IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD
DATE: JANUARY 28, 2019
SUIT NO. NICN/LA/432/2013
BETWEEN
Babatunde Ajala– Claimant
AND
Rite Pak Company Limited – Defendant
REPRESENTATION
Mrs E. I. Issa, for the claimant.
Alex Muoka, with Olatunji Momodu and Mrs Olusola Jolayemi, for the defendant.
JUDGMENT
1. This is a transferred matter from the High Court of Ogun State. The claimant commenced this action on 26th April 2010 at the High Court of Ogun State vide a writ of summons together with a statement of claim, list of witnesses, written statements on oath of the witnesses, list of documents and copies of the documents. The defendant entered formal appearance and filed its defence processes (the statement of defence, list of witness, written statement on oath of the witness, list of documents and copies of the documents); to which the claimant filed a reply to the statement of defence. Upon the transfer of the case to this Court parties were directed to re-file all these processes bringing them in conformity with the Rules of this Court, which they did. By the complaint and statement of facts, the claimant is praying for one relief, namely:
The sum of N25,000,000.00 (Twenty-Five Million Naira) against the respondent as damages for negligence for the loss of the three fingers of the claimant while operating an injection machine at the factory of the respondent on the 3rd day of March 2008.
2. At the trial, the claimant called two witnesses: the claimant himself who testified as CW1 and Olaleye Ajala, the claimant’s father, who testified as CW2. The defendant on its part called one witness, Engineer Omo Oleghe, the Managing Director of the defendant, who testified as DW. The documents frontloaded by the parties were admitted and marked as Exhibits C1 to C7 (for the claimant) and Exhibits D1 to D11 (for the defendant). At the close of trial, parties filed their respective final written addresses. The defendant’s final written address was filed on 18th September 2018, while the claimant’s was filed on 24th September 2018. The defendant’s reply on points of law was filed on 4th October 2018.
THE CASE OF THE CLAIMANT
3. The claimant’s case is that he was an employee of the defendant and on 3rd March 2018 while working with two other employees on the defendant’s Injection Moulding Machine that caused permanent injury to his three middle left fingers, one of the other two employees who was the supervisor negligently and without any iota of care carelessly left the door of the machine that was already on semi auto to answer a call on phone without warning him or the third employee who already pressed the limiting switch of the 2nd door of the machine thereby cutting off his fingers, referring to Exhibit D5.
THE CASE OF THE DEFENDANT
4. The defendant joined issues with the claimant. To the defendant, the claimant lost part of the three (3) middle fingers of his left hand in the accident which occurred in the defendant’s factory. The claimant resumed work at the defendant’s factory after his discharge from the hospital and continued to work for over six (6) months till 19th August 2008 when he suddenly and without any excuse or explanation stopped coming to work.On 3rd March 2008 around 5:00 or 5:30p.m, the claimant and two other persons, Messrs Babatunde Ikuomola and Babatunde Fadeyi, were servicing and cleaning the mould in one of the defendant’s plastic injection moulding machines, which machine was on idle mode/off at the time.The accident occurred when Mr Babatunde Ikuomola (the Supervisor) excused himself from Mr Babatunde Fadeyi and the claimant to take a call from the defendant’s Managing Director. The accident was caused by the careless or reckless conduct or act of the claimant and Mr Babatunde Fadeyi. That at the time the accident occurred, only the claimant and Mr Babatunde Fadeyi were working on the machine.The Plastic Injection Moulding Machine has been in use in the defendant’s premises since September 2005 without any accident.Since the Plastic Injection Moulding Machine was bought in 2005 it has undergone routine maintenance and servicing to ensure that it is always in proper and good working condition.The machine has in-built safety features such that it is practically impossible for an accident of the alleged nature to happen without carelessness or negligence on the part of persons operating the machine. By the height, location and placement of the machine switch, in order to put it on and activate it whilst the door is open, an operator would have to deliberately reach inside the door jamb and press and hold down the switch for several seconds in order to put it on. That in his written account of the accident, Mr Babatunde Fadeyi stated that he accidentally activated the switch button.
THE SUBMISSIONS OF THE DEFENDANT
5. The defendant submitted a sole issue for determination i.e. whether the claimant has established that the defendant is liable to him in damages for the loss of his three fingers in the defendant’s factory on 3rd March 2008. The defendant then addressed this sole issue under four sub-heads:
(a) The effect of the claimant’s failure to lead evidence in support of his reply to statement of defence.
(b) The claimant’s failure to plead and prove the ingredients of negligence.
(c) The scope of the defendant’s liability for workplace injury.
(d) The claimant’s failure to prove permanent incapacitation warranting the award of compensatory damages in the sum claimed.
6. On the effect of the claimant’s failure to lead evidence in support of his reply to statement of defence, the defendant submitted that the claimant failed to accompany the reply to statement of defence with any written statement on oath of a witness and at trial DID NOT lead any evidence in support of the averments in his reply to statement of defence. That it is trite that pleadings are not evidence and where evidence is not led in support of pleadings the averments in the pleadings are taken as abandoned, citingFatimehin v. Lawani [2015] 6 WRN 21 at 68 and Ochin v. Ekpechi[2000] 5 NWLR (Pt. 656) 225 at 240. The defendant then invited the Court to consider that the effect of the failure of the claimant to lead evidence in support of the averments in his reply to statement of defence is that the claimant has not controverted the averments in the defendant’s statement of defence and is, therefore, deemed to have admitted them.
7. Regarding the claimant’s failure to plead and prove the ingredients of negligence, the defendant submitted that given the claimant’s claim for the sum of N25,000,000.00 as damages for negligence for the loss of his three fingers while operating an Injection Machine at the factory of the defendant on 3rd March 2008, negligence as a tort arises when a legal duty owed by the defendant to the plaintiff is breached, referring to ANTS v. Atoloye[1993] 6 NWLR (Pt. 298) 233 at 246. That to succeed in an action in damages for negligence certain ingredients must be present,the most fundamental of which is the breach of a duty which is actionable in law and not a moral duty, citing Agbonmage Bank Ltd v. CFAO[1966] 1 All NLR 130 at 131 and ANTSv. Atoloye (supra). That in an action in damages for negligence, the plaintiff must prove, among other things, that the defendant owes the plaintiff a duty of care and that the defendant has breached that duty of care, citing ANTS v. Atoloye (supra) at page 248, which held that it is required of our law of pleadings that a plaintiff who alleges negligence should not only plead the act or acts of negligence but should also give specific particulars. And by Seismograph Services v. Mark[1993] 7 NWLR (Pt. 304) 203 at 214, the particulars of negligence are intended to appraise the defendant of what he did or failed to do in breach of his duty of care to the plaintiff to demonstrate that a reasonable person in the defendant’s position ought not to have committed that breach. To the defendant then, the issue of negligence was not properly pleaded. The claimant in this suit only alleged negligence but failed to give any specific particulars of negligence either in his pleadings or in his evidence or prove same. That it is trite that negligence is a question of fact, not law, and it is the duty of he who asserts it to prove it, citingAlhaji Otaru & Sons Ltd v. Idris[1996] 6 NWLR (Pt. 606) 330 at 354. That in order to succeed in an action on negligence, the plaintiff must prove the following: that the defendant owed him a legal duty of care; that the duty was breached; and that he suffered damages arising from the breach, citing ANTS v. Atoloye (supra) at page 248. The defendant then called on the Court to decide whether the claimant has been able to prove his allegations against the defendant.
