IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS
DATE: MARCH 15, 2018
SUIT NO: NICN/LA/165/2016
BETWEEN
Mrs. Callista Onouha – Claimant
AND
Lorna Nigeria Limited – Defendant
REPRESENTATION
M.C. Bolowotan with A.A Djetore for the Claimant.
A.O. Fayemiwo with Dare Akinyosoye & Abisola Epoyon for the Defendant.
JUDGMENT
- Introduction & Claims
On 9/3/16, the Claimant approached this Court via her General Form of Complaint & statement of facts and sought the following reliefs –
- The sum of =N=20,000,000.00 (Twenty Million Naira Only) being general damages for the injuries sustained by the Claimant in the course of serving the Defendant which injuries were occasioned by non-provision of protective materials for the Claimant and the life-time treatment of the claimant left eye.
- Cost of this action.
The processes filed by the Claimant included list of witness, witness statement on oath, list and copies of documents to be relied on at trial. On 2/6/16, the Defendant filed its statement of defence along with all requisite front loaded processes.
- Case of the Claimant
The hearing of this case commenced on 8/2/17. On that day, the Claimant opened her case and testified as CW1, adopted her written witness deposition dated 9/3/16 as her evidence in chief and tendered 7 documents as exhibits. The 7 documents tendered were admitted in evidence and marked as Exh. C1 – Exh. C7.
The case of the Claimant as revealed by her pleadings and evidence led is that she was employed by the Defendant virtue of a contract of Agreement dated 1/11/13; that she had earlier worked for the Defendant for close to 26 years, voluntarily retired and was recalled by the Defendant on contract Agreement; that by virtue of the contract she was employed as an Assistant Production Manager to mix the chemical for the production of Weavon together with the Factory Manager; that on the 14/11/13 while was carrying on her duty mixing the chemicals together for production of Weavon of that day the chemical splashed on her left eye; that she reported the incident to the Factory Production Manager who referred her to the General Production Manager and also the Human Resources Manager both who declined to authorize her to visit the Company’s clinic which is in compliance with the terms of her contract; that she decided on her own to attend private hospital to ameliorate the pain she was passing through in my left eye; that she was not referred to any hospital for treatment by the Defendant until the condition of her eye became critical; that she was then referred to Ikeja New Hospital where she was treated but no improvement; that after much complain, she was referred to Ikeja New Hospital to Tarib Eye Clinic where she got a report from the Doctor that she would be placed on treatment throughout her life time; that she has been visiting hospital on monthly basis with still no permanent cure for the left eye; that she demanded for protective measures to protect herself from the hazard of the chemical but was told it would be given to her but the Defendant never did, but kept procrastinating; that she continued demanding for the protective measures severally, but to no avail until the incident occurred. It is also part of the case of the Claimant that the test run on the eye so far attest to the fact that there is a Foreign Body Sensation in her left eye; that she demanded orally for the proper treatment of her eye from the Defendant to no avail; that she therefore wrote letters dated 20/10/14 and 10/11/14 complaining and demanding for the proper treatment of her eye, which the Defendant neither responded to nor carried out her request and that she eventually sought the intervention of a Legal Practitioner.
Under cross examination, the CW1 stated that her case is that chemical splash into her face while working with and for Defendant in November 2013; that she reported the incident to 3 staff of Defendant they did nothing; that she went to an hospital on her own on that day and was attended to immediately at an Ikorodu Clinic; that the name of the Clinic is J.K. Clinic; that she does not how far it is to her house; that the Clinic is in Ikorodu; that she paid some money for the treatment but was not given any receipt; that she had the card of the clinic; that she did not know if there was any record at the clinic; that she did not procure Medical Report from J.K Clinic because the situation with her eye was not serious then; that she did not attend Defendant’s clinic at Defendant premises because she was not allowed to do so; that she was Assistant Production Manager with Defendant; that she had referred workers of Defendant to Defendant’s clinic before; that she could not attend the Defendant’s clinic because she had to procure the authority of the Management; that the Management did not authorize or allow her to go; that when her eye was filled with blood it was then she was authorized to attend the clinic; that she submitted the authorization to the Doctor at the clinic; that the authorization was signed by Mr. Usman Mohammed; that the Defendant did not provide any protective gear for her; that she mixed the chemical with bear hands; that she started mixing chemicals sometimes in 2012; that she knew it was injurious to mix chemical with hands but Defendant did not provide what was needed; that she made a demand for protective gear but was not given to her; that she did not resign from the employment because as a widow she needed to take care of her children; that she left Defendant in 2015 when it refused to renew her contract employment and that she could not have refused to mix chemical with her hands because of the prevailing rule at the Defendant against such refusal.
