Mr. Peter James Ukpong -VS- CGCOC group of company Ltd

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE HIS LORDSHIP: HON. JUSTICE M. N. ESOWE

DATE: 24^TH JANUARY, 2020 SUIT NO:NICN/CA/24/2019

BETWEEN

MR PETER JAMES UKPONG ——- CLAIMANT

AND

CGCOC GROUP OF COMPANIES LIMITED ……… DEFENDANT

REPRESENTATIONS

EMMANUEL ETIETOP Esq. for the Claimant

No legal representation for the Defendant

JUDGMENT

INTRODUCTION

This suit was instituted by the Claimant vide a Complaint dated and filed 4^thJuly, 2019.

The reliefs sought by the Claimant are as follows:

AN ORDER for the Defendant to pay Fifty Million Naira (N50,000,000.00) only to the Claimant being general damages for the loss of amenities of life due to the severe damage of the Claimant’s left hand as a result of industrial accident due to the Defendant’s negligence

AN ORDER for the Defendant to pay Fifty Million Naira (N50,000,000.00) only to the Claimant being general damages for the pains and sufferings caused to the Claimant as a result of the Defendant’s negligence

AN ORDER directing the Defendant to redeploy the Claimant to a risk-free department and place him on commensurate salary remuneration and allowances with Defendant’s workers of his category
AN ORDER for the Defendant to pay One Million Naira (N1,000,000.00) only to the Claimant being special damages for the amount payable to Claimant’s solicitors for prosecuting this case.

SUMMARY OF FACTS

The Claimant, as can be gleaned from his Statement of Facts, was employed as a welder by the Defendant in 2017. His schedule was filling iron, construction of clips for panel, welding of channels, construction of shades with iron, construction of batten plant and other welding construction works. He was also assigned to other various sections where he carried out construction work as well as the carpentry section which is outside his field of training and profession. On the 19^th of January, 2018, while on duty and in the course of filling iron clips and filling iron to construct panels, the Claimant used his left hand and held the machine while he used his right hand to hold the iron. In the process of filling, a disc pulled off from the filling machine and hit his left hand and the disk severely damaged and cut deeply into his left hand disastrously. The Claimant alleged that he was never given workshop safety kits, to wit, hand gloves, helmet, safety shoes or safety guards toward off slip speed bolts of iron filling while in the filling process at work. Claimant also alleged that he became a victim of industrial accident as a result of gross negligence and substandard machines used by the Defendant.

It must be noted that Defendant never filed any process in response to the suit of the Claimant.

COMMENCEMENT OF HEARING

Hearing in this suit commenced on the 21^st of October, 2019 to which the Claimant testified as CW1 and tendered exhibits in support of his claim. In the interest of justice and fair hearing, the case was adjourned to 13^th November, 2019 for possible cross examination by the Defendant even though all along the Defendant has not be represented by any person be it legal representation or official representation from any of its personnel. Hearing notice was ordered to be served on the Defendant. The case was further adjourned to 4^th and 5^th of December, 2019. On the next adjourned date, there was no representation from the Defendant hence the defence was foreclosed and case adjourned for filing, exchange and adoption of final written address(s).

CLAIMANT’S FINAL WRITTEN ADDRESS

In Claimant’s final written address dated and filed 4^th December, 2019, Learned Counsel on behalf of Claimant formulated three (3) issues for determination, that is:

Whether the Defendant owed the Claimant duty of care

Whether the Defendant is in breach of duty of care

Whether the Claimant is entitled to damages for the breach

ARGUMENT

Learned Counsel to Claimant, while arguing all the issues together, submitted that under the labour law regime in Nigeria, the employer owes the employee duty of care and to exercise care or reasonable care for the employee’s health and safety. The breach of this attracts compensation. He relied on Smith V. Baker (1891) AC 325; Busai Ajao V. Nigerian Trading Co Ltd (1965) NMLR 176. He also relied on the decision of this Honourable Court in Ola Suleiman V. Hongzing Steel Company Limited (Unreported) Suit No NICN/LA/73/2011, delivered by Hon. Justice B.B Kanyip.

