Mtalimanja v Polypack Limited (Personal Injury Cause 157 of 2020) [2021] MWHC 225 (23 December 2021)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NUMBER 157 OF 2020 BETWEEN CORNELIUS MTALIMANJA CLAIMANT AND POLYPACK LIMITED DEFENDANT CORAM: JUSTICE M. A. TEMBO K. Mzumara, Counsel for the Claimant C. Machika, Counsel for the Defendant Mankhambera, Official Court Interpreter JUDGMENT 1. This is the decision of this Court following a trial of this matter on the claimant’s claim for damages for the injury he suffered on his left hand after the machine he was working on at the defendant’s factory trapped his left hand resulting in amputation of four fingers. The claimant claimed that the injury arose as a result of the defendant’s negligence and breach of its statutory duties as an employer. 2. The claimant asserted in his claim that he was employed by the defendant as a machine operator in its business of manufacturing plastic plates. 3. He asserted further that on 4th September, 2019, whilst in the course of his employment as a machine operator, he was removing plates from a mold that is housed inside a compartment of the machine he was working with. Once a plate is formed the plate molding machine door is opened and the mold moves to one side at which point he was to remove the plate. Once the door is closed, the mold moves across the inside of the machine compartment to form the next plate. However, on the fateful day, as he had opened the machine door and was removing the plate the mold suddenly moved and caught his left hand and he got injured. 4. He asserted that his injury was caused by the breach of statutory duty by the defendant in that the defendant failed to ensure the safety, health and welfare of all its employees including himself as required under section 13 and 65 of the Occupational Safety, Health and Welfare Act. The particulars of breach are that he was ordered to work on a faulty machine, the machine had faulty automated water pressure causing the machine not to discharge the plates automatically hence requiring manual opening of the same which was risky, failure to provide protective gear such as thick gloves, failure to provide specialized instruction and training on how to work on such faulty machine and ignoring to fix the machine. 5. The claimant also indicated that his injury was caused by the defendant’s negligence in that the defendant failed to take adequate precautions for his safety on such risky and dangerous work, exposed him to risk of injury and ordering him to work on a faulty machine that was not safe. 6. He then claimed damages for pain and suffering, loss of amenities of life, disfigurement, loss of earning capacity, cost of a medical report and costs of this action. 7. On its part, the defendant did not dispute in its defence that it had indeed employed the claimant as a machine operator. It also admitted that the claimant got injured. It denied the allegations of negligence and breach of statutory duty herein. It asserted that the claimant got injured due to his own negligence, namely, his failure to calculate the motion of the machine. The defendant asserted that it provided the claimant with protective clothing, namely, gloves. It denied that the machine was faulty and asserted that it provided the necessary training to the claimant. 8. The defendant therefore denied any liability to pay damages herein asserting that the claimant negligently injured himself. 9. That the claimant suffered the injury and loss claimed is not in dispute. The issues for determination before this Court are whether the defendant is guilty of the alleged negligence and breach of an employer’s duty as alleged. And whether he is entitled to the damages and costs sought. 10. The standard of proof in these civil matters is on a balance of probabilities as rightly noted by the parties in this matter. And, the burden of proof lies on he who asserts the affirmative, in this case the claimant. The defendant bears the burden of proof on the allegation of contributory negligence. See Nkuluzado v Malawi Housing Corporation [1999] MLR 302 and Miller v Minister of Pensions [1947] All ER 372. 11. The claimant gave evidence to prove his claim. The defendant had one witness. Both parties made submissions herein. 12. This Court visited the factory and saw the operation of the machine on which the claimant got injured. From the evidence, the following facts were established. 13. On the material day, the claimant was working on the defendant’s machine in the factory. The impression that this Court got was that the machine is meant to be operated automatically whereby certain settings are adopted on the machine and it produces plates and the operator simply collects the plates once they are discharged from the machine. In such a case, the operator is not supposed to open the compartment on the machine where the plates are molded. 14. The machine also operates in a manual mode whereby once the plate is molded, the operator has to open a door and use his hands to collect the plate from the molding compartment at which point the mold is on one side and remains on that side until the door is closed when the mold moves across the compartment to mold some more plates. 