IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA
DATE: 3RD MAY, 2019 SUIT NO: NICN/YEN/123/2011
BETWEEN:
MR. GOODLUCK AHIAKWO CLAIMANT
AND
PONTICELLI NIGERIA LIMITED DEFENDANT
REPRESENTATION:
D. D. VURASI FOR THE CLAIMANT
D. I. NZUTE FOR THE DEFENDANT
JUDGMENT
This suit was commenced by a Complaint dated and filed on the 30/06/2016. The claims as endorsed by the Claimant against the Defendants on the Complaint are as follows:
“a. Whereof the Complainant claim from the Defendant the sum of N 100,000,000.00 (One Hundred Million Naira) only being and representing general damages for injuries to the person of the complainant in his work place in the course of his employment.
b. Provision of hearing aids for the benefit of the complainant to aid his hearing ability.
c. The sum of N 1,000,000.00 representing special amount the Claimant spent for the injuries he sustained at his work place during his employment as hospital bill at the University of Port Harcourt Teaching Hospital, Choba, Port Harcourt, Rivers State.”
In brief, the case of the Claimant as gleaned from the statement of facts is that the Defendant, being a company engaging in oil and gas services employed the Claimant since 15/03/2011 as a scaffolder and stationed him at OML 58 Obaji base in Ogba/Egbema/Ndoni Local Government Area of Rivers State.
On 29th November 2011, while at work, there was according to the Claimant an explosion of a high pressure air pipe on the site which affected the Claimant adversely. The Claimant has said that he sustained permanent damage to his ear drum and brain tissue as a result of that explosion.
According to the Claimant also, the Defendant has been negligent towards his medical care. Meanwhile, he has incurred out of pocket costs for medical treatment.
The Claimant has averred that after months of being in pain, neglected and abandoned, he went for treatment of his own accord to the Ear Nose and Throat Department of the University of Port Harcourt Teaching Hospital (UPTH), Choba Port Harcourt. That he was on admission there from 1st February 2012 to July 2012 when he could no longer afford the hospital bills. That it was while battling with his health, that the Defendant rendered him redundant and paid him his benefits.
Pertaining to the alleged Negligence of the Defendant, the Claimant put forward the following particulars:
a. The Defendant failed to provide adequate plant and equipment. The Defendant was in a position to regularly maintain its plant and equipment to avoid explosion.
b. The defendant failed to provide safe system of working and effective supervisions for the claimant and ensure as far as possible that the system is adhered to.
On 12/08/2016, the Defendant’s counsel filed a memorandum of appearance while the Statement of Defence was filed on 23/09/2016. Both processes were subsequently deemed properly filed and served on the 19th of January 2018. The Defendant stated that contrary to the Claimant’s position before this Honourable court, that there was no explosion at the Defendant’s site on the 29th of November 2011. Instead, the Defendant posited that on the said date, what happened was that a ball joint pulled out of the compressed air resulting in an impact from the pipe.
The Defendant maintained that as cardinal safety policy of its operations, all workers adorn necessary safety equipment prior to entering the project site. That on the date of the incident the claimant and the entire team of scaffolders had their safety gear on.
The Defendant further stated that the Claimant was first given preliminary attention at its on-site clinic before being taken to its retainer clinic, Binasco Clinic for further treatment. That the Claimant recovered after undergoing treatment and was declared medically fit to resume work by the doctors. Thereafter, the Claimant resumed work normally and never complained about his injury. The Defendant is adamant that the Claimant was not at any time abandoned and/or neglected to cater for his injuries alone, neither was the defendant negligent in any way.
That it was until 7th of June 2012 when the claimant along with other persons were placed on redundancy following drastic decline in the Defendant’s activities and operations that the claimant started making claims bordering on the injury against the Defendant.
That Mr. Friday Eriagonoma, the scaffolding superintendent and Mr. Emmanuel Osuagba the safety superintendent, at no time admitted or undertook liability in respect of the claimant’s injury.
The Defendants deny any referral letter being issued at any time for the claimant to attend treatment at University of Port Harcourt Teaching Hospital (UPTH). The Defendant denied pointedly that it was not made aware by the Claimant that he was undergoing any other treatment anywhere else.
