 Rampersad Drive, Penal And Raffic Mohammed & Kassie Roopnarine *********************** REASONS Before Master Patricia Sobion Awai Appearances: For the Applicant Mr. Ronald Singh For the Respondents:- Mr. Ravi Bunsee for the 1 st Respondent Mr. Gerard Raphael for the 2 nd Respondent

2 Background 1. The Applicant, Seeram Roopnarine was injured while working on July 5, He was in the course of putting up a wall profile on the first floor of a house under construction. The profile gave way and he fell off a ladder to ground floor injuring back, neck and ankle. This accident occurred within the first hours of the Applicant's first day on the job. 2. Raffic Mohammed and Kassie Roopnarine, the First and Second Respondents respectively, were both given notice of the accident and claims for compensation under the Workmen's Compensation Act Chap. 88:05 were made against them. 3. The pleadings consisted of the following documents: i. The Application filed on Feb 24, 2010; ii. The Reply of the second respondent (to the applicant) dated April 17, 2012; iii. The Reply of first respondent filed on October 8, 2012; and iv. The Reply by the second respondent to the reply of the first respondent filed on November 7, The witnesses each filed witness statements and were presented for cross-examination. Issues 5. The issues that arose from the pleadings were as follows: i. Who employed the Applicant? Page 2 of 16

3 ii. What quantum of compensation was due to the Applicant for the injuries sustained. 6. The first issue was principally a question of fact and the position of each party in the pleadings was distinct. The Applicant's position was that he was employed by the First Respondent who was a sub-contractor of the Second Respondent. Both of those propositions were denied by the First Respondent who claimed that the Applicant was employed by the Second Respondent. The Second Respondent claimed that the Applicant was employed by the First Respondent and that the First Respondent was in turn employed as a builder by Roonie Dean and James Dean, the owners of the property under construction. 7. As to the second issue, the parties agreed that they would attempt to settle the quantum of compensation, if any, after a decision on liability was made by the Commissioner for Workmen's Compensation. 8. A third issue concerning whether the claim was statutebarred arose as a preliminary submission but this was deferred pending the hearing of the substantive matter as it necessitated the calling of evidence. 9. The two issues for the Commissioner to determine then were (1) Who employed the Applicant? (2) Was the claim made to his employer within time in accordance with Section 11 of the Workmen's Compensation Act? Page 3 of 16

4 Who employed the Applicant Applicant's evidence 10. In his witness statement filed on December 19, 2012, the Applicant stated that he was a carpenter and was employed by Raffic Mohammed, the First Respondent. On July 5, 2007, he reported for duty at the home of Raffic Mohammed and they walked over to the jobsite which was located a short distance away. On arrival he was given instructions by Raffic Mohammed to start putting down the profile, which he described as a vertical piece of wood used to run the line for the laying of blocks. He had begun doing so when he fell off a ladder and sustained injuries. 11. When cross-examined by attorney-at-law for the First Respondent, the Applicant said he knew Raffic Mohammed because they had been co-workers at one time. He did not know Kassie Roopnarine, the Second Respondent. He said that about two weeks before the accident, Raffic Mohammed told him about the job stating that he Raffic was the foreman and Kassie Roopnarine was the contractor. The Applicant was quite emphatic in his denial that he was employed by Kassie Roopnarine and his assertion that Raffic Mohammed had employed him. He said "I am telling you Raffic is the man employ me because I never known or see (Kassie Roopnarine) before." 12. When cross-examined by attorney-at-law for the Second Respondent, the Applicant insisted that Raffic Mohammed was the person responsible for paying him because the arrangement to work was made with him. He said "I Page 4 of 16

