Administrator-General v Nchanga Consolidated Copper Mines (1968/HP/ 116) [1970] ZMHC 1 (4 March 1970)

ADMINISTRATOR-GENERAL v NCHANGA CONSOLIDATED COPPER MINES (1970) ZR 9 (HC) HIGH COURT MAGNUS J 4th MARCH 1970 I 1968/HP/ 116 10 Flynote Tort - Law Reform (Miscellaneous Provisions) Act, 1967, s. 13 - Whether in conflict with provisions of s. 8 (1) of Workmen's Compensation Ordinance (Cap. 188). Tort - Fatal Accidents Act - Whether a wife under customary law a "wife" within the meaning of the Fatal Accidents Act. Damages 15 - Assessment of under the Law Reform (Miscellaneous Provisions) ■ Act, 1967, the Workmen's Compensation Ordinance (Cap. 188) and the Fatal Accidents Act. Statutes - Conflict - Whether s. 13 of the Law Reform (Miscellaneous Provisions) Act, 1967, and the provisions of s. 8 of the Workmen's Compensation Ordinance (Cap. 188) are in conflict. 20 ■ Headnote The deceased who was an employee of the defendant Nchanga Consolidated Copper Mines, died in an accident contributed to by his own negligence. Amounts of damages under the Law Reform (Miscellaneous Provisions) Act and Fatal Accidents Act were agreed upon between the 25 parties. The issues raised were (a) whether there was a conflict between s. 13 of the Law Reform (Miscellaneous Provisions) Act, 1967, and the provisions of s. 8 of the Workmen's Compensation Ordinance (Cap. 188) (b) if not, how the proviso to s. 8 (1) of the Ordinance could be applied in this case and lastly (c) whether a wife under customary law is a wife 30 within the meaning of the Fatal Accidents Act. Held: ■ ■ (i) The proviso to s. 8 (1) of the Workmen's Compensation Ordinance refers to compensation payable "in respect of injuries sustained by the workman" and not to compensation payable in event 35 of the death of the workman. The proviso therefore has no application in the present case and the compensation payment made to the widow and dependants do not fall to be deducted in considering what sum shall be awarded in the I present application. 40 ■ (ii) A wife married under customary law in Zambia is legally married according to the laws and the widow in the present action is entitled to maintain her claim. 1970 ZR p10 MAGNUS J Cases cited: (1) Allen v Thorn Electrical Industries Ltd. [1967] 2 All ER 1137. (2) Lloyds Bank Ltd v Eagle Star Insurance Co. Ltd. [1951] 1 All ER 914. I (3) Browning v The War Office (1963) 1 LB 750; [1962] 3 All ER 1089. 5 (4) Parry v Cleaver, [1969] 1 All ER 555. (5) Mehta v Acting Master of the High Court of S Rhodesia (1958) R & N 570. (6) Din v National Assistance Board, [1967] 1 All ER 750. I (7) Coleman v Shang, [1961] 2 All ER 406. 10 Legislation referred to: Law Reform (Miscellaneous Provisions) Act, 1967, s. 13. Workmen's Compensation Ordinance (Cap. 188), s. 8. Fatal Accidents Act. C M M Daley, Director of Legal Aid, for the plaintiff. I R Jagger, Ellis & Co., for the defendant. 15 Judgment Magnus J: Two points arise for my decision in this matter, damages having been agreed at K 3,000, apportioned as to K 400 under the Law Reform Act, and as to K 2,600 under the Fatal Accidents Act, it being agreed that the accident by which the deceased died was 20contributed to by his own negligence. The two points which I have to decide are: I (1) (a) Is there a conflict between s. 13 of the Law Reform (Miscellaneous Provisions) Act, 1967, and the provisions of s. 8 of the Workmen's Compensation Ordinance (Cap. 188 of 25 the Laws of Zambia)? ■ (b) If not, how is the proviso to s. 8 (1) of the Ordinance to be applied in the present case? I (2) Is a wife under customary law a "wife" within the meaning of the Fatal Accidents Act? 30 As to the first point, s. 13 (1) of the Law Reform (Miscellaneous Provisions) Act, 1967, provides that: "13. (1) In assessing damages in respect of a person's death in any action under the Fatal Accidents Acts, 1846 to 1908, or under any law for the time being in force relating to carriage by air, there 35 shall not be taken into account any right to benefit resulting from that person's death." "Benefit" is defined in sub-s. (3) of this section as including (inter alia) workmen's compensation which has been paid as a result of the death of the person concerned. Section 8 (1) of the Workmen's Compensation 40 Ordinance provides that: ■ "8. (1) Where any injury is caused to a workman by the negligence, breach of statutory duty or other wrongful ■ act or omission of the employer, or of any person for whose act or default the 1970 ZR p11 MAGNUS J employer is responsible, nothing in this Ordinance shall limit or in any way affect any civil liability of the employer independently of this Ordinance :" There is a proviso, however, whereby: I ". . . any damages awarded to a workman in any action at common 5 law or under any law in respect of any ■ such negligence, breach of statutory duty, wrongful act or omission, shall be reduced by the value, as decided by the Court, of any compensation which has been paid or is payable under the provisions of this Ordinance in respect of injury sustained by the workman." 