THE LIBERIA ELECTRICITY CORPORATION, Appellant, v. JOHNNIE N. LEWIS and JESTINA GREENFIELD, Appellees.

APPEAL FROM THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Heard: June 30, 1988. Decided: July 29, 1988.

1. The circuit court has jurisdiction over actions for wrongful death.

 

2. The personal representative of a decedent employee who dies in the course of his employment can make the employer amendable both to the Workmen’s Compensation Law and to the wrongful death provisions of the Private Wrongs law, depending on the circumstances of the death of the deceased employee.

 

3. The Workmen’s Compensation Act of Liberia was enacted to provide compensation for employees who die or are injured in the course of their employment, and to provide support for them during convalescence, or to pay death benefit to those who had depended on the support and/or consortium of the deceased.

 

4. The benefits under the Workmen’s Compensation statute are paid without regard to fault of the employer or employee, except for drunkenness of the deceased while on duty, inexcusable misconduct or intent to cause injury or death to himself an/or another, in which case the employer is not liable.

 

5. The Ministry of Labour is the forum of fist instance for all recoveries under the Workmen’s Compensation Act and resort is only made to the circuit court on appeal against the administrative determination of the Ministry.

 

6. Where the death of the employee is attributable to the wrongful act, neglect or default of the employer, there is basis for recovery against the employer under the Wrongful Death Statute and that avenue may be resorted to.

 

7. Recover under the Wrongful Death Statute bars recovery under the Workmen’s Compensation Act which provides the exclusive remedy only in cases where actionable fault for the death of the employee is not attached to the employer.

 

8. The only duty which the complainants owe to the trial court when they choose to come under the Wrongful Death Statute is to prove actionable negligence or wilful misconduct by the employer which resulted into the death of the employee.

 

9. The degree of negligence for culpability in an action for wrongful death is “actionable negligence”.

 

10. Actionable negligence is the breach or non-performance of a legal duty, through neglect or carelessness, resulting in the damage or injury to another; it is the failure of duty or omission of something which ought to have been done, or which a reasonable man would not do.

 

11. A wilful conduct is one proceeding from a conscious motion of the will; voluntary; intending the result which actually comes to pass.

 

12. Where the defect in an item is latent, plaintiff cannot recover unless there was fore knowledge or negligence by the employer in failing or refusing to correct the defect, and same is proved by the plaintiff.

 

Appellees, as administrator and administratrix of the intestate estate of the late Moulton Greenfield, a former employee of the Liberia Electricity Corporation (LEC), appellant, brought an action for wrongful death in the Civil Law Court, Sixth Judicial Circuit, Montserrado County, alleging that Mr. Greenfield, a linesman who was killed when a pole on which he was climbing, which belonged to the appellant, broke and fell on him. The appellees charged that the appellant was negligent in not maintaining the pole which had latent defect not known to the deceased.

 

The appellant, who had filed its answer beyond the statutory time and who had therefore been ruled to a bare denial, moved the trial court to refuse jurisdiction over the case, contending that the matter was one proper for the Ministry of Labour and not the civil law court since the death grew out of an employment relationship between the deceased and the appellant. The trial court denied the motion, a trial was held, and a verdict of liable returned against the appellant and a judgment entered thereon. From this judgment, the appellant appealed to the Supreme Court.

 

The Supreme Court reversed the judgment, holding that while the appellees had the right to bring the action of wrongful death against the appellant is the death of the decedent was due to the negligence of the appellant in not maintaining the wooden pole which broke with the decedent, the appellees had failed to show that the defect in the pole was other than latent, or that the appellant had knowledge of the defect and failed to inform the deceased of such defect or to correct the said defect. In reversing the judgment, the Court also stated that the reversal was without prejudice to the appellees in bringing action under the Workmen’s Compensation Act which allowed recovery without regard to any fault of the employer or employee.

 

Roger C. H Steele and Emmanuel James appeared for the appellant. Johnnie N. Lewis appeared for the appellees.

 

MR. CHIEF JUSTICE GBALAZEH delivered the opinion of the Court.

 

This matter comes up on appeal from an adverse judgment rendered by the Civil Law Court, Sixth Judicial Circuit, Montserrado County, against the appellant corporation in an action of damages for wrongful death brought against the appellant by the appellees, plaintiffs in the trial court.