5 discussed the wages with (Raffic Mohammed) who employ me so automatically he is the man responsible for paying me." 13. In relation to the letter dated December 10, 2009 written by the Applicant's attorney-at-law to Kassie Roopnarine in which it was stated that the Applicant's instructions were that he was employed by Kassie Roopnarine, the Applicant said that was an error because he never gave instructions that Kassie Roopnarine had employed him. First Respondent's evidence 14. The evidence on behalf of the First Respondent Raffic Mohammed consisted of his own evidence and that of Raffeez Ramjohn, a labourer. 15. In his witness statement, Raffic Mohammed said he was a mason by profession. In June 2007, being unemployed, he noticed a house under construction and he found out that Kassie Roopnarine was the contractor building the house. He found out from Kassie that the house belonged to his (Raffic Mohammed's) cousin James Dean, who was married to Kassie's sister. Kassie first hired him to tie some steel which he completed in one week. Noticing that the house was incomplete, he asked Kassie if he needed a mason. Kassie in turn asked him if he knew anyone else who would be available to work. Seeram expressed an interest when Raffic told him about the house under construction. 16. On July 4, 2007, Raffic Mohammed was employed by Kassie Roopnarine to put up blocks or build the walls of the Page 5 of 16

6 upstairs portion of the house under construction. Raffic told him about Seeram and two other men and he was instructed by Kassie "to tell them to come down to the jobsite the next day and he would speak to them." 17. The four men arrived at the jobsite by 7.30 am and at 8.00 am, Kassie phoned to say that he would come to the jobsite later and that the men should start working. Raffic was instructed to start putting up blocks on the upper decking, Seeram was to start putting up profiles and the other two labourers were to assist in those tasks. 18. Raffic Mohammed claimed that subsequent to that day, he was not involved in any work at that jobsite. 19. In cross-examination by Mr. Singh for the Applicant, Raffic Mohammed said the only instruction he received from Kassie that morning was "to put up the profile". After receiving that instruction he told the others and Seeram and Rafeez started putting up the profile. Raffic remained on the decking giving them instructions on what to do. The other labourer Shastri was not doing anything. He explained that no blocks could be put up until the profile was done. When pressed as to his role on the jobsite, he said "Well okay yeah you could say that I was ah foreman then. Leh we say I was ah foreman then." He also said that the work of the foreman was to relay messages from the boss to the workmen. 20. In his evidence, Raffeez Ramjohn explained how he came to be employed at the same jobsite with the Applicant on the day in question. Having found out from a relative that jobs were available, he spoke to Raffic Mohammed who told him he had already spoken to Kassie Roopnarine and was Page 6 of 16

7 awaiting a call to confirm whether he and others would be hired. Raffic did not know what salary Kassie would pay. A few days later Raffic indicated that he was hired to put up blocks at the premises and interested persons including Shastri Dookie and Rafeez Ramjohn should go to the jobsite to speak with Kassie the next day. 21. Raffeez arrived before 7.30 am and at about 8.00 am was told by Raffic that Kassie wanted them to start work, which he did, pairing with Seeram to start putting up the profiles. 22. When cross-examined he said he did not know who hired him because he did not get paid. He said he could have been paid either by Raffic Mohammed or Kassie Roopnarine. 23. He admitted that Raffic was related to him. He did not know whether Raffic went back to work at the jobsite after the accident. He, Raffeez, went back to work at Jokhan. Second Respondent's Evidence 24. Two witnesses were called for the Second Respondent: the Second Respondent himself and James Dean. 25. Kassie Roopnarine described himself as a welder, contractor and carpenter. He said his sister Roonie Dean and her husband James Dean were both owners of the building under construction. In his witness statement he said that in his presence, James Dean retained the services of Raffic Mohammed to erect the blocks and ring beam around the building for the sum of $14, At the request of James Dean that sum was paid to Raffic Mohammed. Page 7 of 16

8 26. In cross-examination Kassie Roopnarine claimed to have made a mistake when he said that Raffic Mohammed was retained by James Dean in his presence. He said that James Dean was in fact out of the country at the time. Kassie Roopnarine now maintained that he, Kassie, had retained the services of Raffic Mohammed with the consent of James Dean. 27. Kassie Roopnarine denied that he was the contractor or in any way involved with the work except to make payments on behalf of Roonie and James Dean to Raffic Mohammed as the work progressed. 28. However during cross-examination, he admitted to also sourcing material and finding people to do the work and getting money from James' brother to pay people. He was basically managing the project and he described himself as James' agent. He was not paid for his work on the project. 29. Kassie Roopnarine said Raffic Mohammed worked on the jobsite until the blocks and ring beam were completed. However he did not produce any documents to show the payments totaling $14, that he allegedly made to Raffic Mohammed though he said he had made entries to that effect in his diary. 30. James Dean said that in 2006 he and his wife began constructing a dwelling house. He described Kassie Roopnarine as his agent on the project. In that capacity, Kassie Roopnarine retained the services of Raffic Mohammed to erect the blocks and ring beam around the building at a cost of $14, James Dean said he made arrangements to have the money sent to Kassie Roopnarine to pay Raffic Mohammed for his work. He did not pay Kassie Roopnarine. Page 8 of 16