That it was only after the Claimant was placed on redundancy that the Claimant through his solicitors, wrote a letter to the Defendant claiming that he had undergone further treatment following his discharge from Binasco clinic.
The Defendant directed attention to the fact that the Claimant had earlier petitioned to the Honourable Commissioner, Public Complaints Commission Port Harcourt alleging permanent disability and claiming the sum of N 100,000,000 (One Hundred Million Naira). However that after this complaint was given representation and heard on the merit, it was found to be unmeritorious and consequently on 11th November, 2013 the Defendant was absolved of any wrong doing.
Hearing in this case commenced on the 18th of April 2018 with the Claimant himself being sworn to testify as CW1 who adopted both his depositions of 30/6/2016 and 06/01/2017, respectively. CW1 as well tendered 10 documents in evidence which were duly admitted and marked. The Appointment letter dated 15/03/2011 was tendered and marked Exhibit 1. Scaffolder authorization dated 02/02/2012 was admitted and marked Exhibit 2. Referral letter dated 22/05/2012 was admitted in evidence as Exhibit 3. Solicitor’s letter dated 27/01/2012 was admitted in evidence as Exhibit 4. Deposit Slips dated 27/1/2012, 01/02/2013, 08/02/2012, 22/02/2012, 28/03/2012, 25/04/2012, 23/05/2012, 20/06/2012 and 02/08/2012 were collectively admitted and marked Exhibits 5(a) to 5(i), respectively. UPTH Report Sheet dated 08/02/2012 was admitted in evidence as Exhibit 6. Continuation Sheet from UPTH dated 27/06/2012 was admitted as Exhibit 7. Copy of Medical Report issued by UPTH dated 16/08/2018 was admitted in evidence as Exhibit 8. Copies of westend hospital & diagnostic centre card, Hearing Aid prescription form and proforma invoice for provision of hearing aid for MST dated 4/7/2012 were admitted in evidence and marked Exhibits 9(a), 9(b) and 9(c), respectively. Letter of redundancy dated 7/06/2012 and Certificate of service dated 7/06/2012 were admitted and marked as Exhibit 10(a) and 10(b), respectively.
CW1 was cross examined on the 22/05/2018 by the counsel for the Defendant and thereafter discharged and the Claimant closed his case.
Defence opened its case on the 3rd of October 2018. DW1, Emmanuel Osugba testified for the Defendant after adopting his witness statement on oath. A letter from the Public Complaints Commission Rivers State dated 21/11/2012 was tendered. A letter from the Defendants council dated 04/1/2013, another letter from the Public Complaints commission dated 13/06/2013, also another letter from the public complaints commission dated 11/11/2013 were admitted in evidence and marked Exhibits 11, 12, 13 and 14 respectively. DW1 was thereafter cross examined and discharged.
Upon the close of the Defendant’s case, the Court then adjourned the matter for adoption of Final addresses.
The Defendant’s final written address dated 24th October 2018 was filed on the same date. In it the Defendant formulated and submitted a sole issue for determination, to wit:
“Whether from the pleadings, facts and evidence before this court, the claimant was able to prove his case on balance of probability as required by law?”
The Defendant argued extensively and urged the court to hold that the only befitting answer to the issue so raised is in the Negative.
It is the argument of the Defendant that Exhibits 5A-5I, 6, 7, 8, 9A, 9B and 9C are public documents but were not certified hence they are inadmissible in law. Defendant relied on the case of Udom V Umana (No.1) (2016) 12 NWLR (Pt 1526) 189.
Defendant also argued that what happened on the 20/11/2011 was an incident which is an occurrence that does not involve an injury and cannot lead to explosion.
Defendant submitted that the Claimant who alleged to have sustained injury did not call an expert to give evidence on how he arrived at the Exhibits tendered or to corroborate his claim for disability or total hearing loss.
Defendant also cited the case of Kabo Air Ltd V Mohammed (2015) NWLR (Pt. 1451) 46 and submitted that the Claimant did not give the particulars of the negligence alleged.
