Narh v. V.A.C.L. [1978] GLR 185, Holding 2 @ 191, H.C.

NARH v. VOLTA ALUMINIUM CO., LTD. [1978] GLR 185–192 HIGH COURT, ACCRA KORANTENG-ADDOW J.
JUDGMENT OF CECILIA KORANTENG-ADDOW J
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Cecilia Koranteng-Addow J. The plaintiff claims damages for personal injuries sustained in the course of his work and loss of earnings. The claim is based on allegations of common law negligence and breach of statutory duty.

The plaintiff was a mason employed by the Volta Aluminium Co., Ltd.  He is a man aged 36 years old.  The defendants are smelters carrying on business at a factory at Tema. On 1 December 1972, the plaintiff was detailed to do some masonry work at a furnace room in the factory.  He was to remove some cracked burnt bricks from an existing wall and replace them with new whole bricks.  On the wall where the plaintiff had to do the work was a metal sheet measuring twelve feet by sixteen feet.  It was a heavy iron corrugated beam which was fastened to the wall and held by iron bolts.  The plaintiff was attached to the utility maintenance

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section of the factory. Other employees from the metal service department were charged with the duty of removing the metal sheet from the wall to give access to the plaintiff to reach the wall.

Aryeequaye, the mechanical supervisor who represented the defendants in the case, said he deputed his men to cut the bolts which were holding the metal. Before he did that, he asked the plaintiff who was nearby to make way and he did. Aryeequaye was called by the men when they had cut through the bolts. Two men stood at one end of the beam and the supervisor stood at other end with another man. As they started to lower the beam, they realised it was much heavier than they expected, so the supervisor called out to the plaintiff to bring a piece of wood to support it. But as they were shouting, the plaintiff did not fully comprehend what was said to him so he rushed to assist with his bare hands. As the men held the two ends, the plaintiff went to the middle. The plaintiff's intervention did not ease the burden. The men still found the beam so heavy that they let go their hold but they got out of harm's way. The result was that the whole iron beam crashed down on the plaintiff and he was trapped underneath it. The mechanical supervisor still remained at his end, and he got hold of a stick, pushed it under the beam, raised it, and pulled out the plaintiff. He sustained serious injuries. He broke his back and became unconscious. The medical men call this type of injury compression fracture in the lumbar vertebrae, or hyper-flexion injury of the spine. He was admitted to the Valco Hospital for treatment. The plaintiff has recovered, but he has a stoop and persistent pain at the back. The doctor recommended a lumbo-sacral corset which the plaintiff wears during the day, and this reduces the pain and makes him more comfortable.

It is submitted on behalf of the plaintiff that the damage and loss were occasioned by reason of the breach on the part of the defendants of their statutory duty under sections 27 and 34 of the Factories, Offices and Shops Act, 1970 (Act 328). In the alternative, the plaintiff claims there has been negligence on the part of the defendants or their servants.

The defendants have pleaded the maxim, volenti non fit injuria, as an answer to the plaintiff's claim. They plead in the alternative that the accident was caused or contributed to by the plaintiff's own negligence. It is the contention of the defendants that the plaintiff was not obliged to help the four mates to bring down the heavy iron beam. The supervisor under whose direction the beam was taken down testified that the plaintiff was not bound to obey his call for help. He said all the defendants' employees have been given strict instructions to do only the job which is assigned to them. Specifically they maintain that when the plaintiff was ordered to repair a brick wall it was disobedience on his part to have answered the call by the mechanical supervisor to go and assist to bring down the heavy iron beam. This is the basis of their plea that the plaintiff knew the risk involved in the job and yet he voluntarily agreed to take the risk. On the breach of statutory duty, counsel submitted very forcefully that the duty imposed by section 27 of Act 328 is not a strict one. He

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argued that the defendants must have had knowledge that the metal was heavy.

