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DON ASLIN v. SAMARAKONE BROS
NLR39V390
1938 Present
:
Soertsz J.
DON ASLIN v. SAMARAKONE BROS.
980-Workmen's Compensation.
Workmen's
compensation-Building contract-Deceased workman employed by
sub-contractor-Liability of building contractor-Casual workman- . Ordinance No.
19 of 1934, ss. 2 and 22.
The appellants who were building contractors entered into a contract for
erecting a market and for sinking a well in the market premises. In the course
of sinking a well, blasting operations became necessary, which were entrusted to
a sub-contractor and the latter employed a workman who met with his death as the
result of an explosion caused by dynamite. Held, that the deceased workman was
employed in work in the course of an enterprise in which the appellants were
engaged as part of their business as building contractors and that they were
liable to pay compensation.
A person "whose employment is of a casual nature" within the meaning of section
2 of the Workmen's Compensation Ordinance means one whose work is casual when
regarded in relation to the employer's trade or business.
THIS was an application under section 34 of the Workmen's Compensation
Ordinance, No. 19 of 1934. The application was made by the mother of the
illegitimate children of the deceased workman for compensation on account of his
death which was the result of an explosion caused by the use of dynamite which
was found necessary to blast rock that was encountered in the sinking of a well.
The Commissioners held that the appellants as contractors were liable to pay a
sum of Rs. 1,500 as compensation even though the appellants had engaged a
sub-contractor who had employed the deceased, as the subcontractor's work was
within the scope of the contractor's employment.
C. Seneviratne, for appellants.-Section 2 of the Workmen's Compensation
Ordinance, No. 19 of 1934, defines " workman" and specially excludes
"casual" workman who are employed
otherwise than for the purpose of the employer's trade or business. The sinking
of a well is not within1 the ordinary scope of a building contractor's work and
in this case where-rock was encountered in the sinking of a well a contractor
duly licensed to carry out blasting operations had to be engaged and such
blasting operations are not part of the trade or business of a building
contractor.
The engagement by the sub-contractor of an umbrella-maker working on the
roadside clearly excludes the class of workman for whom compensation is provided
in the. Ordinance. Such a workman is a "casual workman employed otherwise than
for the purposes of the employer's trade or business", and therefore is
specially exempted from claim to compensation. In terms of section 22 of
Ordinance where the principal contractor's work does not include blasting
operations and is not ordinarily part of his trade or business the
sub-contractor if any, and not the principal is liable. In this case even if the
principal was called upon to pay any compensation that may be due by the
sub-contractor, under section 22 the principal was entitled to be indemnified by
the subcontractor.
Cur. adv. vult
February, 1938. SOERTSZ
J.-
This is an appeal from an order of the Commissioner of Workmen's Compensation
declaring that in terms of Schedule IV. of Ordinance No. 19 of 1934, the
dependants of a deceased workman are entitled to compensation in a sum of Rs.
1,500, and calling upon the appellants to deposit that amount forthwith in order
that the distribution of compensation may be considered under section 12 (2) of
the Ordinance.
The facts are as follows : The appellants carry on the business of building
contractors. They entered into a contract with the Urban District Council of
Dehiwala for erecting a market, and for sinking a well on the market premises.
In the course of sinking this well, they encountered rock, and blasting
operations became necessary. They gave one Boteju- a sub-contract for this
purpose, and h
