1

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE MATTER OF THE WORKMEN’S COMPENSATION ACT

CHAPTER 88:05

WC105 of 2009

Application for Compensation by Dependants – (1)Rhonda Glasgow-

Caldiera for herself and on behalf of her two minor children (2)

Rhondell Dillon Wayne Junior Caldiera and (2)Delicia Ayisha Caldiera

residing at Haig Street, Carenage.

And

WC106 of 2009

Application for Compensation by Dependants – (1)Micellia Charles and

(2) Zorna Joseph residing at Beard Street, Carenage

And

WC107 of 2009

Application for Compensation by Dependants – (1) Joan Alexander for

herself and on behalf of her minor children (2) Jada Shanisa Carillo

and (3) Cletus Keisha Carillo and (4) Kadijah Carla Carillo residing

at 3½ mm Guaico Tamana Road, Cunaripo.

And

WC108 of 2009

Application for Compensation by Dependants – (1) Harry Hamlett, (2)

Victoria Hamlett, (3) Alana Hamlett and (4) Thomas Hamlett residing at

No. 3 The Crescent, East Dry River, Port of Spain.

Applicants

AND

Inter-Isle Construction & Fabrication Company Limited

And

Chag-Wharf Services Limited

Respondents

Before: Commissioner Patricia Sobion Awai

Appearances:

Mr. Fyard Hosein,SC and Ms. Nyree Alfonso for the Applicants

Mr. Dave Cowie for the Respondents

2

BACKGROUND

1. These four Workmen’s Compensation cases are being heard together

as they arise out of the same circumstances. They are brought by

dependants ("the Applicants") of four deceased workmen, Wayne

Caldeira, Lester Charles, Eustus Carrillo and Anthony Hamlett.

The workmen were employed by Inter-Isle Construction &

Fabrication Company Limited and Chag-Wharf Services Limited ("the

Respondents").

2. On June 22, 2005, the workmen were aboard the vessel "Tradewind

Sunrise" conducting certain repairs when there was an explosion

caused by welding works being undertaken in the presence of

hydrocarbon gases or residue. The workmen died as a result of

injuries sustained in that accident.

3. On August 24, 2005, an admiralty action was commenced against the

Owners and/or Parties Interested in the vessel "Tradewind

Sunrise" ("the Defendants in the admiralty action") by the

Administratrix ad litem of the estate of the respective deceased

workmen ("the Plaintiffs in the admiralty action"). Inter Isle

Construction and Fabrication Company Ltd ("the Third Party/First

Respondent") was joined as a third party. The action was made

pursuant to section 27 of the Supreme Court of Judicature Act and

the Compensation for Injuries Act.

4. By order of Moosai J. dated September 2006 in the admiralty

action, damages totalling $2,550,000.00 were awarded to the

Plaintiffs in the admiralty action. The order provided that the

Plaintiffs' claims were fully and finally settled and compromised

without prejudice of the right of the Defendants to proceed with

their claims against the Third Party/First Respondent. The order

also made reference to a settlement agreement which had to be

signed by the parties upon payment by the Defendants of the sums

due to the Plaintiffs.

3

5. Another settlement agreement was entered into between the

Defendants in the admiralty action and the Third Party/First

Respondent in which each party discharged the other from all

future claims including contribution or indemnity in respect of

workmen’s compensation claims.

6. On June 18, 2009 the Applicants filed applications for Workmen's

Compensation against the Respondents.

PRELIMINARY ISSUES

7. These Workmen’s Compensation cases did not follow the usual route

which involves the Registrar taking evidence from the Applicants

to determine whether there is a prima facie case before serving

the Respondents with the applications. Instead the Commissioner,

at the request of the parties, allowed them to formulate

preliminary questions of law to be determined before any evidence

was taken.

8. This procedure was adopted because the Applicants had benefitted

from damages recovered in the admiralty action and the question

arose as to whether the sums they received should be taken into

account in assessing compensation under the Workmen's

Compensation Act Chap. 88:05. Both sides agreed that the sums

recovered in the admiralty action exceeded the quantum expected

to be recovered as workmen's compensation. It followed that if

the moneys already received had to be taken into account, no

compensation would be recoverable under the Workmen's

Compensation Act.

9. The parties filed an agreed statement of issues to be taken as

preliminary points. The issues are as follows:

4

(i) Whether the Applicants are entitled to maintain a claim for

Workmen’s Compensation notwithstanding that they obtained

damages against Tradewind Sunrise in HCA No A 5 of 2005 for

negligence in an admiralty action in rem.

(ii) If so, whether a Court (substitute “Commissioner”) in

awarding compensation for injury under the Workmen’s

Compensation Act is entitled “to take into account” any

damages recovered by the Applicants or any one of them in

respect of High Court Action No A 5 of 2005.

10. An agreed bundle of documents was filed on April 2, 2014

including the amended writ and the statement of claim in

admiralty matter, the two settlement agreements and the order of

Moosai J. dated September, 2006.

THE WORKMEN'S COMPENSATION ACT

11. The relevant sections of the Workmen’s Compensation Act Chap.

88:05 are set out below.

2(2)Any reference to a workman who has been injured or has

been disabled shall, where the workman is dead,

include a reference to his legal personal

representative or to his dependants or other person to

whom or for whose benefit compensation is payable.

4. (1) If in any employment personal injury by accident

arising out of and in the course of the employment is

caused to a workman, his employer shall, subject as

mentioned below, be liable to pay compensation in

accordance with the following provisions:

.........

(2) ........

5

(3) Where compensation payable under this Act for injury

by accident arising out of and in the course of

employment is received as such by a workman who is

an adult, no action shall be brought against the

employer for compensation independently of this

Act by such workman in respect of such accident

after the expiration of one year from the date on

which the cause of action accrued.

(4) In awarding compensation for injury under this Act a

Commissioner shall take into account any damages

recovered by a workman in respect of the same

injury.

5. (1) Subject to this Act, the amount of compensation

shall be as follows:

(a) where death results from the injury, a lump sum of

an amount calculated as follows:

(i) if the workman leaves any dependants wholly

dependent on his earnings, the lump sum shall

be a sum equal to thirty-six months earnings;

(ii) if the workman does not leave any dependants

wholly dependent on his earnings, but leaves

any dependants in part so dependent, the lump

sum shall be such sum not exceeding in any

case the amount payable under subparagraph (i)

as may be agreed upon or, in default of

agreement, may be determined by the

Commissioner, to be reasonable and

proportionate to the injury to the said

dependants;

6

(iii) if the workman leaves no dependants, the lump

sum shall be the aggregate of reasonable

expenses of the burial of the deceased

workman, not exceeding the sum of five hundred

dollars;

15. Where the injury for which compensation is payable

under this Act was caused under circumstances creating

a legal liability in some person other than the

employer to pay damages in respect of such injury—

(a) the workman may, subject to section 4(4), take

proceedings both against that person to recover

damages and against any person liable to pay

compensation under this Act for such

compensation; and

(b) if the workman has recovered compensation under

this Act, the person by whom the compensation was

paid, and any person who has been called on to

pay an indemnity under section 14 shall be

entitled to be indemnified by the person so

liable to pay damages, and all questions as to

the right to and amount of any such indemnity

shall, in default of agreement, be settled by

action or, by consent of the parties, by a

Commissioner.

ANALYSIS

Whether the Act prohibits dual claims

7

12. Section 4(1) of the Workmen’s Compensation Act Chap. 88:05

provides that a workman who sustains injury shall recover

compensation from his employer. This of course is subject to the

provisions of the Act.

13. By virtue of section 2(2) of the Act, a reference to workman

includes a reference to his legal personal representative or to

his dependants or other person to whom or for whose benefit

compensation is payable.

14. By virtue of the conjoint effect of sections 2(2) and 4(1) the

dependant of a deceased workman is deemed to be a workman and as

a result is entitled to receive compensation under the Act.

15. Two sections of the Act illustrate that a workman (including a

dependant) is not prohibited from making dual claims for damages

in the High Court and compensation under the Act.

16. Section 4(4) provides that a Commissioner shall take into

consideration any damages already received for the same injury

when compensating a workman under the Act. This means the two

types of claim may co-exist but the quantum receivable may be

affected.

17. Section 4 (3) also contemplates the making of a second claim as

it provides for a limitation period of one year for bringing an

action for damages in cases where compensation hass already been

received.

18. The Act therefore does not preclude dual claims.

Whether the order of Moosai J. prohibited dual claims

8

19. The Order of Moosai J. dated September 2006 in the admiralty

action, awarded damages in full and final settlement of the

claims without prejudice of the right of the Defendants to

proceed with their claims against the Third Party/First

Respondent.

20. The first point to note is the parties in the admiralty action,

with the exception of the Third Party/First Respondent, are

different from the parties in the workmen's compensation

applications before me.

21. The Plaintiffs in the admiralty action were administratrix ad

litem, that is to say, persons appointed by the court to

represent the estate of the deceased workmen. By contrast, the

Applicants in these applications are dependants of the deceased

workmen who represent themselves, except in the case of minors

who are represented by their next friend.

22. The Defendants in the admiralty action were the owners of the

vessel "Tradewind Sunrise". The Respondents before me are the

employers of the deceased workmen.

23. It follows that the order made by Moosai J. in the admiralty

action does not bind the Applicants in the workmen's compensation

cases because they were not parties in the earlier proceedings.

24. Additionally, nothing in the substance of the order of Moosai J.

precludes the Applicants from the making these applications for

workmen's compensation.

Whether the settlement agreements prohibit dual claims

9

25. Like the order of Moosai J. in the admiralty action, the

settlement agreements are not binding on the Applicants who were

not parties. Nonetheless in the event that the Applicants agreed

to be bound by the terms of the settlement agreement, I

considered the substance of the agreements as if they were so

binding.

26. Clause 6(v) of the settlement agreement between the Plaintiffs

and the Defendants reserved the right of lawful dependants of the

deceased men to apply for workmen's compensation and provided

that no claim for workmen's compensation was maintainable against

the Defendants. Clause 6 (v) of the said agreement provided as

follows:

6(v). It is mutually understood and agreed that this

settlement is made and entered into without prejudice

to any action or claim as against such persons deemed

to be the employers of the deceased at the time of

their deaths by the Plaintiffs or such persons deemed

by any Court of Law to be the lawful dependents of the

deceaseds, to Workmen’s Compensation pursuant to the

Workmen’s Compensation Act Chapter 88:05 or any

statutory amendment or replacement thereto. In no

event shall a claim for workmen compensation be

maintainable against the Defendants named herein.”

27. The Applicants argued that clause (6)(v) of the first

settlement agreement means that no deduction can be made for sums

received by the Applicants since the right to make a claim for

workmen's compensation is expressly preserved. However a

distinction must be made between the right to make a claim, which

was preserved by the agreement, and the question of deductions

which is a matter for a Commissioner to decide upon in accordance

with the Workmen's Compensation Act. Clause 6(v) deals with

maintaining a claim for workmen's compensation, not with

disallowing deductions.

10

28. Clause 6(v) also provided that no workmen's compensation claim is

maintainable against the Defendants. The Defendants in the

admiralty action were the owners of the vessel "Tradewind

Sunrise". This is a non-issue since the Defendants were not

employers of the deceased workmen and as such no claim for

workmen's compensation is maintainable against them under the

Act.

29. The only possible liability of the owners of the vessel under the

Workmen's Compensation Act would be to indemnify a person who has

paid compensation under the Act pursuant to section 15. Section

15 applies to persons who are under a legal liability to pay

damages in respect of an injury for which compensation is payable

under the Act. The owners of the vessels were found to be

legally liable in the admiralty action to pay damages to the

deceased workmen and as such section 15 may apply to them.

30. However the issue of indemnifying the Respondents for

compensation they may be found liable to pay does not arise at

that this time and may not arise at all before a Commissioner,

unless the consent of the parties is obtained: section 15 refers.

Certainly the owners of the vessel are not now before the

Commissioner and have not so consented.

31. I turn now to the settlement agreement between the Defendants in

the admiralty action i.e. the owners of the vessel and the Third

Party/First Respondent. This agreement provided that each party

discharges the other from any claim whatsoever including but

without limitation for contribution or indemnity in respect of

the Workmen’s Compensation Act.

32. The Respondents submitted that it was an abuse of process for the

Applicants to pursue the workmen's compensation claim having

regard to this agreement. Alternatively, they argue that the

11

terms of the agreement are illegal, null and void since they

purport to contract out of the provisions of the Workmen’s

Compensation Act.

33. With respect to the abuse of process argument, this must be

rejected because neither the Plaintiffs not the Applicants are

parties to this settlement agreement.

34. As to the invalidity of the agreement, I do not find the mutual

discharge from liability of the parties to be repugnant to the

provisions of the Workmen’s Compensation Act. Section 15 of the

Act provides that an employer may be indemnified by a person

under legal liability, such as the owners of the vessel in this

instance, but section 15 specifically provides that the right to

and the amount of any such indemnity may be agreed upon by the

parties. It seems to me therefore that the parties are entitled

to discharge each other from liability to indemnify without

offending the Act. The agreement is therefore not illegal, null

and void.

35. In summary, I conclude that the present applications are not

precluded by the settlement agreements.

Section 4(4)and the principle of double recovery

36. I come now to the second issue, namely whether the damages

received by the Applicants in respect of the admiralty action

should be taken into account in awarding compensation under the

Act.

37. Section 4 (4) of the Act provides that a Commissioner shall take

into consideration damages awarded to an applicant for the same

injury. This section incorporates the principle that a person

should not recover more than he has lost, i.e. the double

recovery rule.

12

38. In Hodgson v Trapp [1989] 1 AC 807, the court explained the basic

rule that in assessing damages for negligence it was the net

consequential loss and expense that the court must measure.

