IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL HBA 9 OF 2003

BETWEEN:

CARPENTERS STEEL COMPANY LIMITED
Appellant

AND:

THE LABOUR OFFICER for and on
behalf of THE DEPENDANTS of
ISIKELI KUBU deceased
Respondent

Ms B Narayan for the Appellant.
Ms L Baleimatuku for the Respondent.

JUDGMENT

This is an appeal against an interlocutory ruling given by the Chief Magistrate Mr D. Balram on 6 May 2003. The learned Magistrate dismissed the Appellant's application that the Respondent's claim for compensation under the Workmen's Compensation Act Cap 94 (the Act) be struck out as being statute barred. In reaching this conclusion the learned Magistrate accepted the Respondent's submission that pursuant to the last proviso to section 13 of the Act a claim under the Act shall be maintainable for a period of six years from the date of the accident. The learned Magistrate had found that the workman had died on 5 October 1996. Notice of the death and the claim had been sent to the Appellant on 23 August 1999. The proceedings claiming compensation were instituted by the Respondent on 15 May 2001. Since this was within the six years contemplated by the last proviso the claim was maintainable.

As the learned Magistrate pointed out during the course of his decision, the Appellant's application was made under section 13 of the Act and not under the Limitation Act Cap 35.

Section 13 of the Act states:

"Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given by or on behalf of the workmen as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within twelve months from the occurrence of the accident causing the injury or, in the case of death, within twelve months from the time of death:

Provided that:-

(a)	the want of, or any defect or inaccuracy in, such notice shall not be a bar to the maintenance of such proceedings if it is proved that the employer had personal knowledge of the accident or had been given notice of the accident from any other source at or about the time of the accident, or if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in his defence by the want, defect or inaccuracy, or that such want, defeat or in accuracy was occasioned by mistake or other reasonable cause;

(b)	the failure to make a claim for compensation within the period above shall not be a bar to the maintenance of such proceedings if it is proved that–

(i)	the failure was occasioned by mistake or other good cause; or	
(ii)	the employer failed to comply with the provisions of subsection (1) or (2) of section 14,

so, however, that no proceedings for the recovery of compensation shall be maintainable unless the claim for compensation is made within a period for six years from the date of the accident."

By Notice dated 13 May 2003 the Appellant stated its intention to appeal the learned Magistrate's decision. The Notice complied with the time limit of 30 days prescribed by section 22 (4) of the Act. The grounds of appeal upon which the Appellant relies were stated in its notice dated 3 June 2003. They were:

"1	That the Learned Chief Magistrate erred in the interpretation of Section 13 of (the Act).	

2	That the Learned Chief Magistrate erred in law in finding that the (Respondent's) claim is maintainable through notice notifying the death of the workman was sent to the (Appellant) employer after the twelve month limitation period imposed by section 13 of (the Act).

3	That the Learned Chief Magistrate erred in law in finding that section 13 of (the Act) sets out in exception to the twelve month limitation period imposed by the Act in that a claim shall be maintainable if the proceedings for the recovery of compensation is instituted in Court within six years from the date of the accident.

4	That the Learned Chief Magistrate erred in law in concluding that the (Respondent's) claim is not statute barred since the proceedings for the recovery of compensation was instituted in the Suva Magistrates Court on 15 May 2001 which is within six years after the event."

The appeal was listed before a judge of the High Court on 26 September 2003. On that day the appeal was relisted for mention on 3 October 2003 for the purpose of setting a hearing date. On 3 October 2003 the parties were given directions for the filing of submissions and the appeal was relisted for mention on 4 December 2003. By that date neither party had filed submissions. Further directions were given by the Judge and the appeal was listed for mention on 18 February 2004.

The Appellant filed written submissions on 24 December 2003. On 18 February Counsel for the Respondent applied for additional time to file answering submissions. The application was not opposed and the judge granted a further 14 days for the Respondent to file submissions. The appeal was listed for hearing of oral argument on 19 March 2004.