- Case of the Defendant
The Defendant opened its defence on 24/5/17 when its witness testified in chief, adopted his witness deposition dated 11/4/16 as his evidence in chief and tendered 12 documents. The 12 documents were admitted in evidence and marked as Exh. D1 – Exh. D12.
The case of the Defendant as garnered from its pleadings and evidence led is that by a Contract Agreement dated 1/11/13 following the retirement of the Claimant, it engaged the Claimant for a period of one year as Assistant Production Manager; that the Contract Agreement spelled out the conditions of the engagement of the Claimant as a contract staff with the Defendant; that Contract Agreement provides inter-alia at Clause 7 thus -“You will also be entitled to free Medical treatment at the Factory clinic when the need arises after authorization from the Management”; that there was no reported accident of chemical splash into the eye of the Claimant in or about the 14/11/13 or any accident at all at the Defendant’s factory; that contrary to the position of the Claimant, the Claimant did not report any incident or accident or chemical splash or any incident at all, to the Factory Production Manager and the Factory Production Manager did not refer the Claimant to the General Factory Manager for reference to the Defendant’s clinic or hospital, as the alleged accident did not happen; that the Claimant did not report any accident or incident to the Human Resources Manager’s Office in November 2013; that the Claimant attended the Defendant’s factory clinic in February 2014 for the first time, to complain of eye problem i.e. about four (4) months after the alleged accident and was referred by the Clinic to New Ikeja Hospital, being the Defendant’s retained hospital on the 6/2/14 for treatment; that any complaint of ill health by an employee is first reported to Supervisor, then to Sectional Manager, to sign “Clinic Form” authorizing such sick employee to attend factory clinic; where the treatment at the Factory clinic does not suffice, the employee is then referred to the Defendant retained hospital; that an accident of the nature alleged by the Claimant would have been treated as an emergency, in which case, the Claimant would have been rushed to the Factory clinic for immediate first aid treatment to stabilize her condition before conveyance to the Defendant’s retained hospital; that for an Assistant Manager like the Claimant, who is authorized to sign “Clinic Forms” for junior employees to attend the factory clinic; if there was an accident of chemical splash into her eye as she claimed, she should have immediately visited the Factory clinic and if need be referred to the Defendant’s retained hospital, which she did not do in this case; that the Claimant was treated in February 2014 and thereafter diagnosed as having Dry Eye Syndrome (DES) which condition can be caused inter-alia by poor production of tears by the tear glands as a result of age, hormonal changes, or various autoimmune diseases, such as primary sjogren syndrome, rheumatoid arthritis, or lupus; that the Defendant’s employees are provided with different safety protective measures made up of eye goggles, hand gloves, aprons, nose masks, ear plugs and safety foot wears as Personal Protective Equipment (PPE) especially in sections where chemicals substances are mixed or handled; that the Sectional Manager and his team of Assistant Managers, (of which the Claimant was one), Supervisors and General Supervisors ensure that workers use the Personal Protective Equipment (PPE) by enforcing, compliance and only Sectional Manager, Assistant Manager (Claimant) or General Supervisors are allowed to mix chemicals.