8. The defendant proceeded to narrate what to it is the case of the claimant. That the claimant works on two machines in the respondent’s factory, namely, the injector machine and the perforating machine.On 3rd March 2008 at about 5:30pm, while he was working on the injector machine with the supervisor and a third employee, the Supervisor, Mr Babatunde Ikuomola, who was holding the lever keeping the door of the machine opened, suddenly released the lever and it got closed while the claimant’s hand was still inside the machine and cut off his three middle fingers. In joining issues with the claimant, the defendant averred that Mr Babatunde Ikuomola, the Supervisor, had left the scene of the accident to receive a call when the accident occurred and was not with the claimant and Mr Babatunde Fadeyi, the other staff of the defendant.In support of this averment, the defendant’s witness (Mr Omo Oleghe) tendered Exhibits D2 and D3 (Babatunde Ikuomola and Babatunde Fadeyi’s accounts of the accident). To the defendant, the only evidence before the Court in support of the claimant’s claim that “the supervisor who was holding the lever keeping the door of the machine opened suddenly released it because he wanted to receive a call and it got closed while the claimant’s hand was still inside the machine” is the claimant’s oral testimony and Exhibit D5 (his account of the incident). That the evidence of CW2 with respect to the accident is hearsay and does not assist the claimant’s case in any way.In his evidence-in-chief, the defendant’s witness testified that the Plastic Injection moulding machine which the claimant and Mr Babatunde Fadeyi were working on had been in use in the defendant’s premises since September 2005 without any accident, and since the machine was bought, it had undergone routine maintenance and servicing to ensure that it is always in proper and good working condition. The defendant’s witness further testified that the machine has in-built safety features such that it is practically impossible for an accident of the alleged nature to happen without carelessness or negligence on the part of persons operating the machine.
9. That the claimant alleged in his reply to the defendant’s statement of defence that several other incidents as the one that happened to him had occurred since the commencement of production at the defendant’s factory but led no evidence in support of his allegations. The claimant in fact led no evidence in support of the new facts alleged in his reply to statement of defence. That it is trite that pleadings do not constitute evidence, and pleadings on which no evidence is led are deemed abandoned, citingOchin v. Ekpechi (supra). The claimant has based his claim in this action on a breach of the common law duty of care. That the important question to consider in this case is whether the defendant is liable for the injury suffered by the claimant.
10. The defendant went on that an employer is under a duty at common law to take reasonable care to ensure that his employee is not exposed to risk of injury at his work. That the defendant’s witness has testified that as a responsible employer, it has provided a safe and secure work environment for its employees and provided safety tools and equipment for their use.That this evidence was not denied or challenged by the claimant. That while the claimant has given no particulars of negligence, the claimant’s case presentation is that the defendant’s servant, Mr Babatunde Ikuomola (the supervisor), committed a wrongful act or tort which has caused him injury, citing Ifeanyi Chukwu (Osondu) Co. Ltd v. Soleh Boneh (Nig) Ltd[2000] 5 NWLR (Pt. 656)322 SC at 358. To the defendant, it is not clear from the claimant’s statement of facts whether he is holding Mr Babatunde Ikuomola (the defendant’s servant) personally liable or the defendant liable vicariously. Nevertheless, that as the claimant is claiming damages for negligence for the loss of three fingers from the defendant, it is assumed that the issue is that of the defendant’s liability vicariously for the alleged act of its servant. That in an action for vicarious liability, the liability of a servant must first be established, citing same Ifeanyi Chukwu (Osondu) Co. Ltd v. Soleh Boneh (Nig) Ltd[1993] 3 NWLR (Pt. 280)246 CA at 251. That it is not in dispute that Mr Babatunde Ikuomola is an employee of the defendant.
11. The claimant had alleged that he lost three of his fingers due to the negligence of Mr Tunde Ikuomola. As CW1, he testified that on 3rd March 2008, while working on the injector machine with Mr Babatunde Ikuomola and another employee, Mr Babatunde Ikuomola, who was holding the lever open, suddenly released the lever in order to receive a call and it got closed while his hand was still in the machine and his three fingers were cut off. That the claimant placed no other evidence before the court to support his assertion apart from his oral testimony. That DW denied this allegation and tendered Exhibits D2 and D3 (eye witness accounts of the incidence as received by Mr Babatunde Ikuomola and Babatunde Fadeyi (employees of the defendant).By Exhibit D2, Mr Babatunde Ikuomola stated that he clamped the mould on the machine and was setting the opening and closing of the mould when a call came from the MD and he moved away from the machine to receive the call. He returned to the machine while the claimant and the other staff Babatunde Fadeyi were there together and another call came in. He was on the second call when he heard a shout from the injection room and ran quickly there to open the mould. He was then informed by the claimant that the other staff mistakenly pressed the limit switch that opens/controls the mould.By Exhibit D3, Babatunde Fadeyi stated that he and the claimant were at one side of the injection machine and he rested his hand on the machine without knowing his hand was on the switch button. The next thing he heard was the claimant’s shout. To the defendant, it is clear from Exhibit D3 that Mr Babatunde Ikuomola was not with the claimant and the other staff when the accident occurred. That from the evidence before the Court, the claimant failed to prove that Mr Babatunde Ikuomola (a servant of the defendant) was the cause of the accident that led to the loss of the claimant’s fingers, citingIfeanyi Chukwu (Osondu) Co. Ltd v. Soleh Boneh (Nig) Ltd[2000] 5 NWLR (Pt. 656)322 SC at 358. That the claimant has failed to prove that Mr Babatunde Ikuomola is liable for the loss of his fingers, as alleged by the claimant. That the claimant having failed to establish the liability of the defendant’s employee (Babatunde Ikuomola) the defendant as a matter of law cannot be found liable; as such the claimant is not entitled to damages.
12. The defendant continued that in the unlikely event that the Court finds the defendant liable for the workplace injury suffered by the claimant, the Court should consider the further defence that the defendant had taken steps to ensure a safe working environment and had a Workmen’s Compensation Policy (Exhibits D1 to D1C) in place to cover its liability for workplace injuries. That it is on record that the defendant escalated the claimant’s injury and claim to its insurer, Niger Insurance Plc, who processed the claim and made a pay-out of compensation under the Policy vide Exhibits D9 and D9A in the sum of N197,162.54 (Exhibit C3). That a cheque for the insurance compensation (less deduction of medical expenses already incurred and paid by the defendant and the claimant’s salary), Exhibit C4, was tendered to the claimant who (by his own testimony) rejected it.That the defendant is thus entitled to the defence that any liability it may have had to the claimant for damages for any workplace injury sustained by the claimant had already been covered by Exhibits D1 to D1C.
13. For theclaimant’sfailure to prove permanent incapacitation warranting the award of compensatory damages in the sum claimed, the defendant submitted that the case of the claimant and his claim for compensatory damages rests on his allegation that he suffered injury at the hands of Bababtunde Ikuomola for which the defendant as the employer is (vicariously) liable and as a result of the injury he lost the entire three fingers of his left hand and has thereby suffered permanent incapacitation, referring to Exhibits C1, C1A, C5 and C6.Exhibits C1 and C1A are a close up photograph of the claimant’s left hand and an almost full body (head to below waistline) photograph of the claimant showing the three fingers of the claimant’s left hand amputated. The Exhibits show the loss of less than half of the three middle fingers of the claimant’s left hand (and not the entire fingers as claimed by the claimant).Exhibit C5 (also tendered by the defendant as D6) is the first demand letter from the claimant’s solicitors. It was issued on 19th August 2008 (about six months after the accident occurred) and the very day that the claimant (who had continued to work with the defendant after his treatment for the injury sustained in the accident) absconded from work.In Exhibit C5 (which was titled “Revisitation of Permanent Body Disability”), the claimant’s solicitors referred to a medical report (which was not attached to the letter and was not tendered in evidence) and claimed that the claimant had suffered “25% level of disability”. The same letter expressed the “belief” of the solicitors that the claimant “will suffer the following setback due to the accident: emotional damage to his person due to inferiority complex, reduction in his economic value, reduction in his social value, destruction of his marital finger”. They then asserted a claim for payment of N25,000,000.00 as “adequate compensation to assuage his loss”.Exhibit C6 is a follow-up demand letter written to the defendant by another solicitor on behalf of the claimant. It is dated 16th March 2009 and alleged that the claimant had suffered “grievous physical disability” and “permanent disability” as a result of the accident which was due to the defendant’s negligence. The same letter challenged the conclusion in the medical report of Rubee Medical Centre (earlier relied upon by the claimant’s previous solicitors in Exhibit C5) that the claimant had suffered only 25% disability, suggested that the level of disability was much more but gave no assessment of the level of actual disability.