 

The facts of the case are that appellees, as administrator and administratrix respectively, of the intestate estate of one Moulton Greenfield, a deceased former employee of the Liberia a deceased former employee of the Liberia Electricity Corporation (LEC), appellant herein, brought an action of wrongful death against the appellant corporation for the alleged wrongful death of their deceased relative who, as a linesman, died when a wooden electric pole of the appellant broke and fell with him while he was climbing same to dismantle a transformer.

 

The appellees grounded their action of wrongful death on the alleged negligence by the appellant corporation. They blamed the corporation for the death of its former employee because, they said, the corporation had allowed the deceased to climb a wooden light pole that was decayed, and which, because of the pole’s said condition, resulted in the same breaking and falling upon Mr. Greenfield, and consequently causing his death in the hospital a short time thereafter. They contended that the accident would have been prevented had the Liberia Electricity Corporation honoured its duty of safety to its employees by causing regular checks to be made on the wooden poles, which would have exposed decadent ones, and thereby prevent accidents of the nature that had caused the death of Mr. Greenfield. They alleged that the appellant corporation had neglected its duty even though it possessed the means of carrying out the said checks. Hence, appellees instituted this action of wrongful death as the legal representatives of the deceased, for and on behalf of an aged mother, an unemployed widow, and the seven minor children of the deceased, all of whom had been totally dependent on deceased for their livelihood, support, and companionship.

 

A writ of summons was issued on appellant on July 1, 1984, but it failed to file an answer until August 6, 1984, a period of seven days beyond the statutory time. Consequently, appellant was ruled to a bare denial of the complaint against it. Whereupon appellant filed a motion requesting the trial court to refuse jurisdiction over the subject matter of the complaint for reasons that the deceased had died in the course of his regular employment, that benefits in such circumstances were provided for by the Labour Law, and that any action growing out of the said incident necessarily had to originate in the Ministry of Labour which alone had the original authority to provide an administrative remedy under the Labour Law of Liberia. Appellant also contended that appeals from which Ministry of Labour lie with the National Labour Court and not for the action to originate in the circuit court. It maintained that appellees own complaint had referred to the breaking of the wooden pole as one growing out of a latent defect, and it alleged that appellees had averred nothing in their complaint to show any wrongful act of appellant, either by its knowledge of the defective condition of the light pole or and of its refusal to change the same.

 

Finally, appellant maintained that in spite of the fact that it had filed its answer to the complaint beyond the statutory time and therefore had been ruled to a bare denial, it had the right to request the court to refuse jurisdiction over the case at any time, especially as the question of jurisdiction of the subject matter could be raised at any time before a final determination of the case, even up to the level of the appellate court.

 

Appellees resisted the motion by maintaining that even though Mr. Greenfield was an employee of the appellant corporation and was covered by the Labour Law, the basis of their action was the Private Wrongs Law of Liberia which “provides the exclusive remedy to recover for wrongful death and supercedes any other law creating such a right of action.” They argued further that in an action for wrongful death, it is the circuit court, not the Ministry of Labour, that is the proper forum. They further maintained that the appellant, having failed to file a proper answer, it was barred from traversing the allegations laid in the complaint as it could have properly been done in the answer. Finally, appellees contended that notwithstanding the legal principle that the issue of jurisdiction could be raised over the subject matter at anytime, yet, in the instant case, appellant had stated no meritorious grounds upon which the trial court should refuse jurisdiction over the action for wrongful death.

 

The trial court ruled denying appellant’s motion to refuse jurisdiction, stating as the grounds for the denial that the case of the appellees was one of negligence by the appellant in not providing adequate protection for its employees, and that it was therefore not one of mere labour relations, but rather one for which an action of wrongful death could be instituted in the circuit court. Appellant, not being satisfied with the ruling, excepted thereto.

 

The court then heard the evidence on both sides. In support of their complaint, the appellees produced a wood specialist to testify that woods used as light poles are treated to last over a specified number of years, and submitted pictures of the wood which were admitted into evidence. Yet, while the pictures were admitted into evidence, there was no evidence alleging decadence and negligence on the part of appellant in protecting Mr. Greenfield from the breakage caused by the rot in the wood. For its part, appellant denied any negligence, and asked continuously for postponement and continuance of the case to enable it obtain material witnesses. These requests were refused by the trial court for cause.

