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 Glasgow- Caldiera 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 and/or Parties Interested in the vessel "Tradewind Sunrise" ("the Defendants in the admiralty 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 were awarded to the Plaintiffs in the admiralty action. 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 agreement was entered into between the Defendants in the admiralty action and the Third 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. Instead the Commissioner, at the request of the parties, 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 a Court (substitute 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. 10. An agreed bundle of documents was filed on April 2, 2014 including the amended writ and the statement of claim in admiralty matter, the two settlement agreements and the 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 shall, where the workman is dead, include a reference to his legal 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 in accordance with the following provisions:... (2)... 4
(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 upon or, in default of agreement, may be determined by the Commissioner, to be reasonable and proportionate to the injury to the said dependants; 5
(iii) if the workman leaves no dependants, the lump sum shall be the aggregate of reasonable expenses of the burial of 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 any person liable to pay compensation under this Act for 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 under section 14 shall be entitled to be indemnified by the 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 consent of the parties, by a Commissioner. ANALYSIS Whether the Act prohibits dual claims 6
12. Section 4(1) of the Workmen s Compensation Act Chap. 88:05 provides that a workman who sustains injury shall 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 damages in full and final settlement of the claims without prejudice of the right of the Defendants to proceed with their claims against the Third Party/First Respondent. 20. The first point to note is the parties in the admiralty action, with the exception of the Third Party/First Respondent, are different from the parties in the workmen's compensation applications before me. 21. The Plaintiffs in the admiralty action were administratrix ad litem, that is to say, persons appointed by the court to represent the estate of the deceased workmen. 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. Nonetheless in the event that the Applicants agreed to be 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 any statutory amendment or replacement thereto. In no event shall a claim for workmen 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. Clause 6(v) deals with maintaining a claim for workmen's compensation, not with disallowing deductions. 9
28. Clause 6(v) also provided that no workmen's compensation claim is maintainable against the Defendants. The Defendants in the admiralty action were the owners of the vessel "Tradewind Sunrise". This is a non-issue since the Defendants were not employers of the deceased workmen and as such no 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. This agreement provided that each party discharges the 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 workmen's compensation claim having regard to this agreement. 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. It seems to me therefore that the parties are entitled to discharge each other from liability to indemnify without offending the Act. 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 he has lost, i.e. the double recovery rule. 11
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 loss and expense that the court must measure. Receipts to which an injured person would not otherwise be entitled, have, prima facie, to be deducted from an award. In determining whether a deduction should be made one had to 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 one hand of the injured plaintiff s consequential loss of earnings, profits 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 basic rule is that it is the net consequential loss and expense which the court must measure. 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 difficulty, which has been widely recognised, is to articulate a single precise jurisprudential principle by which to distinguish the deductible from the non-deductible receipt. As Lord Reid 12
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. Support for this approach is found in 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 general damages for pain and suffering since such damages did not compensate the workman for future loss of earnings. 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 therefore demonstrate that as a fundamental rule (questions of exemplary and 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 to a workman's loss. Under the Workmen's Compensation Act, an injured workman is 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 partial dependants, provides that the sum to be awarded as compensation to such a dependant is what is "reasonable and proportionate to the injury to 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 the quantum of workmen's compensation. 14
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 account damages received by the Applicants in HCA No. A 5 of 2005. Dated this 26 th day of September, 2014. P. Sobion Awai Master of the High Court 15