THE DILEMMA OF AN INJURED EMPLOYEE
Mr. Victor Shuib, an employee of one of the largest bakeries in Nigeria sustained a fatal injury that resulted in the loss of his right finger while carrying out his duties at the Kitchen Section of the Company. The accident happened while he was operating a band – saw machine in the cold room and the accident could have been avoided if the Company had provided proper protective hand gloves for its employees and not the nylon gloves provided.
All efforts to get the Company to provide proper protective hand gloves for its employees did not yield any result. Moreover, the band saw machine that caused the accident had been faulty and the Company refused to fix it and rather asked the employees to use it so as to meet up with targets.
It is the case of Mr. Shuib that the handle of the band saw machine which was faulty is a very vital part of the machine and helps to prevent accidents as the operator utilizes the same rather than their fingers to complete the work. He stated that he bled profusely; was taken to the Company’s hospital where he received treatment; was hospitalised for 4 days between and after his discharge was asked to keep coming for further treatment as an out-patient which he did for close to 3months and that the loss of his finger was due to the negligence of the Company.
CLAIM UNDER THE ECA OR UNDER THE TORT OF NEGLIGENCE
A lawyer faced with this scenario would have to decide whether to proceed under the Employee Compensation Act 2010 [ECA] or under the tort of negligence. It is the opinion of the writer that the injured party’s claim under the tort of negligence can far outweigh compensation under the ECA.
After attempts to get the Company to adequately compensate him failed, he had to approach the National Industrial Court vested with the power to adjudicate.
Knowing that Mr. Shuib would not be adequately compensated under the ECA, his Lawyers proceeded under the tort of negligence.
ARGUMENTS BY THE COMPANY/ 1ST DEFENDANT
Mr. Shuib sued the Company [as 1st defendant] and MR. JOE IFEDIORA as 2nd Defendant].
The contention of the Company was that the employee could only be compensated under the ECA. Mr. Shuib’s Counsel on the other hand argued that he had a choice either to proceed under the tort of negligence or under the Employees Compensation Act [ECA]. This argument she sated was strengthened by the provisions of Section 12 of the Employees Compensation Act which provides thus:
- (1) The provisions of this Act are in lieu of any right of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which an employee, dependant or member of the family of the employee is or may be entitled against the employer of the employee, or against any employer within the scope of this Act, or against any employee, in respect of any death, injury or disability arising out of and in the course of employment and where no action in respect of it lies.
(2) The provisions of sub-section (1) of this section shall apply only when the action or conduct of the employer, the servant or agent of the employer or the employee, which caused the breach of duty, arose out of and in the course of employment within the scope of this Act.
The Company in its argument cited Section 1 of the Employee’s Compensation Act, 2010 and stated the objectives of the Act which is to provide for an open and fair system of guaranteed and adequate compensation for all employees or their defendants for any death, injury, disease or disability rising out of or in the course of employment; provide rehabilitation to employees with work related disabilities as provided in the Act; establish and maintain a solvent compensation fund managed in the interest of the employees and employers; and provide for fair and adequate assessments for employers.
The Counsel submitted that the employee sustained injury the subject of this suit in the workplace and that the compensation which he is entitled to in respect of the injury is provided for in the Act hence he cannot look elsewhere for his compensation. According to Counsel, Second Schedule to the Employees’ Compensation Act put the percentage of disability of loss of one phalange of an index finger at 6%; and that the Medical Report clearly revealed that the employee suffered injury at the tip of the phalange of the index finger; and that he did not suffer fatal accident; further that the amount claimed by the Claimant for his pain and suffering is misconceived in law and facts because, according to him “the injury that was suffered was but a mere cut to the first phalange of the index finger”; that the sum claimed is not in accordance with the Employees’ Compensation Act and that the onus is on the employee to prove that he is entitled to the amount claimed in accordance with the extant law.
He cited International Bank Plc v. Brifina Limited (2012)12 NWLR (Pt.1316)1 & Health Care Products (Nig.) Limited v. Bazza (2004)3 NWLR (Pt. 861) 582 at 605-606. Respecting the claim for N2,000,000.00 for future loss of earnings, he submitted that this claim is misconceived; that there is evidence from the employee before the Court that till date he remains an employee of the Defendant and that there is also evidence that his salary continues to be on the increase. He submitted further that the first 2 heads of claim are unproven and should be dismissed on ground of want of evidence.
ARGUMENTS BY THE EMPLOYEE/ CLAIMANT
The Claimant’s Counsel on the other hand submitted that the Court determines issues based on the Claimant’s claim and not on the Defendant’s defence, citing Hon. Goodluck Opia v. INEC (2014)LER SC 16/2013 OR (1991)11 NWLR (Pt.628) 200; that the Claimant’s cause of action is rightly based on the tort of negligence and that he has the right and an option to proceed and be compensated under the common law and not the Employee’s Compensation Act, 2010. Counsel cited Nigeria Airways v. Abe (1998) NWLR (Pt. 90) 524 and Williams Obakoro v. Forex Co. Inc. & Ors (1973)3 UILR (Pt.1) 91 for the proposition that a Claimant may proceed under the Common Law of negligence notwithstanding the statute.
Employee’s Counsel submitted further that the essential facts of this case are sufficient for the Court to hold that a prima facie case of negligence is made out and that it is trite, that the basic ingredient of the tort of negligence is the existence of a duty of care and a corresponding breach of the duty to establish. Counsel cited Makwe v. Nwukor (2001)6 MJSC 179 AT 191, Abubakar & Anor. v. John Joseph (2008) 345 (Pt.2) NSCQR 1195 at 1225 & Hamza v. Kure (2010) 42 NSCQR 592 at 611.