15. On the day of the incident herein, the claimant was operating the machine in the manual mode as set for him by the defendant’s supervisor. The door to the mold compartment had a cracked and broken glass. The door once opened keeps the mold retracted on one side by way of sensors and that allowed the claimant to collect the plates from inside the molding compartment in the machine. It was whilst he was collecting plates inside the molding compartment after opening the door that suddenly the mold went into motion and caused him the injury. 16. This Court was left with the impression that the requirement to use of hands inside the molding compartment is inherently risky as that exposed the hands to the mold movement and the risk was heightened by the cracked and broken glass door to the molding compartment herein. This Court also noted that no fresh instructions were given to the claimant at all on how to deal with a machine whose glass door was cracked and broken and which obviously affected the machine. This Court was left in doubt that the claimant was adequately supervised given the faulty broken machine and that the supervisor was never present and was away on the other side of the factory. The claimant was also not given gloves. 17. The defendant suggested at trial that the claimant caused his own injury because he tried to get plates out of the molding compartment through the hole in the broken glass door. However, the witness of the defendant who made the suggestion was not present at the time of the incident in this matter. His suggestion is based on an alleged observation that there were traces of blood and human flesh around the hole in the broken glass door. This Court was not persuaded that indeed the claimant tried to get the plate out of the molding compartment in the manner suggested. That suggestion also runs contrary to the defence pleaded which is to the effect that the claimant miscalculated the motion of the mold. The defendant’s defence actually does not say anything about the claimant using the hole in the broken glass door to pick up plates. In any event, no pictures were taken and produced in evidence to show the traces of blood alleged. 18. Both parties correctly agree on what constitutes negligence. In an action claiming negligence, the claimant must show that there was a duty of care owed to her, that the duty has been breached and that as a result of that breach of duty the claimant has suffered loss and damage. See Mkandawire v Ziligone [1997] 2 MLR 134, 144. 19. Both parties also correctly agree that, with regard to employers and their employees, the duty of care on the employer is as was stated in the case of Nchizi v Registered Trustees of the Seventh Day Adventist Association of Malawi (1990) 13 MRL 303, 308 where Banda J (as he was then) said: It is the duty of an employer or acting through his servant or agents to take reasonable care for the safety of his workmen and other employees in the course of their employment. This duty extends to safety of place of work, the plant and the equipment and the method and conduct of work. Briefly, the duty of an employer towards his servant is to take reasonable care for his servant’s safety in all circumstances of the case. Alternatively, the employer’s duty is that he must not expose his employees to unnecessary risk or unreasonable risk.... 20. Both parties also correctly referred to the statutory duty of employers as provided in section 13 of the Occupational Safety, Health and Welfare Act which states as follows: (1) It shall be the duty of every employer to ensure the safety, health and welfare at work of all his employees (2) Without prejudice to the generality of an employer’s duty under subsection (1), the matters to which that duty extends includes in particular- a. the provision and maintenance of plant and systems of work that are safe and without risk to health; b. arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage and transportation of articles and substances; c. the provision of information, instruction, training and supervision in accordance with section 65 to ensure the safety and health at work of his employees; d. as regards any place of work under the employer’s control, the provision of maintenance in a manner that is safe and without risks to health, and the provision and maintenance of means of access to and egress from it that are safe and without such risks; e. the provision and maintenance of a working environment for his employees that is safe, without risk to health, and adequate as regards facilities and arrangements for their welfare at work. 21. This Court noted that, as submitted by the defendant, section 18 (a) of the Occupational Safety, Health and Welfare Act, places a duty on all employees to take reasonable care for their own safety and health. 