Вы находитесь на странице: 1из 24

REPORTS RELATING TO FATAL ACCIDENTS

WORKMEN COMPENSATION ACT


Critical appraisal of methods and distribution of compensation under workmen
compensation act

Labour Law II
Submitted to:
ASST. PROF. SUGATO MUKHERJEE
Faculty of Law
MATS Law School, MATS University
Raipur, Chhattisgarh, India

Report by:
CHANDRIKA BOSE
UG Student (Semester 8th),
BBA-LLB (Hons.)
MATS Law School, MATS University, Raipur, Chhattisgarh, India

MAY 2015

Acknowledgement

Gratitude is the noble response of ones soul to kindness or help generously rendered
by another and its acknowledgment is a duty and joyance. So it is that I express briefly my
debt to those who have made the creation of this project possible.
I thank the almighty, Lord on whom I believe and depend on. My each and every
achievement is nothing but a look of the God on me.
I am deeply indebted to Mr. Sugato mukherjee, Asst. Professor, MATS Law School,
for allotting me this topic and constantly guiding and encouraging me to undertake and
complete this project. I am thankful for her patient disposition and unconditional support
throughout my project.
Then I sincerely thank to our Director Dr. G.P. Tripathi and the faculty of the MATS
Law School for giving me opportunity and facility to complete this work.
Last but never the least I extend my wholehearted thankfulness to my family and
friends who helped me a lot to complete the project.

Table of Content

Chapter I
I.. Introduction......................04

Chapter II
1.
2.
3.
4.
5.
6.
7.
8.

Workmen compensation act, 1923


Employers liability for compensation......08
Who is a workmen ? .......................08
What is disablement ? .....................................................................09
Employees entitled to compensation....10
Employer shall not be liable......................10
Occupational disease11
Accident arising out of course of employment12
Doctrine of notional extension.14
Chapter III

9. Reports relating to fatal accidents............................................................................16


Chapter IV
10. Conclusion........................22
11. Bibliography.........23

Chapter I
Introduction
In any industrial society the problem of labour management relations becomes so important
that some sort of social insurance becomes necessary to provide adequate protection from
losses caused to the laborers by accidents. With a view to improve the conditions of the
employees some social insurance legislations have been enacted. The Workmen
Compensation Act is one of the earliest measures adopted to benefit the laborers. It was
passed in 1923 and enforced on 1st July, 1924. Since then a number of amendments have been
made from time to time so as to suit the changing needs and conditions of the employees1.
The object of the Act was to make provisions for the payment of compensation by certain
class of employers to their employees for injury by accident. The reasons that compelled the
initiation of the Bill were attributed to the growing complexity of industry with the increasing
use of machinery and consequent danger to employees along with the comparative poverty of
employees themselves that rendered it advisable that they should be protected as far as
possible from hardships arising from accidents.
It was as early as 1884, that the question of payment of compensation to employees involved
in serious or fatal accidents was raised when the factory and mining inspectors drew the
attention of the Government to this human problem which warranted immediate legislative
protection of employees. But its importance was realized by the Government of India only at
the end of 1920, when public opinion was invited on connected issues. A committee
consisting of members of the legislative assembly, employers, workers or representatives of
workers, medical and insurance experts was constituted. It was on the basis of the
recommendation of the committee that Workmen Compensation Act was enacted in 1923
which provided for setting up the tribunals on the American model to decide disputes,
appointment of special Commissioners with wide powers and a limited right of appeal to the
High Court.
Originally the Act was applicable to employees of certain specified industries, employed
otherwise than in clerical capacity; and receiving monthly waged not exceeding Rs. 300. The
Employees were entitled to compensation from the employer in case of personal injury
caused by accident arising out of and in the course of employment with certain reservations
1 Misra S.N. Labour and Industrial laws, central law publication, 26th edition.
4