14. To the defendant, it is instructive that the claimant failed to tender any medical report or give any medical evidence whatsoever of the level of disability or incapacitation suffered as a result of the accident and failed to define the “permanent disability” he is said to have suffered as a result of the accident. The claimant also failed to give any evidence of whether he has in fact ended up suffering the “emotional damage to his person due to inferiority complex, reduction in his economic value, reduction in his social value, destruction of his marital finger” that his solicitors had “believed” he would go on to suffer. The defendant then urged the Court to consider that a conclusion that a person who has had an accident has thereby suffered“permanent disability” is one which can only be reached on the basis of credible evidence in the form of a medical report or testimony from a medical doctor who has examined the person and reached that finding;there is no such evidence before this Court.As a matter of fact, that the actual evidence before the Court contradicts the allegations of permanent disability. Although the claimant tried to paint a picture that the accident and loss of part of three fingers of his left hand had rendered “his left hand useless” and “rendered him permanently incapable of working”, this is not borne out by the evidence before the Court. That it is on record that the claimant after the accident and after receiving treatment for his injury continued to work in the defendant’s factory for six months until the 19th August 2008 when he absconded from work. This is part of the testimony of the defendant through DW. It is also reflected in paragraph 13 of the claimant’s own written statement on oath dated 25th February 2014 where he stated: “That after I was discharged from the hospital and felt strong enough, I reported back to work and usually go to the hospital for medical check-up after each day’s work”. It is also borne out by the query (Exhibit D11) issued to the claimant by the defendant on 21st October 2008 when they noticed that he had stopped coming to work since the 19th August 2008.
15. The defendant then submitted that clearly, if the accident and loss of part of three fingers of his left hand had indeed rendered “his left hand useless” and “rendered him permanently incapable of working”, the claimant would NOT have continued working in the defendant’s factory for six months after the accident and injury.In addition, that during the cross-examination of CW2, CW2 admitted that the claimant had recovered from the accident and loss of part of three fingers of his left hand and had moved on with his life. He had gone on to other work and become profitably engaged in business, had moved to his own house, gotten married and has a child, all after the accident and injury. That it is clear that the claimant has made a remarkable recovery from the accident and is not suffering any form of permanent disability, urging the Court to disregard the claimant’s contention of having suffered permanent disability as well as hold that the claimant is not entitled to damages for permanent disability. The defendant concluded by submitting that the mere occurrence of an accident is not proof of negligence, citingNgilari v. Mothercat Ltd[1999] 13 NWLR (Pt. 636) 626 at 643, Joseph v. Abubakar[2002] 5 NWLR (Pt. 759) 185 at 202,Audu v. Alabo[2000] 6 NWLR (Pt. 661) 482 at 494 and NEPA v. Obiese[1999] 10 NWLR (Pt. 623) 478; urging the Court thereby to hold that the claimant has not been able to establish a case of negligence against the defendant and has not established that he has suffered permanent disability as to entitle him to damages for which he is entitled to any claim. The defendant then prayed the Court to dismiss the claimant’s claim.
THE SUBMISSIONS OF THE CLAIMANT
16. Before submitting two issues for determination, the claimant first submitted that it isworthy of note that despite the fact that the defendant joined issues with him by filing a defence to the action, the claimant’s case was corroborated by DW in paragraph 35 of his statement on oath and also by Exhibits D2 to D5. The two issues submitted by the claimant are:
(a) Whether the claimant has established a case of negligence against the defendant.
(b) Whether the claimant is entitled to be compensated in damages by the defendant.
17. On issue (a), the claimant submitted that negligence is the failure to take proper care in doing something or gross failure to exercise appropriate and or ethical rule care expected of a person thereby resulting into loss, injury or death of another. Furthermore, that it is the failure to take reasonable care where there is a duty, and it is attributable to the person whose failure to take reasonable care has resulted in damage to another. In other words, it is the omission or failure to do something which a reasonable man under similar circumstance would do or the doing of something which a reasonable and prudent man would not do, citingUBA Ltd v. Achoru[1990] 6 NWLR (Pt. 156) 254 andOdinaka v. Moghalu[1992] 4 NWLR (Pt. 233) 1. That it is trite, as stated in Bouyguess (Nig.) Ltd v. O. Marine Services Ltd [2013]3 NWLR (Pt.1342) 441 that negligence is complete and actionable when three conditions are met: the defendant owed a duty of care to the plaintiff; the duty of care was breached; and the plaintiff suffered damage arising from the breach. That in respect of duty of care, the defendant owes the claimant a duty of care for being his employee. That the claimant had alleged that he was an employee of the defendant and the defendant never denied that, citingAnyah v. Irno Concord Hotels Ltd[2002] 18 NWLR (Pt. 799) 377,Abusomwan v. Mercantile Bank Ltd[1987] 3 NWLR (Pt. 60) 196 andAbubakar v. Joseph[2008] 13 NWLR (Pt. 1104) 307. To the claimant, some of the duty of care which the defendant owed the claimant includes adequate supervision of the claimant’s work, provision ofreliable working tools, constant tutorial/seminar on the Injection and Perforating Machines which the claimant worked with while in the employment of the defendant. However, neither were these duties done by the defendant on behalf of the claimant nor did the defendant tender any evidence to justify same, citing section 131 of the Evidence Act 2011.
18. Regarding breach of duty of care, the claimant submitted that the defendant breached the duty of care it owed him when the defendant’s supervisor who was meant to be supervising the ongoing work left the claimant and another to answer phone call in the course of their duties, referring to Okonkwo v. MDPDT[1999] 9 NWLR (Pt. 617) 5,Nigerian Ports Plc v. BPPte Ltd [2013]3 NWLR (Pt.1333) 485 and FBN Plc v. Olaleye [2013] 1 NWLR (Pt. 1334) 116. The claimant went on that Exhibits D2 to D4 are documents tendered by the defendant and they speak for themselves. The claimant then urged the Court to hold that paragraph 17 of DW’s statement on oath where he stated “The accident which resulted in the loss of part of the three (3) middle fingers of the Claimant’s left hand occurred when Mr. Tunde Ikuomola excused himself from Messrs Babatunde Fadevi and the Claimant to take a call from me” is an admission of the breach of duty of care by the defendant. That it is settled law that he who asserts must prove. That the defendant failed woefully to support DW testimony in paragraphs 25 to 42 of DW’s statement on oath with credible and reliable evidence to show that the duty of care it owed the claimant was not breached.
19. For resultant damage, the claimant submitted that the breach of duty of care by the defendant caused the loss of the three middle fingers of the claimant. That if there had been thorough supervision or reliable working tools the permanent disability caused the claimant by the defendant might not have occurred.It is thus the claimant’s submission that he has established a clear case of negligence against the defendant which was also corroborated by the defendant, referring to paragraphs 5, 6 and 7 of his statement of facts, which provide:
5)The claimant states further that three persons were designated to work on the Injector Machine which caused the loss of the three middle fingers on his left hand. The persons include:
Babatunde Ikuomola – the Supervisor.
Babatunde Fadeyi
Babatunde Ajala – the claimant.
6)The claimant avers that he was the operator of the machine in question and that Mr Bababtunde Ikuomola was made to supervise the activities of the two other employees including the claimant on the machine.
