HIGH COURT, CAPE COAST
DATE: 21 DECEMBER 1967
BEFORE: ARCHER J.
CASES REFERRED TO
(1) Akufo v. Issaka, High Court, Kumasi, 24 May 1962, unreported.
(2) Akufo v. Issaka [1962] 2 G.L.R. 88.
(3) Kinneil Cannel & Coking Coal Co., Ltd. v. Sneddon (or Waddell) [1931] A.C. 575; 100 L.J.K.B.113; 145 L.T. 289; 47 T.L.R. 386; 75 S.J. 295, H.L.
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(4) Taylor v. Arrol (Sir William) & Co., Ltd. [1937] 1 All E.R. 658.
NATURE OF PROCEEDINGS
ACTION by the administrator of the estate of a deceased workman for damages as compensation for the dependants and also for the benefit of the estate of the deceased.
COUNSEL
I. K. Abban for the plaintiff.
Dr. T. K. Aboagye for Mr. Totoe for the defendants.
JUDGMENT OF ARCHER J.
The plaintiff, as administrator of the estate of the late Kwame Arhin, claims from the defendants jointly and severally damages as compensation for the benefit of the dependants and also damages for the benefit of the estate of the deceased. The plaintiff’s statement of claim is to the effect that on or about 11 December 1965, on the Bibiani-Jereso motor road, the deceased sustained serious physical injuries as a result of the grossly negligent driving of vehicle No. AT 1803 by the first defendant who at the material time was the servant or employee or both of the second defendant and who was driving the said vehicle in the course of his employment.
The defendants denied any negligence on their part and maintained that as they had paid compensation under the Workmen’s Compensation Act, 1963 (Act 174), the present action was barred. Mr. Totoe, learned counsel for the defendants, referred me to two judgments delivered by Apaloo J., as he then was, at the Kumasi High Court, in support of the defendants’ contention that the plaintiff ‘s present action was not maintainable. I have read the ruling and judgment in Akufo v. Issaka delivered at Kumasi, the first on 24 May 1962, unreported, and the second on 1 October 1962, reported in [1962] 2 G.L.R. 88 very carefully and although I cannot quarrel with their correctness, I am of the view that the facts before Apaloo J. were different. There the workman had been paid compensation without realising that the payment would debar him from claiming damages again under the common law. The workman was advised to refund the award paid under the Workmen’s Compensation Ordinance, Cap. 94 (1951 Rev.), in order to take a fresh action claiming damages for negligence under the common law. There the workman was alive.
But the facts before me are different. Mr. Abban, learned counsel for the plaintiff, has submitted that not all the dependants in the present action were paid under the Workmen’s Compensation Act, 1963, and moreover the action has been taken to recover damages for the benefit of the estate of the deceased. In the present action, the workman is dead and the action is for the benefit of dependants on the one hand and for the benefit of the estate of the deceased
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on the other hand. I have therefore decided to consider first of all whether this action is maintainable. Section 24 (1) and (2) of the Workmen’s Compensation Act, 1963 (Act 174), provide: “(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 preventproceedings 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.”
These two subsections mean that a person who takes proceedings independently of the Workmen’s Compensation Act, 1963 (Act 174), whether he succeeds in that other action or not, cannot institute fresh proceedings under the Workmen’s Compensation Act, 1963 (Act 174). Then section 24 (3) of the same Act also provides:
“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.”
