Fazal Ghany v Attorney General and Another (Trinidad and Tobago)
| Jurisdiction | UK Non-devolved |
| Judge | Sir David Lloyd Jones |
| Judgment Date | 24 March 2015 |
| Neutral Citation | [2015] UKPC 12 |
| Date | 24 March 2015 |
| Docket Number | Appeal No 0075 of 2012 |
| Court | Privy Council |
[2015] UKPC 12
Privy Council
From the Court of Appeal of the Republic of Trinidad and Tobago
Lord Kerr
Lord Sumption
Lord Hughes
Lord Toulson
Sir David Lloyd Jones
Appeal No 0075 of 2012
Appellant
Hendrikson Seunath SC Kristendath Neebar
(Instructed by Bankside Commercial Solicitors)
Respondents
Michael Fordham QC Tom Richards
(Instructed by Charles Russell Speechlys)
Heard on 25 June 2014
The Compensation Committee of Trinidad and Tobago ("the Committee") was established by section 5(1) of the Protective Services (Compensation) Act 1996 ("PSCA"). The long title of the Act is "An Act to provide for the payment of compensation in respect of officers of the protective services who suffer injury or die in circumstances arising out of and in the course of employment with the State". This stated purpose reflects the fact that, before the enactment of PSCA, officers in the police, fire and prison services had not been eligible for compensation for work-related injuries under the Workmen's Compensation Act 1960 ("WCA"). To address this anomaly, PSCA provides a scheme that allows injured officers to claim compensation. One issue in this appeal is how far the scheme introduced by PSCA is intended to extend.
The appellant, Fazal Ghany, was a corporal in the police service of Trinidad and Tobago when he suffered an injury as a result of falling while descending a flight of stairs at his place of work on 1 December 2006. As a result he suffered a fracture of the anterior superior iliac spine. Dr Stephen Ramroop, a specialist in orthopaedic surgery, examined the appellant on 20 August 2007 and concluded that he had a 26% permanent disability consequent on the injuries that he had sustained in the fall.
Corporal Ghany applied for compensation under the PSCA. The Committee decided that he had suffered injury while carrying out his duties, that the fall had been caused by the condition of the stairs that he had been descending and that the resulting level of disability was as assessed by Dr Ramroop. It concluded, however, that it was not possible to award him compensation. This was because the Committee was of the view that the state's liability to pay compensation arose only in accordance with the PSCA and Corporal Ghany's injury did not qualify under that legislation. Section 13(2) of the Act provides that the Committee shall make an order for the award of compensation in accordance with the Second Schedule. This provides that compensation for permanent partial disablement is to be awarded on the basis of the same percentages of an amount equal to three years gross salary "as those included under the Second Schedule to the [WCA]". The Second Schedule to the WCA contains a list of injuries that are "deemed to result in permanent disablement". This list does not include a fracture of the iliac spine.
On appeal to the Court of Appeal (Kangaloo, JA, Stollmeyer, JA and Smith, JA) that Court dismissed the appeal (Kangaloo, JA dissenting), holding that the Committee was correct in holding that it had no jurisdiction under the PSCA to award compensation.
Section 3 of the PSCA provides that where an officer suffers personal injury in circumstances arising out of and in the course of his employment with the State, it shall be liable to pay compensation "in accordance with this Act". "Personal injury" is defined in section 2 as meaning "permanent partial disablement or permanent total disablement". "Permanent partial disablement" is defined as meaning "such disablement of a permanent nature as reduces the earning capacity of an officer in the service in which he was employed at the time the disablement was sustained".
The Committee established under section 5(1) is said by that provision to have been brought into existence "for the purposes of performing the functions detailed under this Act". Those functions are specified in section 13 and include the following: to receive, investigate, hear and determine claims for compensation and to make orders for compensation "in accordance with the Second Schedule" (section 13(1)(a)) and to discharge any other responsibility that is required by the Act (section 13(1)(b)). The Committee is required by section 14 to make and publish its own rules dealing with the initiation of claims and the conduct of the Committee's business. It is required by section 17 to take into account, in making an award of compensation, any damages awarded to an officer or his beneficiary in respect of the same injury or death. It is required by section 18(1) to submit an annual report to the Minister with responsibility for National Security ("the Minister").
