IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

 

BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS

 

DATE:  10^TH MAY 2018                                            SUITNO: NICN/LA/43/2016

BETWEEN:

 

MR. FRANK NNAMDI---------------CLAIMANT

 

AND

 

LEOPLAST INDUSTRY LIMITED-------------DEFENDANT

 

JUDGMENT

1.        Introduction & Claims

The Claimant approached this Court by his Complaint and statement of facts both dated 28/1/16 and the Defendant entered an appearance and filed a statement of defence on 2/3/16 and by his amended statement of facts sought the following reliefs from this Court -

1.        An order compelling the Defendant to immediately pay the Claimant, the sum of             =N=10,000,000.00 (Ten Million Naira Only) as insurance claim and Financial             compensation as a result of the poor factory safety environment and procedures for             the industrial accident which occurred on the 15/11/13 that led to the amputation of his entire five fingers on his right hand during the Claimant             schedule of duties as a machine operator at the Defendant factory at Plot 2E Block A Oshodi Industrial Layout Scheme, Osolo way, Aswani, Lagos State or in the           Alternative in accordance with the provisions of the Employee Compensation Act, 2010, Factory Act, Cap F1, Lagos State Disability Law, 2011.

2.        An order compelling the Defendant to pay the sum of =N=137,000.00k (One Hundred and Thirty-Seven Thousand Naira Only) to the Claimant as the Terminal            Benefits in accordance with the Defendant employment Hand book and guidelines             governing employment of staff.

3.        An Order praying for Special and General damages to the Claimant against the             Defendant in the sum of =N=5,000,000.00k (Five Million Naira Only) against the             Defendant on ground of the trauma and pains of disabilities due to the result of the             poor factory safety          environment and procedures for the industrial accident which             occurred on the 15/11/13 that led to the amputation of his five fingers on his right             hand during the Claimant schedule of duties as a Machine Operator at the             Defendant factory at Plot 2E Block A Oshodi Industrial Layout Scheme, Osolo way, Aswani, Lagos State.

 

The Claimant accompanied his Complaint & Statement of Facts with witness statement on oath, list of witness, list and copies of documents to be relied on at trial. The Defendant entered an appearance on 2/3/16 and filed its statement of defence together with all the requisite frontloaded processes.

 

2. Case of the Claimant

The Claimant opened his case on 25/10/17 and testified as CW1. DW1 adopted his witness deposition dated 1/6/16 as his evidence in chief and tendered 4 exhibits. The exhibits were admitted in evidence and marked as Exh. C1 - Exh. C4.

 

The case of the Claimant as revealed from his evidence in chief is that that he was employed as a Machine Operator by the Defendant and his employment was confirmed on the 28th April 2014; that on the 15th of November, 2013 while on duties at the Defendant premises the Claimant sustained an injury that resulted in the damage and amputation of his five right hand fingers; that the accident occurred while the Claimant was operating the Defendant production machine; that the accident could have been avoided if the Defendant had taken precautionary measures by providing protective hand gloves for the Claimant; that the Defendant machine had been faulty for a long time and the Defendant neglected to repair the machine despite several complaints to the Defendant supervisor; that two of his colleagues had experienced a similar industrial accident in the Defendant premises at Plot 2E Block A Oshodi Industrial Scheme Osolo way, Aswani Lagos State; that he bled profusely after the accident before he was taken to Ago Medical Centre by the Defendant, where he received treatment and was hospitalized from the 15/11/13 to 14/2/14; that the he was discharged from the hospital on the 14/2/14; that the loss of his fingers was due to the poor safety standard and procedure of the Defendant; that the production of the Defendant product is in different stages of production and as such the Defendant ought to protect his employee from unreasonable risks; that by reason of the Defendant’s poor safety procedures he suffered damages and is unable to do basic things like washing, handling knife, writing and a host of other things without experiencing intense discomfort and that the right hand fingers were the most active fingers; that he would have to learn how to use his left hand fingers for day to day living a task in which the Claimant is adapting to gradually.

 

Under cross examination CW1 stated that he completed Secondary School education; that he could read and write; that the Defendant instructed him on how to use the machines in its factory; that the function of industrial cutting machine is to cut; that when the machine cuts its functions properly; that he has never seen any industrial graded glove before or at the Defendant; that he was in the hospital for about 3 months; that he did not pay medical bills while at the hospital; that the Defendant paid the medical bill; that he received a cheque in the sum of =N=355,387.50 from Defendant; that the Defendant told him the money was for his hand; that he signed a document when he received the cheque; that he did not read it; that he was just told to sign the document; that while he was hospitalized his salary was being paid; that he did not sign any terms of settlement in February 2016 and that he was not allowed to read any of the documents he signed.