to the duration of incapacity and negligence of employee himself. The payment of


compensation was mainly dependent upon the incapacity of employees. Any claim for
compensation was to be determined in accordance with the provisions of the Act and rules
made there under by Provisional Commissioners for employees compensation.
With the progress of time and change in the standards of living in the society the Act has n
many occasions been modified so as to benefit greater number of employees and to provide
for payment to greater amount of compensation to them. The Royal Commissioner on labour
paid a tribute to the smooth working of the Act and recommended the extension of the
benefits under the Act to a larger class of employees. But prof. B.P. Ambedkar in his report
on Health Insurance for Industrial Workers was of the opinion that the Employees
Compensation Act has become out of date in its scope and operation and that the
administration and operation of the Act have been a comparative failure. Prof. Ambedkar
advocated for compulsory insurance of all employees2.
The Workmens Compensation Act was framed with a view to provide for compensation to
employees incapacitated by an injury from accident arising out of and in the course of
employment. It is a guarantee against hazards of employment to which an employee is
exposed because of his employment. The main object of the Act was to make provisions for
payment of compensation to an employee only (i.e. the concerned employee himself in case
of his surviving the injury in question and to his dependents in the case of his death) in the
view of section 2(1) n of the Act. But compensation is not the only benefit flowing from this
Act; it has importance effects in furthering work on the prevention of accidents, in giving
employees greater freedom from anxiety and in rendering industry more attractive.
The Act extends to the whole of India except the State of Jammu and Kashmir. Unlike the
English Act, this Act is not applicable to all employees. It is applicable to certain industries. It
affords protection to an employee from loss of any injury caused by accident arising out of
and in the course of employment. It is not necessary that the accident should have been
caused by some wrongful act of the employer. Compensation is payable only when the
conditions provided by section 3 are fulfilled and the procedure prescribed by section 10 has
been adopted in making a claim to compensation. Any claim for compensation must be made
within 2 years of the occurrence of the accident or in case of death within 2 years within the
date of death.
2 Misra S.N. Labour and Industrial laws, central law publication, 26th edition.
5

The rights and liabilities of the parties stand crystallize on the date of the accident under
sections 3 and 4 of the act. Where the schedule is amended it must have a prospective
operation unless the schedule is made expressly retrospective. Therefore compensation would
be payable at rates applicable on the date of the accident3.
Several studies indicate that work-related injuries and diseases are under-reported 4 and some
researchers suggest that a reliance on workers compensation data has undermined the
recognition of occupational injuries and fatalities as a public health priority.5Under-reporting
3 Misra S.N. Labour and Industrial laws, central law publication, 26th edition.
4 Boden LI, Ozonoff AL
Capture-recapture estimates of nonfatal workplace injuries and illnesses. Ann
Epidemiol 2008;18:500 doi:10.1016/j.annepidem.2007.11.003
[CrossRef][Medline][Web of Science]
Galizzi M,
Miesmaa P,
Punnett L, et al
.; The Phase in Healthcare Research Team.Injured workers underreporting in the health care industry: an
analysis using quantitative, qualitative, and observational data. Ind Relat 2009;49:2243. doi:10.1111/j.1468232X.2009.00585.x
[Web of Science]
Fan ZJ,
Bonauto DK,
Foley MP, et al
Underreporting of work-related injury or illness to workers compensation: individual and industry factors. J
Occup Environ Med2006;48:91422. doi:10.1097/01.jom.0000226253.54138.1e
[CrossRef][Medline][Web of Science]
Kraut A
Estimates of the extent of morbidity and mortality due to occupational diseases in Canada. Am J Ind
Med 1994;25:26778. doi:10.1002/ajim.4700250213
[CrossRef][Medline][Web of Science]
Shannon HS, Lowe GS
. How many injured workers do not file claims for workers compensation benefits? Am J Ind
Med 2002;42:46773. doi:10.1002/ajim.10142
[CrossRef][Medline][Web of Science]
Smith GS,
Veazie MA,
Benjamin KL The use of sentinel injury deaths to evaluate the quality of multiple sources of reporting of
occupational injuries. Ann Epidemiol2005;15:21927. doi:10.1016/j.annepidem.2004.07.094
[CrossRef][Medline][Web of Science]

