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ADINYIRA (MRS.) J.A.:
This is an appeal from
the decision of the High Court Tema, dated 20 July,
2001. The plaintiff /respondent (hereinafter referred to
as the respondent) issued a writ against the
defendant/appellant (hereinafter referred to as the
appellant) on 22 April, 1999 for:
(a) Punitive
damages/compensation for physical injuries sustained at
work in or about August 1996 which has resulted in total
loss of the use of plaintiff's right eye;
(b) An order to compel
the defendant to pay the plaintiff entitlements/
benefits provided under the employment laws of Ghana.
The respondent failed
to enter appearance within the stipulated time of 8 days
of service of the writ on him on 28 April, 1999. The
respondent accordingly applied for and obtained judgment
in default of appearance on his claim on 13 May, 1999.
The case was adjourned to 9 June 1999 for assessment of
damages. The defendant later on the same day entered
appearance. He was served with hearing notice for
assessment of damages. Before damages could be assessed,
Counsel for the appellant filed on 16 June 1999 a motion
to set aside the default judgment and for leave to file
a defence out of time to be moved on 14 July 1999. On 10
August 1999 both appellant and counsel were absent and
their motion was accordingly struck out. After several
adjournments evidence was given by the respondent on 14
March 2001 for assessment of damages and counsel for the
appellant cross-examined the respondent. The case was
adjourned to 22 March for further cross-examination. In
the course of the cross-examination counsel asked that
his motion to set aside the default judgment be relisted.
Counsel for the respondent objected that it was not the
proper procedure for relisting and the objection was
sustained. The Court in its final judgment awarded tile
respondent damages for ¢30 million.
The appellant being
dissatisfied appealed on the following grounds
(a) The trial was a
mistrial or non trial or both.
(b) The learned trial
judge did not allow the medical report tendered by the
plaintiff to be subject to cross examination as the
plaintiff did not call the medical officer who was said
to have issued the medical report.
(c) The learned trial
judge did not allow or consider the defence of the
defendant.
(d) The damages awarded
were wrong in law and too excessive.
He filed additional
grounds of appeal that;
"The Motion Ex parte
for Abridgement of time for assessment of damages was
procedurally wrong and therefore null and void since at
the time the application was made the
defendant/appellant had entered appearance which was on
the docket."
In his statement of
case the appellant used grounds (b) and (c) to
substantiate his first ground of appeal that "the trial
was a mistrial or non trial or both. "His first argument
was that:
'It is my submission
that after the medical report had been tendered and
accepted in evidence it was the duty of the plaintiff to
bring the author of the Exhibit 'B' to court to give
evidence and be cross-examined since the plaintiff
himself could not answer any questions on it. It was
agreed that the medical doctor would be called.
Strangely enough
I went to Court only to
be told that counsel for the plaintiff had decided not
to call the medical officer to testify and closed the
case for the plaintiff."
The trial judge in her
judgment considered this fact and stated:
'It is also my view
that the medical doctor's evidence, if he had been
called personally, would not have determined the quantum
of damage to be awarded the plaintiff. The doctor would
have helped the court to determine the extent of injury
sustained by the plaintiff and future effect of the
injury of plaintiff. All these can be found clearly
stated in Exhibit '8' that is the medical report
tendered by the plaintiff."
Portions of the medical
report dated 19 April 1999 are as follows:
"Mr. J.K. Apprey, aged
approximately 60 years, was first seen in this clinic on
17th October 1996 with the history of blurred vision in
the right eye. This occurred when a plank of wood hit
the right eye at his worksite 3 months earlier. Findings
were as follows: . . . . In addition he had vitreous
haemorrhage in the right eye. Subsequent follow up
revealed that he had also Retinal Detachment.
His vision in the right
eye has persistently deteriorated. As at now he is
totally blind in the right eye (vision=NPL).
Disability is fixed at
fifty percent (50%).
Counsel for the
appellant did not demonstrate to this court why the
failure of the plaintiff to call the medical officer to
be cross-examined on his report amounted to a mistrial
or a non trial. I do not propose to make any conjectures
as I do not see any. If counsel for the appellant felt
it was necessary to call the medical officer he could
have applied to do that on behalf of the appellant. I do
not think failure to call the medical officer amounted
to any miscarriage of justice as the medical report the
respondent tendered in evidence was sufficiently clear
to enable the court to determine the extent of injury
the respondent suffered and the extent of his disability
to enable the court to assess the quantum of damages to
be awarded. This ground of appeal is misconceived and it
must therefore fail.
