Issah v. M.T.C.L. [1980] GLR 430, Holding 2 @437, H.C.

ISSAH v. MIM TIMBER CO., LTD. [1980] GLR 430-439 HIGH COURT, KUMASI OWUSU-ADDO J.
JUDGMENT OF OWUSU-ADDO J
Page 432

Owusu-Addo J. The plaintiff who was employed as a Dolmar machine operator by the defendants, a renowned timber company, is claiming ยข40,000 damages for the injuries he sustained in the course of his employment as a result of alleged failure of the defendants to provide a safe system of work.

On 3 October 1977, the plaintiff filed a statement of claim in this suit. The relevant paragraphs setting out his claim which was founded on negligence are:

"(4) The said injuries and loss and damages were occasioned to the plaintiff by reason of a breach on the part of the defendants, their servants or agents of their statutory duties under the Factories, Offices and Shops Act, 1970 (Act 328).

Particulars

(a) Failing to provide proper supervision to enable work to be carried out without unnecessary risk to the plaintiff.

(b) Failing to provide a safe system of work.

Page 433

(c) Failing to give warning in time for the plaintiff to run away from the direction of the falling tree.

(5) Further or in the alternative the said injuries, loss and damages were occasioned to the plaintiff by
reason of the negligence on the part of the defendants, their servants or agents.

Particulars

(a) Falling to take any or adequate precautions for the safety of the plaintiff while he was engaged upon the said tree felling.

(b) Exposing plaintiff to a risk or damages or injuries of which they knew or ought to have known;

(c) The plaintiff repeats the particulars set out under paragraph (4) hereof as constituting a failure on the part of the defendants to provide sufficiently safe, suitable and adequate working system for the plaintiff to work.

(d) Failure to provide a safe working system at the said tree felling concession. A safe working system would have been to take reasonable precautions to ensure that proper warning was given to the plaintiff as to the direction in which the tree was falling."

The plaintiff did, inter ali, give particulars of special damage, covering various sums of money he had expended on transport, accommodation and food during his hospitalisation at Hwidiem, Okomfo Anokye, Korle-Bu and the Accra Military Hospitals and loss of earnings.

The defendants on the other hand denied liability and averred in their statement of defence that the accident was due wholly to or substantially contributed to by the plaintiff's negligence. In paragraph (6) thereof they averred: "6. The defendants say that their liability to the plaintiff, if any, is covered by the Workmen's Compensation Act, 1963 (Act 174)."

The issues raised in this suit are twofold:

(1) Whether or not the defendants were in breach of their statutory duty under the Factories, Offices and Shops Act, 1970 (Act 328).

(2) Whether or not the damage or loss sustained by the plaintiff was occasioned by the negligence of the defendants.

Having regard to the fact that the claim is founded on negligence a brief account of the evidence relevant to the claim is necessary: The plaintiff was employed by the defendants as a Dolmar machine operator at their sawmill at Mim in 1973. He was in charge of a

Page 434

team comprising two others who assisted him in his work of felling timber and cross-cutting them to size. Before undertaking any tree-felling operation, he carried out an inspection of the tree to ascertain where it stood and where it was likely to fall. Having fully satisfied himself that it would be safe to fell the tree, he would instruct his men to weed around the tree and clear an escape route. He was solely responsible for felling the tree, and could always tell through his training and experience the direction in which the tree would fall. Before delivering the final stroke to fell the tree, the plaintiff would warn persons in the vicinity to stay clear off the falling tree. On 20 May 1975, he was going through the same process with his two attendants when the accident occurred. Having given the requisite warning, the plaintiff delivered the final stroke to fell the tree and was running towards the opposite direction of the falling tree when suddenly its branch broke loose and fell on his left arm. He got trapped by the branch and sustained serious injuries which resulted in amputation of his left arm. He underwent two operations; the first was performed at the Korle Bu Hospital, on 12 June 1975 where his left wrist was amputated. During the second operation which took place at the Military Hospital in Accra in January 1976 the plaintiff's left arm was amputated. In all, the plaintiff was hospitalised for a period of about six months and the medical report issued on him, marked exhibit A, described his injuries and extent of disability suffered by him.

For the plaintiff to succeed he must show that the established facts have proved either that the defendants were in breach of a statutory duty under the Factories, Offices and Shops Act, 1970 (Act 328), or that they were guilty of negligence. In the English case of Blyth v. Birmingham Waterworks Co. (1856) 11 Ex. 781 at p. 784 Anderson B. defined negligence in these words:

"Negligence is ten omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."

In that case the defendants had installed a fire-plug made according to the best known system. Due, however, to an exceptionally severe frost in 1855, damages was caused to the plug resulting in the plaintiff's premises being flooded. The plug had worked satisfactorily for twenty-five years. The court held that the extreme severe frost constituted a contingency against which no reasonable man could provide. The result was therefore an accident for which the defendants could not be held liable.

Page 435

Turning to the issue of the negligence, I shall refer to the plaintiff's statement of claim which averred that the defendants did not provide a safe system of work; "that a safe system of work would have been to take reasonable precaution to ensure that proper warning was given to the plaintiff as to the direction in which the tree was falling." It is noteworthy that the evidence of the plaintiff's third witness, Kesse Kwafo, disclosed that the timber trees to be felled are so tall that it is humanly impossible to detect any dead branches in the crown of the trees by usual inspection.