 

At the end of the presentation of evidence and the making of legal arguments by the parties, the jury returned a verdict of liable against the appellant, awarding appellees $85,000.00 as general damages. A motion for new trial was filed, argued and denied. The trial judge thereupon rendered final judgment confirming the verdict and its award. Appellant excepted to the judgment and announced an appeal to this Court of denier resort.

 

The substance of this appeal is that the judgment of the trial court should be reversed and that appellant be discharged without further answering the complaint for wrongful death. Appellant contended in that respect that the trial court should have refused jurisdiction over the subject matter for wrongful death since the deceased died in the course of his employment and consequently was covered by our Labour Law for which the Labour Ministry should have been the forum of first instance and not the Civil Law Courts, which is only resorted to on appeal from the administrative determination of the Ministry. It argued also that in any case, appellees had failed to prove the degree of negligence to which appellant was allegedly liable or any negligence on its part, for which it could be held liable as having caused the death of the decedent.

 

Appellees, on the other hand, contended that they were justified in bringing this action for wrongful death despite the fact that the deceased, an employee of the appellant, had died in the course of his employment and was therefore protected by the Workmen’s Compensation Act of Liberia. They argued that where negligence can be established as the cause of the death of the decedent, compensation under the Labour Law cannot preclude an action for wrongful death since the latter supercedes any similar law providing for actions in such cases. Appellee therefore prayed for the dismissal of the appeal.

 

The foregoing narratives, based on the content of the records before us, present two issues for our determination:

 

1. Whether or not the trial court had original jurisdiction over the action of wrongful death where the decedent, an employee of the appellant, died in the course of his employment, in view of the Workmen’s Compensation Act of Liberia.

 

2. If the trial court has such jurisdiction, whether or not the appellees had sufficiently proved negligence on the to part of the appellant to warrant payment of compensation under the Private Wrongs Law for the wrongful death of the decedent.

 

Starting with the first issue, that is, whether or not the trial court had original jurisdiction over the action of wrongful death where decedent employee died in the course of his employment in view of the Workmen’s Compensation Act of Liberia, we are of the opinion that the circuit court did have jurisdiction over the action of wrongful death. We believe that the personal representatives of a decedent employee who dies in the course of his employment can make the employer amenable both to the Workmen’s Compensation Act and to the wrongful death provisions of the Private Wrongs Law, depending on the circumstances of the death of the deceased employee. The two statutes are different and distinct, and they can have no conflict between them.

 

The Workmen’s Compensation Act of Liberia was enacted to provide compensation for employees who die or are injured in the course of their employment, and to provide support for them during convalescence, or to pay death benefits to those who had depended on the support and or consortium of the deceased. The benefit under the Workmen’s Compensation Act are without regard to the faults of the employer or employee himself in the death, except for the drunkenness of the deceased while on duty, inexcusable misconduct or intent to cause the injury or death of himself and/or another, in which three cases the employer is not liable to pay benefits. Labour Practices Law, 18-A: 3500-3551.

 

In cases falling under the Workmen’s Compensation Act, there is usually no need for the courts to get involved, and determinations are usually made, like in all labour cases, by the Ministry of Labour. Here the Ministry of Labour is usually the forum of first instance for all recoveries under the Workmen’s Compensation Act, and resort is only made to the circuit courts on appeal against the administrative determination.

 

Black’s Law Dictionary defines workmen’s compensation acts as “State statutes which provide for fixed awards to employees or their dependents in case of employment related accidents and diseases, dispensing with proof of negligence and legal actions. Some of the acts go beyond simple determination of the right to compensation, and provide insurance system, either under state supervision or otherwise…” BLACK’S LAW DICTIONARY 1439 (4t h ed.). It continues: “the effect of most workmen’s compensation acts is to make the employer strictly liable to an employee for injuries sustained by the employee which varies out of and in the course of employment, without regard to the negligence of the employer or that of the employee. Where the Act applies, it has been uniformly held that this remedy is exclusive and bars any common law remedy which the employee may have had, the compensation scheduled under the act being the sole measure no damages.” (Emphasis ours). Id However, an action for wrongful death is a statutory and not a common law action and supports our position that recovery under the Workmen’s Compensation Act does not bar recovery under the Wrongful Death Statute, for the two have no conflicts between them under our laws. The Wrongful Death Statute, unlike the Workmen’s Compensation Act, was promulgated to empower the personal representatives of any deceased person, including an employee in the course of his employment, to bring an action of damages against “the person who by wrongful act, neglect or default has caused the death of the decedent.” Private Wrongs Law, Rev. Code 28:3.2. The statute further provides that whenever such a death occurs, caused by the wrongful act, neglect or default of someone else, chapter 3 of the Private Wrongs Law of Liberia, shall provide the exclusive remedy superior to all other laws providing similar remedies in such cases. Id., § 3.7.

