IN THE HIGH COURT OF JUSTICE

OF

TRINIDAD AND TOBAGO

WC 45 of 2010

Seeram Roopnarine

1½ Mile Mark, Penal Rock Road

#8 Rampersad Drive, Penal

And

Raffic Mohammed

&

Kassie Roopnarine

***********************

REASONS

Before Master Patricia Sobion Awai

Appearances:

For the Applicant

Mr. Ronald Singh

For the Respondents:-

Mr. Ravi Bunsee for the 1st Respondent

Mr. Gerard Raphael for the 2nd Respondent

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Background

1. The Applicant, Seeram Roopnarine was injured while working

on July 5, 2007. He was in the course of putting up a wall

profile on the first floor of a house under construction.

The profile gave way and he fell off a ladder to ground

floor injuring back, neck and ankle. This accident

occurred within the first hours of the Applicant's first

day on the job.

2. Raffic Mohammed and Kassie Roopnarine, the First and Second

Respondents respectively, were both given notice of the

accident and claims for compensation under the Workmen's

Compensation Act Chap. 88:05 were made against them.

3. The pleadings consisted of the following documents:

i. The Application filed on Feb 24, 2010;

ii. The Reply of the second respondent (to the

applicant) dated April 17, 2012;

iii. The Reply of first respondent filed on October 8,

2012; and

iv. The Reply by the second respondent to the reply

of the first respondent filed on November 7,

2012.

4. The witnesses each filed witness statements and were

presented for cross-examination.

Issues

5. The issues that arose from the pleadings were as follows:

i. Who employed the Applicant?

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ii. What quantum of compensation was due to the

Applicant for the injuries sustained.

6. The first issue was principally a question of fact and the

position of each party in the pleadings was distinct. The

Applicant's position was that he was employed by the First

Respondent who was a sub-contractor of the Second

Respondent. Both of those propositions were denied by the

First Respondent who claimed that the Applicant was

employed by the Second Respondent. The Second Respondent

claimed that the Applicant was employed by the First

Respondent and that the First Respondent was in turn

employed as a builder by Roonie Dean and James Dean, the

owners of the property under construction.

7. As to the second issue, the parties agreed that they would

attempt to settle the quantum of compensation, if any,

after a decision on liability was made by the Commissioner

for Workmen's Compensation.

8. A third issue concerning whether the claim was statute-

barred arose as a preliminary submission but this was

deferred pending the hearing of the substantive matter as

it necessitated the calling of evidence.

9. The two issues for the Commissioner to determine then were

(1) Who employed the Applicant?

(2) Was the claim made to his employer within time in

accordance with Section 11 of the Workmen's

Compensation Act?

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Who employed the Applicant

Applicant's evidence

10. In his witness statement filed on December 19, 2012, the

Applicant stated that he was a carpenter and was employed

by Raffic Mohammed, the First Respondent. On July 5, 2007,

he reported for duty at the home of Raffic Mohammed and

they walked over to the jobsite which was located a short

distance away. On arrival he was given instructions by

Raffic Mohammed to start putting down the profile, which he

described as a vertical piece of wood used to run the line

for the laying of blocks. He had begun doing so when he

fell off a ladder and sustained injuries.

11. When cross-examined by attorney-at-law for the First

Respondent, the Applicant said he knew Raffic Mohammed

because they had been co-workers at one time. He did not

know Kassie Roopnarine, the Second Respondent. He said

that about two weeks before the accident, Raffic Mohammed

told him about the job stating that he Raffic was the

foreman and Kassie Roopnarine was the contractor. The

Applicant was quite emphatic in his denial that he was

employed by Kassie Roopnarine and his assertion that Raffic

Mohammed had employed him. He said "I am telling you

Raffic is the man employ me because I never known or see

(Kassie Roopnarine) before."

12. When cross-examined by attorney-at-law for the Second

Respondent, the Applicant insisted that Raffic Mohammed was

the person responsible for paying him because the

arrangement to work was made with him. He said "I

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discussed the wages with (Raffic Mohammed) who employ me so

automatically he is the man responsible for paying me."

13. In relation to the letter dated December 10, 2009 written

by the Applicant's attorney-at-law to Kassie Roopnarine in

which it was stated that the Applicant's instructions were

that he was employed by Kassie Roopnarine, the Applicant

said that was an error because he never gave instructions

that Kassie Roopnarine had employed him.

First Respondent's evidence

14. The evidence on behalf of the First Respondent Raffic

Mohammed consisted of his own evidence and that of Raffeez

Ramjohn, a labourer.