Learned Counsel submitted further that in the case herein, Claimant pleaded and adduced evidence that he was never given workshop safety kits, to wit, hand gloves, helmet, safety shoes, or safety guards to ward off slip speed bolts of iron filling while in the filling process at work. That the Claimant also pleaded and adduced evidence that he became a victim of industrial accident as a result of the gross negligence of the Defendant in purchasing substandard and defective machines which are dangerous and risky for workshop operations and constructional work.

It is the submission of Learned Counsel that based on the facts and evidence adduced in this case, the Defendant owed the Claimant a duty of care, the Defendant breached the duty of care and Claimant suffered injury as a result of the breach which now entitles him to damages.

COURT

Having gone through the case of the Claimant, evidence adduced and written submission of Learned Counsel to the Claimant, this Court has distilled a sole issue for determination, to wit:

Whether given the circumstances, the Defendant owed the Claimant duty of care; breached the said duty of care thereby causing injury to the Claimant capable of entitling him to remedy in damages.

Most times when there is injury at workplace, the defence of the employer is that the negligence leading to the injury is not his but that of the employee. In such a case, it behoves the employer to lead evidence that he provided all that was necessary to stop the occurrence of such accident or when such accident occurred, he provided all the tools and equipment needed by the employer to prevent such accident doing harm to him or mitigating the injury such accident may have done to him.

Under the common law, for a Claimant to succeed against the Defendant in negligence, he is required to prove the following:

That the Defendant owed him a duty of care
The duty of care was breached
The Claimant suffered damages as a result of the breach.

Under the common law regime, a task was placed on the Claimant to lead evidence on the duty of care owed him by the Defendant, how it was breached and how the Claimant suffered damages as a result of same. The inability of the Claimant to lead evidence in this sense was in most cases fatal to the case of the Claimant. However, under the present labour law regime, the issue of duty of care has been taken care by statutes and decided cases. Therefore, where a statute provides that the employer owes the employee a duty of care to the extent that he must keep the environment safe and conducive for the workers and that he must provide all the facilities needed, to wit, helmet, safety boots, hand gloves, .goggles etc to the workers, any neglect or failure to provide these is negligent on the part of the employer.

In most cases, whenever there is an injury and a claim is made as a result of the injury, the presumption is that the person whom the claim is made against owes the person claiming a duty of care and he was negligent in such duty of care. It is in this vein that in Osuji V. Nigerian Breweries Ltd (1972) 3E.C.S.L.R 763, negligence was presumed when a moving vehicle collided with the Plaintiff’s stationary vehicle in broad day light; in Bankole V. United American Co. Ltd (1939) 15NLR 41, negligence was presumed on the part of the Defendant who parked his vehicle at night without putting on the rear light; in Sanyalu V. Farinbe, (1978) 1 LRN 327, negligence was presumed on the part of the Defendant whose vehicle suddenly came from a side road and collided with the Plaintiff’s vehicle which was moving on the main road. Now, though it is a bitter pill to swallow by the employer, the truth is that whenever an employee sustains injury at workplace, unless the contrary is proved, there is a presumption that the employer did little or nothing to prevent such injury. This is the reason the Employees Compensation Act, 2010 makes no recourse to proof of duty of care owed the Claimant by the Defendant; how that duty was breached etc. Rather, it makes it compulsory for a worker to be compensated at all time whenever death or injury occurs in the course of duty. For the avoidance of doubt, Section 7 of the Employee’s Compensation Act, 2010 provides as follows:

Any employee, whether or not in a workplace, who suffers any disabling injury arising out of or in any course of employment shall be entitled to payment of compensation in accordance with Part IV of this Act
An employee is entitled to payment of compensation with respect to any accident sustained while on the way between the place of work and –
The employee’s principal or secondary residence
The place where the employee usually takes meals; or
The place where he usually takes remuneration, provided that the employer has prior notification of such place.

Any employer who does not want to bear the full financial burden of paying compensation to its injured worker(s) has the opportunity of keying into the insurance scheme of the Federal Government by paying 1% of the monthly salary of the worker(s) as premium to the National Insurance Trust Fund, NSITF (established by the Employees Compensation Act, 2010) so that in the event of accident at workplace, the insurance company, NSITF can take care of the claim of the injured worker. However, such employers who fail to key into NSITF should also be deemed to have the financial muscles to take care of any claim put forward by workers as compensation for injury suffered at workplace.

