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Employment - Wrongful dismissal
- Safety of a workman - whether
Court of Appeal misdirected
itself on the law and fell into
an error as the trial High Court
did resulting in a miscarriage
of justice - Whether injuries
and incapacity suffered during
and in the course of his
employment with the Defendant,
fell within the ambit of the
Workmen’s Compensation Act,
1987, (Act 187) -
HEADNOTES
Midas Apaabey the Plaintiff /
Respondent/Respondent
(Plaintiff) began work at a
factory of the defendant/
Appellant/ Appellant (Defendant)
on 2nd February
2008. The said factory produced
plastic goods for sale. He was
trained to work on an injection
machine. Then on 15 March 2008
he was assigned to work on a
blow machine for which he had
received no training on how to
operate it. The Plaintiff’s
right hand was caught up in the
blow machine and lost four
fingers. He was offered a
cheque for GH¢2,081.00 for his
loss in full settlement of the
damage done him which he
rejected, The Plaintiff issued a
writ of summons on 18/11/2008 at
the High Court,
Industrial/Labour Division,
Accra, and claimed as follows
Plaintiff claims from the
defendant Company Damages in the
sum of (Gh¢50,000) for the loss
of four fingers on his right
hand chopped off by Defendant’s
machine in the course of his
work for the Defendant company
which failed to protect him in
breach of its common law and
statutory duties towards
Plaintiff as its workman or
alternatively the Defendant
failed as the occupier of a
factory to ensure the safety of
a workman in breach of the
employer’s obligation under
statutes and common law which
confer such protection on the
workman. Plaintiff further
claims damages for his wrongful
dismissal from Defendant’s
company following his claim for
compensation for the loss of his
4 fingers in the course of his
employment. Interest on the said
sums at the current bank rate
till date of final payment-
HELD :-
We have examined the grounds of
appeal and we find no merit in
any of them. The appeal fails
and is therefore dismissed. The
judgment of the Court of Appeal
is affirmed.The amount due is
subject to interest at the
prevailing bank rate calculated
at simple interest from the date
of judgment of the High Court to
the date of final payment.
STATUTES REFERRED TO IN JUDGMENT
Workmen’s Compensation Act, 1987
(Act 187)
English Factories Act, 1937
Factories, Offices and Shops
Act, 1970, (Act 328)
Labour Act, 2003, (Act 651),
CASES REFERRED TO IN JUDGMENT
Carr v Mercantile Produce Co Ltd
[1949] 2 K.B. 601
Callow (FE.) (Engineers) v
Johnson [1970]3 All ER 639
Flint v Lovell [1935]
1K.B. 345 C.A. at 359 to 360:
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ADINYIRA, JSC:-
COUNSEL.
W. L. ANTHONIO FOR THE
DEFENDANT/APPELLANT/APPELLANT
J. A. ARYITEY FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT
ADINYIRA, JSC:-
Midas Apaabey the
Plaintiff / Respondent /
Respondent (Plaintiff) began
work at a factory of the
defendant/Appellant/Appellant
(Defendant) on 2nd
February 2008. The said factory
produced plastic goods for sale.
He was trained to work on an
injection machine. Then on 15
March 2008 he was assigned to
work on a blow machine for which
he had received no training on
how to operate it. The
Plaintiff’s right hand was
caught up in the blow machine
and lost four fingers. He was
offered a cheque for GH¢2,081.00
for his loss in full settlement
of the damage done him which he
rejected.
The Plaintiff issued a
writ of summons on 18/11/2008 at
the High Court,
Industrial/Labour Division,
Accra, and claimed as follows:
a.
Plaintiff claims from the
defendant Company Damages in the
sum of (Gh¢50,000) for the loss
of four fingers on his right
hand chopped off by Defendant’s
machine in the course of his
work for the Defendant company
which failed to protect him in
breach of its common law and
statutory duties towards
Plaintiff as its workman or
alternatively the Defendant
failed as the occupier of a
factory to ensure the safety of
a workman in breach of the
employer’s obligation under
statutes and common law which
confer such protection on the
workman.
b.
Plaintiff further claims
damages for his wrongful
dismissal from Defendant’s
company following his claim for
compensation for the loss of his
4 fingers in the course of his
employment.
c.
Interest on the said sums
at the current bank rate till
date of final payment.
The trial Court gave
judgment to the Plaintiff and
awarded him the sum of GHC
50,000.00 as general damages for
the loss of the use of his four
fingers, pain and suffering and
loss of future earnings and
costs of GHC 2,000.00; and
dismissed the claim for wrongful
dismissal, for want of proof.