It is the case of the Defendant in the alternative the Claimant was grossly negligent not to have used the Personal Protective Equipment (PPE) thereby allowing chemical to splash to her left eye for failure to use the eye goggles provided for her use and protection; that Chemicals could only have splashed into the eyes of the Claimant because of failure to wear the eye goggle provided by the Defendant; that the Claimant has been mixing same chemical for over 20 years of employment before retirement and therefore knows the rules and regulations; that the Claimant only complained of “a case of industrial accident” to the Defendant when the Defendant told the Claimant that her Contract of Engagement will not be renewed in October 2014 in order to compel the Defendant to renew her contract from November 2014 – October 2015 and that the Defendant renewed the Claimant’s contract from November 2014 – October 2015 but refused to renew it again at the expiration in October 2015 when the contract expired.
Under cross examination DW1 testified that it is true that Claimant was recalled after she voluntarily retired from Defendant Company; that the Claimant would not have been recalled if she had not served meritoriously; that the Claimant was recalled as Assistant Production Manager; that the Claimant was known in the Clinic as Assistant Production Manager; that a staff attending Clinic would produce Clinic Form duly signed by the officer in charge; that if Claimant attended the Clinic without duly signed Form she would not be attended to except in cases of emergency; that a person experiencing pain may not be able to fill any form or write anything; that Claimant’s employment might have been terminated if she had absented herself from work for 3 to 4 days consecutively without reason known to the Management of Defendant; that at the expiration of Claimant’s contract of service, the Defendant elected not to renew same; that there was only one extension of the contract after which no more extension; that he did not claim to be a Medical Doctor or with knowledge in medicine; that with eye goggles, water or chemical cannot enter the eyes of employees; that the Defendant spent some money in treating the Claimant when it became aware of her situation; that the Defendant would always attend to any complaint requiring medical attention by the staff; that he does not agree that the incident in this case happened while Claimant was on contract employment with Defendant; that he has been with Defendant for about 8 years; that the Defendant pays medical bills sent by the Clinic for services rendered to staff; that it is not possible that only one staff would attend the Clinic in a whole year and that Exh. D8 was issued to formalize the contract for which no letter of extension was issued before.
At the conclusion of trial, the Court directed learned Counsel on either side to file their final written addresses in accordance with the Rules of this Court.
- Submission on Behalf of the Defendant
The final written address of the Defendant was filed on 16/10/17. In it learned Counsel set down 2 issues for determination as follows –
- Whether or not on the preponderance of evidence, the Claimant has proved that she was involved in an industrial accident.
- Whether or not the Claimant will sustain a claim of general damages where there are no special damages claimed and/or proved.
Arguing issue 1, learned Counsel submitted, having reviewed the testimony of the Claimant under cross examination, that the Claimant failed to show any proof that she attended JK Clinic in Ikorodu as she claimed and that she did not show any evidence of how much she paid for medical expenses at the Clinic stating that the Claimant has a duty to prove the existence of those facts citing Federal Mortgage Finance Limited v. Ekpo (2005) All FWLR (Pt. 248) 1667 at 1681 & Adedeji v. Oloso (2007)3 MJSC (Pt. 56) 63 at 93. Learned Counsel further submitted that there is no medical report from the said JK Clinic and that there is no evidence of any staff of the Defendant to confirm that an accident happened on 14/11/13 involving the Claimant and that the absence of any evidence put the Court in situation to speculate or assume that accident happened to the Claimant and that the Court is not allowed to speculate citing Orhue v. NEPA (1988)7 NWLR (Pt. 105) 494. Counsel submitted that the Claimant has failed to prove that a duty of care is owed to him by the Defendant, that there is a breach of the duty of care and that she suffered damage as a result of the breach citing Kaydee Ventures Limited v. Hon. Minister of FCT (2010)1-2 MJSC (Pt. 129) 137. Learned Counsel prayed the Court to resolve this issue in favor of the Defendant.
On issue 2, learned Counsel submitted that the claim for damages lacks merit being an afterthought raised to secure another contract of employment; that the Claimant simply made a claim for =N=20, 000,000.00 without placing any evidence in support of her claim that she has been receiving treatment for the eye on a monthly basis; that there was no receipt of payments and no medical report and that at best the claim is merely speculative citing Eneh v. Ozor (2016)16 NWLR (Pt. 219) 223 at 236. Learned Counsel prayed the Court to resolve this issue also in favor of the Defendant and dismiss the case of the Claimant in its entirety.