7)The claimant states that on 3rd March 2008 at about 5.30pm while the claimant was working on the Injector machine with the supervisor and the third employee, the supervisor who was holding the lever keeping the door of the machine opened, suddenly released the lever because he wanted to receive a call and it got closed while the claimant’s hand was still inside in the machine and cut off his three middle fingers because he was not notified of the supervisor’s intention to release the lever.
20. To the claimant, these averments were also confirmed by the defendant in paragraphs 16, 17 and 18 of the statement of defence and by Exhibits D2 to D5. The supervisor who was meant to supervise the activities of the claimant and another working with the machine carelessly left his duty post to answer a phone call. That this is a clear case of gross negligence on the part of the defendant.
21. Furthermore, that the learned counsel to the defendant misconstrued the position in Ochin v. Ekpechi to support his argument that the claimant has admitted the averments in the statement of defence by not leading evidence in his reply. That abandonment is not the same as admission. That learned counsel to the defendant would probably have been right if the claimant had not filed a reply to the statement of defence at all. That the decision not to lead evidence in support of the claimant’s reply stemmed up from the admission of the defendant in paragraph 36 of the statement of defence. That it is the law that where a party admits a fact in issue the other party need not prove same again, urging the Court to hold that failure of the claimant not to have led evidence in support of his reply to the statement of defence is not admission of the facts contained in the statement of defence by the claimant.
22. The claimant continued that going by the doctrine of “res ipsa loquitur”, that is, the facts speak for themselves, the claimant is not bound to give particulars of negligence either in his pleadings or his evidence or prove same as submitted by counsel to the defendant in his address since it is not in contention whether the claimant is an employee of the defendant or whether it is the defendant’s machine that caused the permanent injury to the claimant or whether the injury to the claimant actually happened. That particulars of negligence is only necessary where the negligence complained of cannot be seen and another person would need all details possible to understand the negligence complained of. That this, however, is not applicable in the instant suit, citingFlash Fixed Odds Ltd v. Akatugba [2001]9 NWLR (Pt. 717) 61. That Exhibits C1A and C1B clearly speak for themselves.
23. Issue (b) is whether the claimant is entitled to damages. To the claimant, it is a general principle of negligence that once the claimant has been able to establish the three conditions stated in Bouyguess (Nig.) Ltd v. O. Marine Services Ltd(supra), he is entitled to be compensated in damages. Consequently, that he has met the three conditions and is, therefore, entitled to be compensated in damages. Furthermore, that against the argument of the defendant’s counsel that the claimant’s claim does not include reinstatement and, therefore, Exhibit C5 which is same as D6 was not written because the claimant stopped working with the defendant,the claimant submitted that there is no law that says a claimant must still be in the employment of his employer at the time he is claiming damages for negligence. That Exhibit C5 was written when after several months the defendant did not show any iota of care to compensate the claimant. That it is settled law that the principles guiding award of damages is that damages will flow from the wrong suffered by a complainant, citingSCC (Nig.) Ltd v. Elemadu [2005]7 NWLR (Pt. 923) 84 to 85 andFBN v. Olaleye(supra) at page 117. The claimant also submitted that Exhibit C5 does not necessarily need to be supported with a medical report before the Court can grant the relief of the claimant. That it was already stated on it that the injury caused to the claimant due to the defendant’s negligence already caused emotional damage to the claimant, reduction in his economic value, reduction in his social value and destruction of marital finger, citingSCC (Nig.) Ltd v. Elemadu(supra).
24. The claimant proceeded that it is trite that for a master to be vicariously liable for the act of his servant, it must be established that the servant was at the material time in the employment of the master; and that the negligence occurred whilst the servant was acting in the course of his employment, citingUnion Bank (Nig.) Ltd v. Ajagu[1990] 1 NWLR (Pt. 126) 328 andEseigbe v. Agholor[1990] 7 NWLR (Pt. 161) 234. It is thus the claimant’s submission that the argument of the defendant does not hold water.That the fact that Mr. Babatunde Ikuomola and Mr Babatunde Fadeyi were employees of the defendant was established in paragraph 5 of the claimant’s statement of facts. Paragraph 7 also grounds the facts that the injury occurred while all the persons mentioned in paragraph 5 were in the employment of the defendant. The liability of the defendant was corroborated by paragraph 16 of the statement of defence and Exhibits D2 and D3, citingSCC (Nig.) Ltd v. Elemadu [2005]7 NWLR (Pt. 923) 83 to 84.
25. That it is a settled principled of contract that a party is not bound by a contract which he is not privy to. DW under cross-examination testified that at the time of the employment of the claimant, the claimant was neither informed nor aware of Exhibit D9.Also, that Exhibit C4 clearly shows the inhumane treatment the claimant further suffered in the hands of the defendant, which necessitated its rejection by the claimant and his family as the amount stated in Exhibit C4 clearly contradicts what is on Exhibits C3 and D9A which is same as Exhibit C2. The claimant then urged the Court to hold that the claimant is not bound by Exhibits D9, C3, C4 and D9A which is same as Exhibit C2. The claimant concluded that having discharged the onus of proof by the avalanche of evidence before the Court, the Court should hold that the claimant has established a case of negligence against the defendant and that the claimant is entitled to be compensated in damages.
THE DEFENDANT’S REPLY ON POINTS OF LAW
26. The defendant reacted on points of law. On the burden of proof, the claimant had argued that the defendant failed to support the testimony of DW in paragraphs 25 – 42 of his statement on oath “with credible and reliable (sic) to show that the duty of care it owed the Claimant was not breached”. To the defendant, the claimant misunderstood and misapplied the law on whom the burden of proof lies.That the burden of proof in a civil action lies on the party who asserts the affirmative of an issue, citing National Bank of Nigeria Ltd v. Deborah Opeola[1994] 1 NWLR (Pt. 319) 126 at 139 andsections 131(1), 132, 133 and 136 of the Evidence Act 2011. That the case of the claimant in this suit is an allegation of negligence on the part of the defendant. That the burden of proof of negligence lies on the claimant and that burden would only shift if the claimant has been able to establish negligence on the part of the defendant, in which case, the defendant would be required to tender proof in rebuttal of issues which arose in the course of the proceedings. That in the instant case, if no evidence is led on the allegation of negligence, the claimant would fail; as such,the burden of proof lies on the claimant to establish a case of negligence or breach of duty of care against the defendant, referring toEjiniyi v. Adio[1993] 7 NWLR (Pt. 305) 320 at 330, which held that a man cannot be expected to prove a negative assertion, Universal Insurance Company Limited v. T.A. Hammond Nigeria Ltd[1998] 9 NWLR (Pt. 565) 340 at 358,Ike v. Ugboaja[1993] 6 NWLR (Pt. 301) 539 at 545 andOrakwute v. Umole[1998] 7 NWLR (Pt. 557) 266 at 279. The defendant, therefore, submitted that the onus of proof in this case is on the claimant to establish his allegation of negligence against the defendant, which he has failed to do. Thus the burden of proof did not shift to the defendant to establish that it was NOT negligent.
27. On what amounts to an admission, theclaimant had alleged that the averments in paragraphs 5, 6 and 7 of the statement of facts were confirmed (or admitted) by the defendant in paragraphs 16, 17 and 18 of the statement of defence and by Exhibits D2 – D5. To the defendant, paragraphs 16, 17 and 18 of the statement of defence cannot be taken to be an admission of the claimant’s allegation as to dispense with the requirement of proof of same. Te defendant referred to Orient Bank (Nig.) Plc v. Bilante International Ltd[1997] 7 NWLR (Pt. 515) 37 at 95 andUdeze &ors v. Chidebe &ors[1990] 1 NSCC 114 and 128. That looking at the defendant’s pleading, there is nothing in the pleadings to suggest that the defendant admitted that “while the claimant was working on the injector machine with the supervisor and the third employee, the supervisor…suddenly released the lever because he wanted to receive a call and it got closed while the claimant’s hand was still inside the machine…” That the defendant’s pleadings cannot be said to be a definite, unequivocal and unambiguous admission of facts. That the defendant accepted that an accident occurred on its premises in which the claimant suffered injury to his left hand; but did not accept or admit anywhere that the accident occurred due to its negligence as an employer or the negligence of Mr Babatunde Ikuomola, the Supervisor.