 

The above law supports our position that whether or not the representatives of a deceased employee can recover under the Wrongful Death Statute depends on the circumstances of the death of the employee. Where death is attributable to the wrongful act, neglect or default of the employer, then certainly there can be recovery against him under the Wrongful Death Statute. But a recovery under that statute obviously bars recovery under the Workmen’s Compensation Act which provides the exclusive remedy only in cases where actionable fault for the death of the employee is not attached to the employer, or, where attached to him, the personal representatives of the deceased choose to claim under the Workmen’s Compensation Act. One cannot therefore claim under both statutes at the same time. If you choose one, you must leave the other. Thus, where the death is attributable to the actionable negligence or willful conduct of the employer, the Wrongful Death Statute may be resorted to, but where no actionable fault is attributed to the employer, the Workmen’s Compensation Act under our labour law provides the exclusive remedy.

 

Appellees chose to file the action under the Wrongful Death Statute and no one can stop them. The circuit court cannot itself of its jurisdiction over the cause as a court of first instance in such cases. The only duty which the appellees owed to the trial court when they choose to come under the Wrongful Death Statute was to prove actionable negligence or willful conduct of the employer which resulted in the death of the employee.

 

We therefore proceed to the consideration of the second and final issue on this appeal, viz: Whether or not appellees had sufficiently proved actionable negligence or willfulness on the part of the appellant to warrant payment of compensation under the Private Wrongs Law for the death of the deceased employee?

 

The degree of negligence required for culpability in an action for wrongful death is “actionable negligence”. Black’s Law Dictionary defines an actionable negligence as “the breach or non-performance of a legal duty, through neglect or carelessness, resulting in damage or injury to another. It is a failure of duty, omission or something which ought to have been done, or which a reasonable man, guided by considerations which ordinarily regulate the conduct of human affairs, would or would not do. Essential elements are failure to exercise due care; injury, or damage, and proximate cause.” BLACK’S LAW DICTIONARY 28 (5 th ed.)

 

The foregoing is the degree of negligence to be proven by the plaintiff in an action for wrongful death. A willful conduct on the other hand is one “proceeding from a conscious motion of the will; voluntary; intending the result which actually comes to pass; designed; intentional, not accidental or involuntary.” Id. at 1434.

 

From a close perusal of the records in this case, we fail to see the degree of negligence and willfulness on the part of the appellant corporation which warranted culpability for an action for the wrongful death of the deceased, Moulton Greenfield. Mr. Greenfield had served the Liberia Electricity Corporation for ten consecutive years as a linesman and he obviously had tremendous experience in climbing light poles, especially the wooden ones common around here. At the trial appellees made no showing that the employer had any fore knowledge of the alleged decadence of the wooden pole from which Mr. Greenfield fell, or that it failed to disclose said knowledge to him before he climbed the pole. They brought no expert witness to show that the wood was decayed when it broke, or that the Liberia Electricity Corporation had the means of telling a viable wood from a rotten one, and that it had neglected to use such means to determine the state of the wooden pole upon which that deceased had climbed to his death. Finally, there was no proof of any willful misconduct on the part of the appellant corporation which was the proximate cause of the employee’s death.

 

The verdict of the trial jury was clearly against the weight of the evidence adduced at the trial. Indeed, the appellees themselves had described in all of their pleadings the defect in the wooden pole which caused its breakage as “latent”. Something is “latent” when it is “hidden; concealed, dormant; that which does not appear upon the face of a thing; as a latent ambiguity or defect.” BLACK’S LAW DICTIONARY 794 (5th ed.) In the circumstances, where the defect was latent, appellees could not succeed unless they had proved that the appellant had fore knowledge of the defect or had committed some actionable negligence in refusing to correct the latent defect.

 

From the foregoing, we are compelled to reverse the judgment of the trial court. This ruling, however, does not bar appellees from receiving benefits under the Workmen’s Compensation Act, if not already received, since any failure of an action of wrongful death of a deceased employee who dies in the course of his employment means that the death was without the fault of the employer, and therefore the personal representatives may claim under the Workmen’s Compensation Act.