9 31. Under cross-examination James Dean explained that Kassie Roopnarine had authorisation to hire and fire persons in relation to the project. He said he was aware that Raffic Mohammed had been sub- contracted to do the ring beam. Analysis 32. It is a question of fact in any given case whether one person was employed by another. Halsbury s Laws of England Vol XX 1911ed. At paragraph 131 reads as follows: 131. Whether or not, in any given case, the relation of master and servant exists is a question of fact; but in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done. 33. Generally, in assessing the evidence of these witnesses I bore in mind that Raffic Mohammed could not read or write and in the case of all witnesses with the exception of James Dean, the fluency of their witness statements was a stark contrast to their unease and discomfort while giving oral testimony. It was at times difficult to make sense of their responses. 34. In terms of credibility I was most impressed by the Applicant Seeram Roopnarine and James Dean, the owner of the property under construction. There were some discrepancies in the Applicant's evidence but they might have been the result of his unease in the courtroom not from any deliberate attempt to deceive the Court. Page 9 of 16

10 35. On the other hand, the First and Second Respondents evidence appeared in some respects to be contrived, designed to avoid liability and to blame each other. 36. The Second Respondent's credibility was seriously harmed when he was contradicted by his own witness James Dean in several material issues including the retention of Raffic Mohammed and his (Kassie Roopnarine's) own role in the project. I drew adverse inferences from his attempt to change the evidence given in his witness statement that he was present when James Dean hired Raffic Mohammed as this was hardly a matter upon which one could be genuinely mistaken. It was an attempt to deceive the Court. 37. The First Respondent s evidence was contradictory as to the extent of instructions he received from the Second Respondent at the jobsite on the morning of the accident. Another discrepancy related to his continued involvement with work on the jobsite after the accident. At paragraphs 19 and 20 of his witness statement, Raffic Mohammed said he never received any money from Kassie for the job and that he was not involved in any work concerning the house since then. However when cross examined, he said he worked for three days one week after the accident for which he earned $ Additionally, he said he went back to work for Jokhan but the evidence of his own witness Rafeez Ramjohn who testified that he went back to work for Jokhan was that he did not know whether Raffic completed the job. Surely he would have remembered if Raffick went back to work with Jokhan, in which case he could not have completed the job. Page 10 of 16

11 38. Based on the evidence before me, I found that the Applicant was employed by the First Respondent. Raffic Mohammed met with Seeram beforehand and agreed terms and start date. Seeram never in fact even met Kassie Roopnarine before he commenced work at the jobsite. Further I do not accept that Raffic Mohammed was a mere conduit relaying instructions from Kassie Roopnarine to the workers. Raffic Mohammed had full control over the manner in which the work was to be done on the morning of the accident. He employed the men to do a job which he was given by Kassie Roopnarine. 39. This finding was consistent with the evidence of James Dean who said that Kassie Roopnarine was his agent authorized to manage the building project. He confirmed that Kassie had hired Raffic Mohammed as a sub-contractor to do a particular job i.e. installing the walls and the ring beam at a cost of $14, which as far as he was aware had been paid. 40. Insofar as I accepted this evidence, it followed that for the purposes of the Workmen s Compensation Act, Kassie Roopnarine was agent for the owner and therefore was in the position of a contractor or principal in relation to Raffic Mohamed, his sub-contractor, who in turn had employed the applicant Seeram Roopnarine. 41. Under section 14 of the Workmen s Compensation Act, a principal is liable to pay a workman compensation under the Act which he would have been liable to pay if that workman had been immediately employed by him. Section 14 reads as follows: Page 11 of 16

