Ragbir v R Kar Ltd

• Jurisdiction: Trinidad & Tobago
• Judge: Doyle, M.
• Judgment Date: 01 January 2002
• Neutral Citation: TT 2002 HC 5
• Docket Number: W.C. 251 of 1997
• Court: High Court (Trinidad and Tobago)
• Date: 01 January 2002

High Court

Doyle, M.

W.C. 251 of 1997

Ragbir

and

Rex Kar Limited

Appearances:

Mr. Ahmed for applicant.

Mrs. Lodge-Johnson for respondent.

Tort - Fatal Accident — Dependant's Action — Entitlement — Whether the wife had established dependency within s.2(1) of the Workmen's Compensation Act — Applicant resided separate and apart from deceased — Court found that applicant was not maintained by the deceased and therefore was not a defendant within the meaning of the Act.

Employment Law - Nature of the deceased's employment — Whether deceased was employed under a contract of service or whether a contract for services existed between the parties — Whether the accident occurred during the course of the deceased's employment under section 2(1) Workmen's Compensation Act — Court found that deceased had entered a contract for services and was not a ‘workman’ with the meaning of s. 2(1) Workmen's Compensation Act.

Doyle, M.

1 By her amended application filed herein GIRLIN RAGBIR claimed compensation as the lawful wife and dependant of SURUJPAUL RAGBIR who died by accident in August 1993 and requested determination by the Commissioner of the following questions in dispute namely:–

• (a) Whether the deceased workman was a workman within the meaning of the Workmen's Compensation Act.

• (b) Whether the accident arose out of and in the course of employment

• (c) Whether the amount of $36,000 claimed as compensation is due or any part thereof.

• (d) Whether the respondent Rex Kar Limited is liable to pay such compensation together with fees arising therefrom.

2 In its Answer herein the respondent stated that at the time of the accident the said Surujpaul Ragbir was employed by the respondent as an Independent Contractor and was not a workman within the meaning of the Workmen's Compensation Act.

3 Now, under section 2(1) of the Workmen's Compensation Act:–

• “workman” means any person who has entered into or works under a contract OF service or apprenticeship with an employer, whether by way of manual labour or otherwise, whether the contract was made before or after the commencement of this Act (that is 15th November 1960), and whether such contract is expressed or implied, oral or in writing, whether the remuneration is calculated by time or by work done, and whether by the day, week, month or with reference to any other period whatever; and includes a person engaged in fishing on board any fishing vessel or in plying for hire with any vehicle or vessel the use of which is obtained by that person under any contract of bailment (other than a hire-purchase agreement) in consideration of the payment of a fixed sum or a share in the earnings or otherwise: (Emphasis mine).

• Provided that the following persons shall not be regarded as workmen for the purposes of this Act:

• (a) persons employed otherwise than by way of manual labour whose earnings exceed five thousand dollars a year or such other sum as may be prescribed;

• (b) persons whose employment is of a casual nature and who are employed otherwise than for purposes of the employer's trade or business, not being persons employed for the purposes of any game or recreation and engaged or paid through a club;

• (c) outworkers;

• (d) members of the employer's family dwelling in his house;

• (e) members of the Defence Force of Trinidad and Tobago and any auxiliary force attached thereto; or

• (f) members of the Police Service and members:–

• (i) of any Police organization having the general powers of members of the Police Service constituted by law and in respect of whom provision exists in any law for the payment of a gratuity or pension in case of injury or death;

• (ii) of any Fire Service.”

4 In my respectful view it was essential for the applicant to establish that Surujpaul Ragbir had been employed under “a contract of service” herein but, no evidence of any contract was provided by the applicant. On the other hand, the respondent, through its General Manager, Mr. Winston Rampersad produced an executed agreement of 8th February, 1989 (‘the agreement’) (exhibit “WR1”) in the following terms:–

“TRINIDAD AND TOBAGO:

• An agreement made this EIGHTH day of FEBRUARY, 1989, Between REX KAR LIMITED a company duly incorporated under the Companies Ordinance Chapter 31 No 1. with it's registered office situated at Uriah Butler...