I must now consider the claims made in the action and the defence hereto. Counsel for the plaintiff submitted that this case may be likened to the rescue cases. The principle underlying the law as to the right of the rescuer has been neatly stated by Lord Denning M.R. in Videan v. British Transport Commission [1963] 2 All E.R. 860 at p. 868, C.A. as follows:

"Whoever comes to the rescue, the law should see that he does not suffer for it. It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it."

For the plaintiff rescuer to succeed, it is a requisite that he must establish fault on the part of the defendant or that the danger was created by the defendant's negligence. Therefore where under an exigency caused by a defendant's misconduct, a plaintiff consciously and deliberately faced a risk to rescue another from imminent danger or personal injury, a plaintiff cannot be held to have voluntarily assumed the risk: see Haynes v. Harwood [1935] 1 K.B. 146, C.A.

The plaintiff had adopted this line of action because the defendants contended that he had voluntarily agreed to take the risk so he is not entitled to damages. Whether or not the plaintiff is entitled to damages will depend on the conduct of the defendants. It is not disputed that the situation had been created by the defendants. There is evidence that the method used in removing the iron beam had been the practice which had always been adopted. Those who were engaged in removing it did not do anything which would amount to a fault on their part. The other workers who were engaged in lowering the beam left it in a bid to escape danger to themselves. Neither can any negligence be imputed to the supervisor, who called the plaintiff to come and assist. On this aspect of the matter I have had assistance in the case referred to me by counsel for the defendants. This is Alveran v. Phillip Leonard Catering Services (1965) 110 S.J. 308. It was held in that case that a manager who called an employee at a restaurant to assist him to drive out three youths who were being abusive was not negligent.

In all the rescue cases where the plaintiff has been held entitled to recover, there had been negligence or fault in the defendant in creating the situation from which one had to be rescued. So also in cases where the plaintiff had to give voluntary assistance. If A. is fixing a tyre of a vehicle and calls B. to assist him and in the course of fixing the tyre the jack slips from under the vehicle and injures B., A. will be liable only if he knew that the jack was defective and he failed to warn B.: see Jones v.

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Livermore (1946) 90 S.J. 540. In Baker v. Hopkins [1959] 3 All E.R. 225, C.A. the widows of the employees, Ward and Dr. Baker, were held entitled to succeed because the defendants had been negligent. Again in Lomas v. M. Jones & Son [1944] K.B. 4, C.A. the plaintiff, a farmer, was assisting a driver to unload a heifer from a lorry. In the course of closing the second door to the vehicle, the first door fell on him and injured him. In an action against the master of the driver for damages, it was held that the effective cause was the negligence of the driver in not shooting the bolt of the first door properly, and the defendants were liable for his negligence. Counsel for the plaintiff referred me to the case of Brandon v. Osborne Garrett & Co., Ltd. [1924] 1 K.B. 548. The wife who clutched to her husband who was in danger of being hurt by falling glass was held entitled to recover because there was negligence on the part of the defendant contractors in repairing the roof. Brandon's case has not advanced the plaintiff’s cause because there is no negligence on the part of the defendants. If some negligence could be attributed to the defendants, then Brandon's case would have been a basis for defeating the defendant's argument that the plaintiff’s injury was caused by his own act by going to assist with his bare hands, when he was instructed to bring a piece of wood. I shall say more about this later in this judgment.

If the plaintiff should succeed in this case on the alternative ground, i.e. in common law, then he should prove that there was a fault amounting to negligence on the part of the defendants. This had not been proved; consequently the claim on the common law fails.

I must now consider the main ground, breach of statutory duty. At paragraph (9) of the statement of claim, the plaintiff averred:

"(9) The said injuries and loss and damage were occasioned to the plaintiff by reason of the breach or breaches on the part of the defendants of their statutory duties under sections 27 and 34 of the Factories, Offices and Shops Act, 1970 (Act 328)."

I shall say no more of section 34 because the plaintiff would seem to have based his case solely on section 27. Section 27 of Act 328 provides:

"27. No person shall in the course of his work be required to lift, carry or move any load so heavy as to be likely to cause injury to him."