 

One Abayomi Oyedeji who testified as CW2 adopted his witness statement on oath dated 11/5/16 as his evidence in chief. He did not tender any exhibit. The core of the evidence of this witness is that he was an employee of the Defendant; that he was formerly operating machine at the Defendant but that on 17/12/08 he was involved in serious industrial accident which led to severe instrumentation crushed injury and compound fracture and total disability of his right wrist with medical amputation of his index finger of his right hand and that he witnesses the accident involving the Claimant. Under cross examination CW2 testified that he was in the employment of Defendant on the day of the incident; that he stopped working in December 2016; that he was operating machine before he became a Cleaner because he had industrial accident while working with Defendant; that he was on duty as a Cleaner; that he witnessed what happened to the Claimant; that the incident was at about 9.00 am; that he was cleaning the Production Unit where the accident happened at the time and that he saw everything that happened.

 

Idowu Adeyinka testified as DW3. The witness adopted his witness statement dated 11/5/16 as his evidence in chief. The core of the evidence of this witness is that he was a former employee of the Defendant; that on 6/2/08 while operating the industrial cutting machine of the Defendant he sustained a serious industrial accident which led to the amputation of four fingers on his left hand; that the Defendant was used to buying obsolete and faulty Plastic cutting machines for its employees; that the Defendant was always subjecting its employees to poor workplace and industrial safety standard and that several employees of the Defendant have had their fingers and hands totally disfigured and disabled by the huge industrial machines of the Defendant to the knowledge of the Management of the Defendant. Under cross examination, the witness stated that he stopped working for Defendant in December 2015; that he witnessed the accident leading to this case; that it happened in his presence and that he knew how the incident happened.

 

3.        Case of the Defendant

On 27/11/17, the Defendant commenced its defence and called one Rowland Olusegun as its lone witness. DW1 adopted his witness statement on oath dated 8/11/17 and tendered 9 documents as exhibits. The documents were admitted in evidence without objection and marked as Exh. RO1-Exh. RO9. The case of the Claimant, in brief is that it gave the Claimant adequate instruction regarding the functions of the machines as well adequate safety gears; that the accident which resulted to the Claimant on 15/11/13 was due to improper use of the machine by the Claimant; that the Claimant was negligent in the course of his duties and that it paid the hospital bills of the Claimant as well as gave him compensation. Under cross examination, the witness testified that he joined Defendant in October 2017; that he has not witnessed any industrial accident at the Defendant since joined but that he has record of industrial accidents; that Defendant addressed issue of industrial accident through training and protective gears; that staff are trained regularly at Defendant; that the duration of training varies with the nature of training and machines; that in 2013 Defendant was located in Lagos and that he did not see the Claimant fiddle with the machine.

 

4.        Final Written Addresses & Reply Address

At the conclusion of trial, the Court directed the learned Counsel on either to file their final written addresses in accordance with the Rules of Court. In his 25-page final written address filed on 12/1/18, learned Counsel to the Defendant submitted 3 issues for determination as follows - 1. Whether the Claimant is lawfully bound by signed the accident settlement agreement form (Final Payment and Release of Liability) – Exhibit RO5, 2. Whether the Claimant has proved a case of negligence against the Defendant and 3. Whether the Claimant is entitled to the reliefs sought. On the other hand the Counsel to the Claimant submitted 2 issues as follows for determination - 1. Whether the Claimant to the satisfaction of this Honourable Court made out the case of negligence/poor factory safety procedures against the Defendant and 2.      Whether in view of the facts, evidence and the Claimant witness deposition on oath led thus far the Claimant is entitled to the reliefs sought herein against the Defendant. On 13/2/18 the Defendant filed a Defendant's Reply Address. It is of 11 pages. I read all the addresses as well as the reply address.

6.        Decision

I have read and understood all the processes filed by learned Counsel on either side of this case including the 11 page reply address filed by the Defendant. I heard the oral testimonies of the witnesses called at trial, watched their demeanor and carefully evaluated all the exhibits tendered and admitted. I also heard the oral submissions of learned for the parties. Having done this, I narrow the issue for the just determination of this case down to be as follows -

           

            Whether the Claimant has proved his case to be entitled to any or all the reliefs             sought.

 

The facts of the case of the Claimant as revealed in brief from his pleadings is that he was an employee of the Defendant as a Machine Operator in the Production Department of the Defendant; that while working for the Defendant he was involved in an industrial accident on 15/11/13 which resulted in the amputation of his entire five fingers on his right hand; that before the accident he had made several reports to the Management of the Defendant to repair the faulty machine and the provision of industrial graded hand gloves for safety for machine operators using the industrial machine but to no avail. It was also the case of the Claimant and evidence was so led to the effect that indeed some former employees of the Defendant had suffered similar injuries in the time past. 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 be 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 is 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 is whether the Claimant in this case has discharged the burden of proof on him 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 the 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 the machine was faulty; that despite repeated demand the needed repairs were no carried out; that the Defendant was always buying substandard cutting machines for the use of its employees and that protective gears were also not provided for the operators of the cutting machines.