In Section 47 of the Factories Act CAP.F1 LFN 2004, it is provided thus:

Where in any factory workers are employed in any process involving excessive exposure to wet or to injurious or offensive substance, suitable protective clothing and appliances, including, where necessary, suitable gloves, footwear, goggles and head coverings, shall be provided and maintained for the use of such workers.

In the English case of Wilson & Clyde Coal Ltd V. English (1938)A.C 57¸an employee brought an action against his employer as a result of personal injury suffered as a result of an allegedly unsafe system of work. The Court stated that damages could be recovered in such instance. Lord Wright went further to state that “ …..this obligation is fulfilled by the exercise of due care and skill. But it is not fulfilled by entrusting its fulfilment to employees, even though selected with the care and skill. The obligation is threefold – the provision of a competent staff of men, adequate material and a proper system and effective supervision. From the case of Wilson & Clyde (supra), the implication is as follows:

The employer must ensure that the staff it employs to do the work are competent staff trained in the art of doing the work. In the event that the person engaged to do the work is not competent to do work, the employer will be liable for injury caused to himself and any other member of staff.
The employer must provide adequate material and tools for the staff to work including all the safety devices/tools needed by the staff. In the event that there is accident/injury arising from inadequate materials, tools and or safety devices, the employer will be held liable
Besides employing competent staff and providing adequate materials, tools and safety devices, the employer must ensure that there is proper supervision of its personnel and prudent venting of its machinery to avoid putting defective and obsolete machine to use which if put to use, will pose grievous bodily harm or death to its employee.

See also the case of Western Nigeria Trading Company Ltd V. Busari Ajao (1965) NMLR. 178 where Fatai William J (as then was) held that an employer is under an obligation not only to provide safety devices but also to give strict instructions followed by reasonable supervision.

In the case herein, the case of the Claimant is that the injury he suffered at the workplace was as a result of the fact that he was not given any safety gadgets by the Defendant. To my mind, it is another way of saying that had he been given safety gadgets, perhaps the injury would have been averted or would have been minimal. Another allegation by the Claimant is that the operational machine to which a disk fell off and injured the left hand of the Claimant is a substandard machine as the Defendant is renowned for the buying of defective machines. The trite law is that where an employer knows or ought to know that safety equipment or machinery provided are defective and so constitute a source of danger, he has a duty to remedy the defect. Also, an employer is under a duty to maintain plant and equipment in proper working condition. See Taylor V. Rover Co. Ltd (1966) 1 WLR 156.

Now, as earlier noted by this Court in the body of this judgment, when there is injury arising from workplace, there is always the presumption that the Defendant was negligent in his duty towards the Claimant. However, that is not to say that the Defendant cannot raise a valid defence, given certain circumstances. In the case herein, the Defendant did not put in any defence despite the various opportunities given her by the service of the originating process and hearing notices. Be that as it may, had the Defendant put in any defence, that would have offered the Court the opportunity of weighing evidence given by both parties in an imaginary scale and the party whose evidence preponderates wins. In the circumstances, while the Court may not be minded to believe everything the Claimant has said hook, line and sinker, the absence of defence by the Defendant has, however minimized the standard of proof required by the Claimant.

From the evidence adduced in this case, and from all that have been said above, this Court is satisfied that the Defendant owed the Claimant a duty of care to provide him with safety gadgets and to make the workplace safe for him, a duty which was breached by the Defendant in not providing safety gadgets nor making the workplace safe for the Claimant thereby leading to the accident of 19^th February, 2018 resulting to a grievous injury in the left hand of the Claimant as evidenced in Exhibit C8 which are photographs of the injury suffered by the Claimant, and I so hold. The trite law is that whenever there is an injury, there must be a remedy. In the instant case, being that there is an injury to the Claimant, there must also be damages commensurate with the nature of injury suffered by the Claimant, and I so hold.

