Fazal Ghany v Attorney General and Another

A court may correct an obvious drafting error by adding, omitting or substituting statutory words only where it is abundantly sure of the provision’s intended purpose, Parliament’s inadvertent failure to give effect to it, and the substance of the provision Parliament would have enacted. The court must also consider whether the alteration is too far-reaching or inconsistent with a context requiring strict interpretation. Applying that approach, the Board held that the Protective Services (Compensation) Act 1996 imported the machinery for quantifying permanent partial disablement in the Workmen's Compensation Act 1960, including the proportionality rule for injuries outside the statutory schedule. The omission was an obvious drafting error capable of correction by interpretation.

A police corporal suffered permanent disability after falling at work and claimed compensation under the Protective Services (Compensation) Act 1996. The Compensation Committee accepted the injury, its cause and the level of disability, but declined compensation because the fracture was not listed in the Second Schedule to the Workmen's Compensation Act 1960. The Court of Appeal of the Republic of Trinidad and Tobago dismissed his appeal, with Kangaloo JA dissenting, holding that the Committee had no jurisdiction. The appeal concerned whether the omission of section 5(1)(c)(ii) of the WCA was an obvious drafting error and, if so, whether the court could correct it. A separate loss-of-earnings issue remained undecided.

The appeal was allowed. The Board held that the Compensation Committee had jurisdiction to determine compensation for permanent partial disablement caused by an injury not listed in the WCA Second Schedule.

1. Scope of the statutory scheme. The Protective Services (Compensation) Act 1996 is narrower than the Workmen's Compensation Act 1960 in several respects. It covers permanent partial and permanent total disablement, but not every form of work-related injury. That difference did not show that Parliament intended to exclude all permanent partial disablements absent from the WCA Schedule.
2. Correction of drafting errors. Applying the principles in Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586, the court must be abundantly sure of the statutory purpose, the inadvertent failure to give effect to it, and the substance of the provision Parliament would have made. The court must also consider the nature of the mistake, the extent of the required rewriting and the statutory context. The limitation identified in Western Bank Ltd v Schindler [1977] Ch 1 was part of that assessment.
3. Application. The PSCA was intended to adopt the WCA machinery for calculating permanent partial disablement. Limiting compensation to the listed injuries would produce arbitrary results, such as compensating loss of an arm but not loss of a lung, or loss of a finger but not paraplegia. The omitted substance of WCA section 5(1)(c)(ii), which provides for case-by-case proportional assessment of unlisted injuries, could therefore be read into the PSCA. The insertion of 44 words was permissible in context.
4. Section 21 and remittal. The Minister’s power to add benefits to the PSCA Schedule was not an adequate substitute because it operated prospectively and could not provide the required individual assessment. The unresolved issue concerning evidence of loss of earnings, which had not been argued before the Board, was remitted to the Committee.

• Privy Council: In [2015] UKPC 12, allowed the appeal, held that the omitted proportionality machinery could be inserted by interpretation, and remitted the loss-of-earnings issue to the Committee.
• Court of Appeal of the Republic of Trinidad and Tobago: Dismissed the appeal, with Kangaloo JA dissenting, holding that the Compensation Committee lacked jurisdiction to award compensation for the unlisted injury.