Friday, 12 October 2012

Law report - Claims under the Workers' Compensation Act

Peiris v Bermuda Building Services Co. Ltd. [2012] SC (Bda) 49 Civ

This was a claim under the Workers' Compensation Act.

S.4(1)(b) states:
if it is proved that the injury to a worker is attributable to the serious and wilful misconduct of that worker, any compensation claimed in respect of that injury shall be disallowed:

Provided that where the injury results in death or serious and permanent incapacity, the court on a consideration of all the circumstances may award the compensation provided for by this Act or such part thereof as it shall think fit.

The Court found that the Plaintiff had suffered serious and permanent incapacity.

Counsel for the Defendant submitted that the second part of s.4(1)(b) was a free-standing provision, giving the court a general discretion in the case of death or serious injury that it would not otherwise have.

Hellman J held that it would be surprising if the court had a free-standing discretion regarding compensation for serious injury or death when it did not for less serious injuries [23]. The discretion is only engaged when the injury is due to the serious and wilful misconduct of the worker. [24].

Counsel for the Defendant submitted that failure to wear a safety harness on a forklift truck amounted to serious and wilful misconduct. However, Hellman J approved passages from the House of Lords in Johnson v Marshall [1906] AC 409 and Bist v London & South Western Railway Co [1907] AC 209 that a very high threshhold was required for serious and wilful misconduct: much higher than that required for negligence, for example. [28]-[31].

Where an arm is of little practical use and only has some limited movement in the hand, it was enough to amount to loss of use of the entire arm. The judge awarded damages on this basis, with a slight reduction for there being some function in the arm at the shoulder. [34]

Amounts paid to the Plaintiff as salary since the incident should not be offset from the award, because compensation and salary are seperate and distinct. [35].

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