I must pause here to say that is not as if we do not have laws taking care of injury at workplace and the need for employers of labour to do all that is necessary to ensure that the workplace is safe for its employees. However, what is notorious is that most employers have neglected/failed to provide the tools and facilities needed for a safe working environment either because the authorities empowered to sanction them have been compromised or the people/workers who suffer injury at workplace are so timid to enforce their right. The implication of this is that most employers of labour, whether national or multinational, no longer give a hoot whether or not they provide headgear, safety boots, goggles etc for their workers; they no longer give a hoot whether or not the machines they purchase are of standard quality; they no longer give a hoot whether the machinery used for work, the place of work and the environment is safe for bodies and lives of the employees. This lackadaisical attitude of the employers is dominant in the third world countries but minimal in the advanced countries. Be that as it may, the Courts of the third world are here to enforce the law without fear or favour and, just as the adage goes that the tortoise will not run until it sees hot water, so also the more people speak up and enforce their rights to compensation/damages, the more such employers/factory owners will be on their toe to obey the law and do all that is necessary to ensure the safety and wellbeing of the workers at the workplace so that injury/death can be avoided at the workplace. A person who goes out to work with his body, spirit and soul should come back with his body, spirit and soul. A man should not go to work and come back without his soul or a missing part from his body.

I have taken a keen look at the evidence adduced by the Claimant and after a careful appraisal of the employment status of the Claimant; what he earned as salary; the medical report from the hospital that treated him (Exhibit C4), the conclusion the Court can draw is that all is not over for the Claimant as he can still pick himself up and start a new life. The injury is not that that has rendered the Claimant permanently incapable of doing any other thing. Relying on Exhibit C4, the Claimant can still put his left hand to use provided he does not put the said left hand to prolong use with a vibrating machine. Having put all of these into consideration and given the fact that the right hand of the Claimant is still functional irrespective of the scar now on the left hand, this Court is minded not to grant N50,000,000.00 as claimed by the Claimant but N5,000,000.00 (Five Million Naira) as damages, and I so hold. It must be noted that this sum awarded takes care of relief 1 and 2 as it would amount to double jeopardy for the Court to award damages in relief 1 and award another damages in relief 2. See generally the case of Makinde V. Omaghomi (2011) All FWLR (Pt.578) 989 @1004, Para. C-D where the Court heard as follows:

….once a party has been fully compensated for the loss or harm suffered by him, it should not be open to the Court to proceed to award him any other kind of additional damages that may look like a bonus.

On relief 3, this Court wishes to state that parties are bound by their pleadings and relief sought should flow from the facts pleaded in the pleadings. From the pleadings of the Claimant, it is hard for the Court to decipher if the Claimant is still in the employment of the Defendant; if he is still working in the department where he used to work before the accident or whether he is no longer working with the Defendant. Given the fact that Claimant was not clear on all of the foregoing in his pleadings, the Court cannot speculate on this nor can it give any order as to having the Claimant redeployed to a risk free department, and I so hold. Consequently, relief 3 is bound to fail.

On relief 4, this Court wishes to state that the business of solicitor’s fees is the business of the solicitor and his client – it is not the business of the Court what a solicitor charged as his fees or what he was paid by his client. It is outlandish for the Court to grant the Claimant what he paid his solicitor as fees. However, the Court is always enjoined to award cost to a successful party who comported and conducted himself well throughout the trial of the case. In this sense, this Court is minded to grant the Claimant the sum of N100,000.00 (One Hundred Thousand Naira) not as solicitor’s fees but as cost.

From all that have been said above, the case of the Claimant succeeds as follows:

CLAIM 1 Succeeds only to the extent that the Defendant shall pay the Claimant the sum of N5,000,000.00 (Five Million Naira) as general damages

CLAIM 2 Fails to the extent that the success of Claim one has subsumed Claim 2

CLAIM 3 Fails

CLAIM 4 Succeeds only to the extent that the Court awards the Claimant the sum of N100,000.00 (One Hundred Thousand Naira) as cost.

For the avoidance of doubt, the order/declaration(s) of the Court are as follows:

THE COURT HEREBY ORDERS the Defendant to pay the Claimant the sum of Five Million Naira (N5,000,000.00) only being general damages for the loss of amenities of life due to the severe damage of the Claimant’s left hand as a result of industrial accident due to the Defendant’s negligence