I understand this subsection to mean that a person who takes proceedings under the Workmen’s Compensation Act, whether he succeeds in that action or not, cannot institute fresh proceedings independently of the Workmen’s Compensation Act, 1963. In other words where a person makes a claim to compensation under the Act and he receives payment under an order of court, then the same person cannot institute another action independently of Act 174 to claim further compensation. So also under section 24 (3), where a person’s claim to compensation under Act 174 is rejected by the court, he cannot institute fresh action independently of Act 174. We have also section 24 (4) which as amended by the Workmen’s Compensation (Amendment). Act, 1965 (Act 295), s. 2 provides that: “An agreement come to between the employer and the workman in accordance with the provisions of section 15 shall be a bar to proceedings by the workman in respect of the same injury independently of this Act.” Section 35 (4) throws further light on the definition of workman as follows: “35. (4) Except for the purposes of section 15 any reference to a workman who has been injured shall, unless the context
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otherwise requires, where the workman is dead, include a reference to his legal personal representative, or to his dependants or any of them or the Attorney-General or such other officer as the Minister may appoint to act on behalf of the dependants of the workman.”
It follows therefore that since the word workman has a restricted meaning so far as section 15 is concerned, the legal personal representative or the dependants cannot agree with the employer under section 15 as to the compensation because that privilege can only be enjoyed by a live workman and not by a dead workman through his representatives.a
From the above sections which I have dealt with, it becomes obvious that the dependants of the deceased in this case, who have claimed compensation under Act 174 are debarred from taking further proceedings independently of the Workmen’s Compensation Act, 1963 (Act 174). These dependants come within the definition of the words “any person” in section 24 (3). There is evidence from exhibit 7, tendered by the defendants (the proceedings and the judgment in the District Court, Tarkwa, under the Workmen’s Compensation Act) that Ama Asoh, the widow of the deceased, claimed compensation on behalf of herself and her two children, namely, Akua Apegya and Kwasi Nyarko, and she was paid ¢1,004.67 (old cedis). Kojo Ohiani, the father of the deceased, was also paid ¢288.00 and the mother of the deceased, Adjoa Afedziwaa, was also paid ¢288.00. The total amount paid under Act 174 was therefore ¢1,580.67. As these five persons have a judgment in their favour under the Act, I think section 24 (3) of the same Act debars these five persons from instituting a fresh action under Part III of the Civil Liability Act, 1963 (Act176), claiming damages as dependants in respect of the fatal injuries sustained by the deceased.
I shall now consider the plight of the two nieces and one nephew of the deceased, namely, Efuah Fatima, five years, Abena Katua, seven years, and Kweku Seidu, nine years, who are alleged in the statement of claim to be dependants of the deceased. The plaintiff in his evidence stated that he informed the labour officer who dealt with the papers that these nieces and nephew were also dependants but the labour officer replied that he had no instructions to deal with them as dependants. There is no evidence that the plaintiff as customary successor or administrator made any claim by affidavit on behalf of these infant nieces and nephew. Assuming that they were dependants of the deceased, and I must stress that at this stage I am only assuming, can these three persons claim compensation under part III of the Civil Liability
Act, 1963 (Act 176), as they
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have not received any compensation under the Workmen’s Compensation Act, 1963 (Act 174). In the first place, I wish to observe that their claims, if any, were not brought before the district court and there is no evidence that their claims were rejected by the district court so as to constitute a judgment in proceedings under the Act in favour of the employer. There is therefore no judgment which debars them under section 24 (3) of Act 174 from taking action independently of Act 174. In the second place, assuming that they made no claims when the compensation was being considered by the district court, can they now maintain their present action under the Civil Liability Act, 1963 (Act 176)? The matter is not as simple as I had thought and I have therefore decided to derive some assistance from English decisions because the Ghana Workmen’s Compensation Act, 1963, is based on the pattern of the English Workmen’s Compensation Act, 1925 (15 & 16 Geo. 5, c. 84), in force before 1946. After reading carefully, the provisions of section 24 of the Ghana Act, I have come to the conclusion that section 24 of the Ghana Act gives a claimant an option, that is to say, the claimant is put to his election.