5 Rossignol M. Completeness of provincial workers compensation files to identify fatal occupational


injuries. Can J Public Health 1994;85:2447.
[Medline]

to compensation systems has been attributed to a number of causes or filters including an


unawareness of work attribution, unawareness of compensation benefits or procedures, a
desire not to lose a job or fear of reprisal and a belief that some symptoms or injuries are a
normal consequence of work.6 It was hypothesised in the current study that many of the
preceding reasons would not affect the reporting of fatalities and serious injuries that are
readily diagnosed; involve a traumatic incident at a worksite; necessitate the involvement of
numerous parties such as paramedics, coroners, traffic investigators and physicians; 7 and are
covered under a no-fault system with a high percentage of workforce coverage. Although, it
should be noted that issues of eligibility of work-related injuries and illnesses and
adjudication of work-relatedness persist in compensation systems.8

6 Azaroff LS, Levenstein C,


Wegman DH
. Occupational injury and illness surveillance: conceptual filters explain underreporting. Am J Public
Health 2002;92:14219.doi:10.2105/AJPH.92.9.1421
[CrossRef][Medline][Web of Science]
Pranksy G, Snyder T,
Dembe A, et al
. Under-reporting of work-related disorders in the workplace:
literature. Ergonomics 1999;42:17182.doi:10.1080/001401399185874
[CrossRef][Medline][Web of Science]

case

study

and

review

of

7 Shannon HS, Lowe GS


. How many injured workers do not file claims for workers compensation benefits? Am J Ind
Med 2002;42:46773. doi:10.1002/ajim.10142
[CrossRef][Medline][Web of Science]

8 Boden LI, Spieler EA


. The relationship between workplace injuries and workers compensation claims: the importance of system
design. In: Boden LI, Spieler EA, eds.Workers compensation: where have we come from? Where are we
going? Cambridge, MA: Workers Compensation, 2010:120.

Chapter II
WORKERS COMPENSATION ACT- 1923

The Workmens Compensation Act, aims to provide workmen and/or their dependents some
relief in case of accidents arising out of and in the course of employment and causing either
death or disablement of workmen.
It provides for payment by certain classes of employers to their workmen compensation for
injury by accident.

EMPLOYERS LIABILITY FOR COMPENSATION (ACCIDENTS)

The employer of any establishment covered under this Act, is required to compensate an
employee:
a. Who has suffered an accident arising out of and in the course of his employment, resulting
into (i) death, (ii) permanent total disablement, (iii) permanent partial disablement, or (iv)
temporary disablement whether total or partial, or
b. Who has contracted an occupational disease?

WHO IS A WORKMAN

Workman means any person (other than a person whose employment is of a casual nature and
who is employed otherwise than for the purposes of the employers trade or business) who isi. A railway servant as defined in section 3 of the Indian Railways Act, 1890 not permanently
employed in any administrative, district or sub-divisional office of a railway and not
employed in any such capacity as is specified in Schedule II, or
ii. Employed in any such capacity as is specified in Schedule II,
Whether the contract of employment was made before or after the passing of this Act and
whether such contract is expressed or implied, oral or in writing.
The provisions of the Act have been extended to cooks employed in hotels, restaurants using
power, liquefied petroleum gas or any other mechanical device in the process of cooking.

