Joshua v Arkay Footwear Industry (Civil Cause 2833 of 2001) [2004] MWHC 105 (22 October 2004)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 2833 OF 2001 BETWEEN: JOSEPH JOSHUA.......ccovtiiiiiiiiiiiiiiiiiieee e, PLAINTIFF and ARKAY FO({TWEAR INDUSTRY......oevvviiiiiinnnnn, DEFENDANT CORAM: HON. JUSTICE A. C. CHIPETA Gulumba, of Counsel for the Plaintiff Msowoya, of Counsel for the Defendant Nkhoma (Mrs), Official Interpreter Rhodani, Official Recorder JUDGMENT The Plaintiff herein is Joseph Joshua. He was employed a by Arkay Footwear Industry as factory for making plastic shoes. On 5th March, 2001 in the course of work the Plaintiff’s right hand got caught in the machine he was operating and got crushed. In consequence, when he was taken to the hospital, he lost four of his fingers to amputation. In the present action the Plaintiff ascribes negligence for this injury to his employer. a Machine Operator in There are of negligence which the Plaintiff has pleaded in his statement of claim. These are, and I quote: four particulars “(a) failing to promptly correct a defect in the machinery which necessitated the machine operator to use his hands to keep the Spew Injection nozzle open. (b) (¢) (d) failing Injection nozzle with the bare hands. to provide a safer alternative to opening the Spew failing take any or any adequate measures for protection of the Plaintiff as he operated the machine, (and) to the failing to provide a sage system of work despite the obvious risk in the prevailing system.” It is on account of these allegations that the Plaintiff accuses his employer of negligently causing him the injury herein. He thus loss of amenities, for loss of earning capacity, as well as special damages and costs of the action. seeks damages for suffering, pain and for In its the has defence, Defendant admitted the occurrence of the employment relationship between itself and the Plaintiff as well as the injuries Plaintiff has It has however outright denied the negligence complained of. the Plaintiff has attributed to it vis-a-vis the causation of the same. fact, that the Plaintiff is either wholly or largely to blame for the accident in which he sustained these injuries. is the Defendant’s contention, in the It Arkay Footwear Industry avers that the Plaintiff was trained to operate the machine that injured him. Despite this training and in spite of operating instructions it claims that the Plaintiff omitted to press the safety brake of the machine before attempting to reach its nozzle area with his hand. On this basis the Defendant completely disputes liability. Further, the Defendant has complained that the Plaintiff already lodged a claim against it in respect of this very injury under the workers Compensation Act. is thus concerned that for no good reason the Plaintiff is not prosecuting that claim. It I apprehend it to be the purpose of pleadings in civil cases to define and limit issues that are in contention. See: Likaku vs Mponda [1984-86]11 M. L. R. 411. Going by the particulars of negligence as averred by the Plaintiff and as denied by the Defendant, I take it that the issues in contention in the case all revolve around the non-correction or delayed correction of a defect on the machine the Plaintiff was required to operate. had to the machine he is complaining that If I understand the Plaintiff’s statement of claim correctly he operate developed a defect that necessitated the use of his hands to keep its Spew Injection nozzle open, but that the Defendant did not readily correct that defect. Further the Plaintiff alleges that over and above this not provide any safer alternative to opening this nozzle with bare hands. He next accuses the Defendant of failing to take any or any adequate measures to protect him as he operated this defective machine. It is finally his assertion that the risk of operating this machine was obvious, but that despite this the Defendant did not provide a safe-system of work. the Defendant did neglect, the Defendant, and Black Juma, the I heard evidence from a total of four witnesses in this case. Two of them, Joseph Joshua and Joshua Kazombe, testified as PWI and PWII on the Plaintiff’s side of the case. The other two, Nixon Chauma, a Machine Operator still in the employ of Factory Manager, testified on behalf of the Defendant in the case. Apart from the oral testimony of all these witnesses, during the testimony of DW1, the Court took occasion to visit the current factory of the Defendant at Kidney Crescent near Ginnery Corner in town and the old factory building, at which I the injury herein was sustained, situated at Chirimba. should highlight the fact that there being several shoe-making machines at this factory and the said machines having been moved and relocated from the Chirimba site the new premises, it cannot be said that the Court actually saw and examined the very machine that injured the Plaintiff. All the same, however, I found it quite enlightening in the case to see how this type of machine actually operates. to part Now, in a nutshell evidence has shown that the machine in issue is made in the form of a large round table with some twenty shoe moulds. It rotates but stops at what are known “Stations” are places where the moulds on the as “stations.” with the of upper aligned When a station has counterpart moulds on its lower part. been reached plastic material is spewed into the moulds through the nozzle as the lower moulds of the machine are jerked up into the upper ones. The consequence is that the plastic material so injected into the moulds turns into shoes and they are then harvested therefrom as such. machine directly are Evidence has also shown that every now and then the Injection nozzle gets clogged with the plastic material that At such points it becomes necessary to passes through it. stop the machine and to lift the iron sheet cover on it to access the nozzle so as to remove the remains clogging it, before resuming production. There