28. On the application of the maxim,res Ipsa loquitur, the claimant had argued that he is not bound to give particulars of negligence in his pleadings or evidence or prove same, “since it is not in contention that the Claimant is an employee of the Defendant or whether it is the Defendant’s machine that caused the permanent injury to the Claimant or whether the injury to the Claimant actually happened”. The claimant further alleged that Exhibits C1A and C1B “speak for themselves”. To the defendant, the claimant clearly misunderstood the application of the doctrine/maxim,res ipsa loquitur. As to the meaning and essence of the maxim, the defendant referred to Management Enterprises Ltd v. Otusanya[1987] 1 NSCC 577 at 585 – 586, and which held that in relying on res ipsa loquitur, a plaintiff merely proves the resultant accident and injury and then asks the Court to infer therefrom negligence on the part of the defendant. That the doctrine will not apply where: the facts proved are equally consistent with accident as with negligence; and there is evidence of how the accident happened and the difficulty (as in this case) arise merely from an inability to apportion blame. If there is evidence of how the occurrence took place, an appeal to res ipsa loquitur is misconceived and inappropriate. To the defendant, res ipsa loquitur is not applicable to the facts of this case. That the claimant in this case has proffered an explanation as to the cause of the accident both in his pleadings and evidence and cannot rely on the doctrine, having given an explanation for the accident. That as in Management Enterprises Ltd v. Otusanya (supra), difficulty here arose from the inability to apportion blame for the accident between Babatunde Ajala (claimant), Babatunde Fadeyi and Babatunde Ikuomola.Furthermore, that an equitable maxim or special plea like res ipsa loquitur must be specifically pleaded or sufficient facts from which such maxim or doctrine could be implied, must be pleaded if intended to be relied on at the trial.That the claimant never pleaded res ipsa loquitur nor pleaded sufficient facts from which the maxim could be implied. That the burden of denying negligence did NOT thus become that of the defendant. That the facts of this case do not fall into the category of cases where the maxim,res ipsa loquitur, would apply and Exhibits C1A and C1B clearly do NOT “speak for themselves”.
29. On SCC (Nig.) Ltd v. Elemadu, the defendant submitted that it is not applicable to the present case. That this is apparent even from the opening line of the quote reproduced by the claimant i.e. “In respect of an accident due to latent mechanical defect…” That in the present case there is no evidence before this Court that the Injector Mould Machine had a latent mechanical defect. That that is not the case that the claimant has made out;therefore, the principle established in the case that “the occurrence of an accident itself, casts upon the defendant, a duty to account for it” does not apply to this case.
30. On privity of contract, the claimant had argued that:“a party is not bound by a contract to which he is not privy to. DW1 under cross-examination testified that at the time of the employment of the Claimant, the Claimant was neither informed nor aware of Exhibit D9”. To the defendant, this is not so;and it could not have been so. That Exhibit D9 is a letter dated 20th October 2008. That although the claimant did not give evidence of when he was employed it is not in dispute that the claimant was employed by the defendant BEFORE 3rd March 2008 when the accident occurred. That it is not possible for the claimant to have been informed of or aware of Exhibit D9 BEFORE March 2008 when Exhibit D9 did not come into existence until October 2008 and, therefore, DW could not have testified under cross-examination as to the claimant’s awareness or otherwise of Exhibit D9 at the time of the claimant’s employment. The defendant concluded by urging the Court to dismiss the claimant’s claim in its entirety.
COURT’S DECISION
31. I have carefully considered the processes and submissions of the parties. I start off with admissibility of some of the exhibits tendered. Exhibit C7 dated 27th April 2009 is marked “Without Prejudice” and is a letter from the defendant’s solicitor to the claimant’s solicitor intimating the claimant that his letter has been sent to the Insurance Company in accordance with the Workmen’s Compensation Act. Exhibit D8 dated 22nd September 2008, also marked “Without Prejudice” is a letter from the defendant’s solicitor to the claimant’s solicitor denying that the defendant abandoned the claimant in the hospital and that the claimant’s salary was paid up to August 2008. Ashibuogwu v. AG, Bendel State &anor[1988] LPELR-578(SC); [1988] NWLR (Pt.69)138; [1988] 1 SC 248 held that statements made during negotiations and marked “without prejudice” are inadmissible against the parties in a suit. See also Nwadike & ors v. Ibekwe & ors [1987] LPELR-2087(SC);[1987] NWLR (Pt. 67)718; [1987] 12 SC 14; [1987] 11-12 SCNJ 72, which approvingly quoted from Phipson on Evidence, 12th Edition, at pages 295 and 296 articles 279 and 280 dealing with admissibility and non admissibility of offers made without prejudice and of letters and other communications written without prejudice, thus:
Offers “without prejudice,” Offers of compromise made expressly or impliedly “without prejudice” cannot be given in evidence against a party as admissions;…Letters and other communications, however, are only protected when there was a dispute or negotiations pending between the parties, and the letters were bona fide written with a view to its compromise…And the protection applies only in the same action, and between the same parties, and not between them and third persons, but letters and negotiations between solicitors are inadmissible against themselves as well as against their clients.
From these case law authorities, Exhibits C7 and D8 are inadmissible. I so hold.
32. Exhibit D2 is titled, “Report on Ajala’s Injury”. It is signed by Ikuomola Tunde but is undated. Ikuomola Tunde is not a witness in this case and so cannot supply by parol evidence the date of the exhibit. The law is that undated document has no evidential value. See Global Soaps & Detergent Ind. Ltd v. NAFDAC [2011] All FWLR (Pt. 599) 1025 at 1047 and Udo & ors v. Essien & ors [2014] LPELR-22684(CA). Exhibit D2 accordingly has no evidential value and so is hereby discountenanced for purposes of this judgment. I so hold.
33. The defendant had submitted that because the claimant did not lead evidence in support of his reply to the statement of defence, he must be read as having not controverted the averments in the defendant’s statement of defence and is, therefore, deemed to have admitted them. I do not think the defendant is right in this submission given the principle of joinder of issues. In the words of Unity Bank Plc v. Bouari [2008] 7 NWLR (Pt.1086) 372 SC at 406 – 407:
The proper function of a reply is to raise in answer to the defence any matter that must be specifically pleaded, which makes the defence not maintainable or which otherwise might take the defence by surprise or which raises issue of fact not arising out of the defence. In other words, a reply is used by a plaintiff to answer new issues raised in the statement of defence such as in cases of confession and avoidance. It is therefore not necessary to file a reply if its only purpose is to deny the allegations of fact made in the statement of defence because of the principle of joinder of issues. Where no counterclaim is filed, a reply is generally unnecessary if it is also to deny allegations in the statement of defence.
After the completion of pleadings, issue is or issues are said to be joined and the cause is ready for hearing. Such a joinder of an issue operates as a denial of every allegation of fact in the pleadings upon which the issue has been joined. In fact, if no reply is filed, all material facts alleged in the statement of defence are put in issue. A reply to merely join issues, is therefore not permissible. Akeredolu v. Akinremi (No. 3) (1989) 3 NWLR (Pt. 108) 164; Dabup v. Kolo (1993) 9 NWLR (Pt. 317) 254; Umenyi v. Ezeobi (1990) 3 NWLR (Pt. 140) 621; Obot v. C.B.N. (1993) 8 NWLR (Pt. 310) 140.
