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Kumar v Commissioner of Police [2002] FJHC 50; Hbc0003D.2001s (29 April 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION HBC 3 OF 2001S

Between:

MUNI LATA KUMAR
(Administratrix of the Estate
of RAJ KUMAR deceased)
Plaintiff

and

THE COMMISSIONER OF POLICE
First Defendant

and

THE COMMISSIONER OF PRISONS
Second Defendant

and

THE ATTORNEY-GENERAL
Third Defendant

V. Maharaj for the Plaintiff
K. Keteca for the Defendant

DECISION

The Plaintiff is the widow of a policeman Raj Kumar who was killed in August 2000 while on duty. In January 2001 she issued proceedings seeking damages for negligence or breach of contract and in the alternative compensation under the Workers Compensation Act (Cap 94 – the Act).

In their Defence filed in January 2001 the Defendants conceded the Workers Compensation claim but denied the common law claims.

In May 2001 the Defendants filed a motion to strike out the claim under the provisions of RHC O. 18 r 18 (1) (a).

At the hearing of that motion on 3 September I was told by Counsel that the Plaintiff had already been offered $24,000 in satisfaction of her Workers Compensation claim and that she had accepted it but had then returned it following legal advice. Upon the provisions of RHC O. 18 (2) being referred to the motion was withdrawn.

On 1 March 2002 the Plaintiff filed the present application under the provisions of O. 29 r 11. In her supporting affidavit the Plaintiff deposed that she had received no payment at all in respect of her husband’s death and that she is now destitute. She suggested that she would be bound to recover at least the $24,000 conceded by the Defendants and asked for it to be paid out to her.

In answer to this application Mr. Keteca once again conceded that the Plaintiff was entitled to recover under the Act but suggested that payment to the Plaintiff of the sum due under the Act would extinguish the balance of the Plaintiff’s claim and that therefore it would not be an interim payment but a total payment in final satisfaction of the Plaintiff’s whole claim.

It is apparent that counsel both for the Plaintiff and the Defendants have been under the impression that acceptance by the Plaintiff of the Workers Compensation claim would amount to a compromise of her common law action and that it was for this reason that the sum of $24,000 was repaid by the Plaintiff to the Defendants after it had been accepted by her sometime last year. In my opinion this reading of the law is incorrect.

The relevant sections of the Act are 2, 16 (1) and 21 (1) (c).

Under Section 16 a claim for compensation under the Act can be compromised.

Under Section 21 (1) (c) a compromise:

“come to 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.”

It must however be noticed that in this case the agreement to pay $24,000 for the death of Raj Kumar was not an agreement reached “between the employer and the workman” since the agreement followed the workman’s death. Furthermore this is not an action being brought by the workman in respect of his own death but is an action being brought by his widow.

The matter is put beyond doubt by Section 2 (3) which provides that:

“Except for the purpose of Section 16 any reference to a workman who has been injured shall, unless the context otherwise requires, where the workman is dead, include a reference to his personal representative, or to his dependant or any of them.”

In other words, Section 16 does not apply to a compromise agreed by a personal representative following the death of the workman and therefore Section 25 (1) (c) does not apply either.

In my view there is no doubt that if the action proceeds to trial the Plaintiff will at least be awarded the $24,000 already offered to her and to which there is no defence entered. Payment out of that sum will not act as a bar to the further prosecution of her common law claim.

I order that payment be made by the Defendants to the Plaintiff of $24,000 forthwith. In view of the hardship which the Plaintiff is suffering payment out to her should be expedited.

M.D. Scott
Judge

29 April 2002