12 14. (1) Where any person (in this section referred to as the principal ) in the course of or for the purposes of his trade or business contracts with any other person (in this section referred to as the contractor ) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this Act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of this Act references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed. (2) Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by any person who would have been liable to pay compensation to the workman independently of this section, and all questions as to the right to and the amount of any such indemnity shall, in default of agreement, be settled by a Commissioner. (3) Where a claim for compensation is made under this section against a principal, the principal shall give notice of the claim to the contractor who Page 12 of 16

13 shall thereupon be entitled to intervene in any application made against the principal. (4) Nothing in this section shall be construed as preventing a workman recovering compensation under this Act from the contractor instead of the principal. (5) This section shall not apply in any case where the accident occurred elsewhere than on, or in, or about premises on which the principal has undertaken to execute the work or which are otherwise under his control or management. 42. For the purposes of Section 14, Kassie Roopnarine was the principal as he was the person who contracted with the First Respondent for putting up blocks and ring beam. He was therefore liable to pay the Applicant compensation under the Act. However he might be entitled to be indemnified by the sub-contractor who is Raffic Mohammed which would have to be determined by the Commissioner if necessary. Limitation Issue 43. The First Respondent filed a Notice on October 8, 2012 to strike out the claim pursuant to Section 11 of the Workmen s Compensation Act for failure to make a claim within one year and failure to set out grounds for not complying in his application. The grounds are mistake, absence from Trinidad and Tobago or reasonable cause. The Page 13 of 16

14 application was deferred until the hearing of the substantive issue. 44. The relevant law is set out below. Section 11 of the Workmen s Compensation Act: 11(1) Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless... and unless the claim for compensation with respect to such accident has been made within one year from the occurrence of the accident causing the injury, or in the case of death, within one year from the time of death: Provided that - (a) (b) the failure to make a claim within the period above specified shall not be a bar to the maintenance of such proceedings if it is found that failure was occasioned by mistake, absence from Trinidad and Tobago or other reasonable cause. 45. It is noted that claims for compensation under the Act need not be in writing. Paragraph 387 of Halsbury s Laws of England Vol XX 1911ed reads as follows: 387. The claim for compensation need not be in writing nor need it be the commencement of proceedings to recover compensation. A mere demand of compensation from the employer by or on behalf of the workman, is a claim for compensation within Page 14 of 16

15 the meaning of the Act. The Evidence re Limitation 46. In evidence given before the Registrar on March 18, 2011, the Applicant stated that the Second Respondent came to visit him at home twice after he came out of the hospital. He asked the Second Respondent for compensation for his injuries on two occasions; the first time he asked was within one week after the accident and the second time, within three weeks after the accident. 47. Based on this evidence, which was subsequently disclosed to the other parties, the Commissioner found that the application could proceed and the Respondents were served with the application. 48. At the hearing before the Commissioner, the Applicant was cross-examined briefly by attorney for the First Respondent on the issue of whether there were reasonable grounds for not bringing the claim on time. The Applicant stated that he did not bring his claim for compensation within one year of the accident because of the effects of the accident whereby he could not move around for a considerable period of time and he did not have the financial wherewithal because he was unable to work. 49. There was no cross-examination of the Applicant by attorney for the Second Respondent on his evidence that the claim for compensation was made to the Second Respondent orally on two occasions within three weeks of the accident. Page 15 of 16

16 Analysis 50. I was satisfied that the claim was not made to the First Respondent until January 15, 2010 when his lawyer wrote to the First Respondent seeking compensation. There was no good reason given for such a long delay in making a claim and therefore I found that the claim was barred as against the First Respondent. 51. With respect to the Second Respondent, I was satisfied on the evidence that the claim was made within the time limited by the Workmen s Compensation Act. As against this Respondent, the limitation point therefore failed. The Findings 52. On the issue of liability, I found that the Second Respondent was liable to pay Workmen s Compensation to the Applicant. 53. The issue of quantum of such compensation remained to be determined by the Commissioner in default of agreement. 54. The issue of indemnity would also need to be addressed as between the Respondents. Dated this 25 th day of March, P. Sobion Awai Master of the High Court and Commissioner for Workmen s Compensation Page 16 of 16