Defendant further submitted that the Claimant must satisfy 3 conditions on preponderance of evidence to succeed in an action for negligence. The conditions are that the Defendant owes a duty of care, the duty of care was breached and the Claimant suffered damages arising from the breach.
On his part, the Claimant filed his final written address on 06/11/2018 and submitted a compound issue for determination as follows:
“Whether the Claimant has discharged the burden of proof required by law on the preponderance of evidence that he sustained injury in the course of his job while in the employment of the Defendant as a result of the explosion which occurred in the premises of the Defendant on 29th November 2011.”
Claimant cited the cases of C & C Construction Co. Ltd V Ohai (2003)18 NWLR Pt. 851)79 at 68, Strabag Const. (Nig) Ltd V Ogarekpe (1991) NWLR (Pt. 170) and submitted that an employer has a duty of care to protect the health, welfare and safety of its workers at work and where the worker sustains injury in a work related circumstance, the employer is liable to pay compensation to the worker. That the said duty of care owed the claimant by the Defendant was breached.
Claimant also submitted that a case of negligence was established against the Defendant and on definition of negligence relied on the case of UTB V Ozoemene V (2007) NWLR (Pt. 1022) 448.
The Claimant relied on the evidence and testimony placed before this Court during the hearing of this matter and urged that judgment be given in terms of his claim.
Defendant filed its reply on points of law on 10/12/2018 by a deeming order made on 2/5/2019 and reiterated four points already canvassed and in particular the admissibility of public document.
DECISION OF THE COURT
I have taken a look at the parties’ pleadings in this case, the documents admitted and the submissions of the counsel to the parties. It is obvious that this case is in respect of alleged injuries sustained by the Claimant at work.
While the claimant averred that on the 29/11/2011 at his work place in the course of his employment as a scaffolder, a high pressure Air pipe exploded which led to the permanent damage and destruction of his ear drum and brain tissue. But the Defendant contended that there was no explosion at the Defendant’s project site where the claimant worked. Rather that, the ball joint of the compressed air pulled out as a result of impact from the pipe.
Furthermore, claimant alleged that nobody in his team was given any ear protective equipment but the Defendant argued that all the scaffolders including the Claimant were wearing their safety gadgets. That, it is its policy that its staff would not be allowed to enter into the project site without putting on all the necessary safety gadgets. For short, the case is essentially founded on negligence.
Negligence is the omission to do something, which a reasonable man guided upon consideration which ordinarily regulates the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. It means lack of proper care and attention; careless behavior or conduct; a state of mind which is opposed to intention and the breach of a duty of care imposed by common law and statute resulting in damage to the complainant. It is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. It is also any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. See Kabo Air Limited v. Mohammed (2014) LPELR-23614(CA), Universal Trust Bank of Nigeria Plc v. Ozoemena (2007) 3 NWLR (Pt. 1022) 448, Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 and Diamond Bank Plc v. Partnership Investment Co Ltd (2009) 18 NWLR (Pt. 1172) 67. Nigerian Breweries Plc V David Audu (2009) LPELR – 8863(CA). Donoghue V Stevenson (1932) A. C. p562
For a Claimant to succeed in a case rooted in negligence, he must prove by cogent and credible evidence that the Defendant owes a duty of care to him, that the duty of care was breached and that he suffered damages arising from such breach. See Kabo Air Ltd V Mohammed (supra). SPDC Nigeria Limited v. Ikontia & Ors. (2010) LPELR-4910 (CA).
Whether the Defendant in this case owes a duty of care to the Claimant? The answer is yes. The contractual employment relationship between the Claimant and the Defendant shows that the Defendant owes the Claimant a duty to provide adequate plant, appliances, equipment and premises. It also owes the claimant a duty to provide a safe system of work, which is to ensure that the Claimant carries out his work in safe manner. See section 65 and 66 of the Labour Act. It is the law that an employer is under an obligation not only to provide safety devices but also to give strict instructions, followed by reasonable supervision. The duty of the Defendant to take care of safety of his employees is that of a reasonable man. Duty of care means taking reasonable care to avoid acts or omissions which one can reasonably for see would be likely to injure his neighbor. See Oliserv Ltd V L. A. I. & Co. (Nig.) Ltd. (2007) LPELR – 5149(CA).