He either sues under the Workmen’s Compensation Act, 1963, and he is thereafter debarred from instituting another action independently of Act 174 or he can sue independently of Act 174 and thereafter he is debarred from suing under Act 174. The words “any person” in section 24 in my view mean the “same person.” They do not mean that another person, who has not sued before, cannot bring an entirely different action claiming compensation. Section 24 of the Ghana Act is modelled on section 29 of the English Workmen’s Compensation Act, 1925. The words used in the English Act are slightly different although their meaning cannot be different from the meaning of section 24 of the Ghana Act. Section 29 (1) of the Workmen’s Compensation Act, 1925 in England, now repealed, reads as follows: “When 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 this 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 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 personal negligence or wilful act as aforesaid.”
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In interpreting this section 29 (1) of the English Act of 1925, the House of Lords, in the case of Kinneil Cannel & Coking Coal Co., Ltd. v. Sneddon (or Waddell) [1931] A.C. 575, held that the option is not possessed by the dependants as a class but is a separate and independent right exercisable by each of them individually and it cannot be defeated by the fact that some other dependant, who has no such option has commenced, or even successfully prosecuted, proceedings for compensation under the Act. In the Kinneilcase (supra), a widow in Scotland brought a common law action for negligence on behalf of herself and children while a stepson of the deceased who had not any right of action, had obtained an award for the maximum lump sum of £300 which the employers had paid into court in his proceedings. It was held by the House of Lords that the widow’s common law action was not defeated or stayed by the payment made to the stepson, even though, as a result of the widow’s action, it might be that the employers would have to pay both damages in the action and compensation under the Act. In the Kinneil case, Lord Thankerton expressed the following view at pp. 588-589: “Where the workman is alive, the present question could not arise, for there can only be one person entitled to, and bound by, the option provided for by s. 29, sub-s. 1; but the difficulty arises where the workman is dead and more than one person is entitled to compensation under the Act, all or some of whom have also an independent right of action…
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 … 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.a
In my opinion such a result would render nugatory the express provision of the section that nothing in the Act ‘shall affect any civil liability of the employer.’ The right of the respondent to sue the present action is a right arising to the respondent herself as an individual and on behalf of her two pupil children, and is not derived from her deceased husband;
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these are three independent rights of action, and I am unable to read the words ‘any civil liability’ otherwise than as referring to such rights separately. 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 also a right of action independently of the Act, has an individual option under s.29, sub-s. 1.”
Lord Buckmaster, Viscount Dunedin, Lord Warrington and Lord Russell of Killowen expressed views similar to those of Lord Thankerton. Another English case which is very relevant in the present section is Taylor v. Sir William Arrol & Co., Ltd. [1937] 1 All E.R. 658 in which Singleton J., as he then was, held that it was open to a widow to bring proceedings under the Fatal Accidents Act, 1846 (9 & 10 Vict., c. 93), and for the children at the same time to proceed under the Workmen’s Compensation Act, 1925. as the widow had not exercised her option to proceed under Workmen’s Compensation Act. Singleton J. followed the House of Lords decision in the Kinneil case (supra).
There is no doubt that these decisions posed difficulties in England and I have observed from the footnote at p. 707, para. 835 of Mayne & McGregor on Damages (12th ed.), that: Prior to 1946, there was no direct insurance effected for individuals by the State [in England]. The Workmen’s Compensation Acts provided a form of State insurance, but no question of deduction arose as the rights under the Fatal Accidents Acts were alternative to those under the Workmen’s Compensation Acts. Anomalous consequences did however arise by reason of the House of Lord’s decision in Kinneil Cannel & Co. v. Waddell [1931] A.C. 575 that on a workman’s death the right to compensation under the Workmen’s Compensation Acts vested in the dependants as individuals so that the option was personal to each dependant. The new legislation of 1946 [the National Insurance Acts, 1946 fortunately removes these difficulties.”I must confess that the difficulties which plagued the English courts before 1946 would seem to be still on the ascendancy in Ghana. Section 24 (3) of Act 174 makes it clear that the bar against further proceedings is against any person by whom or on whose behalf, such proceedings were taken. So that any person, who has not already taken proceedings or on whose behalf proceedings have not been taken, is not debarred from taking other proceedings. The section does not say that once proceedings have been taken
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under Act 174, then no further proceedings by whomsoever can be taken independently of Act 174. The same argument applies mutatis mutandis to section 24(2). I therefore hold that on a proper construction of section 24(3) any dependant who has not claimed under the Workmen’s Compensation Act, 1963, is entitled to claim under Part III of the Civil Liability Act, 1963. A claim under the Civil Liability Act, 1963, is always founded on negligence on the part of the employer whereas a claim under the Workmen’s Compensation Act, 1963 is not founded on negligence on the part of the employer but the claim arises, in the words of section 2 (1) of the Act “where a workman sustains personal injury by accident arising out of and in the course of his employment. . . ” except where the injury is attributable to the serious and wilful misconduct of the workman or to the workman having been at the time under the influence of drink or drugs or where the incapacity or death resulted from a deliberate self-injury or where the workman makes a false representation to the employer.