15. In his witness statement, Raffic Mohammed said he was a

mason by profession. In June 2007, being unemployed, he

noticed a house under construction and he found out that

Kassie Roopnarine was the contractor building the house.

He found out from Kassie that the house belonged to his

(Raffic Mohammed's) cousin James Dean, who was married to

Kassie's sister. Kassie first hired him to tie some steel

which he completed in one week. Noticing that the house

was incomplete, he asked Kassie if he needed a mason.

Kassie in turn asked him if he knew anyone else who would

be available to work. Seeram expressed an interest when

Raffic told him about the house under construction.

16. On July 4, 2007, Raffic Mohammed was employed by Kassie

Roopnarine to put up blocks or build the walls of the

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upstairs portion of the house under construction. Raffic

told him about Seeram and two other men and he was

instructed by Kassie "to tell them to come down to the

jobsite the next day and he would speak to them."

17. The four men arrived at the jobsite by 7.30 am and at 8.00

am, Kassie phoned to say that he would come to the jobsite

later and that the men should start working. Raffic was

instructed to start putting up blocks on the upper decking,

Seeram was to start putting up profiles and the other two

labourers were to assist in those tasks.

18. Raffic Mohammed claimed that subsequent to that day, he was

not involved in any work at that jobsite.

19. In cross-examination by Mr. Singh for the Applicant, Raffic

Mohammed said the only instruction he received from Kassie

that morning was "to put up the profile". After receiving

that instruction he told the others and Seeram and Rafeez

started putting up the profile. Raffic remained on the

decking giving them instructions on what to do. The other

labourer Shastri was not doing anything. He explained that

no blocks could be put up until the profile was done. When

pressed as to his role on the jobsite, he said "Well okay

yeah you could say that I was ah foreman then. Leh we say

I was ah foreman then." He also said that the work of the

foreman was to relay messages from the boss to the workmen.

20. In his evidence, Raffeez Ramjohn explained how he came to

be employed at the same jobsite with the Applicant on the

day in question. Having found out from a relative that

jobs were available, he spoke to Raffic Mohammed who told

him he had already spoken to Kassie Roopnarine and was

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awaiting a call to confirm whether he and others would be

hired. Raffic did not know what salary Kassie would pay.

A few days later Raffic indicated that he was hired to put

up blocks at the premises and interested persons including

Shastri Dookie and Rafeez Ramjohn should go to the jobsite

to speak with Kassie the next day.

21. Raffeez arrived before 7.30 am and at about 8.00 am was

told by Raffic that Kassie wanted them to start work, which

he did, pairing with Seeram to start putting up the

profiles.

22. When cross-examined he said he did not know who hired him

because he did not get paid. He said he could have been

paid either by Raffic Mohammed or Kassie Roopnarine.

23. He admitted that Raffic was related to him. He did not

know whether Raffic went back to work at the jobsite after

the accident. He, Raffeez, went back to work at Jokhan.

Second Respondent's Evidence

24. Two witnesses were called for the Second Respondent: the

Second Respondent himself and James Dean.

25. Kassie Roopnarine described himself as a welder, contractor

and carpenter. He said his sister Roonie Dean and her

husband James Dean were both owners of the building under

construction. In his witness statement he said that in his

presence, James Dean retained the services of Raffic

Mohammed to erect the blocks and ring beam around the

building for the sum of $14,500.00. At the request of

James Dean that sum was paid to Raffic Mohammed.

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26. In cross-examination Kassie Roopnarine claimed to have made

a mistake when he said that Raffic Mohammed was retained by

James Dean in his presence. He said that James Dean was in

fact out of the country at the time. Kassie Roopnarine now

maintained that he, Kassie, had retained the services of

Raffic Mohammed with the consent of James Dean.

27. Kassie Roopnarine denied that he was the contractor or in

any way involved with the work except to make payments on

behalf of Roonie and James Dean to Raffic Mohammed as the

work progressed.

28. However during cross-examination, he admitted to also

sourcing material and finding people to do the work and

getting money from James' brother to pay people. He was

basically managing the project and he described himself as

James' agent. He was not paid for his work on the project.

29. Kassie Roopnarine said Raffic Mohammed worked on the

jobsite until the blocks and ring beam were completed.

However he did not produce any documents to show the

payments totaling $14,500.00 that he allegedly made to

Raffic Mohammed though he said he had made entries to that

effect in his diary.

