Kaweluza v Parogate (Personal Injury 349 of 2014) [2017] MWHC 48 (8 February 2017)

REPUBLIC OF MALA WI IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY PERSONAL INJURY NUMBER 349 OF 2014 BETWEEN: YO HANE KA WELUZA .... ..... ... .......................... .. ............... ..... ..... PLAINTIFF -AND- ETG PAROGATE . . . .. .. . . . ............ ....... . . ........... . ........... . ..... ... . .... DEFENDANT Coram: Hon. Justice Kamwambe Mr. Kwakwala Counsel for the Plaintiff Mr. Kaduya Counsel for the Defendant Mrs. M. Pindani, Chief Court Reporter Mr. Nicholas Phi ri, Court Clerk JUDGMENT By a writ of summons filed on the 3 151 of March 2014 the Plaintiff claim s for damages for personal injuries sustained at the Defendant's work place in the city of Blantyre. He alleges negligence on the part of the Defendant. The plaintiff lost three of his fingers on the right hand . FACTS The Plaintiff was employed by the Defendant in or about January, 2014 as a General Factory worker. On or abo ut 20th March, 2014 while in the course of his employment, electricity supply at the Defendant's factory went off and the Plaintiff was asked to go to another department where he had not worked before to assist in cleaning of machines. Whilst cleaning the said machines, the electricity supply became on and the Plaintiffs hand got trapped in the machine . The Plaintiff got injured and three of his right hand fingers got chopped off . The Plaintiff avers in the statement of claim that the accident happened due to the negligence of the Defendant in that: 1- He fa iled to take any adequate precautions for the safety of the Plaintiff while he [the Plaintiff] was engaged upon the said work. 11- He exposed the Plaintiff to a risk of injury or damage which he [the Defendant] 111- 1v- knew or ought to have known . He failed to provide a safe place of work for the Plaintiff. He caused or permitted the Plaintiff to use the said machine when it was defective and unsafe to do so. v- He failed to take any adequate measures to ensure that the machi ne was safe to use and to work with. v1- v11- He failed to provide or ma intain a safe or proper system of work. In so far as applicable the Plaintiff relied on the doctrine of res ipsa loquitur. Hence, Plaintiff seeks damages for: 1- Pain and suffering 2- Loss of amen ities of life 3- Disfigurement 4- KS, 000.00 special damages fo r procuring a medical report 5- Costs for the action. What has to be proved on a balance of probabilities is that the negligence of the Defendant caused the injuries mentioned by way of not providing the Plaintiff with safety working devices, failing to provide a safe system of work to the Plaintiff, exposing the Plaintiff to a risk of injury, failing to take adequate measures to ensure that the machine was safe to use and pe rmit ting the Plaintiff to use the said machine when it was defective and unsafe to use. The court is called upon to also consider contributory negligence. Plaintiff is claiming both under common law negligence which encompasses breach of duty to take care, and, secondly, under statute known as breach of statutory duty to take care of an employee. To prove neglige nce under statute it must be shown that: a- The Defendant owed a legal duty of care towards the Plaintiff. b- The Defendant breach ed that duty and c- Plaintiff suffered damage or loss as a result of the breach . Every person must take reasonable care to avoid acts or omissions w hich he can reasonably fo resee would be likely to injure persons within reasonable contemplation. [Donogue v Stevenson (1932)] A. C 562. Under th e Occupatio nal Safety, Health and Welfare Act, No. 21 of 1997 an employer owes a duty of care to his em ployees to provide safe place of work and safe system of work. Section 13(1) of the Act provides: ' It shall be the duty of every employer to ensure the safety, health and welfare at work of all his employees.' Under section 13(2) of the Act the duties include : a- Arrangements for ensuring safety and absence of risks of health in conn ection with the use, handling, storage and transportation of articles and substance. b- The provision of information, instruction, training and supervision in accordance with section 65 to ensure the safety and health at work of his employees. Section 65 (I) of the Act states that: "Every worker in a workplace shall be adequately and suitably: a- Informed of potential health hazards to which he may be exposed to at the work place. b- Instructed a nd trained in the measures available for prevention and control protection against health hazards at work place". Where the nature of the work is dangerous, the employer is required to provide the em pl oyees with specialized instructions and training. Hence, section 65(3) of the Act provides : "Specialized instructions and training shall be given to : a- Drivers and operators of lifiing appliances, transport vehicles, earth moving and material handling equipment and plant, steam boilers and machinery or equipment of specialized of specialized or dangerous nature. According to Blyth v Birminingham water works Company ( 1856) 11 ex. 781 exp laining the common law position, one breaches a duty of care or is negligent when he omits to do something which a reasonable man guided upon those consideration s which ordinarily regulate the cond uct of human affairs, would do or does something which a prudent and reasonab le person would not do. In Winter v Card iff R. D. C. 1950 1 All