 

The Clerk of this Court is hereby ordered to send a mandate to the trial court in conformity with this ruling. Costs of these proceedings are disallowed. And it is hereby so ordered.

 

Judgment reversed.

 

MR. JUSTICE KPOMAKPOR concurring.

 

The basic facts and circumstances which this suit is all about have been substantially stated in the briefs of the parties and in the opinion of the Court. I have decided to file this concurring opinion, however, because this case presents certain strange legal aspects, unparalleled in the course of normal legal proceedings in this jurisdiction, and because I entertain a different view with respect to the reason or reasons assigned for denying recovery to the beneficiaries.

 

I have carefully weighed the arguments advanced by my colleagues who have decided not to affirm the judgment of the trial court on the ground that the appellees, beneficiaries of the decedent, had failed to prove negligence on the part of the appellant. I appreciate their concern and not necessarily the reasons by which they have been influenced in denying recovery to the appellees.

 

This case strikes me as being rather simple in respect to its determination. The appellant, who was the defendant in the court of first instance, contended that the late MOulton Greenfield, the decedent, an employee of the appellant who died during and within the scope of his duties, was covered for the purpose of industrial or occupational injuries or death by only the Labour Law of Liberia and not by the Private Wrongs Law.

 

The appellees, on the other hand, strenuously contended in the lower court and argued before this Bench that the beneficiaries or dependents of a deceased employee have an election to claim as death benefit or workmen’s compensation, either under the Labour Practices Laws of Liberia or under the Private Wrongs Law. My colleagues have sanctioned the contention of the appellees. According to their theory, a dependent or beneficiary may choose between these two laws, and, may I add here, the forum. This contention of the appellees is not supported by any authority. While the case at bar concerns the death of an employee and the subsequent claim for death compensation, the implication to be derived from the test and rule enunciated in the opinion of the Court would also obtain, in my view, in the case of injury of an employee, and not necessarily when death ensues.

 

The opinion holds, apparently, that although employees are covered by the Labour Law and may assert their claims for injuries occasioned during their normal course of employment or duty, yet, where death ensues, the beneficiary or beneficiaries of such an employee may, if they so wish, seek compensation through the Ministry of Labour, as provided for under the Labour Law, or proceed against the employer in the civil law court and claim under the Private Wrong Act for wrongful death. According to the reasoning of my distinguished colleagues, beneficiaries seeking damages for wrongful death must prove that the defendant or the employer is negligent. This is a prerequisite to any recovery, they say. Of course, they agree that if recovery is sought at the Labour Ministry, negligence need not be alleged or proven by the plaintiff. .

 

The opinion holds that “The Wrongful Death Statute, unlike the Workmen’s Compensation Act, was promulgated to empower the personnel representatives of any deceased person., including an employee who dies in the course of his employment, to bring an action of damages against the person who by wrongful act, neglect or default, has caused the death of the decedent. (Emphasis added). This is the crux of my disagreement with the reasoning of my colleagues; their findings that an employee enjoys a concomitant coverage under the Labour Law and the Private Wrongs Law. I am of the opinion, backed by the authorities I shall cite, that when an employee is injured during the normal course of his employment, he can recover for that injury only from his employer as provided for under the Labour Law and that only the Ministry of Labour has original jurisdiction over such matter. The employee or his representative has no right to bring a suit in the civil law court which exercises original jurisdiction over actions of damages for a wrong, be it for injuries or death. This issue is so elementary that it should have never come to this Bench. According to the reasoning and conclusion of my other two colleagues, the employee has an election to sue for compensation in the Labour Ministry for occupational injury or in the civil law court for damages for a wrong.

 

I understand this opinion today to say that when an employee is injured or dies during the normal course of his employment, the beneficiary of that employee may, if he so elects, completely ignore the compensation provided for under the Labour Law in such cases and circumstances, and instead sue in the civil law court and claim damages for a wrong or wrongful death, provided, however, that the claimant establishes that the employer was negligent. During the argument before us, the legal counsel for the appellees conceded that aggrieved parties can and should seek redress only in the forum upon which the Legislature has conferred the necessary jurisdiction. The following questions were put to Counsellor M. Fahnbulleh Jones, one of the counsel for appellees:

 

Justice Kpomakpor: Counsellor Jones, if an ambassador were accuse of an act constituting wrongful death, in which forum would the spouse of the decedent file her case?

