IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0300 OF 1995

BETWEEN:

PUNJA & SONS LIMITED
PLAINTIFF

AND:

ATTORNEY GENERAL OF FIJI
1ST DEFENDANT

ILIESA RATUVA
2ND DEFENDANT

Mr K. Kumar for the Plaintiff
Mr F. Abu for the Defendants

Date of Hearing: 10 August 2005
Date of Judgment: 16 September 2005

JUDGMENT OF FINNIGAN J

In the case before me the parties have commendably settled most issues including liability and quantum. There remains one issue about payment of workmens compensation with related minor issues of interest and costs. 

I heard the evidence of one witness in respect of costs and excellent submissions from Counsel for both parties about the workmen's compensation issue. A brief history of the matter will help. 

On 12 May 1992 one Muni Ratnam was driving the vehicle of his employers Punja and Sons Ltd. One Iliesa Ratuva was driving another vehicle said to be the property of the Attorney-General of Fiji. The two vehicles collided. Muni Ratnam was injured. Punja’s vehicle was damaged.

Subsequently upon demand by the Ministry of Labour & Industrial Relations Punjas paid the Ministry $7,421.79 as money due by it to Muni Ratnam as statutory compensation under the Workmens Compensation Act Cap 94.

In 1994 Muni Ratnam commenced an action for damages for personal injury against Iliesa Ratuva and the Attorney General of Fiji No HBC364 of 1994L. A little later Punjas commenced the present action against the same defendants to recover the workmens compensation payment and the costs of repair to the vehicle. On 15 July 1996 a Legal officer for the Attorney-General wrote to the solicitors for Punjas advising them of Muni Ratnam’s claim and sent copies of the pleadings. Because the Defendants were being sued by two Plaintiffs out of one incident the Defendants asked Punja’s lawyers for suggestions as to how both actions may be consolidated to save costs and the Court’s time. On 28 November 1996 Punja’s lawyers replied. They did not consider that Punja’s action should be consolidated with Muni Ratnam’s. They asked for a settlement offer of Punja’s claim.

On 29 September 1997 Muni Ratnam’s lawyers settled the personal injury claim with the Defendants. The relevant parts of the Terms of Settlement are as follows:

“1. THAT the First Defendant will pay to the Plaintiff the sum of $30,000.00 (Thirty Thousand Dollars) in full and final settlement of the Plaintiff’s claim;

2. THAT the Plaintiff agrees to accept the sum of $30,000.00 (Thirty Thousand Dollars) in full and final satisfaction of all his claims against the Defendants in respect of injuries arising out of the claims against the Defendants in respect of injuries arising out of a motor vehicle accident involving motor vehicle registration number By694 driven by the Plaintiff and motor vehicle registration number GL503 owned by the First Defendant and driven by the Second Defendant on the 12th day of May, 1992 at Queens Road, Nanuku, Lautoka;

3. ………………………..

4. ……………………….”

When Punja’s action came on before me Counsel had largely settled it. They put in a document of agreed facts, admission of liability, agreed damages and remaining issues to be tried. The one real issue is whether the Defendant is liable to indemnity Punja’s for $7,420.29 the agreed amount of its workmen’s compensation payment. The specific pleading of this claim was as follows;

“That Plaintiff has made the payments demanded of it under the Workmens Compensation Act to Ministry of Labour and Industrial Relations and is entitled to be indemnified by the Defendants.

Particulars of Payments

Date				Description				Amount
On or about 5/4/93		2/3 weekly payments
				& leave				$3,629.99

On or about 20/9/93		lump sum payment	$3,790.80
									__________
					Total		:		$7,421.79
									=========

The Defendants’ relevant pleading is as follows:

“Save as to admit that a lump sum payment of $3,790.80 (Three Thousand Seven Hundred and Ninety Dollars and Eighty Cents) was made to the Ministry of Labour and Industrial Relations no admission is made as to paragraph 8 of the Statement of Claim. Further it is denied that the Plaintiff is entitled to be indemnified by the Defendants”

So Punjas have paid the Plaintiff workmen’s compensation of $7420.29 and the Defendants have paid him damages of $30,000.00. Punjas now claim the Defendant should pay a further $7420.29 to reimburse it for what it paid Muni Ratnam. 

To go further I need to have before me Section 24 of The Workmen’s Compensation Act Cap 94, to which both Counsel referred in detail in their arguments. Both relied upon this section and each submitted that it was clear in supporting their respective cases. 

It is convenient to set out Section 24 in full. It reads:

(1)	Where the injury in respect of which compensation is payable under the provisions of this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the workman may take proceedings both against that person to recover damages and against any person liable to pay compensation under the provisions of this Act for such compensation:

Provided that –

(a)	on being awarded such damages as a foresaid, the person against whom such damages are awarded or the workman may be ordered by any court to pay to the employer;

(i)	where such damages do not exceed the amount of compensation, including costs ordered to be paid by the employer to the workman the amount of such damages; or
(ii)	where the amount of damages awarded against such person exceeds the amount of such compensation the amount of such compensation.

(b)	if the workman is recovered compensation under the provision was paid and any person who has been called on to pay an indemnity under the provisions of section 23 relating to liability in the case of workmen employed by contractors may be ordered to be indemnified as regards the amount of compensation including costs by the person so liable to pay damages as aforesaid.