Accordingly, the argument of the defendant that the claimant should be deemed to have admitted the defendant’s averments in the statement of defence is untenable and so is hereby rejected. I so hold.
34. The defendant had also submitted that the issue of negligence was not properly pleaded in that the claimant only alleged negligence without giving any specific particulars of the negligence either in his pleadings or in his evidence or even prove same. The claimant’s answer is that going by the doctrine of res ipsa loquitur i.e. the facts speak for themselves, the claimant is not bound to give particulars of negligence either in his pleadings or his evidence or prove same since it is not in contention whether the claimant is an employee of the defendant or whether it is the defendant’s machine that caused the permanent injury to the claimant or whether the injury to the claimant actually happened. In reply, the defendant asserted that the doctrine of res ipsa loquitur must be specifically pleaded for it to apply, something the claimant did not do. In any event, that having offered an explanation as to how the accident occurred, the claimant can no longer rely on the doctrine.
35. To start with, I looked through the claimant’s statement of facts and no where will it be found that the claimant pleaded res ipsa loquitur. The law by Royal Ade Nigeria Ltd & anor v. National Oil and Chemical Marketing Co. Plc [2004] LPELR-2959(SC); [2004] 8 NWLR (Pt.874)206; [2004] 18 NSCQR 334, relying onBolton v. Stone (1951) AC 850,Odebunmi v. Abdullahi[1997] 2 NWLR (Pt. 489) 526,Management Enterprises Ltd v. Otusanya[1987] 2 NWLR (Pt. 55) 179 andIbekendu v. Ike[1993] 6 NWLR (Pt. 299) 287 at 297, is that where the cause of accident is known the doctrine of res ipsa loquitur does not even apply. Royal Ade Nigeria Ltd & anor v. National Oil and Chemical Marketing Co. Plc, referring to Okeke v. Obidife[1965] NMLR 113 and T. O. Kuti v. Tugbobo[1967] NMLR 419 at 422,however, went on that the doctrine does not need to be specifically pleaded so long as there are facts pleaded and evidence led before the court on which it can be based; and that it can also be pleaded in the alternative to particulars of negligence averred.
36. Now, in paragraph 7 of the statement of facts (as supported by paragraph 7 of the written statement on oath of the claimant of 25th February 2014), the claimant offered an explanation as to how the accident he complains of happened. In his words:
The Claimant states that on 3rd day of March 2008 at about 5:30pm while the Claimant was working on the Injector Machine with the supervisor and the third employee, the supervisor who was holding the lever keeping the door of the machine opened, suddenly released the lever because he wanted to receive a call and it got closed while the Claimant’s hand was still in the machine and cut off his three middle fingers because he was not notified of the supervisor’s intention to release the lever (the emphasis is the Court’s).
From this pleading and its supporting deposition of the claimant, the negligence that resulted in the claimant’s injury consists of the sudden release of the lever by the supervisor and the fact that the claimant was not notified by the supervisor of the supervisor’s intention to release the lever. This is sufficient explanation of the fact of negligence as to make the doctrine of res ipsa loquitur inapplicable in this suit. I so find and hold given that Royal Ade Nigeria Ltd & anor v. National Oil and Chemical Marketing Co. Plc held that where the cause of accident is known the doctrine of res ipsa loquitur does not apply.
37. There is another aspect of the defendant’s objection: that the claimant did not give any specific particulars of the negligence either in his pleadings or in his evidence or even prove same. The requirement that a claimant must give particulars of negligence in an action for negligence is one that case law authorities acknowledge. See, for instance, Diamond Bank Ltd v. Partnership Investment Co. Ltd&anor[2009] LPELR-939(SC); [2009] 18 NWLR (Pt. 1172) 67 SC, which held that:
…a Plaintiff, as a matter of law, is required, in an action on negligence, to state or give particulars of negligence alleged and to recover on the negligence pleaded in those particulars. It is not sufficient for a plaintiff to make a blanket allegation of negligence against a defendant on a claim of negligence without giving full particulars of the items of negligence relied on as well as the duty of care owed to him by the defendant.
And by PW (Nig.) Ltd v. Mansel Motors Ltd & anor [2017] LPELR-43390(CA):
To succeed in an action for negligence, the law is settled as to the standard of pleading and proof required. As a matter of law therefore; a plaintiff who intends to be victorious in negligence action must plead the particulars of negligence alleged and give cogent and credible evidence at the trial in line with the detailed pleadings. It is not sufficient pleading for a plaintiff to make a blanket allegation of negligence against the defendant without giving detailed particulars of the items of negligence relied on as well as the duty of care the defendant owes him…Certainly the law does not permit the trial Judge to fill in the gaps for the plaintiff where the pleading lacks the necessary particulars…This position of the law is inevitable because what amounts to negligence is not law but a question of fact which must be decided according to the facts and circumstances of a particular case…
38. The question, however, is: when the law requires the particulars of negligence to be given, is this requirement met only when there is a separate part of the pleadings headed, “Particulars of Negligence”? I do to think so. So long as what makes up the negligence is given in the pleadings just so that the defendant knows what he must defend, the requirement of particulars of the negligence complained of would have been met. I reproduced paragraph 7 of the claimant’s statement of fact; and I indicted earlier that paragraph 7 of the statement of facts reveals two things, which conveniently serve the purpose of the particulars of the negligence the claimant complains of. The two things are: the sudden release of the lever by the supervisor; and the fact that the claimant was not notified by the supervisor of the supervisor’s intention to release the lever. These are the particulars of negligence that the defendant must answer to in this suit. I accordingly find and hold that the claimant has given sufficient particulars of negligence in his pleadings. The question remaining is whether he proved these particulars of negligence as to be entitled to damages against the defendant.
39. Negligence is a function of the trilogy of duty of care, breach of that duty and resultant damage. Both parties are agreed on this.The authorities are clear that a successful plea of negligence consists of proving the said trilogy. Negligence is also a question of fact; and facts are proved by oral or documentary or real evidence, or a combination of all or any of these. See section 131 of the Evidence Act 2011, Ogan & ors v. Ogan [2013] LPELR-21213(CA) and Ofuani v. Emordi & ors [2016] LPELR-42027(CA). It is not in doubt that the claimant was employed by the defendant. It is also not in doubt that the injury complained of occurred when the claimant was at work in the defendant’s workplace. In fact, the evidence is that it was the defendant that even took the claimant to the hospital after the injury.
40. Relationships at the workplace give rise not only to contractual liability but also tortious liability.Alternatively put, an employer may be liable to an employee not only in contract but also in tort. The question, therefore, is: does an employer owe a duty of care to an employee? The answer is in the affirmative given the proximity between the two. The claimant is so closely and directly affected by the defendant’s act that the defendant ought reasonably to have him in contemplation as being so affected when it is directing its mind to the acts or omissions which are called in question. This duty is both statutory, under the Factories Act (see Green Pack Rubber Ind. Ltd v. Ossai [2004] 2 FWLR (Pt. 194) 668), as well as under the common law. Adetona v. Edet [2004] 16 NWLR (Pt. 899) 338 held that an employer’s liability at common law is also the general duty imposed on all people to take reasonable care to avoid injuring their neighbours. In other words, the defendant in the instant case, as the employer of the claimant, owes a duty of care to the claimant; and I so find and hold. The duty of care owed is to provide a safe working environment, safe equipment, protective clothing and ensure that they are used, etc. See IITA v. Amrani [1994] 3 NWLR (Pt. 332) 296. See further Ola Suleiman v. Hongzing Steel Company Limited unreported Suit No. NICN/LA/73/2011, the judgment of which was delivered on 26th February 2015. I thus hold that the claimant has established the requirement that the defendant owes him a duty of care in the circumstances of this case.