 

Counsellor Jones: Your Honours, it would be in the Supreme Court.

 

Justice Kpomakpor: Why not in the Civil Law Court?

 

Counsellor Jones: Because it is so provided, by law.

 

Justice Kpomakpor: In view of the answer just given by you, why didn’t you take LEC to the Labour Ministry in compliance with the Labour Law?

 

Counsellor Jones: Because LEC was responsible to inspect its light poles; and because LEC was negligent. So for these reasons we sued under the Wrongful Death Statute . . . .

 

Justice Kpomakpor: Why not take the ambassador to the civil law court?

 

Counsellor Jones: Because the ambassador is a special person from a different country and because of his nationality and because he comes under different jurisdiction; he cannot be tried in the civil law court . . . .

 

After this opinion, today, even an injured employee will have the right to ignore the compensation provided under the Labour Law and to ignore the Ministry of Labour in preference to that provided for under other laws and forum.

 

It should always be remembered by lawyers and judges, including ourselves, that jurisdiction or power to hear causes are never conferred by the consent of parties, or, for that matter, the court concerned, but rather by the laws enacted by those whose responsibility it is to legislate. The Civil Procedure Law provides that when claims are asserted against a party he may move the court to dismiss the claims on any of the following grounds:

 

(a) That the court lacks jurisdiction over the subject matter; in this case compensation growing out of “employer and employee relationship”;

 

(c) That the court has not jurisdiction of the thing involved. In the instant case, compensation which accrued to the beneficiaries as a result of injury or death of the employee. Civil Procedure Law, Rev. Code 1: 11.2 (a) and (c).

 

In this connection, I believe that the trial judge, His Honour Hall W. Badio, Sr., erred when he denied the appellant’s motion to refuse jurisdiction. According to Judge Badio, the appellees “established with preponderance of evidence that appellant negligently omitted doing periodic checking on the strength of the electric pole. . . .”

 

In denying the motion to refuse jurisdiction, the trial judge also held that “the act complained of could not “be considered or, in fact, regarded as occupational.” According to the learned judge, “the death which resulted must be categorized as wrongful death and not occupational injury resulting to death.”

 

The test adopted by the trial judge, if I understand him correctly, is that when an employee is injured while in the course of his employment, which injury later results into his death, and it is established that the employer was negligent, this fact automatically changes the injury from “occupational injury” to wrongful death.” As can be seen from the majority opinion, the test and reasoning adopted by my colleagues is not much different. They hold that the beneficiaries in this case had an election to prosecute their cause either in the Ministry of Labour or at the Civil Law Court. Indeed, it would be chaotic, to say the least, if an aggrieved party had the right to “shop” around for laws and the forum of his choice in cases such as the instant one.

 

The pertinent labour statute on the issue involved here is unequivocal and needs no construction or interpretation. The law provides:

 

“1. Every employer shall in accordance with the provisions of this chapter pay or provide compensation or secure compensation to each employee (or to his dependents) for the disability or death of such employee caused by an injury arising out of and in the course of his employment, such compensation to be paid, provided, or secured without regard to fault as a cause of the injury. . .

 

“(Emphases added). Labour Practices Law, Lib. Code 18-A: 3550.

 

The exception to the rule just quoted above is that liability for compensation does not attach in the instance where the injury or death of the employee is solely the result of intoxication, inexcusable misconduct of the employee, or by the employee willfully bringing about the injury or death to himself or to another. See Id, section 3550 (2)(a)-(c).

 

The Labour Law also provides that when an employee dies as a consequence of compensable occupational injury, as in the case at bar, and the deceased employee leaves dependents, such dependents shall receive compensation equal to 48 months, or four years of his earnings. Id., at 3551 (1)(2).

 

I am of the opinion that in view of the facts and the laws cited, the lower court and this Court were left with no alternative but to apply the said Labour Law. We should have therefore conceded the contention of appellant and dismissed the case on the simple ground that the controversy grew out of an employee-employer relationship over which the Ministry of Labour has original jurisdiction, and that employees are not covered under the Private Wrongs Law. Doing otherwise, as the majority opinion has cone, is not much different from what the trial judge did in his ruling confirming the verdict.