His next argument was
that the trial judge did not allow or consider the
defence of the defendant. He submitted that he filed a
motion to set aside the interlocutory judgment and for
leave to file a defence out of time. But this was struck
out as both his client and him were absent from Court.
He said there was no record of his application for
relistment. He also said the court refused to allow his
motion for relistment to be taken on the day that
assessment of damages commenced. He also complained that
his written address was also not on record.
I do not see how this
catalogue of complaints could be a valid ground of
appeal and amount to a mistrial. Did he ask for these to
be included in the record at the time he was settling
the record at the court below? Why did he not apply to
the Court of Appeal for their inclusion if he
desperately found them vital to his case after he was
served with Civil Form 6 and he had collected his copy
of the record and saw the omissions? With all due
respect to counsel, what I term his litany of woes,
rather show the lackadaisical manner in which the
defence was handled. The writ of summons together with
the statement of claim was served on the appellant on 28
April 1999. The appellant entered appearance on 13 May
1999 the very day that interlocutory judgment was
entered, but according to counsel for the appellant,
much later in the day after judgment has been. given.
This motion to set aside the judgment etc. was filed
after notice of assessment of damages has been served on
defendant. The court had to strike it out for want of
prosecution on 10 August 1999. Instead for counsel to
have it relisted expeditiously he did not do so until 22
March 2001 when in the middle of cross-examination of
the respondent in assessment of damages, he by oral
application sought to have his motion relisted. Counsel
for the respondent objected that it was procedurally
wrong and the court rightly upheld the objection.
Counsel for the appellant could have asked for
adjournment to file the appropriate motion for
relistment of his original motion. This he failed to do
and he is now saying there was a mistrial.
Indeed, as could be
observed from the record, the only defence the appellant
disclosed in his affidavit in support of his motion to
set aside the interlocutory judgment and for leave to
file a defence out of time, was that, the respondent was
not their employee. This is the only defence that
counsel mentioned in his statement of case as well. From
the evidence on record the respondent was a casual
labourer with a pass from the appellant to give him
access to the harbour. He had been working for the
appellant in various capacities from 1974 to 1996 when
he got injured from a wooden plank which fell from a
container he was working on in the appellant's cocoa
shed at the harbour. The fact that the respondent was a
casual labourer of the appellant does not absolve the
latter from any liability from injuries sustained on his
premises. The law, whether at common law or statute law,
imposes a duty of care on an employer towards his
employees, whether casual or permanent staff. Lord
Wright described this duty of care in the case of Wilson
& Clyde Coal Co., Ltd. vrs. English[1938] A.C. 57 at
p.84,HL. thus:
"I think the whole
course of authority consistently recognizes a duty which
rests on the employer and which is personal to the
employer, to take reasonable care for the safety of his
workmen, whether the employer be an individual, a firm,
or a company, and whether or not the employer takes any
share in the conduct of the operations. The obligation
is threefold, as I have explained (the provision of a
competent staff of men, adequate material and a proper
system of effective supervision.)"
The Factories, Offices
and Shops Act, 1970 (Act 328), makes provision among
other things for the health, welfare and safety of
persons employed in factories, offices and shops. The
Act does not make any distinction between casual and
permanent workers.
It is only under the
Workmen Compensation Act, 1963 (Act 174) that the
provisions do not apply to casual labourers. The new
Labour Act seeks to protect casual workers from being
casual workers indefinitely as happened in this case
where the respondent was a casual worker of the
appellant from 1974 to 1996.
Consequently the
defence that the appellant had wanted to put up, that,
the respondent was not an employee but a casual labourer
cannot absolve them form the duty of care that an
employer owes to all workers on his premises. Even if
the respondent was an independent contractor which I
believe not, the appellant is not absolved from
liability.
I do not propose to
enter into any dialogue on this duty of care of an
employer towards his employees as this point was never
raised by the appellant at the trial nor in this appeal,
except to mention two Ghanaian cases in which this point
and other English cases were considered. They are the
cases of Issah vrs. Mim Timber Co. Ltd. [1980] GLR 430,
and Korley vrs. State Construction Corporation [1982-83]
GLR 576.
There is one further
comment I wish to make on this point. In her judgment,
the trial judge held that 'the defendant is vicariously
liable'. This is an error as the injury was not caused
by the negligence of a co-worker in the course of his
employment to render the employer vicariously liable. In
the case before us the respondent's complaint was simply
that, his employer did not provide adequate safety
materials and proper lighting and as a result he got
injured. A breach of this duty is actionable. As this
was not contested the trial judge was right in holding
the appellant liable. The appeal on this ground also
fails.