41. Did the defendant breach this duty of care? This is the question of negligence as a fact, proof of which is required of the claimant. The claimant’s proof of the negligence of the defendant is his ipse dixit as per paragraph 7 of his statement on oath, which is in terms similar to paragraph 7 of the statement of facts already quoted earlier in this judgment and Exhibit D5, his written report of the incident dated 13th March 2008. The defendant’s response is paragraph 19 of the statement of defence, which states:
The Defendant avers that contrary to paragraph 7 of the Statement of Fact, the act of Mr. Tunde Ikuomola excusing himself to take a phone call was not the cause of the accident resulting in the injury to the claimant, and aver that Mr. Tunde Ikuomola was not at the scene when the accident occurred.
Now, Mr Tunde Ikuomola is the only person who can contradict the averment of the claimant, but he was not called as a witness by the defendant. The defendant instead called Engineer Omo Oleghe,its Managing Director (MD), who testified as DW. The quality of the claimant’s evidence would certainly be weightier than that of the MD who was not at the scene of the accident. See Pastor (Mrs) Abimbola Patricia Yakubu v. Financial Reporting Council of Nigeria & anor unreported Suit No. NICN/LA/673/2013, the judgment of which was delivered on 24th November 2016, Mr Charles Ughele v. Access Bank Plc unreported Suit No. NICN/LA/287/2014 the judgment of which was delivered on 10th February 2017 and Dorothy Adaeze Awogu v. TFG Real Estate Limited unreported Suit No. NICN/LA/262/2013, the judgment of which was delivered on 4th June 2018. In these three case law authorities, the quality of the testimony of the claimant was held to far outweigh that of the defence witness given that the respective defence witnesses called were not direct witnesses to the events in issue.
42. Under cross-examination, DW affirmed that he was not at the scene of the accident when it occurred. The deposition of DW in paragraph 18 of his statement on oath to the effect that, “The act of Mr. Tunde Ikuomola excusing himself to a phone call was not the cause of the accident resulting in the injury to the claimant, and Mr. Tunde Ikuomola was not at the scene when the accident occurred”, cannot be sufficiently strong as to contradict the more direct evidence of the claimant since DW was not at the scene of the accident as to know for sure that Mr Tunde Ikuomola excusing himself to a phone call was not the cause of the accident resulting in the injury to the claimant. The claimant in paragraph 7 of his deposition situated the time of the accident to be at 5.30pm. In paragraph 15 of his deposition, DW acknowledged that at about 5.00 or 5.30pm in the evening, the claimant and two other persons (Mr Tunde Ikuomola and Babatunde Fadeyi) were servicing and cleaning the mould in one of the defendant’s Plastic Injection Moulding Machine. This situates Mr Tunde Ikuomola and the claimant to be at the scene of the accident at 5.00 or 5.30pm. In Exhibit D3 dated 3rd March 2008, Babatunde Fadeyi, the third person said to be at the scene of the accident, reported thus:
before God I mine (sic), with littly (sic) I could remember, it was exertly (sic) 5 O’clock in the evening. Both of us were In the other side of Injection machine and I rested my hand on the machine which I didn’t know my hand was on the switch botton (sic). The next thing I heard was Tunde’s voice, he was only mentioning my hand and before I will look back at his hand the mode as (sic) closed, so imediately (sic) I saw it, I was not myself any longer. So he was rushed to the nearest hospital.
43. Babatunde Fadeyi was not called as a witness. he prefaced his report in Exhibit D3 with the words “with [little] I could remember…” This suggests that he cannot remember much about the incident. Secondly, his report also suggests that it was the hand he placed on the switch button that triggered off the machine thus injuring the claimant. The evidence before the Court is that Babatunde Fadeyi was also an employee of the defendant at the time of the accident. The common law under the doctrine of common employment would deny any liability for the act of Fadeyi here. The doctrine operated thus: where the party injured is not a stranger but a fellow-servant of the party causing the injury and engaged in a common employment with him, the master is at common law not liable for injuries caused by the negligence of his servant in the course of his employment. See Nigerian Tobacco Co. Ltd v. Agunanne [1995] LPELR-2034(SC); [1995] 5 NWLR (Pt.397)541. However, given that section 12 of the Labour Act 2004 has abolished the doctrine of common employment, which operated as a defence under the common law, it means that the defendant can be held liable in negligence for the injury caused by a co-employer (Fadeyi) to another employee (the claimant) of the defendant. I so find and hold.
44. Fadeyi being the cause of the accident seems plausible if the evidence of DW that the machine was on idle mode is anything to go by. And in paragraph 21 of the statement of defence (as supported by paragraph 20 of DW’s deposition), the defendant averred that the accident was due to the careless or negligent conduct of the claimant and Mr Babatunde Fadeyi. DW was not at the scene of the accident, and so could not have known whether the claimant and Mr Fadeyi were careless or not. That Mr Fadeyi was the cause of the accident is, however, not the case of the claimant. His case is that the sudden release of the lever by the supervisor and the fact that the claimant was not notified by the supervisor of the supervisor’s intention to release the lever caused the accident. To the extent that DW acknowledged that the accident occurred at about 5.00 or 5.30pm in the evening, DW who was not at the scene of the accident cannot testify and be believed that Mr Tunde Ikuomola was not at the scene of the accident. I so find and hold. The evidence of DW in paragraph 16 of his deposition that he “telephoned Mr Tunde Ikuomola from time to time to inquire about the progress of work” did not state the exact time the telephone call was made as to disprove the fact of Mr Tunde Ikuomola being at the scene of the accident where 5.30pm is taken as the time of the accident. If anything, it proves that Mr Tunde Ikuomola answers telephone calls (from the MD) even when working on machines, an act that is negligent itself. I so find and hold. The evidence of DW at paragraph 17 of his deposition to the effect that “the accident which resulted in the loss of part of three (3) middle fingers of the Claimant’s left hand occurred when Mr Tunde Ikuomola excused himself from Messrs. Babatunde Fadeyi and the Claimant to take a call from me” cannot also be believable given that it did not stipulate the time the call was made. I so find and hold. And since DW was not at the scene of the accident it cannot be that he will know categorically as he made out in paragraph 19 of his deposition that “at the time of the accident, the machine (which was being cleaned and was not in operation) was on idle mode/off, and there was no risk, danger or possibility of injury to the claimant or other person from the machine”. Not being at the scene of the accident when it occurred, DW cannot with certainty say that the machine was actually idle or that the claimant and Mr Fadeyi were careless and so caused the accident. In particular, the averment that the claimant was careless intuits either contributory negligence or voluntary assumption of risk on the part of the claimant. These defences, however, cannot stand since DW was not at the scene of the accident in order to give his evidence any weight. I so find and hold.
45. Under cross-examination, DW testified that the defendant gives the employees safety apparels like hand gloves; and thatthis is the most effective safety apparel for that type of machine’s operation. That the hand glove is cloth-type; butsometimes, the defendant uses rubber hand gloves depending on the nature of the work. In acknowledging that hand gloves are the most effective safety apparel for the type of machine that injured the claimant, what DW did not tell the Court was whether the defendant in fact gave the claimant hand gloves. The law places a duty on the employer not just to provide safety or protective gears but to insist on the employee using them at the material time of the accident. See Western Nigeria Trading Co. Ltd v. Ajao [1965] All NLR 524, which held that that an employer’s duty at common law is not only to provide the employee with goggles, but also to see to it that they are used, Bright Chinedu Wodi v. Differential Aluminum and Steel Company Ltd& anor unreported Suit No. NICN/CA/75/2012, the judgment of which was delivered on 21st January 2014 and Ola Suleiman v. Hongzing Steel Company Limited unreported Suit No. NICN/LA/73/2011, the judgment of which was delivered on 26th February 2015. The argument of the defendant that DW testified that as a responsible employer, it has provided a safe and secure work environment for its employees and provided safety tools and equipment for their use, and that this evidence was not denied or challenged by the claimant, cannot hold given that the duty extends to insisting and making sure that the claimant uses the safety tools provided. I so find and hold.