The Second Schedule is entitled "Benefits that should be granted in respect of injury or death arising out of and in the course of employment". Paragraph (a) of the Schedule deals with compensation for death and specifies (under paragraph (a)(i)) a sum for compensation as an amount equal to three years' gross salary at the date of death, plus (under paragraph (a)(ii)) such entitlement as is due under other legislation. Compensation for permanent total disablement or permanent partial disablement is dealt with in paragraph (b). It stipulates that this should comprise sums produced by applying the same percentages of the amount specified in paragraph (a)(i) as "those included under the Second Schedule to the [WCA]", plus such entitlement as might arise from other legislation. Thus, compensation for permanent partial or total disablement is to have as its base figure an amount equal to three years' gross salary but the percentage of that amount that is to make up the award is to be the same as is stipulated in the Second Schedule to the WCA. The central issue in this case arises because that Schedule does not give a percentage for the type of injury that the appellant sustained.
Section 21 of the PSCA provides, among other things, that the Minister may by order amend the Second Schedule by adding benefits to be recovered by members of the various services who suffer work-related injuries.
The structure of the scheme for compensation in the WCA is broadly similar to that under the PSCA although, there are, as we shall see, important differences. Section 5(1) of the WCA provides in relevant part:
"Subject to this Act, the amount of compensation shall be as follows:
…
"(c) where permanent partial disablement results from the injury —
(i) in the case of an injury specified in the Second Schedule, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the incapacity caused by that injury: and
(ii) in the case of an injury not specified in the Second Schedule, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the incapacity permanently caused by the injury" …"
Accordingly, under section 5(1)(c)(i), where a workman has suffered permanent partial disablement, his employer is liable to pay compensation calculated according to the percentage of the compensation which would have been payable for permanent total disablement as set out in the Second Schedule. The title of the Second Schedule to the WCA is "List of injuries deemed to result in permanent disablement". Most of the injuries set out in the Schedule are the loss of a member, although the Schedule also includes total loss of sight, loss of hearing, total paralysis, injuries resulting in being bedridden permanently and any other injury causing permanent total disablement. It provides that total permanent loss of use of a member shall be treated as a loss of that member. Each entry is allocated a percentage of incapacity.
In addition, section 5(1)(c)(ii) makes provision for the amount of compensation payable in cases of permanent partial disablement resulting from an injury not specified in the Second Schedule; it is to be such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the incapacity permanently caused. The PSCA does not include a provision corresponding to section 5(1)(c)(ii) of the WCA.
The questions which arise, therefore, are whether this omission was an error and, if so, whether it is open to the court to correct the error.
On behalf of the appellant it is submitted that there has been an obvious error in the process of enacting the PSCA in that no provision has been made for those injuries resulting in permanent disablement which are not included in the Second Schedule to the WCA. It is further submitted that, had the error been noticed, it is clear that Parliament would have incorporated into the PSCA, a provision equivalent to section 5(1)(c)(ii) of the WCA.
On behalf of the respondents it is submitted that effect should be given to the literal meaning of the provisions of the PSCA. The liability of the State under section 3 is to pay compensation in accordance with the Act and, by virtue of section 13, the Committee is under a duty to make orders for compensation in accordance with the Second Schedule. The Second Schedule provides that in the case of compensation for permanent partial disablement the benefits shall be the same percentages of an amount equal to three years gross salary at the date of death as those included under the Second Schedule to the WCA. The injury suffered by the appellant does not appear in the Second Schedule to the WCA and accordingly, it is submitted, the Committee correctly concluded that it had no jurisdiction to make an order for the award of compensation.
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