(COURT OF APPEAL) *

MARITIME COMPANY LIMITED vs. HEIRS OF SALIH IDRIS All

AC-Revision.176-58

Revision

Principles

  Labour—Workmen’s Compensation Ordinance, s. 25—Joinder of party other than employer”

   The fact that a party is not an “employer” within the meaning of that term in the Workmen’s Compensation Ordinance does not prevent him from being joined as a defendant to an action under the Ordinance, if the accident concerned may have been caused under circumstances creating a legal liability in that party.                           

Judgment

Advocates: E. M. Kronfli ……………………..for applicants                                                                                                                                      

                  Abdalla El Hassan ………………...for respondents                                                                                                   

    27th January 1959. Babikir Awadalla J.: —This is an application by the Maritime Company Limited for revision of an order of His Honor the Province Judge, Kassala Circuit, dismissing summarily their application against the decree of the District Judge, Port Sudan, dated 12th April 1958 ordering them to pay to the heirs of deceased Salih Idris Ali a sum of £S.199 under the Workmen’s Compensation Ordinance                                                                                                                       .

       A perusal of the proceedings will show that applicants are a company of stevedores with whom deceased was employed on the day of his death, and suffered a fatal accident in the course of stevedoring operations. The case was one under the Workmen’s Compensation Ordinance and the title of the plaintiffs ought to have been “the dependants” rather than “the heirs ofSalih Idris Ali”.                                                                                                     

    Before this Court applicants were represented by Sayed Emile Kronfli, who contends that the Maritime Company Limited were not the employers of the deceased at the time of his death as the deceased was a member of a gang supplied to the applicants by the Port Authority for a temporary purpose (i.e., the off-loading of a particular ship) and therefore the Port Authority continued to be the “employers” in accordance with the definition of that word occurring in the Ordinance                                           .

     The Port Authority itself was not joined as a defendant but the contractor who supplied the workmen to the Port Authority was a party to the proceedings and the Court found that it was essential to join the applicants (the Maritime Company Limited) and after hearing it gave judgment against them alone, holding that there was negligence on their part in supplying a defective sling.                                                                               

* Court: M. A. Abu Rannat C.J., Babikir Awadalla J.

                                                                                             S.L.J.R.—3

Applicants contend that they cannot be made liable under the Work men’s Compensation Ordinance on this ground and so theirjoinder as defendants was wrong                           .

We do not think that this contention is sound because whether applicants were or were not the employers is irrelevant, in view of the provisions of section 25 of the Ordinance. This section reads: — “25. Where the injury in respect of which compensation is payable                                                                                  

under this Ordinance was caused under circumstances creating a legal liability in some person other than the employer to pay damage in respect thereof: —

(a) the workman may take proceedings both against that person to recover damages and against any person liable to pay compensation, but shall not be entitled to recover both damages and compensation; and                                                                        

(b) if the workman has recovered compensation under this Ordinance, the person by whom the compensation was paid, and any person who has been called on to pay an indemnity under the provisions of section 24 relating to liability in case of workmen employed by sub-contractors, shall be entitled to be indemnified as regards the amount of compensation, including costs, by the person so liable to pay damages as aforesaid, and any question as to the right to and amount of any such indemnity shall, in default of agreement, be settled by civil suit or by consent of the parties by      arbitration under the Civil Justice Ordinance.”                                                                                                                  

    If therefore there was evidence before the Court that the accident was due to the negligence of applicants, then payment by them of damages under this section can be ordered. It is clear from subsection (b) above that if negligence on the part of applicants could be proved and some other person were made to pay compensation under the Ordinance, then that person would in any case be entitled to be “indemnified” by applicants.                                                                                    

     But the question of liability of applicants under the common law (i.e., whether there was negligence or otherwise) was not made an issue and it is fair that applicants be given the chance to contest the case on that ground. To that extent therefore this application is allowed and case referred back for rehearing with a view to determining whether the accident was “caused under circumstances creating a legal liability” in applicants within the meaning of section 25 of the Ordinance. If it is found that it was so caused, then applicants can in no way escape liability irrespective of whether or not they can be designated as employers.                                                                                                                               

No order as to costs.                                                                                       

M. A. Abu Rannat C.J.: —I concur

                                                                                                (Application allowed)