WHAT IS DISABLEMENT

Disablement is the loss of the earning capacity resulting from injury caused to a workman by
anaccident.
Disablements can be classified as
(a) Total, and
(b) Partial.
It can further be classified into
(i) Permanent, and
(ii) Temporary,
Disablement, whether permanent or temporary is said to be total when it incapacitates a
worker for all work he was capable of doing at the time of the accident resulting in such
disablement.
Total disablement is considered to be permanent if a workman, as a result of an accident,
suffers from the injury specified in Part I of Schedule I or suffers from such combination of
injuries specified in Part II of Schedule I as would be the loss of earning capacity when
totaled to one hundred per cent or more. Disablement is said to be permanent partial when it
reduces for all times, the earning capacity of a workman in every employment, which he was
capable of undertaking at the time of the accident. Every injury specified in Part II of
Schedule I is deemed to result in permanent partial disablement.
Temporary disablement reduces the earning capacity of a workman in the employment in
which he was engaged at the time of the accident.

EMPLOYEES ENTITLED TO COMPENSATION

Every employee (including those employed through a contractor but excluding casual
employees), who is engaged for the purposes of employers business and who suffers an
injury in any accident arising out of and in the course of his employment, shall be entitled for
compensation under the Act.

THE EMPLOYER SHALL NOT BE LIABLE

a. In respect of any injury which does not result in the total or partial disablement of the
workmen for a period exceeding three days;
b. In respect of any injury not resulting in death, caused by an accident which is directly
attributable toi. the workmen having been at the time thereof under the influence or drugs, or
ii. the willful disobedience of the workman to an order expressly given, or to a rule expressly
framed, for the purpose of securing the safety of workmen, or
iii. The willful removal or disregard by the workmen of any safeguard or other device which
he knew to have been provided for the purpose of securing the safety of workmen.
The burden of proving intentional disobedience on the part of the employee shall lie upon the
employer.
iv. when the employee has contacted a disease which is not directly attributable to a specific
injury caused by the accident or to the occupation; or
v. When the employee has filed a suit for damages against the employer or any other person,
in a Civil Court.

10

Occupational Diseases
Workers employed in certain types of occupations are exposed to the risk of contracting
certain diseases which are peculiar and inherent to those occupations. A worker contracting
an occupational disease is deemed to have suffered an accident out of and in the course of
employment and the employer is liable to pay compensation for the same.
Occupational diseases have been categorized in Parts A, B and C of Schedule III. The
employer is liable to pay compensation:
(a) when a workman contract any disease specified in Part A at anytime,5
(b) when a workman contracts any disease specified in Part B, while in service for a
continuous period of 6 months under one employer. (Period of service under any other
employer in the same kind of employment shall not be included)
(c) when a workman contracts any disease specified in Part C, while he has been in
continuous service for a specified period, whether under one or more employers.
(Proportionate compensation is payable by all the employers, if the workman had been in
service under more than one employer).

11

Accident Arising Out of And in The Course of Employment


An accident arising out of employment implies a casual connection between the injury and
the accident and the work done in the course of employment. Employment should be the
distinctive and the proximate cause of the injury. The three tests for determining whether an
accident arose out of employment are:
i.

At the time of injury workman must have been engaged in the business of
the employer and must not be doing something for his personal benefit;

ii.

That accident occurred at the place where he as performing his duties; and

iii.

Injury must have resulted from some risk incidental to the duties of the service, or
inherent in the nature condition of employment.

The general principles that are evolved are:

There must be a casual connection between the injury and the accident and the work
done in the course of employment;

The onus is upon the applicant to show that it was the work and the resulting strain
which contributed to or aggravated the injury;

It is not necessary that the workman must be actually working at the time of his death
or that death must occur while he was working or had just ceased to work; and

Where the evidence is balanced, if the evidence shows a greater probability which
satisfies a reasonable man that the work contributed to the causing of the personal
injury it would be enough for the workman to succeed. But where the accident
involved a risk common to all humanity and did not involve any peculiar or
exceptional danger resulting from the nature of the employment or where the accident
was the result of an added peril to which the workman by his own conduct exposed
himself, which peril was not involved in the normal performance of the duties of his
employment, then the employer will not be liable.