The evidence is clear that the plaintiff was asked to assist in bringing down an iron beam which was too heavy for four men to handle. It is therefore not disputed that the "lowering" of the iron beam is "carrying or moving" within the contemplation of section 27 of Act 328. The defendants have resisted the action on this leg on the ground of contributory negligence, and alternatively they pleaded the maxim volenti non fit injuria. In his argument in support of this, counsel for the defendants submitted that section 27 does not create an absolute liability, and that it is essential for the defendants to have had knowledge that the iron beam was heavy.

In Caswell v. Powell Duffryn Associated collieries, Ltd. [1940] A.C. 152 at pp. 177-178, H.L. Lord Wright said that an action for breach of

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statutory duty "belongs to the category often described as that of cases of strict or absolute liability." But to my mind the nature of duty imposed will depend upon the wording of the particular section. For instance, section 34 (1) of Act 328 creates an obligation to provide safe means of access "so far as is reasonably practicable." The obligation here is not absolute. The court can inquire into the condition to determine whether the employer had taken all reasonable steps to make it safe. But from the trend of interpretations put on sections such as section 27 by the English courts, it would appear that if the object is so heavy as to cause injury and injury actually results, then the liability is strict and unqualified.

The facts of this case show that the iron beam was heavy. It is counsel for the defendants' argument that since the defendants did not know that the beam was heavy, they are not liable. There is evidence that there are other metal sheets or iron beams similar to the one in question and that the defendants' servants had from time to time removed such beams. The supervisor said that those other beams were not as heavy as this particular one. My view of the matter is that this beam must have been fixed on the wall by the defendants. No stranger could have gone to the furnace to fix that iron beam. So they ought to have known its weight. Again at the time when the plaintiff's assistance was called for, the supervisor knew as well as the other workmen that the beam was heavy. The defendants being a company, it is the knowledge of their servants like managers or supervisors that is attributable to them. The argument that the defendants did not know the weight of the iron beam should not hold. They knew or ought to have known the weight. I hold that the defendants have been in breach of their duty under section 27 of Act 328.

I must now consider the other defences of the defendants. It has been contended that the plaintiff acted in disobedience to factory rules not to assist anyone outside his own department. The defendants were in breach of their statutory duty independently of the plaintiff’s conduct, so even if there was contributory negligence, that should not avert the defendants' liability to the plaintiff. In Uddin v. Associated Portland Cement Manufacturers Ltd. [1965] 2 Q.B. 582, C.A. a Pakistani factory worker in a dust extracting plant, where he had no authority to go, went to catch a pigeon flying around in the roof of the factory. He lost an arm in the process. This plant had not been fenced and this was admitted to be a breach of statutory duty. It was argued by the defendants that as the plaintiff was not authorised to go to the dust plant, he could not succeed. The court held that the plaintiff could succeed and explained that there was nothing in the Act to limit the protection of the section to employees who worked within the scope of their employment. In the course of his speech, Lord Pearce said at p. 593:

"The Factories Acts would be quite unnecessary if all factory owners were at all times very careful and reasonable, and if they were so fortunate as only to employ persons who are never stupid, careless, unreasonable or disobedient, and who never have moments of clumsiness, forgetfulness or aberration. But a cross-section of humanity

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does not present that picture. Hence the necessity for legislation with the benevolent intention of enforcing precautions which will prevent avoidable dangers in the interests of those who might be injured by them."

See also the dictum of Staple J. in Carr v. Mercantile Produce Co., Ltd. [1949] 2 K.B. 601 at p. 608 applied in Nelson v. Mensah [1976] 1 G.L.R. 178 at p. 183. It will therefore not avail the defendants to say that the plaintiff injured himself in doing something in disregard to specific regulations. It could not be said that the plaintiff was outlawed from the protection of the Act and denied a course of action.

As regards the plea of volenti non fit injuria, it has been held that the maxim would not apply at all where the injury arose from a direct breach by the defendants of a statutory obligation: see Baddeley v. Earl Granville (1887) 19 Q.B.D. 423.