46. Howsoever we look at, whether from the stand point of the supervisor answering phone calls when he ought to be supervising employees working on machines, or the supervisor suddenly releasing the lever and he not notifying the claimant of his intention to release the lever, or that the defendant did not give the claimant safety gloves, or even that it was Fadeyi who pressed the switch button that triggered off the machine thus injuring the claimant, the evidential narrative of the claimant is more believable that that of DW. Consequently, I have no doubt whatsoever in the instant case that the defendant is negligent and so breached the duty of care it owes the claimant. I thus find and hold that the claimant has proved the requirement of breach of the duty of care by the defendant.
47. The last requirement is that the claimant suffered resultant damage. The fact of injury i.e. the loss of three middle fingers of the claimant is not in dispute amongst the parties. Exhibits C1 and C1(a) are pictures showing the cut middle fingers. The requirement of resultant damages has thus been met and proved by the claimant; I so find and hold. This being so, I find and hold that the defendant is liable to the claimant in negligence, the claimant having proved the trilogy of duty of care, breach of the duty of care and resultant damage.
48. The only outstanding issue is the quantum of damages to be awarded. The claimant is asking for N25 Million as damages for negligence for the loss of his three fingers. SCC (Nig.) Ltd v. Elemadu [2005] 7 NWLR (Pt. 923) 84 to 85, relying on Chaplin v. Hicks[1911] 2 KB 786, held that the fact that damages are difficult to estimate and cannot be assessed with certainty or precision, does not relieve the wrong doer of the necessity of paying damages for its breach of duty of care and it is no ground for awarding nominal damages.The case, relying on Ehidiagbonya v. Dumez (Nig.) Ltd &anor[1986] 6 SC 149 at 164; [1986] 3 NWLR (Pt. 31) 753, went on to hold that in assessing general damages, the court has to consider what is fair and reasonable compensation for injuries sustained; and that previous awards made by judges in comparable cases can be relied on. In the area of damages for personal injury, Hamza v. Kure [2010] LPELR-1351(SC);[2010] 10 NWLR (Pt. 1203) 630 SC, and Edo State Agency for the Control of AIDS (EDOSACA) v. Osakue&ors[2018] LPELR-44157(CA), relying on Ighreriniovo v. SCC (Nig) Ltd & ors [2013] 10 NWLR (Pt. 1361) 138, held that general damages are awardable for pain and suffering, discomfort and permanent scarring, and that no principle can be laid down upon which damages for such pain and suffering can be awarded in terms of the quantum. The claimant was hospitalized as a result of the injury he sustained from the accident, although it was the defendant who paid the hospital bills. See paragraphs 10 and 13 of the claimant’s deposition.
49. In Kenneth Ighosewe v. Delta Steel Co. Ltd [2007] LPELR-8577(CA), the appellant had claimed in the High Court inter alia for permanent disfigurement of his finger next to the index finger and the partial disfigurement of the thumb. The Court of Appeal, after holding that “it is equally trite that in assessing what is fair and reasonable to bear in mind previous awards made by the Courts in comparable cases in the same jurisdiction or even in a neighbouring locality where similar social, economic and industrial conditions exist”, reviewed the award of damages by the High Court to a higher figure, applying the principle set down in Ebe v. Nnamani [1997] 7 NWLR (Pt. 513) 419, which had similarly increase an award for personal injury to N10 Million.
50. This is 2019; and inflation has definitely set in. Kenneth Ighosewe v. Delta Steel Co. Ltd, citing Ejisun v. Ajao [1975] 1 NMLR 4 at 7, itself enjoined that awarded damages for pains and suffering and disfigurement, being a lump sum and a once and for all exercise, must also, in order to be fair and reasonable, take care of future economic loss otherwise known as prospective loss in order to keep up with the times and in particular with the economic strength or decline, as the case may be, of our national currency, the Naira. And inArulogun v. COP Lagos & ors [2016] LPELR-40190(CA), though talking on damages for human right violation, Her Ladyship Augie, JCA (as she then was) held as follows:
It is settled that for award of damages to compensate the victims of human rights violation, it must reflect the economic reality of the Country – see Onogoruwa v. I.G.P. (1993) 5 NWLR (Pt.193) 593, wherein it was held-“In these days of racing inflation where the buying or purchasing power of the Naira falls drastically (and painfully so) every day and, therefore, not commensurate to the quality and quantity of goods bought, a Judge should, in the assessment of damages, consider the current market situation, It will be most unrealistic to ignore this fundamental aspect and merely theorize with principles of law and facts and figures presented to him in Court by counsel and witnesses. While the Judge is not expected to play the role of a housewife of Sangross Market, Lagos, Kasuwa Kurimi Market of Kano or the Ogbete Market of Enugu by sampling prices of goods randomly, he must always remind himself that market prices escalate by leaps and bounds and they affect the purchasing power of the Naira”. [Tobi, JCA (as he then was)] In that case, Onogoruwa v. I.G.P. (supra), decided in 1993, Niki Tobi, JCA (as he then was), painted a poor picture of the Naira in 1993, as follows- The Naira is no longer a stable and enduring currency. It floats in the money market adversely. It also floats in the Nigerian wind not because of its physical lightness but because of its loss of monetary value. After all, the Naira is now one heavy coin”.That was 1993; I wonder what he would say now about the Naira in 2016.
I repeat once again: this is 2019.
51. The defendant had submitted that if the accident and loss of part of three fingers of his left hand had indeed rendered the claimant’s left hand useless and rendered him permanently incapable of working, the claimant would NOT have continued working in the defendant’s factory for six months after the accident and injury.In addition, that during the cross-examination of CW2, CW2 admitted that the claimant had recovered from the accident and loss of part of three fingers of his left hand and had moved on with his life. He had gone on to other work and become profitably engaged in business, had moved to his own house, gotten married and has a child, all after the accident and injury. That it is clear that the claimant has made a remarkable recovery from the accident and is not suffering any form of permanent disability, urging the Court to disregard the claimant’s contention of having suffered permanent disability as well as hold that the claimant is not entitled to damages for permanent disability. All of this can only be mitigating factors as to the quantum of damages, not as to the fact of liability of the defendant to the claimant. The claimant prays for N25 Million as damages. That “he is able to pick up his life, get by and do things for himself”, going by the evidence of CW2, he cannot get all he asks for as damages. But there is no taking away the fact that he suffered and has three cut fingers to live with and be reminded of the accident for life. For this, and just this, I award the sum of N10 Million as damages to the claimant against the defendant. As a last point, I must state that in suing as he did, the claimant chose the part of common law liability in negligence, not the path of the Workmen’s Compensation Act, the Act that would have applied had the claimant sued under statute law. This is a choice the claimant had, and he is entitled to choose any of the two forms of liability i.e. liability under common law or statute law. He chose the former.
52. On the whole, and for the avoidance of doubt, I find for the claimant against the defendant. The claimant’s case succeeds. I accordingly make the following orders:
(1) The defendant shall pay to the claimant the sum of N10,000,000.00 (Ten Million Naira) only as damages for negligence for the loss of the three fingers of the claimant while operating an injection machine at the factory of the respondent on the 3rd day of March 2008.
(2) Cost is put at Three Hundred Thousand Naira (N300,000) only payable by the defendant to the claimant.
(3) The said N10 Million and cost of N300,000 shall be paid within 30 days of this judgment, failing which they shall attract interest at 10% per annum.
53. Judgement is entered accordingly.
……………………………………
Hon. Justice B. B. Kanyip, PhD