30. James Dean said that in 2006 he and his wife began

constructing a dwelling house. He described Kassie

Roopnarine as his agent on the project. In that capacity,

Kassie Roopnarine retained the services of Raffic Mohammed

to erect the blocks and ring beam around the building at a

cost of $14,500.00. James Dean said he made arrangements

to have the money sent to Kassie Roopnarine to pay Raffic

Mohammed for his work. He did not pay Kassie Roopnarine.

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31. Under cross-examination James Dean explained that Kassie

Roopnarine had authorisation to hire and fire persons in

relation to the project. He said he was aware that Raffic

Mohammed had been sub- contracted to do the ring beam.

Analysis

32. It is a question of fact in any given case whether one

person was employed by another. Halsbury’s Laws of England

Vol XX 1911ed. At paragraph 131 reads as follows:

131. Whether or not , in any given case, the relation of

master and servant exists is a question of fact; but

in all cases the relation imports the existence of

power in the employer not only to direct what work

the servant is to do, but also the manner in which

the work is to be done.

33. Generally, in assessing the evidence of these witnesses I

bore in mind that Raffic Mohammed could not read or write

and in the case of all witnesses with the exception of

James Dean, the fluency of their witness statements was a

stark contrast to their unease and discomfort while giving

oral testimony. It was at times difficult to make sense of

their responses.

34. In terms of credibility I was most impressed by the

Applicant Seeram Roopnarine and James Dean, the owner of

the property under construction. There were some

discrepancies in the Applicant's evidence but they might

have been the result of his unease in the courtroom not

from any deliberate attempt to deceive the Court.

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35. On the other hand, the First and Second Respondents’

evidence appeared in some respects to be contrived,

designed to avoid liability and to blame each other.

36. The Second Respondent's credibility was seriously harmed

when he was contradicted by his own witness James Dean in

several material issues including the retention of Raffic

Mohammed and his (Kassie Roopnarine's) own role in the

project. I drew adverse inferences from his attempt to

change the evidence given in his witness statement that he

was present when James Dean hired Raffic Mohammed as this

was hardly a matter upon which one could be genuinely

mistaken. It was an attempt to deceive the Court.

37. The First Respondent’s evidence was contradictory as to the

extent of instructions he received from the Second

Respondent at the jobsite on the morning of the accident.

Another discrepancy related to his continued involvement

with work on the jobsite after the accident. At paragraphs

19 and 20 of his witness statement, Raffic Mohammed said he

never received any money from Kassie for the job and that

he was not involved in any work concerning the house since

then. However when cross examined, he said he worked for

three days one week after the accident for which he earned

$900.00. Additionally, he said he went back to work for

Jokhan but the evidence of his own witness Rafeez Ramjohn

who testified that he went back to work for Jokhan was that

he did not know whether Raffic completed the job. Surely

he would have remembered if Raffick went back to work with

Jokhan, in which case he could not have completed the job.

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38. Based on the evidence before me, I found that the Applicant

was employed by the First Respondent. Raffic Mohammed met

with Seeram beforehand and agreed terms and start date.

Seeram never in fact even met Kassie Roopnarine before he

commenced work at the jobsite. Further I do not accept

that Raffic Mohammed was a mere conduit relaying

instructions from Kassie Roopnarine to the workers. Raffic

Mohammed had full control over the manner in which the work

was to be done on the morning of the accident. He employed

the men to do a job which he was given by Kassie

Roopnarine.

39. This finding was consistent with the evidence of James Dean

who said that Kassie Roopnarine was his agent authorized to

manage the building project. He confirmed that Kassie had

hired Raffic Mohammed as a sub-contractor to do a

particular job i.e. installing the walls and the ring beam

at a cost of $14,500.00 which as far as he was aware had

been paid.

40. Insofar as I accepted this evidence, it followed that for

the purposes of the Workmen’s Compensation Act, Kassie

Roopnarine was agent for the owner and therefore was in the

position of a contractor or principal in relation to Raffic

Mohamed, his sub-contractor, who in turn had employed the

applicant Seeram Roopnarine.

41. Under section 14 of the Workmen’s Compensation Act, a

principal is liable to pay a workman compensation under the

Act which he would have been liable to pay if that workman

had been immediately employed by him. Section 14 reads as

follows:

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14. (1) Where any person (in this section referred to as

“the principal”) in the course of or for the

purposes of his trade or business contracts with

any other person (in this section referred to as

“the contractor”) for the execution by or under

the contractor of the whole or any part of the

work undertaken by the principal, the principal

shall be liable to pay to any workman employed in

the execution of the work any compensation under

this Act which he would have been liable to pay

if that workman had been immediately employed by

him; and where compensation is claimed from or

proceedings are taken against the principal, then

in the application of this Act references to the

principal shall be substituted for references to

the employer, except that the amount of

compensation shall be calculated with reference

to the earnings of the workman under the employer

by whom he is immediately employed.