 

I believe that my colleagues would admit that my approach is correct since the issue is not difficult to see, but the fact of the matter is that they look askance at the provisions of the Labour Law I have cited and the benefit provided thereunder, and concluded that the said benefit is apparently inadequate, especially viewer: from the stand point of today’s realities. In other words, my colleagues view with disfavour, without admitting it loudly, that the workmen’s compensation law awards only a bare benefit of 4 years salary to the dependents of a decedent. But, as far as the Court is concerned, that is a problem for the Legislature which is in a better position, and not this Court, to find an equitable solution.

 

From what I can see, I am convinced that the decision of the Court will have serious consequences in the future. The obvious ones are that all injured employees will now seek recovery for compensation not under the Labour Law and at the Ministry of Labour, but in the Civil Law Court for damages for personal injuries occurring on the job. Also, beneficiaries of deceased employees will no longer go to the Labour Ministry for death benefits; instead, they will go to the Civil Law Court under the Private Wrongs Law where the jury will award them damages.

 

Certainly, the invocation of the Private Wrongs Law in the court below by the appellees, instead of the Labour Law, supports my contention that this opinion has in effect scrapped what has heretofore been known as the Workmen’s Compensation Act. This is no exaggeration. In fact, the jury awarded the appellees a sum of $85,000.00 as general damages. Although the record certified to this Court is silent as to the monthly salary of the late Greenfield, I doubt that his four year’s salary would have aggregated $85,000.00. I believe that appellees would have gone to the Labour Ministry where they would not be required to prove negligence on the part of the appellant, were it true that they could have received the same award. The question then is, will any prospective beneficiary turn his back on the Private Wrongs Law or action of damages for wrong in case of death or injuries, respectively, and go instead to the civil law court in preference to the Labour Ministry and Workmen’s Compensation Act? The answer is an emphatic “of course not”. As I stated earlier in this concurring opinion, the opinion of the Court is in effect an abrogation of the provision of the Labour Law regarding workmen’s compensation. In my opinion, this Court is not clothed with such authority. To say that by this opinion the Court has opened a huge pandora’s box, is to put it mildly.

 

In the case George v. Republic, 14 LLR 158 (1960), this Court held, speaking through Mr. Justice Pierre, that “[t]his Court has no authority to extrapolate the intent of the Legislature beyond the specific wording of a statute. This limitation is all the more mandatory where the statute in question specifies the only manner in which an act is to be performed. Our law does not give us the authority either to aid to or to take from what the Legislature has commanded unless the said command breaches provisions of the Constitution; and in such a case the constitutional issue must be raised squarely.” Under our power of judicial review, we can set aside and refuse to apply, or enforce, any laws enacted by the Legislature which are in collision with the Constitution; otherwise we are bound by all laws enacted by that branch of the Government until they are repealed or abrogated. Ayad v. Dennis, [1974] LRSC 42; 23 LLR 165 (1974). While it might appear in the instant case that a question of construction of a statute is not involved, at least not so on the surface, yet, when the language of a statute is as plain as the labour statute herein involved and the Court decides as it has on today in this opinion, then there is in fact a serious question call it implied construction, if you will.

 

In an earlier case, Harris v. Harris, [1947] LRSC 13; 9 LLR 344 (1947), which was affirmed by this Court in the George case, Mr. Justice Russell, speaking for the Court, at page 349 said: “… this Court has ever and anon enunciated the principal that courts are not concerned with whether or not legislation is wise or unwise, oppressive or democratic; it is the special function of the courts to interpret the law. Any legislation considered pernicious, unwise, or oppressive may be remedied only by the people who, where the legislators refuse to change the law, may change their representatives in the Legislature from time to time until such repugnant legislation is repealed.” This Court cannot even in an indirect way, arbitrarily choose the law it wishes to apply over the one it dislikes for one reason or another.

 

With regards to the issue of negligence on the part of LEC, the appellant, the record and argument convinced me that appellant was negligent, but as far as I am concerned, this issue need not be material here, since the action of damages for wrongful death could not be entertained against the appellant in the Civil Law Court when the act complained of emanated from injury sustained while the employee was discharging his normal duties within the scope of his employment for his employer. In this regard, and as stated earlier in this concurring opinion, the trial court not having jurisdiction over the alleged violation complained of by the appellees, its final judgment is coram non judice and, of course, ipso facto null and void.

 

In consequence of the above enumerated facts and applicable legal precedents, I have joined in signing the judgment of the Court only with respect to the result in which it denied appellees the right to recover against the appellant.