The Defendant being
dissatisfied pursued an appeal
to the Court of Appeal which was
dismissed. The Defendant being
aggrieved filed a notice of
appeal at the Supreme Court on
the following grounds:
-
That the Honourable Court of
Appeal misdirected itself on
the law and therefore fell
into an error as the trial
High Court did resulting in
a miscarriage of justice to
the Defendant/ Appellant/
Appellant herein, when
it failed to appreciate the
fact that the claim of the
Plaintiff/ Respondent/
Respondent for damages/
compensation for the
injuries and incapacity
suffered during and in the
course of his employment
with the
Defendant/Appellant/Appellant
on 15/3/2008 falls
within the purview of the
Workmen’s Compensation Laws
of Ghana i.e. Workmen’s
Compensation Act, 1987 (Act
187) and can only be
determined in accordance
with or with reference to
the said statute.
-
That the Honourable Court of
Appeal misdirected itself on
the law and fell into an
error as the trial High
Court did resulting in a
miscarriage of justice to
the Defendant/
Appellant/Appellant
herein, when it failed to
appreciate the fact that the
Workmen’s Compensation
Act, 1987 (Act 187)
which is the relevant law
applicable to this case has
by itself provided the
formula for computing
compensation/damages due and
payable to the Plaintiff/
Respondent/ Respondent;
an injured workman as a
result of his injuries and
incapacity suffered on
15/3/2008 and in the course
of his employment with
Defendant/
Appellant/Appellant.
-
That the Honourable Court of
Appeal misdirected itself on
the law and fell into an
error as the trial High
Court did resulting in a
miscarriage of justice to
the
Defendant/Appellant/Appellant
herein, by failing to
appreciate that by virtue of
Sections 19, 20, 21 and 38
of the Workmen’s
Compensation Act, 1987 (Act
187) the trial High
Court lacked the requisite
jurisdiction to hear and
determine the
Plaintiff/Respondent/Respondent’s
claim and therefore the
trial High Court’s judgment
dated 2/2/2010 was null and
void and could not be
affirmed.
-
That the Honourable Court of
Appeal misdirected itself on
the law and fell into an
error as the trial High
Court did resulting in a
miscarriage of justice to
the
Defendant/Appellant/Appellant
herein, when it failed to
appreciate the position of
the law that whether an
injured workman make his/her
claim for damages/injuries
under the Workmen’s
Compensation Act, 1987 (Act
187) or under the Common
Law, there should not be
much disparity between the
quantum of
damages/compensation to be
awarded under either of the
applicable laws.
-
That the Honourable Court of
Appeal misdirected itself on
the law and fell into an
error as the trial High
Court did resulting in a
miscarriage of justice to
the
Defendant/Appellant/Appellant
herein, by affirming the
quantum of damages/
compensation for injuries
sustained by the
Plaintiff/Respondent/Respondent
which was so inordinately
high that it was wholly
erroneous estimate of the
damages/compensation due
him.
-
That the Honourable Court of
Appeal misdirected itself on
the law and fell into an
error as the trial High
Court did resulting in a
miscarriage of justice to
the Defendant/ Appellant/
Appellant herein, by
holding the Defendant/
Appellant/ Appellan
personally liable for the
injuries sustained by the
Plaintiff/ Respondent/
Respondent on the said
15/3/2008 during and
in the course of his
employment with the
Defendant/Appellant/Appellant.
-
That the Honourable Court of
Appeal misdirected itself on
the law and fell into an
error as the trial High
Court did resulting in a
miscarriage of justice to
the
Defendant/Appellant/Appellant
herein, by failing to
appreciate the position of
the law that the provisions
of Workmen’s Compensation
Act, 1987 (Act 187) is
an exception to the common
law position which required
an injured workman to
establish, to the
satisfaction of the court,
the negligence of duty or
breach of statutory duty on
the part of the employer to
warrant the award of
damages/compensation.
-
That the Honourable Court of
Appeal misdirected itself on
the law and fell into an
error as the trial High
Court did resulting in a
miscarriage of justice to
the
Defendant/Appellant/Appellant
herein, when it failed to
appreciate the position of
the law both at the common
law and under the
Workmen’s Compensation act,
1987 (Act 187) that if a
workman suffers an injury
during and in the course of
his employment, the sky
should not be the limit for
an award of
damages/compensation. In
other words, the award of
damages/compensation to an
injured workman should be
just enough to compensate
him for the injury suffered
during and in the course of
his employment but not to
collapse the business of the
employer by award of
inordinately high or
excessive
damages/compensation as was
done in this case.
