Hunt v National Insurance Board
| Jurisdiction | Bahamas |
| Judge | Sawyer, C.J. |
| Judgment Date | 17 June 1997 |
| Court | Supreme Court (Bahamas) |
| Docket Number | No. 620 of 1996 |
| Date | 17 June 1997 |
Supreme Court
Sawyer, C.J.
No. 620 of 1996
Mr. Wayne R. Munroe and Jamaine Basden for the appellant.
Ms. Rowena Bethel and Mrs. Heather Maynard for the respondent.
Tort - Employer's liability — Union agreement stating that employer would provide a scheduled bus service to transport employees to and from work — Whether employee was injured in a traffic accident while on her way to work — Evidence that employer paid employee an allowance to use her car to travel to and from work because there was no bus service — Whether the accident arose “out of and in the course of her employment” — Finding that it did so arise — National Insurance Act. Ch. 320, S. 24(a) & (c).
This is an appeal from a decision of the National Insurance Appeal Tribunal in which it was decided that the appellant's accident did not occur in the course of her employment.
The ground of appeal is “That the tribunal erred in law and in fact in finding that the accident involving the appellant on 6th April, 1995 did not arise out of and in the course of her employment.”
The undisputed facts are these:
The appellant lived in Tarpum Bay and was employed by Club Mediterranee (“Club Med”) in Governor's Harbour, Eleuthera.
On 6th April, 1995, while on her way to work, she was involved in a road traffic accident in Tarpum Bay, and received extensive injuries. The appellant's claim for industrial benefit was not allowed by the National Insurance Board because that body was not satisfied that the accident arose “out of and in the course of her employment”. The Tribunal dismissed her appeal against that decision.
The Tribunal had before it a copy of the appellant's contract of employment and a copy of the Industrial Agreement between her employer and Bahamas Hotel Catering and Allied Workers Union dated 4th July, 1994. In addition, a witness called before the Tribunal produced a letter dated 12th May, 1995 addressed to the National Insurance Board which showed that her employer paid the appellant $130 per month to cover the use of her car for travel to and from her place of work because there was no bus service between those two settlements. The other employees of Club Med travelled to and from work by bus from Gregory Town.
It was an express term of the agreement between Club Med and the Union that Club Med would provide a scheduled bus service for the purpose of transporting all employees covered by the agreement to and from work.
Article 12.2 of the Agreement provided that - “Where transport is provided by the Employer, he shall be responsible for all employees en route to and from work and accident which occurs during this period shall be considered as having occurred in the course of his employment and such injury must be reported to the Department Head and thereafter to the Union's representative”.
Article 12.3 required Club Med to pay for any medical and other expenses arising from any injury sustained in the course of employment if the injury was not caused by the negligence of the employee “(If the employer's responsibility has been proved).”
By a letter dated 2nd August 1995, the Union informed Club Med that its position on the question of transportation was as outlined above and that it had always been the responsibility of Club Med to provide transportation for the employees to get to and from work. The Union also made it plain that Club Med was free to make its own arrangements for the transport of employees to and from work even if that meant that Club Med would hire persons outside of a bus company to do so. The union stated that its one concern was that transportation “is provided for employees.” No arguments were advanced about the effect of that letter which was written after the appellant's accident.
Against that factual background, Mr. Munroe submits that the Tribunal was in error when it decided that the appellant was not in the course of her employment as a cook/chef at Club Med when she was injured and he relied, in part, on section 24(a) and (c) of the National Insurance Act, (Ch.320) (“the Act”).
Ms. Bethel submits that section 24 must be read with subsection 20(2)(a) of the Act.