 

The summary of the case of the Claimant is that while operating the cutting machine in the Defendant's factory there was an accident which led to the amputation of his five fingers. His position was that the machine in question malfunctioned; that he had complained of same to the management of the defendant; that the Management did not take steps to repair same and that the Defendant did not make the work environment conducive for work. Claimant called 2 other witnesses who were former staff of the Defendant and who also sustained injury while working in the factory of the Defendant. On the other hand, the Defendant argued that the accident which occurred and the resulting injury was due to the negligence of the Claimant in that he did not follow the procedure set out for operating the machine which caused the injury; that it paid the hospital bills of the Claimant and still paid the Claimant compensation.

 

I should state that the evidence in chief of the 2 witnesses called by the Claimant was not in any way or manner contradicted by the Defendant. CW2 testified that on 17/12/08 while in the employment of the Defendant he was

 

            '' ... involved in a serious industrial accident involving the Defendant Industrial             Cutting Machines that led to severe instrumentation crushed injury and compound             fracture and totally disability of the(sic) my right wrist on my right Hand with             medical amputation of my index finger on my right hand during my schedule of             duties as a machine operator''. See paragraph 21 of witness statement on oath             CW2.

 

It was also the evidence of the witness that the Defendant has refused to repair the machines despite several complaints; that several employees of the Defendant have had their fingers and hands totally disfigured and disabled by the huge industrial cutting machines of the Defendant to the knowledge of the Management of the Defendant and that -

            ''I was paid the sum of 500,000 (Five Hundred Thousand Naira Only) by the             Defendant which was termed as Full and Final Settlement of Accident Claim    under the Workmen's Compensation Act, 1987 dated the 3rd May 2010 but which   the Defendant used to offset my medical bill in the year 2010 when I            complain(sic) over the outstanding medical bill of my surgery since the accident      occurred since 17th December 2008''.

 

Again the CW3 also testified in the same manner that he was involved in an -

 

            '' ... involved in a serious industrial accident involving the Defendant Industrial             Cutting Machines that led to the amputation of my four fingers on my left hand             during the Claimant schedule of duties as a machine operator at the Defendant             factory at Plot 2E Block A Oshodi Industrial Layout Scheme, Osolo Way, Aswani,             Lagos State''. See paragraph 18 of the witness statement on oath of CW3

 

The witness added that that the Defendant was used to buying obsolete and faulty Plastic cutting machines for its employees and Machine operating staff without concerns for their health safety and  '' ... that several employees of the defendant have had their fingers and hands totally disfigured and disabled by the Huge Industrial cutting machines of the Defendant to the knowledge of the Defendant management''.

 

The Claimant appeared and testified before me. I listened to him and watched his demeanor. I also saw the hand in which the 5 fingers were severed. His testimony, I will say, is that of a helpless Nigerian in search of his daily bread. He is a believable witness. His evidence in chief coupled with those of CW2 & CW3 remained largely unchallenged. Indeed, both CW2 & CW3 had also suffered the same fate of the Claimant while working for the Defendant and unfortunately, the treatment meted out the Claimant is the same as met out to the 2 witnesses. By Exh. RO5, the Defendant acknowledged the fact that all five fingers of the Claimant were amputated. While it claimed by the same exhibit to have received the sum of =N=2,051,487.50 as Total Medical & Insurance Claim, the Defendant paid only =N=355,387.50 to the Claimant and claimed also to have paid =N=1,696,100.00 as Hospital Expenses. I must say that I did not find evidence of that payment of hospital expenses by the Defendant. Even by its own evidence as per Exh. RO3 the sum of =N=1,696,100.00 was paid by the Claimant for medical treatment for the industrial accident sustained. This is the reflection of the documentary evidence tendered and admitted. The law is trite that oral evidence will not be allowed to vary the contents of a written document. See Osayogie v. Edokpayi (2014) LPELR-22661(CA).I find and hold that the Defendant owe a duty of care to the Claimant; that the duty of care was breached by the failure of the Defendant to repair its faulty machines and to provide industrial hand glove for its employee who were operating the Cutting Machine of whom the Claimant was one and that the breach of the duty of care resulted in serious damage to the Claimant.

