IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 348 OF 1998

BETWEEN:

JONE SIQILA
Plaintiff

AND:

FIJI DEVELOPMENT BANK
1st Defendant

AND:

CHARLIE SILIMAIBAU PESI
2nd Defendant

Counsel: Mr V. Maharaj for Plaintiff
: Mr D. Sharma for 1st Defendant

Hearing: 25th May 2000
Ruling: 20th June 2000

RULING

The Plaintiff is an employee of the Fiji Development Bank. He has brought a claim against the Bank (the Defendant) for injuries he received in a motor vehicle accident whilst travelling in the course of his employment on 28th July 1995.

The trial in this matter commenced on 25th May 2000. The Plaintiff gave evidence saying, inter alia, that he had received a payment in a lump sum, from the Defendant under the Workman’s Compensation Act. At the end of his evidence counsel for the Defendant made submissions that the action should be dismissed forthwith because it was statute-barred under section 25(1)(c) of the Workman’s Compensation Act.

This ruling is in respect of those submissions. The evidence of the Plaintiff was that on 5th June 1996, he signed an agreement with the Defendant that on the basis of 8.25% partial incapacity, the Defendant would pay the Plaintiff the lump sum of $9824.36 in respect of the injury arising out of the accident. The agreement was witnessed by Iliesa Dave of the Labour Department, certified to have been read over to the Plaintiff in Fijian by another person on behalf of the Permanent Secretary for Employment, and approved by a G. Singh for the purposes of section 16(1) of the Workman’s Compensation Act.

The Plaintiff says that he did not fully understand what he was signing, but that in any event, he is now claiming for injury that developed from the accident but that developed after the lump sum was paid.

Section 16 of the Workman’s Compensation Act Cap. 94 provides:

“(1) The employer and workman may, with the approval of the Permanent Secretary or a person appointed by him, in writing, in that behalf, after the injury in respect of which the claim to compensation has arisen, agree, in writing, as to the compensation to be paid by the employer. Such agreement shall be in triplicate, one copy to be kept by the employer, one copy to be kept by the workman, and one copy to be retained by the Permanent Secretary:

Provided that -

a)	the compensation agreed upon shall not be less than the amount payable under the provisions of this Act; and

b)	where the workman is unable to read and understand writing in the language in which the agreement is expressed the agreement shall not be binding against him unless it is endorsed by a certificate of a district officer or a person appointed by the district officer or Permanent Secretary, in writing, in that behalf, to the effect that he read over and explained to the workman the terms thereof and that the workman appeared fully to understand and approve of the agreement.

(2) Any agreement made under the provisions of subsection (1) may, on application to the court, be made an order of the court.

(3) where the compensation has been agreed the court may, notwithstanding that the agreement has been made an order of the court under the provisions of subsection (2), on application by any party within three months after the date of the agreement, cancel it and make such order (including an order as to any sum already paid under the agreement) as in the circumstances the court may think just, if it is proved -

a)	that the sum paid or to be paid was or is not in accordance with the provisions of subsection (1);

b)	that the agreement was entered into in ignorance of, or under a mistake as to, the true nature of the injury; or

c)	that the agreement was obtained by such fraud, undue influence, misrepresentation or other improper means as would, in law, be sufficient ground for avoiding it.

(4) All agreements made under this section shall be exempt from the payment of stamp duty.”

Section 25 of the Act provides:

“(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:

Provided that -

a)	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;

b)	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 to this Act;

c)	an agreement come to be between the employer and the workman under the provisions of subsection (1) of section 16 shall be a bar to proceedings by the workman in respect of the same injury independently of this Act.”

On a perusal of the agreement of 5th June 1996, it appears, prima facie to satisfy the requirements of section 16. It has been signed by both parties, witnesses by a Labour Officer, certified to have been read over to the Plaintiff in Fijian, and has been approved by a person purportedly authorised by the Permanent Secretary.

However, counsel for the Plaintiff disputes that there is evidence of the section 16 requirements. He says that the persons who witnessed the agreement, and who approved it have not given evidence, and that the Plaintiff has denied that it was properly explained to him.

In Vinod Patel and Co.Ltd. -v- Yatendra Prasad f/n Kesho Prasad Civil Appeal No. ABU00026B of 1998S the Court of Appeal upheld a finding by the Magistrates Court and High Court that where the section 16 agreement had not been approved by the Permanent Secretary or a person appointed by him, the action was not statute-barred even though the Plaintiff had been represented by a lawyer when he had accepted the compensation payment.

In this case, there appears to be an agreement that satisfies the requirements of section 16. However the Plaintiff claims he did not understand what he was signing and that the Labour Officers acting for him did not explain the procedures to him.

In the circumstances I am unable to conclude that the agreement is a valid agreement under section 16(1) of the Act, and would prefer to hear further evidence on the way the agreement was executed.

I refuse the application to dismiss this action at this preliminary stage.

Nazhat Shameem
JUDGE

At Suva
20th June 2000