- Submissions on Behalf of the Claimant
The final written address of the Claimant was filed on 8/11/17. In it, learned Counsel set down the following 3 issues for determination –
- Whether or not chemical spilled into the eye of the Claimant in the course of working for the Defendant on the 14th day of November, 2013 or at all.
- Whether or not the Claimant was provided with protective materials by the Defendant which could have prevented such injuries suffered by the Claimant or the injuries occurred as result of Claimant’s negligence.
- Whether or not the Defendant acted swiftly and appropriately in dealing with the injuries sustained by the Claimant.
On issue 1, Counsel submitted that the Claimant maintained her position under cross examination that she was not allowed to attend the Defendant’s clinic; that the evidence of the Claimant as to the date of the incident and the fact that the incident occurred on 14/11/13 was not discredited under cross examination. Counsel prayed the Court to resolve this issue in favor of the Claimant.
Issue 2 is whether or not the Claimant was provided with protective materials by the Defendant which could have prevented such injuries suffered by the Claimant or the injuries occurred as a result of negligence. On this learned Counsel submitted that nowhere in the statement of defence did the Defendant specifically pleaded that all those protective materials mentioned in paragraph 14 of the statement of facts were given to the Claimant; that cases of parties are erected by pleadings and are bound by same citing Oladipupo v. Moba LGA (2010)5 NWLR (Pt. 1186) 117; that this omission is fatal to the case of the Defendant and that the failure of the Defendant to tender any protective equipment means that it does not have any. Counsel urged the Court to hold that the entire Exh. D11 as tendered by the Defendant are worthless documents carrying no evidential value.
On issue 3, learned Counsel submitted that the Claimant testified that she reported the incident to the appropriate officers of the Defendant who declined to authorise her to proceed to the Clinic for treatment and that she was allowed to go to the Clinic after her condition had deteriorated; the Defendant acted after persistent pressures from the Claimant and that the failure of the Defendant to act immediately resulted in permanent incapacitation of the Claimant’s left eye as indicated by Exh. C3. Counsel urged the Court to hold that the Claimant has successfully proved her case to be entitled to Judgment.
- Decision
I have read and understood all the processes filed by learned Counsel on either side of this case. I heard the oral testimonies of the witnesses called at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. Having done this, I narrow the issue for the just determination of this case down to be as follows –
Whether the Claimant has proved her case to be entitled to any or all the reliefs sought.
The facts of this case appears very simple to me. I garner from the pleadings filed and evidence led that the Claimant was an employee of the Defendant for many years before she retired; that after retirement she was offered a contract employment renewable every year; that her main duty was mixing of chemicals for the Defendant; that in the course of performing that duty chemicals splashed on her face injuring her left eye and that she approached this Court for damages as a result of that injury sustained in the course of her work with the Defendant. Part of her argument is that she was not provided with protective gears against chemicals and that the Defendant did not allow her to use its medical facility on time which led to deterioration of the condition of the left eye. My understanding of the case of the Claimant is that it is one founded essentially on negligence of the Defendant. What then is negligence? What does a Claimant need to prove in order to succeed for an award of damages in negligence? In Kabo Air Limited v. Mohammed (2014) LPELR-23614(CA), Abiru JCA took time out to espouse on what is meant by negligence in the following words –
” … Now, negligence is the omission to do something, which a reasonable man guided upon those considerations that ordinarily regulate 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. Negligence 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 – 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.”