The plaintiff in the present action also claims damages under Part IV of the Civil Liability Act, 1963, for the benefit of the estate of the deceased. It is an action instituted independently of the Workmen’s Compensation Act, 1963, by a person who has not instituted proceedings previously under the said Act 174 and I do not see how the action by the present plaintiff for the benefit of the estate can be barred under section 24 (3) of the Act. The claim for the benefit of the estate is founded on negligence on the part of the defendants and I think it is my task to decide whether or not the defendants are liable in negligence under Part IV Civil Liability Act, 1963. Section 22 of the Civil Liability Act, 1963 (Act 176), provides that, “A cause of action vested in a person shall on his death survive for the benefit of his estate.” Then section 24 of Act 176 reads: “The provisions of sections 22 and 23 of this Act shall not apply to —
(a) a cause of action for breach of promise to marry or seduction or for inducing one spouse to leave or remain apart from the other or for damages for adultery; or
(b) a claim for compensation under the Workmen’s Compensation Ordinance (Cap. 94).”I have read and re-read these two sections very carefully and I have wondered what these sections mean when they state that a claim for compensation under the Workmen’s Compensation Ordinance now Act 174 shall not survive for the benefit of his estate. The view
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I hold is that where a workman is injured in the course of his employment and he dies as a result, then under section 10 (1) of the Workmen’s Compensation Act, 1963, the compensation shall be payable to or for the benefit of his dependants as provided by the Act. In other words, it is not necessary for the dependants to take action under Part IV of the Civil Liability Act, 1963. The claim dies with the workman and ceases to be part of his estate. The dependants can then claim damages under Part III of Act 176 or claim compensation under Act 174. There is no statutory provision that claims under the Workmen’s Compensation Act, 1963, should be made by an administrator of the estate of a deceased person. If the administrator is not a dependant then he can claim for the benefit of the estate. But where there has been negligence on the part of the employer, then an administrator or customary successor can sue for thebenefit of the estate especially where the dependants under the Workmen’s Compensation Act, 1963, are not beneficiaries under the estate. This is obvious in Ghana especially in areas where the Akan custom prevails. The customary successor takes the estate for the benefit of the immediate and wider family whereas the widow and children are excluded as beneficiaries under the estate. Indeed section 24 (1) of Act 174 provides that “nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a Civil Court independently of this Act.” Nevertheless I think my construction is supported by common sense. If the dependants can claim a greater amount of damages under the Civil Liability Act, 1963, than under the Workmen’s Compensation Act, 1963, I think it is fair that the greater amount should be claimed. But then there is the difficulty that the class of dependants would not agree. Is it fair and prudent that some of them should rush and claim a lesser sum under the Workmen’s Compensation Act and thereby debar the others from claiming something greater under the Civil Liability Act ?