22. The parties also correctly noted that an employer has a duty under section 58 of the Act to provide all employees exposed to any injurious or offensive substance, suitable protective clothing and appliances, including, where necessary suitable gloves, footwear, screens, goggles, ear muffs and head covering. 23. On the facts, the claimant submitted that the defendant was negligent in that it breached its common law duty as an employer and imperiled the claimant by letting him operate on a machine that was very risky in the circumstances where the machine had a broken glass door. 24. With regard to section 13 of the Occupational Safety, Health and Welfare Act, the claimant submitted that the defendant breached its duty to ensure his safety in the circumstances by letting him operate a machine that had a broken glass door. He also indicated that the defendant failed to provide him instructions and supervision in how to operate a machine that had a broken glass door. 25 . The claimant also argued that he was never provided gloves in terms of section 58 of the Act. He noted that although he may still have been injured but his injury would have been mitigated. 26. The defendant first commented that the claimant did not prove his claim that the water pressure system on the machine was faulty or that he had reported the same. This Court agrees. 27. The defendant then insisted that it never breached its duty of care as employer or indeed its statutory duty. It indicated that the claimant did not take reasonable care for his own safety and used the hole in the broken glass door to collect plates and got injured as a result. However, this line of defence is not open to the defendant since it was never pleaded. The defendant then asserted that the claimant had been given proper instruction and was sufficiently supervised in the circumstances. 28. This Court notes that the defendant did not at all at trial prove the negligence that it pleaded on the part of the claimant, namely, that he miscalculated the motion of the mold or machine. It instead tried to rely on a defence it did not plead which is not apt, namely, that the claimant used his hands through the broken glass door to pick up the plates. That is untenable since it was not pleaded. 29. This Court is left with a situation where the claimant was asked to use a machine that has sensors plus a broken glass door that made it very risky for him to be putting his hands inside the molding compartment to pick up plates when the mold itself was not secure and moved haphazardly. Such a machine cannot be said to be operating properly. It was not a machine that was safe to use. The defendant failed to instruct the claimant in how to use such an unsafe machine which had a broken glass door which is a variation on a machine that has no broken glass door. This Court doubts that the claimant was adequately supervised given the faulty broken machine and that the supervisor was never present. 30. In the end, this Court finds that the claimant has shown that there was a duty of care owed to him by the defendant, that the duty has been breached and that as a result of that breach of duty the claimant has suffered loss and damage in the form of the injury which he suffered herein. See Mkandawire v Ziligone [1997] 2 MLR 134, 144. 31 . The claimant has shown that the defendant breached the duty of care owed by an employer that was stated in the case of Nchizi v Registered Trustees of the Seventh Day Adventist Association of Malawi (1990) 13 MRL 303. 32. This Court also agrees with the claimant’s submission and finds that, on the evidence of the machine set up with a broken glass door, the claimant has shown that the defendant breached its statutory duties. The defendant failed to ensure a safe working environment. The defendant was in breach of section 13 of the Occupational Safety, Health and Welfare Act. 33. In the circumstances, the view of this Court is that the defendant cannot rely on section 18 (a) of the Occupational Safety, Health and Welfare Act, which places a duty on all employees to take reasonable care for their own safety and health. The defendant ought to have avoided using the machine that had a broken glass door which appear to have affected its safe performance. 34. The defendant did not provide the claimant with gloves. That was a breach of both the common law duty and statutory duty on the part of the defendant to ensure the safety of the claimant. It however remains doubtful that the gloves would have prevented the sort of injury that the claimant was exposed to in the circumstances namely, the crashing of his hand. The failure to provide gloves therefore appears inconsequential in this matter. 35. The immediately foregoing notwithstanding, in the circumstances, the claimant’s claims have been proved satisfactorily and the defendant is found liable for negligence and breach of statutory duty. 36. The claimant clearly suffered injury and loss and is therefore entitled to the damages claimed. The Registrar shall assess the damages. 3 7 . The claimant is also awarded costs of these proceedings to be assessed by the Registrar. Made at Blantyre this 23rd December, 2021. 8