GOODMAN MOSHIE v. KWAKU [1965] GLR 566

DIVISION: HIGH COURT, KUMASI

DATE: 30 JUNE 1965

BEFORE: ATTOH J.

CASES REFERRED TO

(1) Vickers v. Gomme (E.) Ltd. [1957] 1 W.L.R. 656; 101 S.J. 391; [1957] 2 All E.R. 60, C.A.

(2) Smith v. Baker & Sons [1891] A.C. 325; 60 L.J.Q.B. 683; 65 L.T. 467; 55 J.P. 660; 40 W.R. 392; 7

T.L.R. 679, H.L.

(3) Lewis v. High Duty Alloys [1957] 1 W.L.R. 632; 101 S.J. 373; [1957] 1 All E.R. 740.

(4) Waya v. Byrougthy (1958) 3 W.A.L.R. 413.

(5) Boakyem v. Ansah [1963] 2 G.L.R. 223, S.C.

(6) Farrar v. Ashanti Sawmillers Co., High Court, 11 April 1960, unreported.

NATURE OF PROCEEDINGS

ACTION by the plaintiff for damages (general and special) for injuries sustained in the course of the defendant’s employment. The facts are set out in the judgment.

COUNSEL

Mmieh for the plaintiff.

Osafo for Poodo for the defendant.

[p.568] of [1965] GLR 566

JUDGMENT OF ATTOH J.

In this case the plaintiff claims damages (general and special) for injuries he suffered while operating a machine in the course of the employment by the defendant. The plaintiff alleged that under the Factories

Ordinance, 1952,1 and the regulations made thereunder the defendant failed to provide adequate protection to a circular saw in his workshop or factory and through the defendant’s negligence under the

Ordinance and at common law he suffered injuries which led to the amputation of his left thumb.

The evidence on the whole case is meagre indeed. The plaintiff said that while operating the circular saw on 24 April 1964 in the defendant’s factory, the saw which was not properly fixed got bent to one side and his left hand was caught in it and the left thumb was cut, leaving a bit of flesh holding it. He was attended to by the plaintiff’s first witness at Kumasi Central Hospital and although attempts were made to save his thumb it was ultimately amputated by the plaintiff’s first witness, as it developed gangrene.

The plaintiff said he spent some time at the hospital and was discharged three weeks after admittance. He approached the defendant for work but the defendant would not have him as the defendant said he was useless without his thumb. He could not get other work, although he tried to secure it. He finally got work as an ice-water seller in March 1965. The plaintiff said he was naturally a left-handed person and could not now use the fingers of his left hand properly. The plaintiff’s first witness gave evidence that she attended the plaintiff who was found to be psychologically shocked on admission. Later she amputated the thumb as it had developed gangrene.

The defendant denied the plaintiff’s claim and averred that the plaintiff having been compensated under the Workmen’s Compensation Act, 1963,2 he was estopped from bringing a further action. The defendant called the labour officer as his only witness. The fact that the plaintiff was injured while operating the machine in the defendant’s workshop was not denied.

The other workmen in the defendant’s workshop were not called by the defendant as witnesses. The defendant had no idea as to how the plaintiff was injured because he was himself absent from the workshop when the plaintiff was injured. The defendant said in evidence that he instructed the plaintiff as to the use of the machine when he was employed. The defendant denied negligence on his part.

At the beginning of the case, on 2 June 1965 the legal point as to estoppel was raised, in view of the acceptance of compensation by

[p.569] of [1965] GLR 566 the plaintiff under the Workmen’s Compensation Act, 1963, and argued as a preliminary point of law. I ruled on that day that the plaintiff was not barred from bringing further action and ordered the case to proceed on its merits. At the close of the case for the defence, counsel on both sides addressed the court at length and the full notes of their respective address have been made and considered by the court. The matter of estoppel was revived by counsel for the defendant and it was replied to by counsel for the plaintiff.

From the whole evidence before the court it appears that under section 5 (1) (c), (v) and (3) of the

Factories Ordinance, 1952, the defendant’s workshop is a factory, since the defendant employed about four persons in his workshop. There is the evidence of the plaintiff that the circular saw was not guarded and there was no push-stick although the machine was fed by hand. These are all matters of statutory negligence under regulations 4, 5 and 6 of the Factories (Woodworking) Regulations, 1959 (Abstract of

Regulations) Order, 1960,3 made under the Factories Ordinance, 1952. The evidence is quite clear that there was no push-stick provided for the plaintiff although the machine was hand fed. It is admitted by the defendant that the plaintiff would have to push the board with some force before the circular saw could cut the board according to the design or the required shape. I therefore find that the defendant committed a breach of statutory duty which amounted to negligence in failing to comply with regulations 4, 5 and 6 of the Factories (Woodworking) Regulations, 1959 (Abstract of Regulations) Order, 1960: see Vickers v.