12

The expression 'arising out of employment' is not confined to the mere nature of employment.
The expression applies to employment as such to its nature, its conditions, its obligations
and its incidents. If by reason of any of those factors the workman is brought within the zone
of special danger, the injury would be one which arises 'out of employment'. To put it
differently, if the accident had occurred on account of a risk which is an incident of the
employment, the claim for compensation must succeed, unless of course, the workman has
exposed himself to an added peril by his own imprudent act.
The phrase "in the course of employment" is understood to mean that the injury has resulted
during the course of employment from some risk incidental to the duties of the service, which
unless engaged in the duty owing to the master, it is reasonable to believe the workman
would not otherwise have suffered. Thus, whereas 'in the course of employment' emphasizes
the time when accidental injury was caused, "arising out of employment" emphasizes that
there must be a casual connection between the employment and the accidental injury

13

Doctrine of notional extension


The principal behind compensation to the injured worker under the Employees State
Insurance Act 1948 and Workmens Compensation Act, 1923 is considered according to the
Doctrine of Notional Extension. This doctrine throws light on the course of employment of a
worker. Section 3(1) Workmens Compensation Act, 1923 provides that the injury must be
caused to workman by an accident arising out of and in the course of employment.
Employment does not necessarily ends when the tool down signal is given or when the
workman leaves the actual workshop. There is a notional extension at both the entry and exit
time and space. As employment may end or may begin not only when the employee begins to
work or leaves his tools but also when he used the means of access and egress to and from the
place of employment.
As a rule, the employment of a workman does not commence until he has reached the place
of employment and does not continue when he has left the place of employment, the journey
to and from the place of employment being excluded. It is now well-settled, however, that
this is subject to the theory of notional extension of the employers premises so as to include
an area which the workman passes and repasses in going to and in leaving the actual place of
work. There may be some reasonable extension in both time and place and a workman may
be regarded as in the course of his employment even though he had not reached or had left his
employers premises. The facts and circumstances of each case will have to be examined very
carefully in order to determine whether the accident arose out of and in the course of the
employment of a workman, keeping in view at all times this theory of notional extension.
Various judgments of Supreme court and different high Courts have considered the concept
of notional employment and said that if the employee dies due to accident while going to
work place from residence or while returning from work place to residence, as an accident
arising out of and during the course of employment and as such entitled for compensation in
accordance with provisions of the Workmens Compensation Act, 1923.
Although this doctrine is not specifically enshrined under the ESI Act or Workmens
Compensation Act. Notional extension is yet to be amended either in ESI Act orWorkmens
Compensation Act. Under ESI, if any accident happens outside the premises within one
kilometre radius from the work premises during reasonable office related hours it will be
considered as employment injury. Same logic will be applicable for Workmens
Compensation Act also.

14

If accident happens in the company provided vehicle, irrespective of the location and time it
is employment injury for consideration under ESI and WC. The employee cannot claim
wages for the loss of pay period. The employee can claim (or company can give)
compensation under Workmens Compensation Act registering a case with Labour
Commissioner. Any payment made by the employer directly to the employee under any
outside settlement will not be considered as a legal compensation. The payment has to be
made before the labour commissioner and its mandatory. If the employee is covered under
ESI, the employee has to approach ESI for benefit - employer should have given accident
notification to ESI.
However, there is no proper test for application of this doctrine. The scope of such extension
depends on the facts and circumstances of each case. When this type of situation arises it is
been said to be accident arising out and in the course of employment.