(2) A court on the application of any person specified in subsection (1) or any court awarding compensation or damages with or without the application of any such person may make such order as to it seems just to ensure that the workman does not receive both compensation and damages in respect of the same accident and to implant the provisions of subsection (1).”

Counsel for the Plaintiff put before me the only reported case on the point which he could find. This is Watson –v- Bish Ltd (1985 31 FLR 41) C.A. The facts are indeed similar and I shall set them out. They are only similar however. There is an important difference.

An employee driving his employer’s vehicle was in collision with another vehicle. The employer paid the employee $7039.77 as workmen’s compensation under Cap 94. The employee brought an action for personal injury by negligence against the owner and driver of the other vehicle. He settled that damages claim for $20,000.00. He signed a discharge of liability which was much fuller and more detailed then the discharge signed in the present case (above). The employer then sued the employee for a refund of $7039.77. See Section 24 (1) (a) (ii) and (2) above.

Section 24 (2) requires the Court to ensure that a workman does not receive both compensation and damages in respect of the same accident. “Compensation” under the act and “damages” are two different things as the Court of Appeal pointed out in Watson. The Court interpreted subsection (2) as preventing double payment (and therefore enabling a refund if both compensation and damages have been paid) “if there has been a similar payment included in a successful damages claim”. (Page 47 B). It put this interpretation beyond doubt when it went on to say (at page 47 E):

“In particular it will be noted that the purpose of giving this discretionary power in the later subsection is specifically to ensure that there is not double payment for the same loss.
(our emphasis )”.

Thereafter the Court went on to say (at page 47 F):

“Workmen’s compensation generally covers lost wages, travel, medical expenses and the like, and sometimes permanent disability. Damages in a personal injury claim at common law may cover much more – pain and suffering loss of future enjoyment of life and future economic loss at a high rate.”

The crucial point in that case was that if the $20,000.00 damages included damages for loss of wages, medical expenses and travel then the workman would have been paid twice what he was entitled to receive under the Act. Counsel for the Plaintiff before me argues that just as in Watson’s case the onus is on the party who paid the damages to show that the damages received by the workman included compensation for loss of wages, medical expenses and travel and the like. He submits there is no evidence even to suggest that it did. The Plaintiff seeks a refund of what the employer paid under the act.

Counsel for the Defendants has an attractive argument. He points out that had the Plaintiff agreed to consolidate with the other Plaintiff then this issue would have been decided at the proper time and in the proper circumstances wherein the Defendants were negotiating with the injured workman. He pointed out the regrettable delay of eight years since then and made submissions about interest and costs to which I shall return in a moment. He submitted that the Plaintiff’s claim puts the Defendants in “double jeopardy”. The workman needless to say has had both compensation and damages. His submission is that the Plaintiff should recover the compensation from the workman, as a double payment.

Decision:

In my opinion the answer lies in the settlement which the Defendants negotiated with Muni Ratnam. The terms are set out above. Clause 1 states that the settlement is in full and final settlement of “the Plaintiff’s claim”. Clause 2 states that the Plaintiff agrees to accept the sum of $30,000.00 “in full and final satisfaction of all his claims against the Defendants in respect of injuries arising out of a (the motor vehicle accident in that case)”. I do not know what his claim was, but at that time the Defendants were already in possession of a claim made by the present Plaintiff by letter on 7 December 1993 which set out details of Punja’s claim including $3,790.80 for Muni Ratnam’s workmens compensation, $3218.81 being the weekly benefit paid to Muni Ratnam under the Act and other costs. This statement of claim was served on the Defendants in December 1995. This was 10 years after Watson’s case had been decided. The Defendant knew or should have known that if a settlement in damages is intended to include compensation under the Act then it must somehow specify that fact. I have not been advised whether the things compensated by a compensation payment under the Act were included in Muni Ratnam’s claim. If they were then the settlement covered them and Muni Ratnam has been paid twice although the aspects of his claim. If it did not then the damages payment could not cover them and he is entitled to both payments.

From the fact that Muni Ratnam had already received his compensation payment I presume he was not claiming it in his damages claim. He would no longer have been concerned to do so and left it to the employer to claim its refund on the basis of the same alleged liability. That is what has happened.

That being so I must give judgment in the present action against the Defendants. They are not I believe in double jeopardy and would have been so only had they settled a compensation claim from Muni Ratnam. I will rectify this judgment if Counsel later come to Court and prove that their settlement covered a compensation claim. In the meantime judgment is entered for the Plaintiff in the sum of $7,420.29, the amount agreed between Counsel.

I turn now to the claim for interest on that amount and the claim for costs. In my opinion the Plaintiff made a serious error of judgment in not seeing the benefit to all concerned of consolidating these two actions. The eight year delay is of the Plaintiff’s own making. I decline to award interest.

Costs follow the event and at the hearing before the Plaintiff proved it had paid its solicitors up to and including 17 May 2005 a total of $3,647.25. The bills of costs were produced in evidence and I can see no costs extra to what would have been incurred had this claim been settled with the other claim in September 1997. I therefore allow costs to the Plaintiff in that amount. I make no order for costs in respect of this hearing.

Orders:

1.	Judgment for the Plaintiff for $7,420.29, with leave reserved to apply on notice for rectification as noted above.
2.	Judgment for the Defendants on the claim for interest.
3.	Judgment for the Plaintiff for costs $3647.25.
4.	No order for costs on the hearing.

D.D. Finnigan
JUDGE

At Lautoka
16 September 2005