Gomme (E.) Ltd.4

As to the common law, the defendant was in duty bound to instruct the plaintiff properly before he allowed him to operate the circular saw. He was also in duty bound to supervise the plaintiff in the operation of the machine. On the fateful day he was somewhere else and left an inexperienced worker like the plaintiff to operate the machine. The plaintiff said that the machine was not fixed properly and it turned while he was operating it. The defendant could not challenge this as he was not present when the incident happened. No witnesses were called by the defendant from his workshop to challenge this evidence. I will therefore accept the evidence of the plaintiff on this point. The machine is a “dangerous thing” and it was not guarded. The defendant was in duty bound to warn the plaintiff and to instruct him properly as to its use. If the defendant fails to do this and the machine gets out of control and the plaintiff is injured the defendant is responsible.

[p.570] of [1965] GLR 566

Such a duty owed by a master to his servant was described by Lord Herchell in Smith v. Baker & Sons5 as a duty of “taking reasonable care to provide proper appliances, and to maintain them in proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk.”

It is clear from the evidence that the defendant failed to carry out this duty to “take reasonable care” where the plaintiff is concerned and therefore at common law he is liable to a claim for damages for negligence: see Lewis v. High Duty Alloys Ltd.6 In this instant case there is no plea of contributory negligence and no such evidence has been led.

Having decided on the negligence of the defendant I now come to the question of damages (general and special). Before I assess the damages I will like to discuss the matter of estoppel raised by counsel for the defendant. Counsel for the defendant submitted:

(1) that under section 15 of the Workmen’s Compensation Act, 1963, the plaintiff having signed exhibit 2 and received the sum of £G184 5s. 6d., in view of section 24 (4) of Act 174 the plaintiff was barred from taking further action;

(2) that the plaintiff was barred by conduct because exhibit 1 showed that the plaintiff knew he was to receive compensation and that the amount given to the plaintiff was not a gratuitous gesture on the part of the defendant.

Before exhibit 2 can be a bar to further proceedings at a civil court, it ought to be proved by the defendant that the plaintiff understood its terms. According to the evidence now on hand, and which was not available when the ruling on 2 June 1965 was made, exhibit 2 was interpreted to the plaintiff, a Moshie man, by one Quartey, in Twi. Now, Quartey is a Ga man. He has not been called by the defendant for the court to assess his knowledge of Twi and how he did the interpretation in Twi of exhibit 2 to the plaintiff.

The defendant’s first witness only signed exhibit 2 as he was in duty bound to do as a matter of routine.

The said Quartey also added to the official labour form No. 29 at the left bottom corner the following words, “The injured workman’s right at common law has been explained to him” and he signed it. The defendant’s first witness said the plaintiff’s natural language was Moshie. The defendant’s first witness said he took interest in the plaintiff because he was an illiterate. I have had the opportunity of seeing the plaintiff and he spoke Moshie in court through a Moshie interpreter. It does not strike me that the plaintiff, a Moshie man, understood the contents of a complicated legal document like exhibit 2 when it was read and interpreted to him in Twi by Quartey (a Ga man). The plaintiff did not even initial or sign the

[p.571] of [1965] GLR 566 insertion referred to above at the left corner of exhibit 2. The defendant’s first witness said in evidence that he did not understand the expression “right at common law.” I believe that the defendant’s first witness signed the certificate after Quartey had got the plaintiff and the defendant to sign exhibit 2, and that the defendant’s first witness did not know anything about the execution in the presence of Quartey. A document like exhibit 2 should have been read and interpreted to the plaintiff in Moshie, the language he spoke and understood, by a man of his own tribe.

As to exhibit 1 this is also a document that does not show that it has been read and interpreted to the plaintiff in his own language by the letter writer or any other person. The omission to do this is definitely against section 4(1) and (2) of the Illiterates’ Protection Ordinance.7 For the above reasons, I therefore hold that exhibits 1 and 2, not having been read and interpreted to the plaintiff in a language which he understands, the plaintiff had no knowledge of the contents of exhibits 1 and 2. Exhibits 1 and 2 are therefore not legally binding on the plaintiff: see Waya v. Byrougthy8 and Boakyem v. Ansah.9 Having held thus the submission of estoppel fails, the plaintiff is therefore not barred from bringing further action for damages in this court.