On the question of contributory negligence, if it is found that the plaintiff has been utterly negligent, that negligence will not be a bar to the action, it will only mean that a large proportion of the blame will be laid on the shoulders of the plaintiff so as to diminish or extinguish his damages. The defendants' servants, four of them, including a supervisor were having difficulty in bringing down the iron beam. The nature of the danger created is not discernible from the evidence. It is not clear whether the men holding the beam were in danger of the beam falling on them or it was the beam itself which was in danger of being dropped. Whatever the situation was, I fail to see anything done by the plaintiff which contributed to the injury to him. According to the supervisor he called for the plaintiff to bring a piece of wood to wedge the beam but because of the shouting, the plaintiff did not hear what the supervisor said. The plaintiff went to help with his bare hands. What the plaintiff did was reasonable; all the men holding the beam used their bare hands so the plaintiff could not be said to have acted unreasonably when he went to support the falling beam with his bare hands. It is easy to say that perhaps if he had brought a piece of wood to wedge the beam, that would have perhaps prevented the fall and the consequent injury to himself. But this is being wise after the incident. The call for assistance was made by the defendants' representative. The plaintiff stood in a subordinate position to the supervisor. The defendants must therefore be held responsible for the act of the supervisor. The defendants having breached their obligation under section 27 of Act 328, they cannot be heard to accuse the plaintiff of contributing to the accident merely because he did not do what was expected of him to avert the damage. There is no rhyme nor reason why the defendants should be heard to say that what they themselves directed the plaintiff to do contributed to his injury. After they had called the plaintiff to help in disregard of their statutory duty they cannot wash their hands off responsibility.

I find no evidence to support the charge of contributory negligence. I find that the defendants have breached the duty imposed on them by section 27 of Act 328. I also find that the breach was the direct cause of

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the plaintiff’s injury. I find the defendants liable to the plaintiff’s claim on breach of statutory duty.

The plaintiff now walks with a stoop. He has to wear a special corset during the day to alleviate his pain. I do not know for how long he will have to continue to be in pain or endure the discomfort of wearing the corset. But whatever the duration, it is a pain to which considerable attention must be given. The plaintiff also complains of diminution in sexual performance. There is no medical evidence to support this but listening to him and looking at him, there is some basis for his complaint. He said he could not go on his wife, the latter had to come on top of him. This is a humiliation for a man. I also pay attention to the plaintiff's disfigurement. He now looks like someone who is developing a hunchback. Due to his present condition he said he is unable to work and he claims loss of earning. A plaintiff must minimise his losses. The defendants were ready and prepared to keep the plaintiff at his work but on light duties and with same pay. But he made it impossible for them to keep him, so he was retired on medical grounds. I do not think that the plaintiff’s incapacity is such that he cannot earn a living. It cannot be denied that in his present condition, he is handicapped; his chances in the labour market will be slim. This is one reason why I think it was imprudent on his part to have agreed to go on retirement.

He claims "¢98.83 per month continuing." By this I take it that he is claiming earnings for the rest of his working life. Had I found that the plaintiff were totally incapacitated, then it would have been necessary to work out his years of purchase. But I do not think he is totally disabled. However I shall take into consideration his present incapacity assessed in the medical report, and award him a global sum. Considering all these matters I have adverted to I think ¢8,000.00 will be a figure near adequate compensation for the plaintiff’s injuries. The plaintiff also claims ¢100.00 for the medical report and ¢6.45 for transport expenses to Korle Bu. I think a ¢100.00 is rather on the high side for a medical report. From experience and common knowledge I know doctors charge between ¢10.00 and ¢50.00. If for some special reason the plaintiff paid that high rate, then he should have led evidence to support it. In the absence of any supporting evidence, I allow him ¢50.00 as money paid for the medical report. I also allow the claim for ¢6.45 for transport. In sum, I give judgment for the plaintiff against the defendants for the sum of ¢8,056.45. I assess his costs at ¢500.00.

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