I think it is the duty of labour officers whenever they handle claims for workmen or their dependants to point out the total amount payable to the workman or dependants and to ask them to seek legal advice. If this precautionary measure is taken the anomalies which my construction no doubt creates, will disappear. It is a harmless suggestion which the labour officers can make because under section 24 (5) where a workman or dependant loses an action independently of the Workmen’s Compensation Act, 1963, the trial court or appellate court can instead award compensation under the Workmen’s Compensation Act if the court determines that the workman or dependant is entitled to such a claim. I think it is also
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desirable that the labour officers should assemble all possible dependants especially where they are illiterate and ascertain their wishes after they have obtained legal advice before encouraging them to claim the amount deposited in court by the employer under section 11 of Act 174.
I wish to place on record that neither learned counsel was able to cite to me any decision of a higher appellate court in Ghana and I was therefore compelled to take a plunge in the treacherous waters of the Workmen’s Compensation Act, 1963 (Act 174), and the Civil Liability Act, 1963 (Act 176). I am now convinced after this plunge that both Acts should be revised so as to reflect their proper relationship. If the two Acts are two positive electrical poles or two negative poles, it is not beyond human capability to say so in express terms in both Acts. On the other, if one is a negative pole and the other a positive pole so as to engender attraction thereto, I think the draftsman can say so in very simple language for the comprehension of the courts, lawyers and litigants. The English courts are no longer saddled with such dilemma because the English Workmen’s Compensation Acts have been repealed. If Ghana chooses to keep hers because she cannot afford a general national insurance scheme then the Acts in Ghana should be expressed in terms which leave no doubt in the minds of the courts. I think the general impression that once a claim has been made under the Workmen’s Compensation Act by certain persons no other persons can sue independently of the Act is erroneous because section 24 of the Act does not say so. My construction of the bars in section 24 (2) and (3) is that they relate to cases in which the two proceedings are taken by the same persons and they do not deprive a dependant of his right to damages because another dependant has secured compensation in proceedings to which he was not a party and in which he has not acquiesced. The bars do not also relate to persons who cannot claim as dependants under the Workmen’s Compensation Act, 1963, or under Part III of the Civil Liability Act, 1963, but who independently of these Acts are entitled to the estate of the deceased. I am aware that the anomalies and difficulties created by the House of Lords’ decision in Kinneil’s case (supra) will follow the interpretation I have placed on the Ghana Acts but I think these anomalies or difficulties arise because of how section 24 (2) and (3) of Act 174 have been drafted. Is there no possible clear language which the draftsmen canuse to avoid these anomalies? I am not competent to dictate the words which should have been used. The next question is whether the defendants are liable in negligence. The only person who gave evidence was, the plaintiff who
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was not an eyewitness to the accident. He therefore relied on the doctrine of res ipsa loquitur. The explanation given by the defendants was that the deceased joined the truck without permission and unknown to the driver and although there were other passengers in the vehicle only the deceased fell from the vehicle and was run over by one of the back tyres. None of the passengers gave evidence for the plaintiff. The defendants further maintained that the vehicle was not being driven at a fast speed. There is no evidence before this court that the defendants, vehicle went off the road or collided with another vehicle. There is no evidence that the deceased was not given proper seating accommodation. There is rather evidence that the deceased joined the truck without the knowledge of the first defendant. The law as I understand it is that where the defendants give no explanation, then the doctrine applies but where they give an explanation, then the plaintiff is relegated to his normal position and he must prove negligence. In the present case I think the plaintiff has failed to prove negligence on the part of the defendants. There is evidence that the plaintiff is the administrator of the estate and he can therefore institute an action under Part IV of the Civil Liability Act. But as I have already found that the plaintiff has failed to establish negligence it means that he cannot claim damages for any dependants under Part III of the Act. It is therefore not necessary for me to make any finding whether or not the two nieces and nephew were dependants of the deceased before his death. For the above reasons, the plaintiff’s action is dismissed. N¢50.00 costs to the defendants.
DECISION
Action dismissed.
D. R. K. S.