is a button switch within reach of the machine operator for stopping the machine, but evidence also indicated that lifting the iron sheet cover has the same effect. Evidence also made it clear that these switches operate to stop the machine whenever the rotating table has not yet Once it reaches a station, injection will reached a station. inevitably take place and the use of this switch or the lifting of the iron sheet cover is of no effect. It to me was clear testimony was presented that the style of operation described above was the In normal one for the type of machine under consideration. regard to the particular machine the Plaintiff worked on the material day and got injured on, no evidence was presented to throughout as show that it had a defect which the Defendant neglected to maintain or which necessitated any operation in a peculiar fashion. It also became clear, even from the evidence of the Plaintiff himself, that the Plaintiff had some weeks of training on such type of machine before being entrusted with the job of operating it. Having joined the employ of the Defendant in 1999 and become a Machine Operator that very same year, the meaning is that, by the time he was sustaining this injury, the Plaintiff had almost two years of experience to his credit with using this type of machine. It cannot be said therefore that he was an amateur. Indeed evidence has also shown that the Plaintiff was well aware that when the moulds were already aligned, touching the table brake switch would not stop the jerk from coming up and compressing the moulds together for shoes to be manufactured. I noted also on the machine the court examined existence of written instructions warning the user against using it dangerously although the Plaintiff denied existence of any written instructions. On his part, during cross-examination, the Plaintiff said He claimed he could not really explain how he got injured. that he did touch the switch to stop the machine, but that it did not stop the machine. DWI’s evidence was that he was He was then only present the time the Plaintiff got injured. two to three metres away from the Plaintiff and is the one who immediately came to his rescue after the accident. He even took over operating the very machine in issue for the rest of the day and he said he observed no peculiar problem with its operation. DWI corroborated the Plaintiff on point that he switched off the table brake switch. When he rushed to rescue the Plaintiff he said he saw this switch in the off position, but he also observed that by then the machine was already at a By then, per evidence, the switch the Plaintiff had station. used could not have stopped the jerk from moving up and he He then needed to have used a different switch knew this. on the machine, which switch in the located higher up observation of DWI was still in the on-position. The witness saw the Plaintiff’s hand trapped between the nozzle and the jerk and he had to rush to the main switch of the machine to change it from automatic to normal operation before he could lower the jerk to free the Plaintiff’s hand. As I heard this case I observed a marked shift in the way the case was presented from what I had anticipated. The record will bear me out if I say that contrary to the pleadings the Plaintiff did not really dwell on the defect his statement of claim averred. Rather he developed his case along the lines of the Defendant running long and tiresome shifts, its lack of provision of protective wear, and its alleged encouragement of short-cut styles of clearing of nozzles so as to achieve high To be quite sincere the case was highly daily production. obsessed with these accusations against the Defendant, as well factory building where this accident occurred was badly ventilated with windows high up on two walls only. With intense heat, as doors were normally closed, and plastic fumes filling it was virtually suggested that workers as good as got drank and were thus to great danger in operating these machines which liable required accessing the nozzles, when clogged, by hand. as complaints that air, the the Plaintiff, say that A comparison of the trend the evidence adopted with that suggested by the pleadings does not delay in revealing that the two are not compatible. It would thus not be far-fetched in the at hearing stage, the circumstances to abandoned his case as pleaded and preferred to try and prove a type of negligence he had not averred against the Defendant. I am concerned that to allege that the injury herein was due to the Defendant’s failure to rectify a defect in the machine the safe means of failure Plaintiff worked and its the is operating it allegation that overworking and putting the Plaintiff under the stress increased his chances of injuring himself on other machine that employees. to provide not reconcilable with same way for operates interim the the all in in I have recalled to mind the holding of the Supreme Court of Appeal in Yanu-Yanu Company Limited vs Mbewe [1981- to the effect that a Court has no 83]10 MLR 417 which is a point not at issue jurisdiction to determine a case on between the parties. I have accordingly wondered about this shift by the Plaintiff from one sort of negligence as pleaded to a on but not totally different sort pleaded, and I have wondered whether I should follow him there. In battling with this quandary I have also considered Super Trade House vs Mazombwe [1981-83]10 MLR 89 where, inter alia, the Supreme Court again pointed out that a Court should not give judgment on facts that have not been pleaded. of negligence as testified With the guidance just alluded to I see no licence for abandoning the pleadings in the case and being attracted by It evidence that goes off tangent from what was pleaded. follows that the to prove the case he brought to Court. Accordingly I dismiss his action with costs. Plaintiff has failed Pronounced in open Court this 22nd day of October, 2004 at Blantyre.