The next ground of
appeal was that the damages of ¢30 million awarded was
wrong in law and excessive. I do not find any merit in
this ground of appeal. The respondent was injured in the
right eye and this subsequently led to the total loss of
his sight in that eye, and the permanent disability was
assessed at 50% which in my estimation was quite high.
In cases of personal injuries the normal heads of
damages are for disability, disfigurement, loss of
amenities of life and pain and suffering. The trial
judge in her judgment did not specify the particular
head of damages but merely awarded a lump sum of ¢30
million. I however do not think the award was excessive,
and it must therefore be undisturbed. The appeal on this
ground also fails.
The last ground of
appeal canvassed was the additional ground of appeal
that the motion ex parte for abridgement of time for
assessment of damages was procedurally wrong and
therefore null and void since at the time the
application was made the defendant/appellant had entered
appearance which was on the docket. Counsel therefore
concluded that all proceedings thereafter were null and
void. Counsel is correct on the point that the motion
for abridgement of time ought to have been on notice
since the appellant had entered appearance then. In any
event, the hearing of the assessment of damages did not
come on at the abridged time, and the appellant through
his counsel participated in the hearing of evidence for
the assessment of damages on the subsequent hearing
dates. In my opinion therefore the abridgement of time
did not occasion any miscarriage of justice and it did
not render the proceedings null and void. This ground of
appeal is also misconceived and must therefore fail.
For the reasons given
above the appeal is therefore disallowed and hereby
dismissed.
S.O.A. ADINYIRA (MRS.)
JUSTICE OF APPEAL
ASIAMAH, J.A.
The
Plaintiff/Respondent issued his writ against the
Defendant/Appellant accompanied with a Statement of
Claim on 22nd April 1999. The Defendant/Appellant was
served with these two processes on 28th April 1999. And
on 13th May 1999 at 1:30pm the Defendant/Appellant
through its Solicitor entered an ordinary appearance.
This was after the Plaintiff/Respondent had in the
forenoon of same day, the 13th May 1999, obtained
judgment in default of appearance against the
Defendant/Appellant.
When on the 28/5/99 the
case was called for the assessment of damages hearing
the Defendant/ Appellant's counsel informed the court
thus:—
"I was served with the
notice only yesterday and have decided to take a date
with my learned friend.”
The trial court obliged
the Defendant/Appellant and adjourned the case to the
16th of June 1999. In the morning of 16th Jun 1999 at 10
o'clock the Defendant/ Appellant filed a “MOTION ON
NOTICE TO SET ASIDE JUDGEMENT AND FOR LEAVE TO FILE
STATEMENT OF DEFENCE OUT OF TIME".
This motion was fixed
for hearing on 14th July 1999, on account of the
Defendant/Appellant's motion when the case was called on
16/6/99 for the assessment of damages the court had to
adjourn the case to 14th July 1999. On 14/7/99 both
parties and their counsel did not show up in court and
the court deferred hearing to 10th August 1999. On
10/8/99 the parties were assent. However the
Plaintiff/Respondent's counsel was present but not the
Defendant/ Appellant's counsel. The court struck out the
Defendant/Appellant's motion for want of prosecution.
The Court ordered a hearing notice to be served on the
Defendant/Appellant for the assessment of damages to be
taken on 20th august 1999. Subsequently on 29/11/99,
30/3/2000, 24/5/2001 and 19/7/2000 the parties and their
counsel failed to attend court for the assessment to be
taken. it was not until the 14th May 2001 that counsel
for both parties appeared in court together for the
assessment to be taken. In the course of his
cross-examination of the Plaintiff/Respondent on 22nd
March 2001, counsel for the Defendant/Appellant in his
shiftless manner sought through a casual oral
application to be granted leave to re-list his earlier
motion on notice to set aside the very judgment which is
the judgment of this appeal which had long ago been
struck out for want of prosecution on 16th June 1999.
This is how he made his oral application:—
"in the interest of
justice, this court is to grant us leave to re-list our
motion"
Counsel for the
Plaintiff/Respondent objected to the application on
ground of procedural defect and the court rightly upheld
the objection.
An application of this
nature should have been brought under Order 52(1) of the
High Court (Civil Procedure) Rules, 1954 (LN 140A). It
reads:
1.
where by these rules any application is authorised to be
made to the court or a Judge, such application if made
to a Judge in Court, shall be made by motion."