The defendant did not plead set-off or counterclaim for the sum of £G184 5s. 6d. alleged to have been paid to the plaintiff as compensation under Act 174. The defendant also did not plead that he paid the plaintiff his salary while in hospital as he said in evidence. I do not consider that paragraphs (5) and (6) of the statement of defence relate to the payments of salary by the defendant. This would have to be specifically pleaded. I am greatly surprised that counsel for the defendant submitted that the plaintiff should have set-off the £G184 5s. 6d. against his claim. In my experience set-off is a matter for the defence. As to the evidence of alleged payment of salary by the defendant while the plaintiff was in hospital I will reject this as being untrue. I accept the plaintiff’s evidence that he was not paid any salary by the defendant. Looking at the evidence this matter of payment of the plaintiff’s salary while he was in hospital was not even put to him under cross-examination. On the whole evidence I am satisfied that the plaintiff has proved his case against the defendant.

As to special damages I accept the evidence of the plaintiff that he paid £G2 2s. to the plaintiff’s first witness. This the plaintiff’s first

[p.572] of [1965] GLR 566 witness admitted. I accept this as proved. I have already said that I accept the evidence of the plaintiff that the defendant never paid him any salary while he was in hospital. The plaintiff did not earn any salary from the date of his admission to the date of discharge. The defendant refused to employ him after his discharge and said that he was useless without his thumb and dismissed him. I accept this as true. The plaintiff managed to get employment as an ice-water seller in March 1965. In the circumstances I will accept that other special damages itemised as “Expenses for native treatment” have not been proved. I will award £G27 12s. as special damages.

As to general damages the amount to be awarded must be such as is reasonable in the circumstances of this particular case. Damages in cases of accident involving loss of a thumb are generally considered by the courts as serious matters and usually the court’s practice has been to award substantial damages. But even this is not done to compensate the injured person as pain and suffering or loss of a thumb cannot be assessed in the coins of the realm or our future currency and legal tender cedis and pesewas.

The plaintiff definitely suffered excruciating pains and the loss of his left thumb. The plaintiff’s first witness said that on admission the plaintiff was psychologically shocked, and after discharge he was made an out patient for three weeks. When the plaintiff reported to the plaintiff’s first witness just after the

Christmas of 1964 he was still feeling pains in the thumb. The plaintiff’s first witness gave him vitamin B for his nerves. The plaintiff’s first witness said the plaintiff could never use his left hand again as any normal being. The plaintiff is naturally left-handed and aged 27 years. The pain and suffering and the loss of his left thumb can be imagined to be substantial. All a court can do in the circumstances is to do its best and to decide on a figure which will act as a balm to the plaintiff’s pain and suffering and the loss of his left-thumb. This amount cannot replace the left thumb. Loss of a thumb is not a happy incident in any person’s life-time. The thumb is an essential part of the hand and it has its many uses. For a manual labourer or a writer to lose his thumb is a great handicap indeed. The plaintiff cannot grip anything firmly with his left hand as it is without the thumb. I have seen the demonstration of the plaintiff in court in his attempt to hold a book. For some time, the plaintiff will be reminded of this handicap and will even have to explain to some inquisitive persons who will ask of him as to how it happened. This is an unpleasant incident to relate or remember during one’s lifetime. The plaintiff is 27 years old and will be reminded of this for quite a long time. According to exhibit A the plaintiff’s

[p.573] of [1965] GLR 566 first witness assessed the permanent incapacity at 35 per cent where the plaintiff is concerned.

In these days of rehabilitation schemes in Ghana in respect of the crippled and the physically handicapped, the plaintiff can be rehabilitated if he places himself in the hands of the authorities concerned; and it may not take a long time to find himself settled in comfortable and gainful employment.

This could however take some time depending on how the plaintiff responds to the exercises. The plaintiff is not a skilled labourer but is what is usually called a manual or menial labourer. In the case of

Farrah v. Ashanti Sawmillers Co.10 Azu Crabbe J. (as he then was) awarded £G2,000 general damages in the case of a production manager who was a skilled worker. In this case the plaintiff is an unskilled labourer. I think in this case a fair assessment of damages should be £G1,000. I will therefore award

£G1,000 general damages. There will therefore be judgment for the plaintiff in the sum of £G1,027 12s.

0d. general and special damages against the defendant. In view of the fact that the plaintiff had received

£G184 5s. 6d. from the defendant I will allow this amount to be set-off against the damages awarded.

Costs of this action are assessed at 75 guineas inclusive.

DECISION

Judgment for the plaintiff.

S. K. D.-B.