Those provisions read:
“20-(2) Subject to subsection (3), there shall be, in addition to the benefits specified in subsection (1), Industrial benefit, which shall comprise –
(a) injury benefit, that is to say, in addition to such free medical care and attention as may be prescribed, periodical payments to an employed person or such self-employed person as may be prescribed, who suffers personal injury which is caused by an accident Arising out of and in the course of his employment as an employed person or a self-employed person as aforesaid, or develops any disease due to the nature of such employment;”
(Emphasis added)
“24. For the purposes of this Act an accident –
(a) Arising out of employment of an employed person shall be presumed, unless the contrary is shown, to have occurred in the course of the employment and, where the accident occurred in the course of the employment, it shall be presumed, unless the contrary is shown, to have arisen out of the employment;
(b) shall be deemed to arise Out of and in the course of the employment of an employed person notwithstanding that he is at the time of accident acting in contravention of any statutory or other regulations applicable to his employment, or of any orders given by or on behalf of his employer, or that he is acting without instructions from his employer, if the act is done for the purpose of and in connection with the trade or business of the employer;
(c) happening while an Employed person is, with the express or implied permission of his employer, travelling as a passenger by any vehicle, ship, vessel or aircraft to or from his place of work shall, notwithstanding that he is under no obligation to his employer to travel by such vehicle, ship, vessel or aircraft, be deemed to arise out of and in the course of his employment, if:–
(i) the accident would have been deemed so to have arisen had he been under such an obligation; and
(ii) at the time of the accident, the vehicle, ship, vessel or aircraft is being operated by or on behalf of his employer or some other person by whom it is provided in pursuance of arrangements made with his employer and is not being operated in the ordinary course of a public transport service;
(d) happening to an employed person in or about any premises at which he is for the time employed for the purposes of the trade or business of his employer shall be deemed to arise out of and in the course of his employment if it happens while he is taking steps, in an actual or supposed emergency at those premises, to rescue, succour or protect persons who are, or are thought to be or possibly to be, injured or imperilled, or to avert or minimise serious damage to property.”
(Emphasis added)
The difficult legal question before the Tribunal, and before this Court is the meaning of the phrase “out of and in the course of his employment” used in the above provisions. The extent of the difficulty is, I think, shown by the following extract from the judgment of Sir John Donaldson, MR said in Nancollas v. Insurance Officer [1985] 1 All E.R. 833 at 835:–
“These apparently clear and simple words gave rise to endless litigation in the context of the Workmen's Compensation Acts and have proved no less prolific in their present context. NONE OF THESE AUTHORITIES PURPORTS TO CONSTRUE THE WORDS OTHER THAN IN THEIR NATURAL MEANING. NONE PROVIDES A SIMPLE FORMULA WHICH, ON APPLICATION TO THE FACTS, PROVIDES A READY ANSWER TO THE QUESTION, ‘DID HE SUFFER THE ACCIDENT IN THE COURSE OF HIS EMPLOYMENT?’ AND, IN THE NATURE OF THINGS, NONE COULD DO SO, BECAUSE THE INCIDENTS OF EMPLOYMENT ARE SO VARIED. ALL THEY CAN AND DO ATTEMPT IS TO DRAW ATTENTION TO FACTORS WHICH ARE MATERIAL AND SHOULD BE TAKEN INTO ACCOUNT AND BALANCED ONE AGAINST THE OTHER IN ANSWERING THE QUESTION. THE AUTHORITIES HAVE, THEREFORE, TO BE STUDIED FOR GUIDANCE AS TO THE APPROACH TO BE ADOPTED RATHER THAN AS PROVIDING ANY ANSWER IN PARTICULAR CASES.”
(Emphasis supplied).
In this case, a number of authorities have been cited on both sides but they must be treated as showing the approach to be taken not as decisive of the question whether the appellant's injuries arose out of and in the course of her employment. I will examine some of the authorities on both sides of the divide.
In Edwards v. Wingham Agricultural Implement Company Limited [1913] 3 K.B. 596, decided under the Workmen's Compensation Act, 1906, Cozens-Hardy, M.R. at p.601 said:
“What is the bearing of those cases? They seem to me to turn on the point of whether the accident happened in the course of the employment. When does the employment of a man in such circumstances begin? … THE EMPLOYMENT MUST BEGIN AT SOME TIME AND PLACE AND END AT SOME TIME AND PLACE….”
(Emphasis added)
In that case, the dependants of a deceased workman employed as an engine driver and paid by the hour claimed compensation under the 1906 Act. The deceased's work consisted of going from farm to farm with an engine...
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