The Defendant/Appellant
had every chance to defend the Plaintiff/Respondent's
action but it missed out on the opportunity. It never
even bothered to file any statement of Defence after it
had entered an ordinary appearance, though belatedly.
Ultimately after series of adjournments the trial court
took evidence from the Plaintiff/Respondent with
participation of the Defendant/Appellant on the
assessment of damages and awarded a Thirty Million Cedis
(¢30,000,000.00) damages as a lump sum compensation to
the Plaintiff/Respondent for the physical injury he
sustained on his right eye resulting in total blindness
in the injured eye. It was against this judgment and
order of the trial court that the Defendant/ Appellant
has appealed on the following five grounds:
"(a) The trial was a
mistrial or non trial or both.
"(b) The learned trial
judge did not allow the medical report tendered by the
Plaintiff to be subjected to cross-examination as the
Plaintiff did not call the medical officer who was said
to have issued the medical report.
"(c) The trial learned
Judge did not allow or consider the defence of the
Defendant.
"(d) The damages
awarded were wrong in law and too excessive.
"(e) The Motion
Ex-parte for Abridgement of Time for the Assessment of
Damages was procedurally wrong, and therefore null and
voice since at the time the application was made the
Defendant/Appellant had entered appearance which was on
the docket."
In arguing the appeal
in the Statement of Case appellant counsel lumped
together grounds (a), (b) and (c). The substance of his
argument scanty stated was that:
"The whole proceedings
were a non-trial” on the contention that the medical
officer the author of exhibit B was not called to give
evidence and he was not cross-examined on exhibit B,
"(ii) That on 18th May
2001, the court should not have called upon the
Plaintiff/Respondent to open his case in the absence of
the Defendant/Appellant and his counsel,
"(iii) That "The
Defence was not allowed to make its case both by
pleadings and by defence", and
"(iv) "That written
address is not reflected in the Record. . . the counsel
for the Plaintiff may not have filed any address hence
no record, but what about the Defendant?"
Counsel seemed to be
oblivious of the fact that the appellant never went
beyond the process of filing an ordinary appearance and
that at the time that this process was filed judgment in
default of appearance had already been entered against
him.
After series of
indulgences in the nature of adjournment granted by
trial court because neither the appellant not its
counsel ever showed up in court. The
Defendant/Appellant's motion to have default judgment
set aside and leave to file defence out of time was
struck out for want of prosecution. No further proper
efforts was made by the appellant to repeat the motion.
The Defendant/Appellant never filed any defence which as
it is being alleged the trial court failed to consider.
One the issue of the
medical officer not made available to be cross-examined
on exhibit B, the medical report on the state of the
Respondent's right eye there was nothing on the face of
exhibit B which needs clarification. The probative
evidence that this document purports to give is clearly
stated in exhibit B. The relevant fact in this document
is that as a result of a plank hitting the
Plaintiff/Respondent at his work place in the course of
his employment he had suffered a total blindness in his
right eye.
The
Plaintiff/Respondent himself was in court; the court and
the Defendant/ Appellant's counsel saw him. The
Defendant/Appellant’s counsel had the opportunity to see
and observe the Plaintiff/Respondent in court. He never
disputed the fact that the Plaintiff/Respondent had
suffered such a mishap and that the loss of his vision
in the right eye occurred in the course of his
employment in the appellant's business. The purpose of
cross-examination, inter alia, is to illuminate and trim
off the evidence of the opposing party so as to lay bare
the truth or falsehood of what has been said in evidence
by the opposing party. It is not imperative that a
witness or party must be cross-examined. The fact that a
witness was not cross-examined baring any fetters of
control and inhibition from the court, would in no way
derogate from the legalities of the legal proceedings at
a trial. In fact exhibit B served as one but not the
only factor which the trial court considered in
determining the credibility of the witness. The absence
of exhibit B would have had no debilitating effect on
the Plaintiff/ Respondent's case. The three grounds of
appeal namely, (a), (b) and (c) have not been
persuasively and creditably canvassed and they are
dismissed.
The 4th ground of
appeal is "(d) the damages awarded were wrong in law and
too excessive." Again in a lackadaisical manner the
appellant's counsel did not say much. His argument was
composed in a sixteen-line prose with virtually no
reasons why in his view the award of ¢30 million
compensatory damages was "wrong in law and excessive."
