MOSHIE v. STATE GOLD MINING CORPORATION [1968] GLR 944

DIVISION: HIGH COURT, KUMASI

DATE: 22 OCTOBER 1968

BEFORE: ANNAN J.

NATURE OF PROCEEDINGS

ACTION by the plaintiff against the defendants for damages for injuries sustained by him in the course of his employment with them. The facts are fully set out in the judgment.

COUNSEL

Mmieh for the plaintiff.

Mrs. Campbell for the defendants.

JUDGMENT OF ANNAN J.

The plaintiff claims damages for personal injuries sustained by him while at work on a dredger operated by the defendants in

[p.946] of [1968] GLR 944 the normal course of their business. The plaintiff was in the employment of the defendants as a headman of labourers and had been working for the defendants for a total of thirteen years. The plaintiff’s claim is based on breach of duty at common law and by statute, and the particulars of breach of duty set down in the statement of claim are as follows:

(1) Failing to give requisite warning.

(2) Failing to provide competent workmen.

(3) Failing to fence dangerous machinery.

(4) Failing to provide safe system of work.

The defendants in their statement of defence denied breach of duty and claimed that the plaintiff’s injuries were due to “accident” and did not arise through negligence or breach of statutory duty. They also rely on a written agreement between the plaintiff and the corporation whereby the plaintiff agreed to accept compensation under the Workmen’s Compensation Act, 1963 (Act 174), as amended by the Workmen’s Compensation Act, 1963 (Amendment) Decree, 1966 (NLCD 86), as full compensation for his injury. The defendants contend that the plaintiff has received payment under the agreement, and that by virtue of section 2 of the Workmen’s Compensation Act, 1963 (Act 174), the defendant is bound to pay compensation in accordance with the said Act and not the common law, since the injury was sustained not through the negligence of the defendants. The plaintiff in his reply admits the payment but contends that “He was not made to understand and appreciate the nature and effect of the alleged agreement whereby the said amount was paid to him,” and furthermore that:

“He is not bound by the said agreement because:

(i) He is unable to read and understand the writing in the language in which the alleged agreement is expressed, and

(ii) Being a Moshie man he was not made to understand the terms of the said agreement because it was not interpreted to him in the Moshie language.”

Turning from the pleadings to consider the evidence adduced in support thereof there is firstly the case for the plaintiff. He gave evidence as to the facts of the accident and also as to the circumstances in which he received payment from the corporation of the sum of money which the latter contend stops him from prosecuting this claim. One witness was called for the plaintiff to tender a report by the senior inspector of machinery of the Mines Department on the accident. The report is exhibit B, and contains the findings of fact of the inspector arrived at after due inquiry and the plaintiff [p.947] of [1968] GLR 944 relies on it. The defendants did not call any witness as to the circumstances in which the plaintiff received the injury and limited their evidence to proof of the making of the agreement.

With regard to the accident itself, the plaintiff’s evidence, although challenged in cross-examination by the defendants, has not been discredited or shown in any other manner to be unworthy of belief. That part of his evidence stands uncontradicted and is fairly simple and straightforward. It is also supported in its essential respects by exhibit B. Upon consideration I find the plaintiff’s evidence as to the accident itself acceptable and I will rely on that part of his evidence. I therefore find it proved that when the plaintiff was at work for the defendants on a dredger loading a pontoon, a loose piece of wood fell from a load that was being conveyed to the pontoon on to a rope connecting the dredger to the pontoon. The rope broke and tripped the plaintiff. He stretched out his hand for support and his hand was caught by the wire rope of the sheave wheel and dragged into the wheel. The wire rope was being wound mechanically around the wheel and the plaintiff’s hand was crushed in the machine. I find it proved that the sheave wheel and wire rope, when in operation, constitute dangerous machinery. There is no dispute that it was not fenced at the date of the accident or that it has been fenced since the accident. The plaintiff’s evidence shows that the root cause of the chain of events leading to the crushing of his hand in the machine was the falling down of the piece of wood from the load of other such pieces being conveyed on to the pontoon. I find that the evidence raises a strong inference of negligence on the part of the defendants’ workmen who were responsible for making up the load and that there is no evidence to the contrary. I find that the defendants were negligent and that their system of work in respect of the work the plaintiff was engaged on was not safe. As to breach of statutory duty, the machine in which the plaintiff’s hand was caught is clearly a dangerous machine and it should have been fenced in such a way as to provide a guard between it and the body of workmen around it. Work on a dredger and a pontoon on a river reasonably involves the likelihood of a certain amount of water finding its way on to the dredger and this could make the working area of the dredger slippery. There was a duty on the defendants to anticipate the kind of accident which happened to the plaintiff and to fence machinery in that area so as to prevent injury of the kind suffered by the plaintiff. I find the defendants were in breach of their statutory duty to fence the wheel and that the plaintiff was injured as a result of that breach. I now turn to consider the substantial matter in dispute between the parties, namely, whether the plaintiff received compensation

[p.948] of [1968] GLR 944 under the Workmen’s Compensation Act, 1963, and whether he entered into any agreement with the defendants in that respect and if he did whether that agreement is binding on him to preclude him from instituting proceedings independently of the Act to recover damages in respect of the injury to which the agreement relates or whether for any other sufficient reason the plaintiff is barred from prosecuting this claim. The basic rules are contained in section 24 of the Act. Subsection (1) of the section provides that:

“24. (1) Where the injury was caused by the personal negligence or wilful act of the employer or of some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a Civil Court independently of this Act.”