Negligence is said to a fluid principle, which has to be applied to the most diverse conditions and problems of human life. See Ojo v. Ghahoro & ors (2006) LPELR-2383 per Ogbuagu JSC. Negligence is a question of fact not law. Therefore each case must be decided in the light of its own facts and circumstances. The facts of a case bordering on negligence must be proved by the person who asserts same. This is in tandem with the age-long established principle of law that he who asserts must prove the assertion. See Okorie v. Unakalamba (2013) LPELR-22508 (CA).Therefore failure to prove particulars of negligence pleaded is fatal to the plaintiffs case Alhaji Otaru and Sons Ltd vs Idris (1999) 6 NWLR (Pt 606) 330.In a case of this nature, that a case founded on negligence, in order for a Claimant to succeed, this Claimant must prove the following -(a) that the defendant owed a duty of care to the Claimant; (b) that the duty of care was breached and (c) that the plaintiff suffered damages arising from such breach. See SPDC Nigeria Limited v. Ikontia & Ors. (2010) LPELR-4910 (CA). It is imperative to bear in mind that a mere occurrence of an accident is not a proof of negligence. Negligence is also not proved simply because a party sustains an injury in the course of his employment. Thus, where there is duty of care and that duty is breached without an injury sustained there will be no award of damages. Secondly, where there is no duty of care but a party sustains an injury, no damages will lie for negligence. Thirdly, where there is no duty of care and accident occurs leading to injury the Court will not intervene to award damages. The point has earlier been made that negligence is a question of fact to be proved. The proof required is by cogent, credible and admissible evidence. A party seeking damages in negligence must prove the 3 identified elements of negligence. He must prove the existence of a duty of care. He must prove the breach of that duty of care. He must also prove the damage resulting from the breach of the duty of care owed. The circumstances leading to the accident, the nature and extent of the accident must be pleaded and cogent evidence adduced in support. It is then that the Court will be able to determine whether partially or wholly, either the Claimant or the Defendant, caused the accident. See Abubakar & Anor. v. Joseph (2008) LPELR-48 (SC). I have taken time in setting out the law on negligence so as to prepare ground for the next enquiry which whether the Claimant in this case has discharged the burden of proof on her to be entitled to a positive disposition by this Court.
Does the Defendant owe the Claimant any duty of care? The fact that the Claimant was an employee of the Defendant was not disputed by either side. It is also not challenged the fact that the Claimant sustained the injury in this case in the course of the discharge of his duties as an employee of the Defendant. These unchallenged facts go to establish the simple fact of existence of employer/employee relationship between the parties, at least prior to the occurrence of the accident leading to the institution of this case. The existence of employment relationship, even at Common Law, imposes a duty of care on the employer respecting his employees. The Court of Appeal in Kabo Air Limited v. Mohammed (2014)LPELR-23614(CA) reiterated the position thus –
“…it is settled law that it is the duty of an employer, acting personally or through his servants or agents, to take reasonable care for the safety of his workmen and other employees in the course of their employment. This duty extends in particular to the safety of the place of work, the plant and machinery and the method and conduct of work”.
The Court, while noting that the duty of care of an employer to the employee is not restricted to the matters stated, further approved Judgment of Lord Wright in Wilsons and Clyde Coal Co. Ltd v. English (1938) AC 57 at 84 that –
“The whole course of authority consistently recognizes a duty which rests on the employer, and which is personal to the employer, to take reasonable care of the safety of his workmen, whether the employer be an individual, a firm or a company, and whether or not the employer takes any share in the conduct of the operations.”
It suffices from the pleadings of the parties and the unchallenged evidence led to hold that the Defendant as the employer of the Claimant owed the Claimant a duty of care.
Has the Claimant proved the second element of negligence which is that the duty of care owed was breached? It is not sufficient that there exists a duty of care owed by the Defendant to the Claimant to be entitled to award of damages. The Claimant is under an obligation to prove that the Defendant breached that duty of care. The mere occurrence of an accident is not enough to make a claim for damages. The accident must be linked to the fault or failings of the Defendant. See Avon Crown Caps & Containers Nig. Limited v. Bamigboye (2005)17 NWLR (Pt. 954) 275. The evidence led by the Claimant is that chemical splashed on her eyes while mixing same; that the Defendant did not provide her with a protective wear; that she sustained injury; that she reported the accident to two officers of the Defendant who refused her to go to the Clinic; that she attended a Clinic in Ikorodu and that the injury sustained on her left eye is of a permanent nature. I have the evidence of the Claimant in chief to the effect that she worked for the Defendant for 26 years before she retired before she was recalled and given contract employment.