-
That the Honourable Court of
Appeal misdirected itself on
the law and fell into an
error as the trial High
Court did resulting in a
miscarriage of justice to
the
Defendant/Appellant/Appellant
herein, when it failed to
appreciate the position of
the law that the
Workmen’s Compensation Act,
1987 (Act 187) by
Sections 5 and 9 provide
the formula for the
computation of the
damages/compensation payable
in the event of a workman
sustaining an injury and
which formula cannot be
ignored.
-
That the Honourable Court of
Appeal misdirected itself on
the law and fell into an
error as the trial High
Court did resulting in a
miscarriage of justice to
the
Defendant/Appellant/Appellant
herein, when it failed to
appreciate the position of
the law that even under the
common law, under which it
purported to make the award
of damages/compensation in
the inordinate sum of Gh¢50,000.00
to the
Plaintiff/Respondent/Respondent
herein, there was the need
for the injured
workman/claimant to prove
negligence or a breach of a
statutory duty on the part
of the employer.
-
That the judgment is against
the weight of evidence.
The crux of the
Defendant’s appeal was that the
Plaintiff’s claim for damages
for the injuries and incapacity
suffered during and in the
course of his employment with
the Defendant, fell within the
ambit of the Workmen’s
Compensation Act, 1987, (Act
187) and not by a civil action
as there was no evidence of
negligence on the part of the
Defendant.
Section 24 of the Act
provides:
“Where the injury was caused by
personal negligence or willful
act of the employer or any other
person for whose act or default
the employer s responsible, this
Act shall not prevent
proceedings to recover damages
being instituted against the
employer in a Civil Court
independently of this Act.”
Counsel submits that the
Plaintiff cannot maintain an
action under section 24 as he
neither pleaded nor led evidence
that the injury he suffered was
as a result of the Defendant’s
negligence. He submits further
that as the trial court did not
find the defendant negligent in
any way; both the trial judge
and the Court of Appeal erred in
upholding the Plaintiff’s claim.
This submission is
untenable. There was evidence
that the Plaintiff was employed
on 2 February 2008 in the
Defendant’s factory and was
trained to work on an injection
machine; but then on 15 March
2008 he was assigned to work on
the blow machine for which he
had received no training and
without supervision. This was
in clear breach of section 36 of
Act 328 that requires that:
36. Training and
supervision
A person shall not be
employed at a machine or in a
process liable to cause bodily
injury, unless
(a)
that person has been fully
instructed as to the dangers
likely to arise in connection
with the machine or process and
the precautions to be observed,
and
(b)
that person has received
sufficient training in work at
the machine or in the process,
or is under adequate supervision
by a person who has a thorough
knowledge and experience of the
machine or process.
Furthermore, although the
switch button itself could not
be described as a dangerous part
of the machinery, yet there was
the evidence of DW1 and DW2 that
the workers of the defendant’s
factory tie the safety button on
the blow machine to make it
operate automatically, which
made the machine unsafe. The
management knew the employees
were using unorthodox method to
make the machine work
automatically to speed up
production and meet deadlines
of manufacturing 240 pieces of
the plastic product per day; but
no attempt was made to stop it
either by proper supervision, or
to provide a device to prevent
the workers from tying the
switch down.
In our opinion, the
Defendant should have foreseen
the danger erupting from the
circumstances; consequently its
liability is not in doubt. The
duty of an employer to provide
for his employee proper or safe
equipment and safe system of
work is a standard required
under both common law and
statute. Section 9 of the Labour
Act, 2003, Act 651, provides
that:
9. Duties of employers
(a) provide work and
appropriate raw materials,
machinery, equipment and tools;
(c) take practicable
steps to ensure that the worker
is free from risk of personal
injury or damage to health
during and in the course of the
worker’s employment or while
lawfully on the employer’s
premises
Similarly, section 38 of
the Factory Act requires that
38. Fencing of dangerous
machinery
(1) The dangerous part of
a machinery shall be securely
fenced unless it is in a
position or of a construction
that is safe to a person
employed or working in the
premises as it would be if
securely fenced.
(2) Where the safety of a
dangerous part of a machinery
cannot by reason of the nature
of the operation be secured by
means of a fixed guard, a device
shall be provided which in the
opinion of an inspector
satisfactorily prevents the
operator from coming into
contact with that part.
This duty is absolute and
the highest standard is required
of occupiers of factories to
fence securely any part of
dangerous machinery. Our section
38 (1) and (2) is very similar
to the English Factories Act,
1937 and in Carr v Mercantile
Produce Co Ltd [1949] 2 K.B.
601, Staple J stated that:
“The Factory Acts are there, not
merely to protect the careful,
the vigilant and conscientious
workman, but human nature being
what it is, the careless, the
indolent, the inadvertent, the
weary, and even perhaps in some
cases, the disobedient.”
