MOHAMMED HAMID, Appellant-Plaintiff v. SUDAN PLANTATION SYNDICATE, Respondent-Defendant
Workmen's Compensation-s-Employer's liability-Common law-Negligence re-
quired
Workmen's Compensation-Private employers-Not subject to Government
Contracts Ordinance 1908
A workman injured in an accident arising out of and in the course of
his employment, and without negligence on either side, is not entitled to
compensation as against his employer, because: ('1) the relevant statute--
the Workmen's Compensation (Government Contracts) Ordinance 1908'-
excluded from benefit workmen not employed by Government contractors,
such as the employer concerned, and (2) the common law principle of
volenti non fit injuria bars his claim.
Civil Justice Ordinance 1900, s. 4.
Sudan Government Pensions Ordinance 1904.
Sudan Government Pensions Ordinance 1919.
Workmen's Compensation (Government Contracts) Ordinance 1908.
English Employer's Liability Act, 1880.
Appeal
November 18, 1926. Halford J.: The plaintiff claims compen-
sation, the amount of which he leaves to the court's discretion, for
an injury to two fingers of his left hand, which has been assessed
medically at a: 5 per cent permanent disability, due to an accident
arising out of and in the course of his employment with defendant.
The case in itself is of relative insignificance, but it raises a
point of law of primary importance, namely: is. an action maintainable
in the civil courts of the Sudan by a workman against his employer,
other than the Government or a Government contractor to whose con-
tract the provisions of the Workmen's' Compensation (Government
Contracts) Ordinance 1908 has been expressly applied, for compensa-
tion for accidental injury suffered in the course of his employment,
when it is established to the satisfaction of the court that neither party
was negligent in the performance of his duties? Or, in other words,
is the law applicable in such cases the old rule such as it stood in
* Court: Halford J.
1 Editor's note: The law as to workmen's compensation was altered by the
Workmen's Compensation Ordinance 1949.
England before the Act of 18802; that a master is not liable to his
servant for injury received from any ordinary risk of or incidental
to the service, based on the old principle of the common law violenti
non fit . injuria?
In this country only two classes of servants have been protected
by the legislator against accidents arising out of and in the course
of their employment:
- Government officials, by the Sudan Government Pension Ordi-
nance 1904 and the Sudan Government Pension Ordinance 1919;
and
- Workmen employed by Government contractors to whose con-
tracts the provisions of the Workmen's Compensation (Govern-
ment Contracts) Ordinance 1908 have been applied. .
In the terms of its recital, this latter Ordinance was enacted to
make "better" provision for compensation for workmen for accidental
injuries suffered in the course of their employment, but beyond the
Pensions Ordinances above referred to, which legislated only for
officials killed or so disabled as to be no longer capable of continuing
in Government service, I have searched in vain for any ordinance
or enactment explanatory of the word "better." I am satisfied that
no ordinance providing for compensation in such cases did in fact exist
before 1908, or has been since promulgated, and that it was the
clearly expressed intention of the legislator that workmen employed
by certain Government contractors should enjoy rights which he knew
were not only provided for, but expressly denied to other. categories.
I am fortified in this opinion by the fact that he expressly excluded
in the definition of workmen in the Ordinance of 1908 those "em-
ployed otherwise than for the contractor's trade or business."
It is the court's duty under section 43 of the Civil Justice Ordi-
nance 1900 to act according to justice, equity and good conscience.
I have but little hesitation in expressing the opinion that it is hardly
in accordance with this precept that workmen who happen to be in
the service of a certain Government contractor should enjoy rights
which are denied to 'their comrades not so employed. In view of the
fact that the latter have been expressly excluded by law from the
- Editor's note: Employers Liability Act 1880.
- Editor's note: The forerunner of the present section 9 of the Civil Jus-
tice Ordinance 1929
benefit of such rights, I am bound-nolens volens-to hold that an
employer, otherwise than a Government contractor within the meaning
of the Workmen's Compensation (Government Contracts) Ordinance
1908, is not liable for injury received by his workman from any ordi-
nary risk of or incidental to the service.
The corollary to this finding is that the burden lies, on the plaintiff
of' proving that the work on which he was engaged did not involve
him in a risk such as is contemplated by the common law as being
of an ordinary nature. The provisions of the Ordinance of 1908 ad-
mittedly have not been applied to the contract between the defendants
and Government. What is .an ordinary risk is a question of fact.
There is a leading case, recorded many years before the passing of the
Act of 1880, in which railway men working in a tunnel were refused
compensation for severe injuries occasioned by a train which ran
them down.
In the above-mentioned proceedings, negligence is neither alleged
nor established against the defendants. It is common ground that the
plaintiff was employed as a greaser-but worked from time to time
as a driver of an engine used by the defendants for ploughing opera-
tions. If there had been, for example, a defect in the engine caused
through lack of overhauling by the defendants, the issue would have
been very different. This is not so. The injury was occasioned
through the plaintiff's own act in suffering his hand to get' caught in
the gear of the windlass situated at a distance of some five feet from
the engine. If he had not placed his hand in the neighborhood of this
gear, no accident would have occurred.
These facts are not disputed, and as negligence is not established
against the defendants, I have no recourse other than to dismiss the
plaintiff's suit. Under these circumstances no 'Other issue requires
determination.
I have gone at some length into the evidence in the expectation
that the appellate authority may find some loophole which has es-
caped me in justification of an order for review. I can discover nothing
to support the defendant's plea that the plaintiff, through his own
.negligence, which in other circumstances under the Ordinances must
amount to "serious and wilful misconduct," contributed to the accident.
the cause of the injury, on which his claim is based.
Appeal dismissed