ER 819, 823 Lord Mac Dermott sa id to the effect that at common law the employer's duty is not absolute and it is for the Plaintiff to prove its breach . This means that if the workman cannot prove negligence, whether by direct evidence or with the aid of the max im res ipsa loquitur, an action based upon breach of the emp loyer' s persona l duty must fail. Breach of statutory duty by an employer would lead to liability where there is failure to provide safety dev ices and specialized instruction and training to employee and fa il s to supervi se his employees on the conduct of their work. On a balance of probabili ties th e court mu st be convinced that there was a failure to comply with the safety standards as prov ided for in the Occupational, Safety, Health and Welfare Act and/ or failure to carry out a du ty of care toward his empl oyee. Both give rise to a cause of action. Accord ing to OW l ' s testimony, before one is asked to operate the machine they are to ld abo ut th e safety measures. The Plaintiff was give n an explanation on how the machine wo rks. In cross exami nat ion OW I told the court that safety tips were indeed given to th e Pla int iff an d th at no special train ing is required for one to operate the machine. Furthermore, the Pla in ti ff had observed how the machine works before. However, OW I also to ld the co urt that he co uld not bla me the Plaintiff for the accident since he was the first time w orker who was not full y aware of how the machine works. This court is convinced that a mere observat io n on how the mach ine works does not constitute ' training' as specified in the Occ upatio na l, Safety, Hea lth a nd Welfare Act. The court is also convinced that the explanat ion wh ich was given to the Pla intiff prior to working on the machine did not constitute ' spec ia lized instru ction ' as required by the Act. Where the nature of the work is dangerou s, it is the statutory duty of the employer to prov ide the employees with specialized in stru ct io ns and tra inin g. Since no specialized instruction and training were provided there was a breach of statutory duty occas ioned by the Defendant. On the iss ue of protective gear, it was submitted by the plaintiff that he was not give n gloves when he was c leaning the machine . However, in cross examination he stated that even if he had put on gloves, the machine would have crushed both the gloves and th e finge rs. In hi s testim ony, DW I told the court that gloves would not have prevented the inj ury. It wo uld not be wrong to say that a duty under statute to provide protective wear should not be ap pli ed w ill y nill y at ones c onvenience without regard to its useful use [Victoria Berna vs Flexible Packaging Industries (Firm) and Nico General Insurance Company Lim ited Civil Cause NO. 2804 of 2009]. When the locus in quo was conducted, it was w itn essed that glo ves were not e ssential in the operation of the machine. Since no protecti ve dev ices were necessary in operating the machine there was no breach of statutory duty occasioned by the Defendant. T he Plai ntiff alleges that the lights were switched on when he was cleaning the machine leadin g to his inj ury. He testified that th e power was off when he started cleaning the mach ine and that so mebody just switched it on whi !st he was busy removing th e cakes. OW I told the co urt that the machine was working on and off and that the time the Plaintiff was c leaning the machi ne it was indeed off but st ill rotating. The Plaintiff decided to put his hand in but got stuck and hi s fingers were chopped off. ln cross examination DWl told the co urt th at the Plaintiff and others we re told that if the machine is rotating, th ey were supposed to wait for the mach ine to completely stop. This court is convinced that since it was the Pla in tiffs first time to operate the machine, the presence of the superv iso r would have been more vita l. Close supervi sion was imperative for a first timer. Any laxity by th e supervisor w ill o bviously lead into such disaster. No reasonable steps of care were taken by the supervisor to see to it that the first timer does not injure himself. T hi s constituted a breach of stat utory duty under section 13(c) as read with section 65 (1) (a) of the Occupational , Safety, Hea lth and Welfare Act. T he Plai ntiff also a lleges that the Defendant caused or permitted him to use th e machine when it was defective a nd unsafe to do so and that the Defendant did not take a ny adequate measures to ens ure that the machine wa s safe to use and to work with . In so far as appli cable the P lai ntiff re li ed on the doctrine of res ipsa loquitur. On whether in the c ircum stances the Plainti ff can re ly on the doctrine of res ipsa loquitur the law is c lear in that where the cause of the accident is known this doctrine ha s no app lication and that it becomes the duty of the Plaintiff to prove whether upon the facts of the case negligence on the part of the Defendant is prove d or not [Phekani vs Automotive Products Limited (1996) MLR 23]. On a ba lance of probabilities this court is convinced that there was a failure by the em pl oyer to co mply with the safety standard s as provided for in the Occupational , Safety, Hea lth and We lfare Act. The Plaintiff has succeeded to prove statutory breach of duty giving rise to injuries, as such , t hi s c laim succeeds. Pronounced in open court this 8th day of February, 2017 ~· M . L KAMWAMB E JUDGE