Ekem v. W.C.L. [1981] GLR 801.




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Twumasi J. By his action, the plaintiff, suing as the administrator of the estate of his deceased son, Isaac Ekem, claims against the defendants, Wiseway Cleaners Ltd., damages for negligence which, it is alleged, caused the death of the said Isaac Ekem. The defendants were at all times material to this case engaged in dry cleaning and ancillary jobs. They had a factory equipped with mechanically-propelled apparatus for the operation of their dry cleaning business. The plaintiff’s son, Isaac Ekem, was at the time of his death employed as an operator of a machine called the “hydro-extractor.” For the purpose of this judgment, the vital parts of the machine were: the brake system, the interlocking safety device and the rolling basket. The machine operated by means of electric energy.

On 12 January 1979, Isaac Ekem succumbed to injuries sustained by him in the course of his operation of the machine. In his statement of claim, the plaintiff attributed the fatal injuries to the negligence of the defendants. He particularised the negligence as including: (a) failure to correct faults in the drying machine; (b) failure to provide adequate or no supervision during the operation of the said machine; (c) failure to warn the deceased of the inherent dangers in operating the said machine; (d) failure to equip the deceased with the necessary training for that type of work; and (e) complete disregard and non-compliance with statutory requirements. This catalogue of defaults has by all accounts an incalculable devastating potential against any defendant if proved satisfactorily by a prospective plaintiff.

In this case, however, the plaintiff’s prospects of success in proving all the imposing array of defaults appeared rather saturnine right at the outset. And the reason is not far to seek. He was faced with an initial handicap in the fact that his son, a would-be eye-witness of the accident, had died. Worse still, he was literally beset with centrifugal forces in the sense that while he stood at the centre, all potential witnesses to the accident tendered to run away from him. He had not a single witness from the factory to give evidence on his behalf as to how the accident occurred; nor could he call evidence to prove that

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the deceased was not given any warning of any inherent danger in the machine, nor to prove that he was not given any training and supervision. He could only rely, rather perilously, on the tenuous account by an independent factory inspector from the Factory Inspectorate Division of the Labour Department.

But let us see whether, despite the exiguity of the evidence, the plaintiff was successful or not. The star witness for the plaintiff, who avowedly had to his credit the expertise in occupational safety and hygiene, with a master’s degree in that field from Birmingham University, England, testified that when he inspected the defendants’ machine after the accident, he discovered that the brake system and the interlocking device were both faulty. He said further that when he pointed this out to the manager of the defendants’ factory, the latter told him that the company had no spare parts to repair those faults. This part of the evidence of the expert was vehemently denied, but upon a meticulous examination of the evidence given by the witnesses on either side, I arrived at the conclusion that the expert spoke the truth and found that those two parts of the defendants’ machine were faulty.

Consequently, I found that the defendants had breached their common law duty. Under the common law, an employer has an inescapable duty, not only to provide proper machinery or plant for his factory, but also to remedy any defect in the machine or plant that has come to his notice: see Toronto Power Co., Ltd. v. Paskwan [1915] A.C. 734, P.C.; R. v. Kritz [1950] 1 K.B. 82, C.C.A; Thurogood v. Van Den Berghs and Jurgens Ltd.[1951] 2 K.B. 537; Wilsons & Clyde Coal Co., Ltd. v. English [1938] A.C. 57, H.L. and Smith v. Baker & Sons [1891] A.C. 325, H.L.

There is also a statutory duty imposed upon employers or manufacturers by various Acts whose introduction has been necessitated by the proliferation of manufacturing houses. In this country, we started with the Factories Ordinance, 1952 (No. 33 of 1952). This Ordinance was repealed in 1970 and superseded by the Factories, Offices and Shops Act, 1970 (Act 328), a much more expansive and comprehensive enactment. The latter statute obsequiously followed the lines of the English Offices, Shops and Railway Premises Act, 1963, and the Factories Act, 1961, in its essentials. The relevant sections in our Factories, Offices and Shops Act, 1970, are section 36, which imposes a duty on employers to provide adequate training and supervision for their employees who operate their machines, and section 38 which requires employers to fence dangerous parts of their machines. As I have already stated, the plaintiff could not lead any evidence to prove that the defendants failed in their duty to provide the plaintiff with adequate training and

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supervision. Rather, the defendants gave evidence that the deceased was given nine months’ training and had worked for eighteen months after his training. No breach of statutory duty arises at all.

From the side of the defendants, the first witness testified that he was going round supervising the workers when he saw the deceased use his hand to stop the rolling basket then in motion and he shouted at him to stop but it was too late. The machine hit and threw the deceased down. This piece of evidence, whatever its worth, could not inure to the benefit of the plaintiff because in civil cases, the plaintiff, whose pleading on a material fact is denied, bears the onus of proving the allegation and cannot close his case without the required proof and expect the defence to send him the proof on a silver platter. So even if I found that at the material time the accident occurred no supervisor was so immediately juxtaposed to the deceased that it could be said that he was directly under proper supervision, the position of the plaintiff would still not be a whit better.

Section 36 of Act 328 reads:

“36. No person shall be employed at any machine or in any process liable to cause bodily injury, unless—

      • he has been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed; and
      • he has received a sufficient training in work at the machine or in the process, or is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process.”

The plain meaning of section 36 of Act 328 is that it does not in all cases impose a duty on an employer to place an employee under adequate supervision by a person who has a thorough knowledge and experience of the machine or process. If the employee has been adequately instructed on how to operate the machine, the dangers likely to arise in connection therewith and the precautions to be observed, the requirement is satisfied. It is only where the employee is inexperienced that direct supervision over him by an experienced officer becomes a mandatory statutory duty. Thus in Fibre Bag Manufacturing Co. v. Sarpong [1967] G.L.R. 657, C.A. the defendants were held liable for leaving an inexperienced worker to operate a machine without supervision. This is not the case here because the deceased had received proper training and he was experienced in operating it.