Similarly in the case of
Callow (FE.) (Engineers) v
Johnson [1970]3 All ER 639,
Lord Halsham LC at 647-648
said:
“:.. the danger to be foreseen
includes danger not only to
workmen who are prudent, alert
and skilled and intent on their
task but also danger to the
careless, inattentive worker
whose inadvertent or indolent
conduct may expose him to risk
of injury or death from the
unguarded part.”
Following from above
we hold that there was
cogent evidence from which it
was reasonable to conclude that
the Defendant was negligent and
in breach of both his common law
and statutory duties under the
Factories, Offices and Shops
Act, 1970, (Act 328) and the
Labour Act, 2003, (Act 651), by
failing to provide safe
machinery, training and
supervision of the Plaintiff at
the workplace.
We therefore affirm the
decision of the appellate court
that there was evidence of
dereliction of the employer’s
duty under sections 36 and 38 of
the Factories, Offices and Shops
Act, 1970, Act 328 and section 9
the Labour Act, 2003, Act 651.
The dereliction of duty makes
the Defendant liable for the
claims as found by the trial
Court.
Related to this submission
is another contention that the
High Court has no jurisdiction
to hear the matter as by the
combined effect of sections, 19,
20, 21 and 38 of Act 187 the
competent court or forum for
initiating claims of workmen
compensation is either the
District Court or the Circuit
Court. This is a hollow argument
which can sufficiently be
disposed of with a single
sentence that those sections
refer specifically to “any
questions to be investigated or
determined under the Act”, and
not to an action initiated
independently of the Act.
On the quantum of damages,
Counsel for the Defendant
submits that the Act itself
provides the formula for the
computation of the damages
payable in the event of a
workman sustaining an injury and
the trial court was bound to
follow that formula. Counsel
contends further that if the
trial court was of the view that
the amount computed by the
Labour Officer was inadequate,
their lordships could have
enhanced the said figure to
about GHC 5,200.00 and not to
ignore same and award GHC
50,000.00 to the Plaintiff which
award was arbitrary and
excessive in view of the injury
and incapacity suffered by the
Plaintiff as a result of the
said industrial accident.
This submission is without
merit as we keep repeating that
the provisions of the Act 187
were not applicable to an action
initiated independently of the
Act. Further the general
principle of law is that
assessment of damages is
peculiarly the province of the
trial court and as a rule, an
appellate court will not
interfere unless the finding is
out of all proportion to the
facts.
In considering the
question of adequacy or
otherwise of the damages awarded
by the trial court, we refer to
the dictum of Greer L. J. in the
case of Flint v Lovell
[1935] 1K.B. 345 C.A. at 359 to
360:
I should like to add a few words
about the jurisdiction of this
Court in appeals when the only
contention, or one of the
contentions, is that the damages
awarded by a judge… is
excessive… I think it right to
say that this Court will be
disinclined to reverse the
finding of a trial judge, as to
the amount of damages merely
because they think that if they
had tried the case they would
have given a lesser sum. In
order to justify reversing the
trial judge on the question of
damages it will generally be
necessary that this Court should
be convinced either that the
judge acted upon some wrong
principle of law, or that the
amount awarded was so extremely
high or so very small as to make
it, in the judgment of this
Court, an entirely erroneous
estimate of the damage to which
the plaintiff is entitled.”
The trial judge in
assessing damages took into
account (a) the prospective loss
of earning, (b) pain and
suffering and loss of amenities
of life; (d) the economic
factors of the day and the
purchasing power of money into
consideration. In our view the
trial judge did not act upon any
wrong principles of law nor
wrongly exercised his discretion
in the assessment of damages.
We affirm the holding by
the Court of Appeal to the
effect that:
“On the submission that the
award was excessive we have
considered the unchallenged
evidence that the [Plaintiff]
was a young man of only 22 years
old which gave him about 40
years purchase. There was also
the admitted fact the
[Plaintiff] was a right handed
man who had four of his five
fingers cut off thus rendering
his right hand impotent for the
rest of his life. These in
addition to the award of pain
and suffering, loss of future
earnings and damages for the
injuries itself by the trial
judge does not make the award
excessive but conservative in
present day times.”
We have examined the
grounds of appeal and we find no
merit in any of them. The appeal
fails and is therefore
dismissed.
The judgment of the Court
of Appeal is affirmed.
The amount due is subject
to interest at the prevailing
bank rate calculated at simple
interest from the date of
judgment of the High Court to
the date of final payment.
S. O. A. ADINYIRA
(MRS)
(JUSTICE OF THE SUPREME COURT)
ANIN
YEBOAH
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
A. A.
BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
W. L. ANTHONIO FOR THE
DEFENDANT/APPELLANT/APPELLANT
J. A. ARYITEY FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT |
