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NANA YAW OSEI v. GHANAIAN AUSTRALIAN GOLDFIELD LTD. [22/01/2003] C.A. 5/2002.

IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA

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CORAM:     AMPIAH, J.S.C. (PRESIDING)

ATUGUBA, J.S.C.

MRS. WOOD, J.S.C.

BROBBEY, J.S.C.

BADDOO, J.S.C.

CIVIL APPEAL NO. 5/2002

22ND JANUARY, 2003

NANA YAW OSEI                                                    ..     ..       APPELLANT

VRS.

GHANAIAN AUSTRALIAN GOLDFIELD LTD.     ..      ..      RESPONDENT

________________________________________________________________________________________

 

JUDGMENT

MRS. WOOD, J.S.C.:

The appellant, who was employed by the respondent company as a mine operator, was subsequently diagnosed with a cardiac disease and therefore retired on medical grounds.

Contending that his illness was occupational, in that it developed by reason of his work schedule as a heavy machine operator, he sued to recover what he thought he was entitled to under the section (c) of Article 11.09 of the Collective Bargaining Agreement (CBA), together with interest thereon.

Both the trial High Court and the Appeal Court, to which the respondents who, was clearly dissatisfied with the original decision turned to for redress, rightly in my view, identified only one key issue for determination. It was this: Whether or not the appellants medical condition was work related, or to put it in the language of the CBA, an occupational ill-health.

The trial court gave an affirmative answer to this question and consequently awarded him ¢12 million as damages. The Court of Appeal upon a very critical examination of the available evidence, particularly exhibit C and E, concluded otherwise, reversed this critical finding and set aside the decision and the award made thereunder.

Obviously dissatisfied with this reversal, the appellant has understandably appealed to us on a sole ground, in spite of the clear advance notice that further grounds would be filed on receipt of the record of proceedings.  The ground reads as follows:-

“The Court of Appeal erred in the interpretation of Exhibits “C” and “E” in holding that the appellants condition was not occupational”.

It follows that this appeal turns on the same narrow, primary and fundamental issue of whether or not his ill-health was occupational. The importance of this question is not difficult to fathom. An affirmative answer would, under the contract of employment, entitle him to 20 months of his basic salary, rather than the relatively paltry sum of 4 months salary which was offered him, by the respondents as his true and just terminal benefit.

Two simple arguments were advanced in support of this sole ground of appeal. At the trial, the court had found that a pre employment medical examination of the appellant, had disclosed no tell tale signs of any such malady and had therefore inferred from the Exhibit E, the medical report, that his subsequent ill health was occupational, which finding which the appellate court reversed. It was therefore submitted in this court, that the proper inference to be drawn from the Exhibit E was that which was made by the learned trial judge, namely that his condition was as a result of his employment with GAG, in other words that his illness is occupational. We have therefore been urged to revert to this finding in view of the contents of Exhibit E.

However, it was urged in the alternative that we ought not to overlook the contributory role of the occupation in the development of the disease and were invited to rule positively to that effect.

I have not the slightest difficulty in dismissing this later alternate argument on the contributory role of his work schedule i.e operating heavy equipment. 

The action was not premised on this fact and therefore, this case was not fought along these lines also. The issue therefore never arose for the courts consideration. The following extract from his pleadings, discloses the lines along which this case was fought.

By the paragraph 2 of the accompanying statement of claim the appellant averred:

“By reason of the nature of his work, the plaintiff developed some ailment which eventually caused the defendant to retire him on medical grounds …..”.

The respondents countered these facts by the paragraph 2 of their statement of defence as follows:

“The defendant admit retiring the plaintiff on medical grounds but denies that the plaintiffs ailment was occupational, that is due to the nature of the work assigned him by the defendant”.

Thus, both at the trial and understandably, appellate court levels, the case was fought on the fundamental issue of whether or not there was a causal link between his medical condition and assigned work.

The introduction of the contributory role of his occupation in the development of the disease is rather a completely new point of fact and offends the most basic and well settled rule that an appellant cannot be permitted to raise on appeal a completely new issue of fact which if it had been raised at the trial, the parties would have led the necessary evidence, and would have being investigated by the court. Indeed the position been adopted by the appellant could be likened to that of a party who raises for the first time on appeal the issue, of contributory negligence. 