In the circumstances even if someone had been posted to warn the plaintiff as to the direction in which the tree was going to fall, he would not have known that a dead branch was going to fall off, and in the direction it did. It is evident therefore that the unfortunate accident which befall the plaintiff could not have been avoided by the defendants. The reason for so holding is that the direction in which the tree would fall was the exclusive duty of the Dolmar machine operator, who happened to be the plaintiff, and the tree fell in the same direction to which the plaintiff had directed it. What kind of care then would have prevented the occurrence of the accident in these circumstances? Surely, it could not have been the duty of someone to warn the plaintiff as to the direction in which the tree would fall. Here it was the plaintiff who was solely responsible for felling the tree. He determined through training and experience the direction to which the tree would fall and warned persons within the vicinity to stay off the falling tree. Before his appointment as a Dolmar machine operator, he had undergone one year period of training and had been at the work for three years before the incident. He was from all indications in absolute control of the operations and he admitted that he did not require supervision in the discharge of his work. That admission dismisses any claim to inadequate supervision as averred in paragraph (4) of the statement of claim. Furthermore, the plaintiff admitted under cross-examination that he did not see what fell on him and all he saw was that he had been hit and fallen on the ground. Whatever might have caused the dead branch to break loose has not been shown to be attributable to any act or omission on the part of the defendants.

The law as it stands places a high duty of care on the employer towards his servants. The duty was described by Lord Wright in Wilsons & Clyde Coal Co., Ltd. v. English [1938] A.C. 57 at p. 84, H.L. thus:

"I think 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 for the safety of his workmen, whether the employer be an individual, a firm, or a

Page 436

company, and whether or not the employer takes any share in the conduct of the operations. The obligation is threefold, as I have explained [the provision of a competent staff of men, adequate material and a proper system of effective supervision.]"

This duty of the employer has also been decribed as the duty of taking reasonable care so as to carry on his operations in order not to subject those employed by him to unnecessary risk: see Wilson v. Tyneside Window Cleaning Co. [1958] 2 Q.B. 110 at p. 124. And in Morton v. William Dixon Ltd. (1909) S.C. 807 at p. 809, Lord Dunedin said:

"Where the negligence of the employer consists of what I may call a fault or omission, I think it is absolutely necessary that the proof of that fault or omission should be one of two kinds, either - to show that the thing which he did not do was a thing which was commonly done by other persons in like circumstances, or - to show that it was a thing which was so obviously wanted that it would be folly in any one to neglect to provide it."

These observations were approved and applied by Lord Normand in Paris v. Stepney Borough Council [1951] 1 All E.R. 42 at p. 49. In Morris v. West Hartlepool Steam Navigation Co., Ltd. [1956] 1 All E.R. 385 at p. 402, H.L. Cohen L.J. quoted Parker L.J. as having said when applying Lord Dunedin's observation when the case was before the Court of Appeal:

"What then is the reasonable and prudent employer bound and entitled to take into consideration? He is certainly (i) bound to take into consideration the degree of injury likely to result; (ii) bound to take into consideration the degree of risk of accident; (iii) entitled to take into consideration the degree of risks if any, involved in taking precautionary measures."

Applying these principles to the present case, can it be said that the plaintiff has succeeded in proving negligence against the defendants? I think not.

As borne out by the evidence even if the defendants had posted someone at the scene to warn the plaintiff as to the direction in which the tree would fall, the sudden breaking loose of the dead branch which trapped the plaintiff could not have been detected. It is admitted that the tree fell in the direction to which the plaintiff had directed it so the posting or provision of such a person would have served no useful purpose. In point of fact, the determination

Page 437

of the direction of the falling tree was the sole responsibility of the plaintiff for which he had received adequate training.

It must be mentioned, however, that no evidence was adduced to show that it it the practice adopted in the timber business in general to post any such persons in their timber concessions to warn the machine operator as to where the tree would fall.

Quite frankly, the system of work adopted by the defendants in their tree-felling operations has not been shown to be unreasonably safe. On the contrary, the evidence supports their contention that they took adequate precautions for the safety of the plaintiff and thereby provided a safe system of work for him. Even the plaintiff's third witness admitted that the general practice followed by the defendants in their timber concessions was safe and the accident involving the plaintiff was the first he had seen in the seven and a half years he had worked for the defendants.

On the evidence, I find that the plaintiff has failed to prove that the system of work provided by the defendants was unsafe or that it did expose him to unnecessary risk. Having so found, the plaintiff's claim upon negligence fails.

Dealing with the question of the defendants' alleged breach of statutory duty under the Factories, Offices and Shops Act, 1970 (Act 328), I shall first of all reproduce the preamble to the said Act which reads: "An Act to provide for the registration of factories, the health, welfare and safety of persons employed in factories, offices, shops and other places, and matters connected therewith." In section 83 (1), a factory is defined in these words:

"83.(1) In this Act, `factory' means any premises in which, or within the close or curtilage of which, any person is employed in manual labour in any process for or incidental to any one or more of the following types of work which are carried on by way of trade or for purposes of gain, and to or over which premises the employer of the persons employed therein has the right of access or control."

Timber felling is not included in the catalogue of works covered by the said Act. Having considered carefully the intendment and provisions of the Act, and the evidence, I hold the view that the plaintiff's type of work is not covered by the said Act and the plaintiff's claim relating to the alleged breach by the defendants of their statutory duties under the Act is not maintainable.

This is a very sad case indeed as the plaintiff has lost an arm and gone through a lot of suffering but it has to be remarked that as has often been said, this is a court of law and not of sympathy, whose

Page 438

duty is to consider the facts as established by the evidence and apply the law to those facts.

I have decided, however, not to award costs against the plaintiff. Each party is ordered to bear his own costs.

Leave a Reply

Your email address will not be published. Required fields are marked *

Back to top button
Close
Close