On 19 March 2004 the Respondent was granted leave to file written submissions on that day. The Appellant sought and was granted leave to file a reply submissions. The appeal was listed for 2 April 2004 for argument. 

On 2 April 2004 Counsel for the Appellant appeared but there was no appearance by Counsel for the Respondent. Once again the judge was compelled to relist the appeal for oral argument on 21 April 2004.

Finally on 6 May 2004 the parties appeared before the Judge. The Appellant indicated that it did not intend to file further submissions and that each side would rely on their written submissions. The judge indicated that judgment would be given on notice.

Unfortunately no judgment had been delivered when the judge left the bench in April 2009. The appeal was eventually listed for mention before me on 1 December 2011. On that day Counsel for the parties indicated that they would rely on the written submissions already filed and did not intend to make any further oral submissions.

Order XXXVII Rules 18 and 19 clearly indicate that the High Court as the appellate court is required to proceed by way of re-hearing. This does not mean a hearing de novo. When an appeal proceeds by way of a re-hearing, the proceedings are re-heard on the material that was before the court below. It is a re-hearing on the documents. As a result this Court is required to review the material before the learned Magistrate to reach its own conclusion. The task that I am required to undertake is to determine the rights of the parties rather than a correction of any error in the determination of the court below.

It was alleged that the deceased was injured at work on 2 June 1994 and that he died from the injury on 5 October 1996. It was also alleged that the deceased's employment was terminated with effect from 1 May 1996 by the Appellant for medical reasons. It was not disputed that notice of the Respondent's claim to the Appellant from whom compensation was claimed was given by letter dated 23 June 1999.

In accordance with accepted principles and in the absence of any affidavit material to the contrary, the learned Magistrate and this Court should proceed to hear the striking out application on the basis that these facts were capable of being established by evidence, should the claim for compensation proceed to a hearing.

It is quite apparent on the material that was before the court below that the claim for compensation, by way of the letter dated 23 June 1999, was not made within twelve months from the date of death being 5 October 1996. This appears not to have been in dispute.

The Appellant submits that the right to bring a claim within six years from the date of the accident only applies if the deceased workman or in this case the Respondent can bring the claim within one of the two provisos to section 13.

The Respondent's position appears to be that the second proviso also includes an automatic right to bring a claim for compensation within six years from the date of the accident.

In its Answer to the Respondent's claim the Appellant had expressly raised the limitation period for which section 13 makes provision. The application to have the claim struck out was made as a preliminary issue when the hearing commenced on 22 April 2003. Counsel presented submissions to the learned Magistrate the following day. Although this may not have been entirely appropriate the procedure has not been challenged.

The rehearing is on a very narrow point. The correct interpretation of section 13 and in particular the proviso to section 13 of the Act.

Upon a careful reading of the section I have come to the conclusion that the six years period for bringing a claim for compensation under the Act only applies if an injured workman or the representative of a deceased workman can invoke one of the two provisos. It simply would make no sense to require a claim for compensation to be brought within twelve months of the date of the death as specified in section 13 only for the proviso to provide for an inconsistent time limit of 6 years. It is apparent that the legislature intended even a claim for compensation saved by one of the provisos could not be brought after six years from the date of the accident.

It is also clear that the legislature intended that a claim for compensation that was made after the twelve months limitation would be a valid claim if (1) it fell within one of the two provisos to section 13 and (2) it was made within six years from the date of the accident.

There was no material before this Court that would indicate that the Respondent was relying on either proviso. There was no attempt to invoke either proviso.

As a result the claim for compensation was statute barred under section 13. The appeal is allowed. The Respondent is ordered to pay $500.00 costs to the Appellant within 28 days. The costs fixed summarily are lower than costs currently awarded as these proceedings were completed in 2004.

W D Calanchini
Judge

24 February 2012
At Suva