And so to the final question. What was wrong with the inference drawn by the appellant court from the Exhibit C and E?

Both courts i.e. trial and appellate, were of the opinion that the inference to be drawn as to whether or not the ill-health was occupational, depended on the meaning to be attached to certain expressions contained in the Exhibit E. The salient portion of the Exhibit E reads:

“The above-named patient, a GAG employee and an operator of one of the mining heavy trucks, was referred to us from your clinic, with complaints of precordial pains with dysponea occasional spontaneous trenors of upper limbs  and presence of echopic beats which were previously absent but developed during the course of work with GAG.

Based upon the fact that his condition which developed during his work with GAG has not improved …”

The trial judge reasoned that: “Exhibit E says his condition developed during the course of work with GAG”, and further concluded that.  “This means the illness is occupational, because “work” is synonymous with occupation.  It developed during the course of work with GAG and that is what Exhibit “E” means or Exhibit E makes this cause more probable than not, for the cause of the illness”.

The appellate court, speaking unanimously through Amoono Monney J.A. rightly in my view, rejected this narrow and mechanical approach to the interpretation of not even the whole document, but selected portions of it. The court first demonstrated that it was legitimate to interfere with the finding, and then substitute its own, given that it (the finding or decision) depended “on the interpretation of a document without expert assistance” and also that the disputed point has to do with the proper inference to be drawn from facts accepted and acted upon by the trial court. In this regard, the conclusion properly reached, in my view, by the appellate court was that on the authority of

(1) Attorney General v. Dadey 1971 1 GLR 228;

(2) Essandoh v. The Republic 1969 CC 63;

(3) Nyame Tarian Transport & 1 Or. 1973 1 GLR 8,

It had the competence to substitute the correct inference. The honourable court thus concluded that the expressions “which were previously absent but developed during the course of work with GAG” are expressions of time in which the event of the illness occurred and have nothing to do with the causation. They contextualize in a time dimension, time frame or time perspective, the onset of the illness without stating what caused it. “Previously” surely, refers time and “developed during the course of work with GAG surely means the symptoms indicating the disease developed while the respondent was in the employment of GAG or during the time that he was working with GAG and not that his illness was caused by the type or nature of the work he did at GAG.

… His condition developed when he was working with GAG and at no other time”.

The above construction does in my view conform to the basic rules of interpretation of documents, namely that the interpretation must be nearly as close to the mind and intention of the maker as is possible, and the intention must be ascertained from the document as a whole, with the words used being given their plain and natural meaning and within the context in which they are used.

Finally, the complaint that the court wrongly interpreted the Exhibit C is untenable Contrary to counsel’s argument, there were no inference to be drawn from the Exhibit C which was on its face, as plain as day light, and indeed the court drew no inferences from it. On the contrary, as stated in the Exhibit C, the plain finding of the District medical Board, made up of three doctors, makers of Exhibit C is that it was unable “to establish any causal relationship between Nana’s present condition and his occupation as a Heavy machine operator nor his involvement in the work place accident in spite of his employment medical fitness”.

As the court rightly found, the burden of persuasion was on the appellant, not the respondent. It was for him to establish that his illness was occupational, and he did not succeed in doing that. Much as I sympatise with his misfortune, (ill health) he cannot succeed in this appeal. His Counsel’s passionate plea that (1) we temper justice with mercy in view of the recommendation by the medical review board that a generous retirement package over and above what he is legally entitled to under the CBA, be given him (2) further that there has been a miscarriage of justice and that we order a retrial are all clearly untenable. In such legal matters, compassion has no role to play. The appellate court was right in its findings and conclusions and we would not be justified in law, in interfering with them. I will dismiss this appeal.

A.K.B. AMPIAH

JUSTICE OF THE SUPREME COURT

W.A. ATUGUBA

JUSTICE OF THE SUPREME COURT

G. T. WOOD (MRS)

JUSTICE OF THE SUPREME COURT

S.A. BROBBEY

JUSTICE OF THE SUPREME COURT

G.S. BADDOO

JUSTICE OF THE SUPREME COURT

COUNSEL

A. K. Dabi for the Appellant.

Samuel Dzigba for the Defendant/Appt./Respondent.

gso*

 

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