(2) Where the principal is liable to pay compensation

under this section, he shall be entitled to be

indemnified by any person who would have been

liable to pay compensation to the workman

independently of this section, and all questions

as to the right to and the amount of any such

indemnity shall, in default of agreement, be

settled by a Commissioner.

(3) Where a claim for compensation is made under this

section against a principal, the principal shall

give notice of the claim to the contractor who

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shall thereupon be entitled to intervene in any

application made against the principal.

(4) Nothing in this section shall be construed as

preventing a workman recovering compensation

under this Act from the contractor instead of the

principal.

(5) This section shall not apply in any case where

the accident occurred elsewhere than on, or in,

or about premises on which the principal has

undertaken to execute the work or which are

otherwise under his control or management.

42. For the purposes of Section 14, Kassie Roopnarine was the

principal as he was the person who contracted with the

First Respondent for putting up blocks and ring beam. He

was therefore liable to pay the Applicant compensation

under the Act. However he might be entitled to be

indemnified by the sub-contractor who is Raffic Mohammed

which would have to be determined by the Commissioner if

necessary.

Limitation Issue

43. The First Respondent filed a Notice on October 8, 2012 to

strike out the claim pursuant to Section 11 of the

Workmen’s Compensation Act for failure to make a claim

within one year and failure to set out grounds for not

complying in his application. The grounds are mistake,

absence from Trinidad and Tobago or reasonable cause. The

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application was deferred until the hearing of the

substantive issue.

44. The relevant law is set out below.

Section 11 of the Workmen’s Compensation Act:

11(1) Proceedings for the recovery under this Act of

compensation for an injury shall not be maintainable

unless.... and unless the claim for compensation with

respect to such accident has been made within one year

from the occurrence of the accident causing the injury,

or in the case of death, within one year from the time of

death:

Provided that -

(a) ………

(b) the failure to make a claim within the

period above specified shall not be a bar

to the maintenance of such proceedings if

it is found that failure was occasioned by

mistake, absence from Trinidad and Tobago or

other reasonable cause.

45. It is noted that claims for compensation under the Act need

not be in writing. Paragraph 387 of Halsbury’s Laws of

England Vol XX 1911ed reads as follows:

387. The claim for compensation need not be in writing

nor need it be the commencement of proceedings to

recover compensation. A mere demand of

compensation from the employer by or on behalf of

the workman, is a claim for compensation within

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the meaning of the Act.

The Evidence re Limitation

46. In evidence given before the Registrar on March 18, 2011,

the Applicant stated that the Second Respondent came to

visit him at home twice after he came out of the hospital.

He asked the Second Respondent for compensation for his

injuries on two occasions; the first time he asked was

within one week after the accident and the second time,

within three weeks after the accident.

47. Based on this evidence, which was subsequently disclosed to

the other parties, the Commissioner found that the

application could proceed and the Respondents were served

with the application.

48. At the hearing before the Commissioner, the Applicant was

cross-examined briefly by attorney for the First Respondent

on the issue of whether there were reasonable grounds for

not bringing the claim on time. The Applicant stated that

he did not bring his claim for compensation within one year

of the accident because of the effects of the accident

whereby he could not move around for a considerable period

of time and he did not have the financial wherewithal

because he was unable to work.

49. There was no cross-examination of the Applicant by attorney

for the Second Respondent on his evidence that the claim

for compensation was made to the Second Respondent orally

on two occasions within three weeks of the accident.

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Analysis

50. I was satisfied that the claim was not made to the First

Respondent until January 15, 2010 when his lawyer wrote to

the First Respondent seeking compensation. There was no

good reason given for such a long delay in making a claim

and therefore I found that the claim was barred as against

the First Respondent.

51. With respect to the Second Respondent, I was satisfied on

the evidence that the claim was made within the time

limited by the Workmen’s Compensation Act. As against this

Respondent, the limitation point therefore failed.

The Findings

52. On the issue of liability, I found that the Second

Respondent was liable to pay Workmen’s Compensation to the

Applicant.

53. The issue of quantum of such compensation remained to be

determined by the Commissioner in default of agreement.

54. The issue of indemnity would also need to be addressed as

between the Respondents.

Dated this 25th day of March, 2014.

P. Sobion Awai

Master of the High Court and

Commissioner for Workmen’s Compensation