The accident in this case was alleged to have occurred on 14/11/13. Although the Claimant asserted that she reported same to the Defendant on the day of the incident, I find no evidence in support of that assertion before me. Indeed, the first time such report would appear to have been made was 20/10/14 almost one year after the alleged incident, by Exh. C4 – a letter written by the Claimant to the Group Human Resources of the Defendant. In that exhibit, the Claimant had stated thus –
”This is to inform you that i was asked to sign off my termination letter from Mrs. Ngozi Onyejelem your HR manager.
However I want to draw your attention to the fact that up till now, I cannot see very well with my eyes as a result of the chemical that splashed into my eyes while at work.
And when this incident happened I reported to my direct boss Hassan to Ali Naziem and Usman, and I was not allowed to see the doctor immediately not until when my eyes were filled with blood that your HR manager in charge of the factory authorised me to go to the Clinic after some months.
My stand now is, now that am being asked to go home, what becomes of my eyes because uptill today I cannot see very well ever with the glasses that was given to me from the hospital.
I will stop here until I hear from you”.
The contents of this exhibit raise a couple of questions. It is, for instant, amazing that there was no official record of an industrial accident in the Defendant until almost one year of its occurrence. It is also worrisome that the Claimant elected not to call any of her colleagues at work to attest to the fact of the accident and the injury sustained. Claimant alleged to have attended JK Clinic in Ikorodu yet there is no evidence on record safe the testimony of the Claimant. Not even a card to evidence her attendance or a receipt of payment of some fees for being attended to. Perhaps also not of less importance is the fact that a Medical Report tendered Exh. C3 dated 1/12/15 was to effect that the Claimant was ” … a registered patient of our clinic who was seen on 24th November, 2015”. Again, this was about 2 years after the alleged industrial accident and eventual injury.
It is trite that a Defendant to a suit may elect not to defend same. The Court cannot and will not compel a party to defend a suit against it. See Anthony Okeke v. Petmag Nigeria Limited (2004) LPELR-7328(CA). Secondly, a Defendant to a suit is allowed to merely fold its hands and wait for the Claimant as in this case, to discharge the burden of proof placed on him. Notwithstanding all this, I have the unchallenged evidence of the Defendant to the effect that Chemicals could only have splashed into the eyes of the Claimant because of failure to wear the eye goggle provided by the Defendant and that the Claimant has been mixing same chemical for over 20 years of employment before retirement and therefore knows the rules and regulations. I note and reviewed Exh. D6 in which a Mr. Hazzan stated that he was never approached by the Claimant for permission to attend the Clinic and Exh. D7 which contained an assertion that the Claimant as a Manager does not require permission of anyone to attend the Clinic. Besides, Exh. D11 which showed staff of the Defendant using protective gears such as hand gloves, protective clothing and protective eyes goggles were not successfully challenged before me. I find no proof of the alleged breach of duty of care owed by the Defendant to the Claimant. The evidence led by the Claimant did not support the proof of this element of negligence. The law is that for a proof of negligence all the elements associated with same must be proved by the Claimant. See Adeta v. Nigerian Army (2016) All FWLR (pt. 855) pg 179 at 207 para E-H and Des-Dokubo v. Nigerian Army (2015) LPELR – 25969 (CA). Having found that the Claimant did not discharge burden of proof respecting this element this Court has no choice than to hold that the Claimant has failed to prove her case to warrant a positive disposition in her favor. I so found and held.
Finally, for the avoidance of doubt and for all the reasons as stated in this Judgment, the case of the Claimant is dismissed for lack of proof as required by law. I make no order as to cost.
Judgment is entered accordingly.
__________________
Hon. Justice J. D. Peters
Presiding Judge