15

Chapter III
SECTION10B. Reports Of fatal Accidents And Serious Bodily Injuries.
S.10B. Reports of fatal accidents and serious bodily injuries.(1) Where, by any law for the
time being in force, notice is required to be given to any authority, by or on behalf of an
employer, of any accident occurring on his premises which results in death 9or serious bodily
injury], the person required to give the notice shall, within seven days of the death 2[or
serious bodily injury], send a report to the Commissioner giving the circumstances attending
the death 2[or serious bodily injury10
Provided that where the State Government has so prescribed the person required to give the
notice may instead of sending such report to the Commissioner send it to the authority to
whom he is required to give the notice.
3

[Explanation.Serious bodily injury means an injury which involves, or in all probability

will involve the permanent loss of the use of, or permanent injury to, any limb, or the
permanent loss of or injury to the sight or hearing, or the fracture of any limb, or the enforced
absence of the injured person from work for a period exceeding twenty days.]
(2) The State Government may, by notification in the Official Gazette, extend the provisions
of sub-section (1) to any class of premises other than those coming within the scope of that
sub-section, and may, by such notification, specify the persons who shall send the report to
the Commissioner.]
(3) Nothing in this section shall apply to factories to which the Employees State Insurance
Act, 1948 (34 of 1948), applies.11

9 Ins. by Act 8 of 1959, sec. 9 (w.e.f. 1-6-1959)


10 Ins. by Act 15 of 1933, sec. 8
11 Added by Act 8 of 1959, sec. 9 (w.e.f. 1-6-1959)
16

The law in relation to fatal accidents


This blog aims to provide a resource for all those involved in fatal accident litigation, whether
it be as a dependant or a litigator. This section provides a brief overview of the law in relation
to fatal accidents.
See the links section for guides to more detailed texts; the relevant statutes and numerous
organisations that provide help to bereaved people.
Liability in fatal accident claims
When a person is killed a claim can be brought on behalf of his estate or on behalf of their
dependants. The person or persons who bring the action are called the claimant or
claimants (if more than one person brings the action).
Liability in fatal accident cases depends on establishing that the deceased would have had an
action in negligence in breach of duty had he not died..
The claimants in the personal injury action stand in the shoes of the deceased, see Gray vBarr [1971] 2 QB 554. It is necessary to prove that the defendants breach caused the death
or made a material contribution towards it. If the deceased was contributory negligence then
the claim by the estate or dependants can be reduced.
Claims on behalf of the estate
The claimants estate can recover reasonable funeral expenses, any special damages the
claimant could have claimed, including loss of earnings (if any), from the date of the accident
to the date of death, and general damages for pain, suffering and loss of amenity (unless death
was instantaneous). There can only be one action so if the executors or administrators bring
an action on behalf of the estate they must bring an action on behalf of the dependants. The
claim is brought under the Law Reform (Miscellaneous Provisions) Act 1934.
A claim brought by the dependants
17

If there are no executors or administrators or they do not bring a claim within six months of
the death a claim can be brought by the dependants, s 2(2) of the Fatal Accidents Act 1976.
The definition of dependant
There is a statutory definition of dependants set out in section 1 of the Fatal Accidents Act
1976.

A dependant must fall within this definition to be eligible to bring an action. The

dependant must be:

The wife or husband or former wife or husband of the deceased.

The civil partner or former civil partner of the deceased.

An person living in the same household as the deceased immediately before the death
and who had been living with the deceased in the same household for at least two
years before the death and was living as the husband or wife or civil partner of the
deceased.

Any parent or other ascendant of the deceased.

Any person treated by the deceased as his parent.

Any child or other descendant of the deceased.

Any person treated as a child of the deceased as a child of the family in any marriage
or civil partnership that the deceased was in.

Any brother, sister, uncle or aunt, or their children.