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The next question is whether the defendants were in breach of section 38 of Act 328 which reads:

“38. (1) Every dangerous part of any machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working in the premises as it would be if securely fenced.

(2) In so far as the safety of a dangerous part of any machinery cannot by reason of the nature of the operation be secured by means of a fixed guard, the requirements of this section shall be deemed to have been complied with if a device is provided which in the opinion of an inspector satisfactorily prevents the operator from coming into contact with that part.

(3) Without prejudice to the generality of subsection (1), ‘dangerous part’ includes every moving part of a prime mover, every flywheel directly connected to a prime mover, any part of a stock-bar which projects beyond the headstock of a lathe, every part of any electric generator, motor or rotary converter, and every part of transmission machinery.”

From the foregoing definition it is clear that the rolling basket of the defendants’ machine as described by the inspector, the first plaintiff witness, is a “dangerous part” which requires fencing but because of the nature of its operation, the interlocking safety device was enough protection for the operator.

Consequently, since this device was found by the inspector to be defective and had not been repaired, I am impelled to hold that the defendants were in breach of their statutory duty as well. The next hurdle whose jumping was requisite to the success of the plaintiff’s claim was whether the fatal injury was directly attributable to the defendants’ breach. Was the fatal injury caused by the defendants’ breach? The question that ought to be asked and satisfactorily answered in all claims for damages for negligence is whether there is a causative connection between the defendants’ breach of duty, common law or statutory, and the injury suffered by the plaintiff. The onus lies on the plaintiff to establish the causative connection. If he fails to do so, he must also fail in his claim: see Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613, H.L.; Cummings (or McWilliams) v. Sir William Arrol & Co., Ltd. [1962] 1 All E.R. 623, H.L.; Ginty v. Belmont Building Supplies Ltd.[1959] 1 All E.R. 414; Caswell v. Powell Duffryn Associated Collieries Ltd.[1940] A.C. 152, H.L. and Stimson v. Standard Telephones and Cables Ltd.[1940] 1 K.B. 342, C.A.

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How did the plaintiff discharge this vital onus of proof? He never adduced evidence of how the accident occurred. So he could not prove to the court whether the accident was directly or indirectly caused by the defective interlocking safety device. An accident may be caused solely by the negligence of an employee. It may also be caused by the negligence of the employee and partly by the employer’s breach of his common law or statutory duty. Yet it may be caused solely by the breach of the employer’s duty. Whether a case falls under any of these categories, depends enormously on the evidence adduced by the plaintiff. Rather curiously in this case, the evidence as to how the accident occurred was supplied by the defendants who said that the plaintiff, who had never been introduced to use a cocoa sack in stopping the rolling basket, attempted to stop the rolling basket with a cocoa sack which he held in his hand and in doing so, the rolling basket threw him down and he sustained the fatal injury.

Even assuming that this piece of evidence had been adduced by the plaintiff or any witness on his behalf, his case would still not be a whit better. I would illustrate it by an English case: F.E. Callow (Engineers), Ltd. v. Johnson [1971] A.C. 335, H.L. where the facts, shortly put, were that an employee used a plastic squeezy which he held in his hand in stopping a moving machine instead of using an automatic system and in the process, his hand was caught between the revolving workpiece and an imperceptibly moving boring bar of the lathe and was injured. It was held that once it was established by a plaintiff that there had been a breach of section 14 of the Factories Act, 1961 (9 & 10 Eliz. 2, c. 34) (which is the equivalent of section 38 of Act 328) and that an accident to him had been the result of that breach, it did not matter that he was not able to establish exactly how the particular accident had come about; that since on the evidence, the practice of using the squeezy by hand in stopping the machine had been known by the employers, although they did not approve of it, and the danger of an accident of the type which had occurred was reasonably foreseeable by the employers because there was a nip in the machine which could cause an accident but which the employers had failed to fence, they were liable. The principle of law is that there must be evidence that the employers knew of a dangerous practice by employees of his factory. In the instant case, no evidence was adduced to show that what the deceased allegedly did was the practice at the defendants’ factory. In fact, the inspector, the first plaintiff witness, stated in his report on the accident that the deceased had used an unorthodox method in stopping the rolling basket. So the essential element

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of foreseeability in the proof of breach of duty in negligence was lacking in the plaintiff’s evidence. In all the few cases on occupational injuries I have read, one golden thread is ubiquitous and it is that the unfenced dangerous part of a machine must directly have caused or contributed to cause injury to the operator while he was operating the machine in the orthodox manner: see Goodman Moshie v. Kwaku [1965] G.L.R. 566; Fibre Bag Manufacturing Co. v. Sarpong [1967] G.L.R.; 657, C.A.; Joof v. Gambian Minerals Ltd. (1957) 2 W.A.L.R. 224; Nelson v. Mensah [1967] 1 G.L.R. 178; McGhee v. National Coal Board [1972] 3 All E.R. 1008, H.L. and British Railways Board v. Liptrot [1969] 1 A.C. 136. Where an unorthodox method is used by an employee, the employer will be liable if there is evidence that he was aware of the practice of the unorthodox method and yet did nothing to remedy the danger which necessitated such unorthodox practice.

On the evidence adduced by the plaintiff, I find myself, rather regrettably, unable to hold that he is entitled to his claim. The claim fails. But in the circumstances of the case, I would strongly recommend that the defendants pay to the plaintiff what is due to the deceased under the Workmen’s Compensation Act, 1963 (Act 174). The defendants would be awarded ₵300 costs.

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