Receipts to which an injured person would not otherwise be

entitled, have, prima facie, to be deducted from an award. In

determining whether a deduction should be made one had to

consider what was just, reasonable and in accordance with public

policy. These propositions were enunciated by Lord Bridge at

pages 819-820 of the judgment as follows:

“My Lords, it cannot be emphasised too often when

considering the assessment of damages for negligence that

they are intended to be purely compensatory. Where the

damages are essentially financial in character, being the

measure on the one hand of the injured plaintiff’s

consequential loss of earnings, profits or other gains

which he would have made if not injured, or on the other

hand, of consequential expenses to which he had been and

will be put which, if not injured, he would not have needed

to incur, the basic rule is that it is the net

consequential loss and expense which the court must

measure. If, in consequence of the injuries sustained, the

plaintiff has enjoyed receipts to which he would not

otherwise have been entitled, prima facie, those receipts

are to be set against the aggregate of the plaintiff’s

losses and expenses in arriving at the measure of damages.

All this is elementary and has been said over and over

again. To this basic rule there are, of course, certain

well established, though not always precisely defined and

delineated exceptions. .........

...........The difficulty, which has been widely

recognised, is to articulate a single precise

jurisprudential principle by which to distinguish the

deductible from the non-deductible receipt. As Lord Reid

13

said in Parry v Cleaver [1970] A.C. 1, 13: “The common law

has treated this matter as one depending on justice,

reasonableness and public policy.” (Underlining mine)

39. One means of determining what payments should be deductible is

the “like for like approach”. Support for this approach is found

in Trinidad and Tobago Electricity Commission v. Keith Singh CA

180 of 2008 where the court ruled that payments made in respect

of workmen's compensation did not fall to be deducted from an

award of general damages for pain and suffering since such

damages did not compensate the workman for future loss of

earnings. There was in effect, no double recovery and it was

just and reasonable to make no deduction. At paragraph 30 of the

judgment, Mendonca J.A. held as follows:

"The authorities therefore demonstrate that as a

fundamental rule (questions of exemplary and aggravated

damages apart) a plaintiff cannot recover more than he has

lost. There is to be no double recovery... It is also

recognised by the authorities and is an application of the

common law principles of justice and reasonableness that a

plaintiff should only give credit for all payments received

by him in consequence of his injury against like equivalent

damages which he claims. So that for instance where a

plaintiff is in receipt of benefits that compensate him for

loss of earnings those should not be set off against an

award of general damages for pain and suffering. When the

nature of the benefits is considered not to take them into

account does not offend against the principle of double

recovery and is just and reasonable."

40. The issue in this case therefore is whether sums received by the

Applicants as damages in the admiralty action are equivalent in

nature to compensation payable to dependants under the Workmen's

14

Compensation Act so that it is just and reasonable to take them

into consideration in determining the quantum of such

compensation under the Act.

41. In this regard, one must consider the nature of a dependant's

loss as opposed to a workman's loss. Under the Workmen's

Compensation Act, an injured workman is compensated for his

inability to work and for that reason any sum to be deducted must

be referable to damages for loss of earnings or future earnings.

On the other hand, a dependant's injury is the loss of financial

support from a deceased workman.

42. It is significant that section 5(1)(a)(ii) of the Act , which

relates to partial dependants, provides that the sum to be

awarded as compensation to such a dependant is what is

"reasonable and proportionate to the injury to the said

dependant". In other words, one has to determine what a partial

dependant has lost in terms of support and compensate him for

such loss.

43. Where as a result of High Court proceedings for negligence

resulting in the death of a workman, a dependant receives damages

which he would not have received had the workman not died, in my

opinion, it is just and reasonable that such damages should be

taken into account when assessing compensation for the dependant

under the Workmen's Compensation Act as both the damages and the

compensation replace the financial support that was lost.

Failing to take the damages received into account would result in

double compensation to the dependant and would be contrary to

section 4(4) of the Act.

44. In this case, the Applicants have benefited from damages awarded

in the admiralty action and that money ought reasonably be taken

into account in determining the quantum of workmen's

compensation.

15

CONCLUSION

45. I therefore rule on the preliminary issues as follows:

Issue 1

Whether the Applicants are entitled to maintain a claim for

Workmen’s Compensation notwithstanding that they obtained damages

against Tradewind Sunrise in HCA No A 5 of 2005 for negligence in

an admiralty action in rem.

Ruling

Yes. The claim for workmen's compensation is maintainable.

Issue 2

If so, whether a Commissioner in awarding compensation for injury

under the Workmen’s Compensation Act is entitled “to take into

account” any damages recovered by the Applicants or any one of

them in respect of High Court Action No A 5 of 2005.

Ruling

Yes. A Commissioner ought reasonably to take into account

damages received by the Applicants in HCA No. A 5 of 2005.

Dated this 26th day of September, 2014.

P. Sobion Awai

Master of the High Court