Dependency claims
The fact that a person comes within the statutory dependant does not automatically entitle
them to bring an action. A dependant must show that they have suffered a financial loss or
had a reasonable expectation of benefit. The claimant does not have to prove definitively that
18

there is a financial loss, a court can assess the claim on a probability basis, Davies vTaylor12
(1) The dependants must show that the have suffered a loss. In Yelland v Powell Duffryn
Associated Collieries Ltd.13
(2) The dependants can show that they were receiving benefits from the deceased. This does
not have to be a direct financial benefit; it can be enough if the deceased person was
providing services, e.g. housework, car servicing or other services which have a financial
value.
(3) A dependant can claim if they can show a reasonable expectation of future benefit, see
e.g. Welsh Ambulance Service Trust v Williams14
(4) The court has to value the loss suffered by the dependants. It will look at the deceaseds
earnings, the amount that he spent on the dependants and what amount was likely to have
been spent in the future. The services provided by a mother, carer or partner have a value and
can be quantified and damages awarded on that basis, see Bordin v- St marys NHS Tryst15
(5) The court will also take into account the amount that the deceased would have spent on
themselves. There can be a fairly robust approach that where a couple are living together one
third of the joint income would be spent on the deceased, if the couple have dependent
children then 25% would be spent on the deceased. See Harris v Empress Motors16
(6) In a fatal accident case the multiplier runs from the date of death, Cookson v
Knowles [1979] AC 556. There have been suggestions in the Actuarial Tables and by the Law

12 [1974] AC 207.
13 (No 2) [1941] 1 KB 519.
14 [2008] EWCA Civ 71 at para 31.
15 [2000] Lloyds Rep Med 287.
16 [1983] 3 All ER 561.
19

Commission that this should be changed, however the courts have consistently confirmed
that Cookson remains good law, see White v ESAB (UK) Ltd17 and MS v ATH 18
(7) The court is not just concerned with income. Matters such as fringe benefits, services
provided and gifts can be part of a proper award.
(8) When the deceased made his living off capital it was appropriate to award damages based
on the costs of hiring a businessman of appropriate stature to run the business, Cape
Distribution v OLoughlin19 Similarly the fact that a family took over the deceaseds business
and continued to run it successfully did not prevent the court awarding damages on a similar
basis, Welsh Ambulance Services v Williams20
2.6.3 Matters which must be disregarded
Any benefit accruing to the estate or dependants as a result of the deceaseds death is
disregarded when the court is assessing damages. So any insurance policies, pension
payments or similar awards are disregarded. Similarly where a childs mother died and his
step-mother proved to be a much better carer and provider this was a matter that was to be
disregarded under section 4, Stanley v Siddique.21
Bereavement damages
A limited class of people are entitled to bereavement damages of 11,800 upon the death, s
1A(2) of the Fatal Accidents Act 1976. This has increased to 12,980 when the death
occurred after the 1stApril 2013. These are the wife, husband or civil partner of the deceased
or the parents of a child who died under the age of 18. If the childs parents are unmarried
the father cannot claim bereavement damages. A former wife, husband or civil partner and
cohabiters cannot recover bereavement damage. If the person entitled to the bereavement
17 [2002] PIQR P26
18 [2002] EWCA Civ 792.
19 2001] PIQR Q8.
20 [2008] EWCA Civ 71.
21 [1991] 2 WLR 459.
20

payment dies before the trial or settlement the payment does not survive for the benefit of
their estate, s. 1A of the Law Reform (Miscellaneous Provisions) Act 1934.
Funeral expenses
Reasonable funeral expenses can be recovered, by the estate or the dependants if they have
paid the expenses. These can include the costs of a tombstone but not a memorial to the
deceased, Gammell v Wilson22
Apportionment
If any of the dependants are children or protected parties then the court will have to apportion
any damages awarded or approve and apportion any sums that relate to their dependant.
Generally apportionment is done on fairly robust basis and takes into account that it usually a
surviving parent who is caring for the remaining children, R v- Criminal Injuries
Compensation Board, ex parte Barrett23
Interest
Damages from the date of death to the date of the trial carry interest. Bereavement damages
carry interest at the full rate and there is a strong argument that all losses incurred
immediately after the death should carry interest at the full rate. Damages for future loss from
the date of the trial carry no interest, A Train and Sons Ltd v- Maxina Emma Fletcher24
Important points
1.A Claimant in a fatal accidents claim stands in the shoes of the deceased so far as liability
is concerned.
2. A claim can be brought on behalf of the estate and on behalf of the dependants.
22 [1982] AC 27.
23 [1994] PIQR Q44.
24 [2008] EWCA Civ 413.
21