Claimant’s Counsel stated that the pleadings showed that there exists an employer/employee relationship between the Company and the employee and that the relationship entrusted in the Company the duty of care towards the employee. Citing International Messengers Nigeria Limited v. Nwachukwu (2004)9 NJSC 137, Counsel submitted that a duty of care in any circumstances can be determined by a consideration of the proximity of the alleged wrong doer and the person who has suffered damage. If there is a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter.
Claimant’s Counsel submitted further that the Company as a conglomerate owes the employee and other employees of the company a duty to provide a safe place for work and a duty of care to provide safety equipment for use by them in the course of the discharge of their duties; that the Company is expected to uphold the international best practices on safety standard in work place by ensuring that the work environment is safe for the employees and that from the evidence of the defence witnesses it is clear that only nylon gloves are provided by the Defendants and clearly nylon gloves could not provide any form of safety against cuts and cold from the cold room where they are expected to collect meat for chopping. Counsel added that failure to provide safety equipment by the Defendants had resulted in employees suffering injuries of different magnitude and even death as confirmed by the Company’s second witness under cross examination. Counsel referred to Usong v. Hanseatic Int. Limited (2009)38 (Pt. 1) NSCQR 372 AT 382 where the Court held, inter alia
“It was in the course of his work as a forklift operator that he had this accident which resulted in the total loss of right eye. If the Respondent/Cross Appellant had provided him with the goggles to protect his eyes, he might have been saved from the accident”.
Counsel also referred to the case of Williams Obakoro v. Forex Co. Inc. & Ors (supra) where the Court held as follows-
“It is clear… that the wearing of gloves is most essential in the plaintiff’s job. That was bone out clearly by the evidence of the nature of work concerned… the Defendants were under a common law duty to provide the Plaintiff with good gloves to discharge that duty. They were therefore negligent and are liable at common law”.
According to Claimant’s Counsel, the facts of the case as established in the evidence led revealed that the Claimant complained severally about the faulty machine, the 1st Defendant ( the Company) refused or neglected to repair same; that the Defendant did not provide the requisite safety gadgets and that though the Claimant was aware of the risk involved in the use of the faulty machine, which the Defendants insisted he must use so as to meet targets it cannot be imputed to the Claimant that he consented to the risk and thus assume liability for the danger. Counsel cited Bowater v. Rowley Regis Corporation (1944) K.B 476 where the Court held that it can hardly ever be applicable where the act to which the servant is said to be ‘volens’ arises out of his ordinary duty, unless the work for which he is engaged is one in which danger is necessarily involved.
Concluding, Claimant’s Counsel submitted that the injury suffered by the Claimant by reason of the Defendants negligence is grave and not the mere cut of as the tip of his index finger as alleged by the Defendants and that the need for a physiotherapist show that he has not recovered. Counsel urged the Court to find the Defendants liable in negligence.
JUDGEMENT
The Honourable Court in its judgment held that the first head of claim by the Claimant is for the sum of N8,000,000.00 as damages for pain and suffering. That the Claimant, an employee of the 1st Defendant sustained injury at workplace in the course of discharging his duties as given by the Defendants. Rather than proceed against the Defendant under the Employees’ Compensation Act as argued by the learned Counsel to the Defendants, the Claimant makes claim under the Common Law of Negligence. Recently, in Kabo Air Limited v. Ismail Muhammed (2015)6 ACELR 71 at 83 the Court of Appeal defined.
“Negligence as the omission to do something, which a reasonable man guided upon those considerations that ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. It means lack of proper care and attention; careless behaviour or conduct; a state of mind which is opposed to intention and the breach of a duty of care imposed by common law and statute resulting in damage to the complainant. Negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is also any conduct that falls below the legal standard established to protect others against unreasonable risk of harm”.
See also Universal Trust Bank of Nigeria Plc v. Ozoemena (2007)3 NWLR (Pt. 1022) 448 & Diamond Bank Plc v. Partnership Investment Co. Limited (2009) 18 NWLR (Pt. 1172)67.
Now is the Defendant liable to the Claimant in Negligence within the confines of the above definition? But first it may as well be said from the onset and without mincing words that the stand of the learned Counsel to the Defendants and his proposition that the Claimant ought only to bring this action under the statute is not a reflection of the position of the law both statutory and case law. Statutorily and by virtue of Section 12, Employees’ Compensation Act, 2010, an injured employee or his dependant (on case of death) may bring an action at Common Law for damages where death, disease or injury suffered gives rise to an action for negligence against guilty party, who may be the employer, another employee of a common employer or some other person other than the employer may or claim compensation against the employer where the injury arises out of and in the course of employment. However, the choice of action is dependent on the condition that the employee is not to recover both damages and compensation, see Section 12 (1),(2) and (3) of the Employees’ Compensation Act.
This statutory provision had found judicial expression in Nigeria Airways Limited v. Abe (1988)4 NWLR (Pt. 90) 524 when Muhammed JCA held that the statute law notwithstanding the provision of the Employees’ Compensation Act, the Claimant is not precluded from seeking reliefs under the Common Law of Negligence.
Though the Claimant has applied for N8 Million Naira as damages for his injury, pain and suffering, the Court awarded the sum of Seven Million Naira (N7,000,000.00)