This general provision, which preserves the common law rights and obligations of the servant and the master, is to be read, for the purposes of this case, with section 24 (4) which states:

“24. (4) An agreement come to between the employer and the workman under the provisions of subsection (1) of section 15 shall be a bar to proceedings by the workman in respect of the same injury independently of this Act.”

It seems to me that taking together section 24 (1) and section 24 (4) the effect of section 24 is to limit the right of the workman to pursue his non-statutory right to damages and that this right can be effectively precluded by agreement between the workman and his employer. To have this effect there must be an agreement which unequivocally in terms precludes the common law right. The agreement must show in clear terms that the workman has agreed to forgo his non-statutory right to take action outside the Act. Furthermore the effect of section 24 (4) taken together with section 15 (3) (b) as amended by NLCD 86, para. 1 seems to me to be that an agreement to forgo independent proceedings cannot operate to have this effect unless:

(a) the labour officer has in fact “explained to the workman that the making of the agreement would preclude him from instituting” independent proceedings;

(b) “the workman appeared fully to understand and accept the legal position in that regard”; and

(c) the labour officer makes a certificate on the agreement certifying these matters as in (a) and (b) above.

[p.949] of [1968] GLR 944

In my view the mere fact of the making of the certificate on the agreement cannot per se have the effect of precluding the workman from taking independent action. I think the true purpose of the provisions in section 15 is to make such agreements inoperative, whatever their contents and their face value, unless the effect thereof has been fully explained to the workman and to his understanding by a labour officer and that officer must also certify these matters on the agreement. There must in the first place be the agreement barring independent action. That is an essential prerequisite, but then the operation of the agreement is in the case of an illiterate workman circumscribed by the Act. So that where the agreement does not in itself provide for exclusion of independent action the certificate of the labour officer cannot have any effect. The parties must first of all agree to limit their rights and obligations specifically and then those terms must be interpreted by the labour officer to the illiterate workman, and that officer must certify these matters. On the evidence before me, both the oral evidence and the contents of the agreement, exhibit 1, I find that there is no evidence to establish that the plaintiff and the defendants agreed that the former should forgo his non-statutory right to take independent action, and consequently exhibit 1 does not preclude the plaintiff from taking such action. There is no such agreement embodied in exhibit 1 and the certificate of the labour officer expressed on it cannot have effect to preclude the plaintiff in the absence of an agreement outside the certificate for that purpose. In my view the mere making of the certificate cannot preclude the plaintiff without prior agreement to that effect. In these circumstances the fact that I am fully satisfied that the evidence of the witnesses for the defendants is to be preferred to that of the plaintiff is of no consequence since that evidence did not establish an agreement for the plaintiff to forgo his common law rights and to relieve the defendants of their obligations at common law. I have no doubt that the version of the plaintiff as to what happened is obviously and demonstrably false and that the weight of evidence is clearly on the side of the defendants. I have no doubt that the plaintiff understood enough Twi to follow an ordinary conversation in Twi and that he fully understood what was explained to him by the labour officers, who must be regarded as independent witnesses. The flaw is in the terms of the agreement. I do not think that this type of standard form agreement is satisfactory to satisfy section 24 and section 15 of the Act. Indeed exhibit 1 best speaks for itself and what it says is that: “Now it is hereby agreed as follows:

As compensation for such injury as aforesaid the employer

[p.950] of [1968] GLR 944 will pay to the workman the sum of ¢1,046.52, one thousand and forty six cedis fifty two pesewas, in full discharge of all liability of the employer to pay compensation under the provisions of the said Act.”

(The emphasis is mine)

In the result I find that there is no bar to the plaintiff taking proceedings independently of the Act, and that section 24 (4) of the Act does not apply in this case to prevent the plaintiff from relying on section 24 (1) of the Act. I therefore find the defendants liable to pay damages to the plaintiff.

The plaintiff is about 45 years. He has not lost his employment as a result of or since the accident. He now appears to earn rather more than before. But then the defendants, who have continued to employ him, are under no legal obligation to continue to have him at his present wages or indeed at all. They can throw him on to the open labour market at any time. If that happened the plaintiff would be at a distinct and serious disadvantage. He is a right-handed man now saddled with a virtually useless right hand. He also cannot now usefully continue as a spare time farmer. As to special damages I find that no loss of earnings has been proved as the plaintiff now receives more wages than before and never lost his job. As to loss of income from farming I consider that the plaintiff has not proved his income from that source. His bare allegation that he made N¢24.00 a month is not good enough, and I cannot accept it as proof of his earnings. I therefore dismiss the claim for special damages. I award for general damages the sum of N¢4,000.00 inclusive of pain and suffering, probable loss or diminution of earning capacity and loss of amenities. I order that the amount already paid to the plaintiff be taken out of the damages awarded now to the plaintiff. I award costs of N¢241.00 inclusive of counsel’s fees to the plaintiff.

DECISION

Judgment for the plaintiff.

F.S.T.