3. To be a dependant a claimant must come within the statutory definition of dependant and
have a reasonable expectation of benefit if the deceased person had lived.
4. Any benefits arising to the estate or dependants as a result of the death are disregarded in
the calculation of fatal accident damages.
5 Bereavement damages are payable only to a limited class of relatives.
6. Funeral expenses can be recovered.
7. In cases involving child dependants or protected parties the court will need to apportion the
damages.
8. Interest in fatal accident claims are paid only on past losses

Chapter IV
CONCLUSION

The unexpected event theory has not provided the answer to the interpretative problems
surrounding application of the phrase "accidents arising out of the employment" in Indiana
workmen's compensation law. Judge Buchanan, in a dissenting opinion in Inland Steel Co. v.
Almodavar, aptly describes the unsettled state of the law with respect to this issue when he
states: "Accident" as a word of art in Workmen's Compensation law has become as
mysterious as the Loch Ness monster ... and awaits the attention of the Supreme Court or the
Legislature." The adoption of the unexpected result test as the definition of accident would
shift the emphasis away from a semantic dispute and focus instead on the underlying
causation issues: the determination of whether an accident arises out of the employment
should be based on an analysis of whether the employment caused the injury. This approach
would assist the courts when facing the problem of cumulative accidents, where no one event
can be singled out as the cause of the injury. In addition, apportionment provides a solution
to the problem cases where a causal connection between employment and the injury is
not clearly established, as exemplified by cases involving pre-existing conditions. Utilization
22

of the unexpected result theory, coupled with emphasis on causation and expansion of the
scope of apportionment, benefits both the employer and employee by basing compensation
on the causation issue, which is susceptible to proof. The unexpected result theory is thus
preferable to the unexpected event theory which hinges on illusory, definitional criteria.
Accident arising out of and in the course of accident is very essential feature or essentials for
the entitlement of the compensation under Workmen Compensation Act. Workmen's
Compensation is a social service having for its immediate object the care and support of
injured workmen during periods of disability due to industrial accident. A secondary, but even
more important object, should be the prevention of accidents, and most insurance companies
devote a considerable amount of time and money to that end.

BIBLIOGRAPHY
Books:
1. Mishra S.N. Labour and Industrial laws, central law publication, 26th edition.
Websites:
1. http://www.citehr.com/14928-details-workman-compensation-act.html
2. http://www.wcb.ns.ca/policy/index_e.aspx?DetailID=1896
3. http://jurisonline.in/2011/10/doctrine-of-notional-extension-and-addedperil-with-sepecial-reference-to-the-employee%E2%80%99s-stateinsurance-act-and-workmen%E2%80%99s-compensation-act/
4. http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?
article=3467&context=ilj&sei-redir=1&referer=http%3A%2F
%2Fwww.google.co.in%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Darising
%2520out%2520of%2520the%2520course%2520of%2520employment%2520analysis%2520on%2520%2520workmen%2520compensation
%2520act%26source%3Dweb%26cd%3D1%26ved%3D0CF0QFjAA
%26url%3Dhttp%253A%252F%252Fwww.repository.law.indiana.edu
23

%252Fcgi%252Fviewcontent.cgi%253Farticle%253D3467%2526context
%253Dilj%26ei%3DQMfmT96hFZDPrQfwzKT9CA%26usg
%3DAFQjCNEe1bJK7b8Sr1_dzkfh8I6o2x2jyg#search=%22arising
%20out%20course%20employment-%20analysis%20workmen
%20compensation%20act%22
5. https://fatalaccidentlaw.wordpress.com/2013/07/22/the-law-relating-tofatal-accidents-an-introduction/

24

Оценить