 

The first relief sought by the Claimant is for an order compelling the Defendant to immediately pay the Claimant, the sum of =N=10,000,000.00 (Ten Million Naira Only) as insurance claim and Financial compensation as a result of the poor factory safety environment and procedures for the industrial accident which occurred on the 15th November 2013 that led to the amputation of his entire five fingers on his right hand during the Claimant schedule of duties as a machine operator at the Defendant factory at Plot 2E Block A Oshodi Industrial Layout Scheme, Osolo way, Aswani, Lagos State or in the Alternative in accordance with the provisions of the Employee Compensation Act 2010, Factory Act Cap F1, Lagos State Disability Law 2011. I find no proof of an insurance claim by the Claimant. This Court as a Court of record is however allowed to make any appropriate order, including an award of compensation or damages in any circumstance contemplated by this Act or any Act of the National Assembly dealing with any matter that the Court has jurisdiction to hear''. See Section 19(d), National Industrial Court Act, 2006. This Court is thus empowered to award compensation in favour of the Claimant in the instant case. Claimant had sought payment of =N=10,000,000.00 as compensation.

 

Evidence led shows that the Claimant has lost his entire five fingers. That is a permanent loss. The five fingers cannot be replaced. It is a permanent disability. The Claimant will not be able to use his right hand the way he was used to since the entire fingers are gone forever. There is no market where a finger or any human body part may be purchased to seek a replacement. I note in particular the evidence in chief of CW2 & CW3 which pointed to the occurrence such accidents in the Defendant in the time past with employees of the Defendant sustaining injuries and being treated in the same shabby and inhuman manner as the instant case. Considering the facts, the evidence led and the entire circumstances of this case, I award the sum of Ten Million Naira (=N=10,000,000.00) as compensation in favor of the Claimant and payable by the Defendant. The plight of the Claimant is the same as the plight of both CW2 & CW3. The evidence led in this case showed the same pattern in the occurrences and incidents of industrial accidents in the factory of the Defendant. In each of these industrial accidents, disabilities were caused to the hapless and helpless employees of the Defendant. This raises issues as to whether the Defendant maintain the necessary safety standards and safe and conducive work environment within the context of the Factory Act. Officials of regulatory bodies, the Federal Ministry of Labour, Officials of the Nigerian Labour Congress and officials of the Ministry of Environment ought to and are requested to beam searchlights on the safety situation in the Defendant. Learned Counsel to the Claimant is directed to draw the attention of the appropriate agencies of the government as mentioned to the absence of safety measures at the Defendant which has continued to lead to industrial accidents to employees of the Defendants.

 

The second relief sought is for an order compelling the Defendant to pay the sum of =N=137,000.00k (One Hundred and Thirty-Seven Thousand Naira Only) to the Claimant as the Terminal Benefits in accordance with the Defendant employment Hand book and guidelines governing employment of staff.  The Claimant did not tender any Employment Handbook of the Defendant in proof of this head of claim. It is for a Claimant to lead sufficiently cogent and credible evidence in proof of his claim to be entitled to same. Evidence not having been led in support of this head of claim same is refused and dismissed.

 

The third relief sought is for an Order praying for Special and General damages to the Claimant against the Defendant in the sum of =N=5,000,000.00k (Five Million Naira Only) against the Defendant on ground of the trauma and pains of disabilities due to the result of the poor factory safety environment and procedures for the industrial accident which occurred on the 15/11/13 that led to the amputation of his five fingers on his right hand during the Claimant schedule of duties as a Machine Operator at the Defendant factory at Plot 2E Block A Oshodi Industrial Layout Scheme, Osolo way, Aswani, Lagos State. This Court has awarded compensation to the Claimant for the loss of his five fingers due to the negligent conduct of the Defendant. To further award any other sum either as special or general damages will amount to awarding double compensation. The law frowns at the award of double compensation. See Inyang v. Ebong (2001)25 WRN 173 & Union Bank v. Emole (2002)3 WRN 85.In any event, as the law requires that special damages be specially pleaded and strictly proved, no evidence is led respecting the grant of any special damages. I accordingly refused and dismissed this head of claim.

 

Finally, for the avoidance of doubt and for all the reasons as stated in this Judgment,

 

1.        The Defendant is ordered to pay to the Claimant the sum of Ten Million Naira             (=N=10,000,000.00) as compensation for the injury and permanent disability of      the Claimant caused by poor factory safety environment and procedures for the   industrial accident which occurred on the 15/11/13 that led to the amputation of             his entire five fingers on his right hand during the Claimant schedule of duties as a       machine operator at the Defendant factory at Plot 2E Block A Oshodi Industrial   Layout Scheme, Osolo way, Aswani, Lagos State.

2.        The above sum is to be paid with interest at the rate of 10% per annum from today till final liquidation.

3.        The Defendant is ordered to pay to the Claimant the sum of Two Hundred             Thousand Naira (=N=200,000.00) only as cost of this action.

 

All the terms of this Judgment are to be complied with within 30 days from today.

 

Judgment is entered accordingly.

 

 

 

 

____________________

Hon. Justice J. D. Peters

Presiding Judge