It was held in Iyere V Bendel Feed and Flour Mill Ltd(2008) NWLR (Pt. 1119) 300 that the general requirement of the law where there exists a service relationship between employer and employee is that the former is under a duty to take reasonable care for the safety of the latter in all the circumstances of the case so as not to expose him to an unnecessary risk. And the level of this duty is the same as that of the employer’s common law duty of care in the law of negligence.
A duty of care is said to arise when two persons are so closely and directly related that the activities of one of them may involve an appreciable risk of injury to the other and such a close and direct relationship exists between an employer and his employee and thus an employer owes a duty of care to the employee. See Donoghue V Stevenson (supra).
It is important to add that, the employer’s duty extends to matters arising while the employee is coming to the place of work or leaving it. The duty is not confined to the actual performance of work, but also applies when the employee is doing something reasonably incidental to work.
In Davidson V Handley Page Ltd (1945) 1 All ER 235, “the plaintiff had gone to wash a tea-cup when she slipped on an oily dick-board and injured herself and it was held that “The obligation of the employer extends to cover all such acts as are normally and reasonably incidental to a man’s day’s work.”
Where an employee is doing his employer’s work, he does not cease to be acting in the course of his employment by the fact that he is working in a place where he is forbidden to go, even by statutory orders. Likewise, disobedience to orders does not necessarily mean that the workman has moved out of the course of the employment, even when he arrogates to himself duties which he is not employed to perform and is forbidden by statute to perform. See Kabo Air V Mohammed(supra).
Coming to the questions of whether the duty of care was breached and the Claimant suffered damages as a result of the breach. The Claimant averred that while in his place of work in the course of his employment carrying on his duty as a scaffolder, a high pressure Air pipe exploded within the Defendant’s premises directly to the point of the claimant`s duty post which resulted to his permanent damage and destruction of his ear drum and brain tissue. However, the Defendant argued that, it was not an explosion, but rather it was the ball joint of the compressed air that pulled out as a result of impact from the pipe.
Let me state here that it is not in contention that an incident took place at the Defendant’s plant on the 29th of November 2011, so regardless of whatever semantics one adopts in describing it, be it an incident or explosion, what is paramount is that there was faulty equipment on the work site which malfunctioned and the Claimant was affected hence he was with others immediately taken to the site clinic. DW1 under cross-examination admitted that the pulling out of the compressed air resulted from an impact from a pipe is not the usual occurrence in the Defendant’s business.
I find from the above that the incident that happened was not an ordinary and usual occurrence as the Defendant was trying to label it in its examination in chief. It is my opinion that the Defendant underestimated the incident. I find therefore that since the Employer bears the responsibility for injury sustained in the work place, then there was a duty of care which was breached by the Defendant.
In his bid to prove Injury, the Claimant maintained that after he was rushed to the Defendant’s clinic for first Aid, he was later referred to Binasco Clinic which is the retainer clinic of the Defendant. He spent 5 days there and later discharged upon the instructions of the Defendant. Claimant also met the site clinic Doctor and complained to him of the pains he was passing through where the Doctor (Ezekiel Ajayi) called the attention of the Scaffolding Superintendent to the clinic and read the medical report from Binasco clinic that the Claimant’s ear drum was badly affected and advised that the Claimant be referred to the University of Port Harcourt Teaching Hospital where specialist could take proper care of the claimant. It was then according to the claimant that the safety superintendent and DW1 indicated an intention to ensure that the Defendant take proper care of the claimant. Claimant further presented to the court Exhibit C3 which is a Doctor’s report from the cite clinic issued on 22/5/2012 suggesting that the Claimant should consult a specialist in ENT. Exhibit 8 was also a Medical Report revealing that the Claimant has a bilateral hearing loss. Exhibits 5A-5I are drugs deposit slips. While Exhibits 9B and 9C are Hearing Aid prescription form and Westend Hospital proforma invoice.