10 ■ On the face of it, it therefore appears on the one hand that whereas under the Workmen's Compensation Ordinance the value of workmen's compensation must be deducted from any award of damages under another statute, s. 13 (1) of the 1967 Act would appear to preclude any such deduction from assessed damages under the Fatal Accidents Act. 15 There would therefore seem to be an apparent contradiction between the sections, and it has been argued before me that the doctrine of implied repeal should be applied here, so that the earlier provision must be deemed to have been repealed by the later provision. I will not go into the authorities dealing with the doctrine of implied repeal, but will 20 summarise them by saying that repeal is only implied when there is such inconsistency between the two provisions concerned that one cannot be reconciled with the other, and any attempted reconciliation would be nonsensical. I note here, however, that whereas s. 13 (1) of the 1967 Act refers to "assessing damages", s. 8(1) of the Workmen's Compensation 25 Ordinance refers to "damages awarded". Mr Daley argued that the word "assess" and the word "award" are synonymous, quoting the Oxford Dictionary definition of "assess": "(1) Fix the amount . . . to be paid by a person or a community. ■ ■ (2) Determine an amount and impose upon. 30 ■ (3) To impose a tax or fine upon. (4) To estimate officially the value for taxation." It is, of course, well established that unless a word has acquired a technical meaning or is expressly defined in the statute concerned, it must be taken in its ordinary and natural meaning, and that ordinary or natural 35 meaning must be determined by the context ■ and surrounding circumstances. The fact that a word has acquired a particular meaning in a certain context. does not mean that that meaning must be rigidly applied wherever else it comes without regard to its context. As Lord Denning, M. R, said in Allen v Thorn I Electrical Industries Ltd (1) at p. 1141: 40 "We are not the slaves of words but their masters. We sit here to give them their natural and ordinary meaning in the context in which we find them." The first definition cited from the Oxford Dictionary was that "assess" means: "To fix the amount of". That seems to me to be the ordinary 45 meaning of the word as generally used, and in the context of s. 13 of the ■ 1970 ZR p12 MAGNUS J 1967 Act it would appear to refer, not to the amount for which judgment is finally entered, but to the actual assessment of the damages suffered by the claimant in the action. In arriving at that figure, no account is to be taken of any right to benefit, I including workmen's compensation, resulting 5 from the death of the person in respect of whom it was brought. This is because damages are assessed on the basis of loss, and therefore it is the loss to the claimant which has to be fixed. Were it not for the express provision of s.13. the payment of workmen's compensation might have to be deducted as being in diminution of the loss actually sustained. 10 However, it is an elementary principal in the assessment of damages that a person cannot recover twice over, and therefore the workmen's Compensation Ordinance provides, in the proviso to s. 8 (1), that in awarding those damages the value of the workmen's compensation must be deducted, and in fact in further provisions of the Ordinance the person 15 held liable to pay the damages is required to reimburse the Workmen's Compensation Commission. I therefore see no inconsistency between the two provisions concerned, and I cannot see how the doctrine of implied repeal can therefore be applied. The question is, however, whether the proviso to s. 8 (1) applies in the 20 present case. The proviso itself refers only to a workman "in respect of injuries sustained by the workman" and it seemed to me at first sight that this excluded death. Counsel, in the original argument before me, had., however, overlooked the effect of s. 3 (4) of the I Workmen's Compensation Ordinance, which provides that: 25 ■ ■ ■ "Any reference in this Ordinance to a workman who has been injured shall, when the workman is dead or is a ■ person under disability, include a reference to his representative or to his dependants or to any other person to whom or for whose benefit compensation is payable." 30 ■ In considering my decision in this matter, after counsel had first argued the case before me, I remembered that there were certain definitions in s. 3 of the Ordinance, and to refresh my memory I looked at the section again and came upon s. 3 (4). In considering the effect of sub-s. (4), I invited counsel to further argue this point before me. Mr Daley drew my 35 attention to the fact that the proviso to s. 8 (1) refers only to injury, and submitted that "injury" did not include "death". He drew my attention to the fact that the Ordinance makes different provision where a workman in receipt of compensation dies otherwise than as a result of the accident (this provision is in s. 63 of the Ordinance) and in the case where 40 a workman dies as a result of the accident, as provided for by s. 62, and refers to the compensation payable to wives and dependant children. There is therefore, he argued, a distinction between compensation in respect of injury and compensation in respect of death, that section 8 is concerned with compensation payable in the event of injury and not 45compensation in the event of death. As to s. 3 (4), he says that the section refers to workmen who, after injury, subsequently die, and is therefore brought within the ambit of s. 63 of the Ordinance, and does not refer to the case where compensation is payable to a dependent in respect of a ■ I MAGNUS J workman who has died as a result of his injuries. He drew attention to the fact that the proviso to s. 8 (1) refers to compensation payable in respect of injury, and nowhere, he says, is there any definition which equates "injury" with "death". In fact, the word "injure" is defined in s. 2 as meaning a personal injury and as including contraction of a disease, 5 but not, it will be noted, as including death. To this, Mr