The full gist of his argument is contained in these two
sentences in the appellant's unnumbered statement of
case:
"The Judge did not
elaborate on why the Defendant was vicariously liable
... One is at a loss to know what principles of damages
flowing from TORT under the common law the trial Judge
applied."
It is true the judge
did not specify upon what heads of damages he proceeded
to award the ¢30 Million damages but this could not
preclude him from awarding damages against the appellant
for the loss of the employee's right vision. Under
common law an employer is enjoined to take reasonable
care not to subject his employees to unnecessary risk.
Every work carries some risk and the more obvious the
danger the more likely the law is to impose liability on
the employer for failing to prevent the accident. The
Plaintiff/Respondent, a carpenter by profession, was
assigned by the Defendant/Appellant on its business
operations of fixing wooden clamps on bagged cocoa beans
at the cocoa shed at the Tema Port. It was in the course
of executing this work that a plank hit him on the right
eye resulting in the total loss of his vision. If the
Defendant/Applicant had provided his employee, the
Plaintiff/Respondent, with a protective eye covering as
it was reasonably foreseeable that in the course of
fixing the clamp a plank or nail might fly off to injure
the worker he would have acted within his common law
duty of taking reasonable care not to subject his
employee to unnecessary risk. This the appellant did not
do. The failure to provide a reasonably safe system of
work made the Plaintiff/Respondent a foreseeable victim
of appellant's negligence. It was on the basis of this
that the trial Judge awarded a lump sum compensation of
¢30 Million. Denning L. J. in Christmas v General
cleaning Contractors LD. & Caledonian Club Trust LD.
(195) 1 K.B. 141 at 149 has this to say regarding the
common law requirement of an employer taking reasonable
care for the safety of his employees in the following
words:
"if employers employ
men on... dangerous work for their own benefit, they
must take proper steps to protect them, even if they are
expensive. If they cannot afford to provide adequate
safeguards, then they should not ask them to do it at
all. It is not worth the risk."
The eye is such a vital
party of a person that the loss of it should be
adequately compensated for. The ¢30 Million awarded is
not an unreasonable sum and it should not be varied
downward.
Before I come to the
next ground of appeal, I would want to make an
observation. Even though no formal letter of appointment
was tendered in evidence it can't be denied that there
was a consensual agreement between the
Defendant/Appellant and the Plaintiff/Respondent giving
rise to employer-employee relationship between them. The
work that the Plaintiff/Respondent did formed an
integral part of the business of the appellant. His time
belonged to the Defendant/Applicant who appointed a
Supervisor over him (Plaintiff/Respondent) to oversee
his work and he was on the regular pay roll of the
appellant. Besides there is exhibit A signed by the
operations Manager of the Defendant/Appellant in which
the Plaintiff/Respondent is described alongside 18
others as "Pool Casual Clerks" of the
Defendant/Appellant. These factors point to fact that he
Plaintiff/Respondent was an employee of the
Defendant/Appellant and not an independent contractor.
There is nothing much
that can be said in support of the last ground of
appeal. It is perhaps precisely for this that counsel
could not advance any reason apart from what appears in
the whole argument for this last ground contained in
only two sentences thus:—
"It is my submission
that the procedure in bringing the date forward for the
assessment of damages was procedurally wrong and
rendered all proceedings thereafter null and void. The
reason for this contention is that after a party has
entered appearance to a writ any further proceedings/
processes must be on Notice and not ex-parte"
Admittedly, the motion
for the abridgement of the scheduled date for the
assessment of damages should have been by motion on
notice and not ex-parte. The Defendant/Applicant's
counsel compromised his right to objection of the
ex-prate motion irregularly filed by participating in
the assessment hearing without raising an objection. By
so doing he took fresh step in, overlooking the
irregularity within the spirit and intent of order 70 rr
1 and 2 of the High Court (Civil Procedure) Rules 1954
and it is too late for him to complain now.
The rules read:—
"1. Non-compliance with
any of these Rules, or with any rule of practice for the
time being in force, shall not render any proceedings
void unless the court or Judge shall so direct....
"2. No application to
set aside any proceeding for irregularity shall be
allowed unless made within reasonable time, nor if the
party applying has taken any fresh step after knowledge
of the irregularity”.
This ground also fails.
The whole appeal fails. The judgment and the order
directed against the Defendant/Appellant to make a lump
sum compensation of ¢30 million to the
Plaintiff/Respondent are upheld.
S. K. ASIAMAH
JUSTICE OF APPEAL COURT
I also agree
E. K. PINESARE
JUSTICE OF APPEAL |