However, the Defendant with vehemence denied the above facts and stated that after being admitted at Binasco Clinic for some days, the claimant was treated properly, certified medically fit and discharged by the Doctor in charge of the said clinic. It was also the case of the Defendant that the Claimant did not complain of any pain to the Doctor in charge of Binasco Clinic nor to the Defendant at the time of his discharge. Defendant said on this, under cross-examination that Binasco clinic sent a Report to them for medical fitness of the claimant to resume duty. Although, Defendant challenged the admissibility of Exhibits 5A-5I, 6, 7, 8, 9A 9B and 9C for not being certified as public documents. I find that argument somewhat misleading. Exhibits 9A-9C are private documents issued by Westend Hospital, a private institution and thus need no any certification. While Exhibit 8 is the original document itself which does not need any certification too for it to be admissible in evidence. See sections 87, 88, 89, 90, 102 and 103 of the Evidence Act.
I find the evidence adduced by the Claimant stronger as against that of the Defendant especially in the face of Exhibits 3, 8, 9B and 9C which corroborate the evidence of the Claimant; I find that the Claimant has a bilateral hearing loss as suggested by Exhibit 8. Negligence, being a question of fact, has to be proved by oral, documentary or real evidence. The testimony of the Claimant and the Exhibits referred above are apt.
Defendant questioned the fact that the Claimant was not referred to University of Port Harcourt Teaching Hospital for treatment but it seems rather pedestrian to question where and how the claimant chooses to get help for his medical needs. It should not be taken for granted that right of access to health care is statutory. I have looked at Exhibits 3, 8 and Exhibit 9 series and I am satisfied that the Claimants health needs were genuine and the choice of the University of Port Harcourt Teaching Hospital cannot be faulted.
The Defendant’s contention that it received a report on medical fitness from Binasco Clinic to resume duty which was not produced by the Defendant sounds weak and lame. The Defendant contended that the Claimant was treated properly and confirmed medically fit by Binasco Clinic to resume duty as against Exhibit 3 and 8, but the Defendant did not bring the Doctor in charge of Binasco clinic or any medical document to prove that fact. It is the law that where a fact is especially within the knowledge of any person, the burden of proving that fact is upon him. See section 140 of the Evidence Act.
Having the claimant proved the ingredients of negligence, then the necessary consequence of a finding of negligence is liability in damages. And having considered the circumstances of the injury sustained by the Claimant in the course of his duties as an employee of the defendant, I hold without reservation that the Claimant has proved his case against the Defendant to be entitled to damages. For the cases that boarder on damages. See the unreported cases of this Court; Babatunde Ajala v. Rite Pak Company Limited Suit No: NICN/LA/432/2013 delivered on 28/1/2019 by Hon. Justice Kanyip PJ, Lagos and Onifade Timothy Oluwatoyin V Ibadan Electricity Distribution Company Plc & Anor Suit No. NICN/AB/08/2015 delivered on 19/3/2019 by Hon. Justice D. Peters, citing with approval also the following cases;
Arulogun v. COP Lagos & ors (2016) LPELR-40190(CA), M.N.L v. Nwachukwu (2004) LPELR-1526 (SC), UBA Plc v. Gostar Investment Co. Limited (2018) LPELR-(CA), OANDO Nigeria Plc v. Adijere West Africa Limited (2013) LPELR-20591(SC), SCC (Nig.) Ltd v. Elemadu [2005] 7 NWLR (Pt. 923) 84 to 85, Kenneth Ighosewe v. Delta Steel Co. Ltd [2007] LPELR-8577(CA), Ejisun v. Ajao [1975] 1 NMLR 4 at 7
Onogoruwa v. I.G.P. (1993) 5 NWLR (Pt.193) 593 and Kabo Air V Mohammed (supra).
On the whole, and for the avoidance of doubt, I find for the Claimant against the Defendant. The Claimant’s case succeeds and I accordingly make the following orders:
(1) The Defendant shall pay to the Claimant the sum of N 2,000,000.00 (Two Million Naira) only as damages for injury sustained in his ear drum which resulted to his bilateral hearing loss in the course of his employment on the 29/11/2011.
(2) The said Two Million shall be paid within 30 days from the date of this judgment, failing which it shall attract interest at 10% per annum.
Judgment is entered accordingly.
………………………………………………..
HON. JUSTICE S. H. DANJIDDA
JUDGE