Jagger replied that "personal injury" included injury resulting in death, and he cited in support of this proposition the case of Lloyds Bank Ltd v Eagle Star Insurance Co. Ltd (2). This is a case on the construction of a clause in a policy of insurance which I 1970 ZR p13 ■ ■ insured against 10 (inter alia), personal injury resulting in either death or disability whilst riding in a private motor car. There was a proviso excluding liability in respect of personal injuries sustained by or happening to the insured if under the age of 16 years or over the age of 65, and, when having passed the age of 65, the insured died of injuries sustained in a car accident, it was 15 held that the words "personal injury" in ■ the proviso referred to personal injury resulting in either death or disability as provided for in the policy of insurance itself. It was therefore a case purely of construction of the terms of the policy concerned, and cannot be taken to be of general application. A further point made by Mr Jagger was that, although he 20 conceded that an award to an administrator was not strictly an award to the workman, the principle laid down by Denning, M. R, in Browning v The War Office (3), at pp. 758, 759, should be applied and the amount of the award should be deducted from the damages. Browning v The War Office was, however, disapproved by the House of Lords in Parry v Cleaver (4), 25 and ■ the reverse principle enunciated. I am therefore inclined to the view submitted by Mr Daley and to hold that the proviso to s. 8 (1) refers only to compensation payable in the event of injury, and not to compensation payable in the event of the death of the workman, and that s. 3 (4) of the Ordinance applies only to the case of a workman, who, 30 having been injured and having received compensation payments in respect of that injury, subsequently dies. I therefore hold that the proviso to s. 8 (1) has no application in the present case, and that the compensation payment made to the widow and dependants do not fall to be deducted in considering what sum shall be awarded in I the present application. 35 This does not, however, dispose of the matter, because Mr Jagger has argued that the widow in the present action does not fall within the ambit of the Fatal Accidents Act, since she was married to the deceased by customary law and is not therefore a "wife" within the meaning of the Act. I must admit that I find it rather difficult to follow Mr Jagger's 40 reasoning in this matter. There is no question that a wife married in customary law in Zambia is legally married according to the laws of Zambia, and I should have thought that to hold that she was not a "wife" for the purposes of the present action would certainly appear at first sight to be contrary to the laws of natural justice. Mr Jagger's argument 45 included a submission that a wife married under customary law was not in every respect in the same class as one married under the Marriage Ordinance, and cited in support of this proposition s. 8 (3) of the 1967 Act, ■ ■ ■ 1970 ZR p14 I MAGNUS J which provides that where the husband and wife are married according to customary law and not otherwise, the provisions of Part IV of the Act shall not apply to the husband or the wife. Part IV of the Law Reform (Miscellaneous Provisions) Act, 1967, deals with the "Capacity, Property 5 and Liabilities of Married Women: and Liabilities of Husbands". These particular aspects of the relations between husband and wife are all subject to provisions of customary law which differ widely from the provisions of the general law in regard to these matters, and which obviously would have caused difficulties of administration if customary law were 10 not allowed to continue to prevail in these cases. ■ I cannot see, therefore, how a provision which was enacted for the benefit of the parties in an Act dealing with widely different subjects could be imported to exclude a legally married woman from the benefits of the Fatal Accidents Act, simply because she was married under customary law. The fact that 15 she was a wife in a potentially polygamous ■ marriage certainly will not exclude her from these provisions. It was held in Mehta v The Master of the High Court of Southern Rhodesia (5) that if a wife in a polygamous marriage is to be excluded from particular legal provisions, specific words of exclusion must be used. No such specific words appear in any of the 20 statutes with which we are here concerned. A similar view was expressed at rather greater length by Salmon, LJ, in Din v National Assistance Board (6). In the case of Coleman v Shang (1961) (7) the Privy Council held that in a statute the words "wife" or "widow" were to be read as including "wives" or "widows" if there was nothing in the subject or 25 context repugnant to such construction, and furthermore, s. 4 (3) of the Workmen's Compensation Ordinance refers to the case of a workman who leaves two or more widows, and a ■ ■ ■ workman cannot leave two or more widows if he has married under the Marriage Ordinance, such a position only rising where he has married under customary law. The 30 provisions of the Workmen's Compensation Ordinance, of course, are not imported into the Fatal Accidents Act, but on the other hand there is nothing so far as I can see in the Fatal Accidents Act which precludes a widow from benefiting by that Act simply because the form of legal marriage into which she has entered was not under the Marriage Ordinance. 35 I therefore hold that the widow in the present action is entitled to maintain her claim. Application allowed ■