KWAME ATTA VS ISRAEL QUAO (H1/204/2009) [2011] GHACA 1 (28 July 2011)

THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL - ACCRA ---------------------------------------------------------------------- CORAM: - G. M. QUAYE J. A (PRESIDING) F. KUSI-APPIAH J. A P. K. GYAESAYOR J. A Civil Appeal H1/204/09 28th July, 2011 - PLAINITFF/RESPONDENT KWAME ATTA H/NO. 3105, KASOA vrs DEFENDANTS/APPELLANTS - ISRAEL QUAO DIANA QUAO (MRS) ALL TRADING & DOING BUSINESS UNDER THE NAME “ISDEE BAKERY SERVICE H/NO. 16, AKWEI LINK, NEW ABOSEY OKAI ACCRA. ======================================================= JUDGMENT ======================================================= P. K. GYAESAYOR J. A:- This is an appeal, against the decision of the High Court, Accra dated 1st April 2008. By the decision of the High Court, the defendant/appellants are to pay to the plaintiff a total amount of GH¢9,993.30 as contained in the entry of judgment which can be found on page 54 of the record of appeal. The break down is as follows:- 1. GH¢4,300.80 being workers compensation due to plaintiff as a result of injures sustained in the course of his employment. 2. GH¢5,193.00 being interest of 23% from January 2003 to April 2008. 3. GH¢500 being cost awarded. The facts of the case are simple. The appellants engaged the services of plaintiff at their bakery known as Isdee Bakery Enterprise situated at Atico, Accra. After some eight months he was asked to start working on the milling machine. Unfortunately on the 22nd day of December 2002, the left hand of the plaintiff was trapped by the milling machine and crushed while operating the milling machine at the request of the defendant/appellants. Inspite of this, the plaintiff/respondent continued to work with the appellants for another three years until a misunderstanding arose between them whereupon the plaintiff reported the matter of his injury to the labour officer. An invitation extended to the appellant by the labour officer was not honoured as a result of which plaintiff took action in the High Court, Accra claiming:- 1. An amount of ¢53,760 being workmen’s compensation claim due to the respondent as a result of the incapacity suffered from injury arising out of the course of respondent’s employment with the appellants. 2. A further claim of ¢200,000,000 being damages, pain and suffering suffered by the respondent as a result of the appellants’ negligent act. 3. Interest on all claims at the prevailing bank interest rate from January, 2003 to date of payment. 4. Cost of the suit. The learned trial judge after a full trial rejected the claim for damages on account that she did not find negligence on the part of the appellant but agreed that plaintiff/respondent was entitled to workmen’s compensation and interest. The appellants in this appeal claim they are dissatisfied with the whole judgment. In the notice of appeal filed, the following have been set down as the grounds of appeal:- a. The judgment is against the evidence, adduced at the trial. The plaintiff, was not a “workman”, within the meaning, letter or spirit, of the workmen’s compensation Act, 1975 and or its amendments, to qualify, for an award, under the Workmens Compensation Act. b. The plaintiff is estopped, from instituting the instant suit, claiming damages, for injury, suffered at his work place, as he continued, working with the said injured/deformed hand, for over two (2) years, with the appellants, after the accident. c. As the plaintiff, was only engaged, to cut cellophone, for wrapping the bread, his action, is defeasible, by the equitable maxim, “Volenti Non fit Injuria” for an injury suffered, rather at the milling machine. d. The plaintiff’s conduct, i.e. using the allegedly deformed hand to work, with the defendants, for over two (2) years; reverting to his business, of cutting cellphone (SIC), for wrapping bread, ceasing work, only after a misunderstanding, over deduction, from his allowance for absenteeism, disentitles him, from instituting the action, for the reliefs, indorsed on his writ. e. There was no history of accidents, on the milling machine, and it cannot, by any stretch of the imagination, he said to be a dangerous machine. f. The plaintiff was a domestic help and the court should have so, held g. As the plaintiff, was on a modest allowance, of some ¢600,000.00 per mensem, his claim for ¢254 million, damages, for disability and or there is completely without foundation; the award, representing over thirteen (13) years, annual allowance, for a person, who can and has been using, the allegedly/injured deformed hand. h. There was never any intention of the parties to create an employer-employee contract, between them and the court, should have so held. Additional grounds, to be filed, upon the receipt of the appeal. In the court below although an application for directions was filed by the plaintiff, on 13th April, 2006 and was listed to be heard on 30th April, 2006, but there is no evidence from the record of appeal that it was ever heard. The ground of appeal seem to be narrative in nature and an attempt to play on the emotions of the court in order to attract sympathy for the appellant. The first ground of appeal seeks to create the impression that the respondent is not a worker within the terms of the Workmens Compensation Act, of 1975 and it’s amendments to qualify for compensation. In that vein, it is canvassed that the judgment is against the weight of evidence. Clearly it is the duty of the appellant to satisfy the court that the court below erred having regard to the evidence led before it. See Tuakwa vrs Bosom [2001-2002] SCGLR 61. The trial court rejected this when it said “on the facts and evidence before us, I find that the plaintiff was engaged by the defendants to work for them as a bakery assistant and not as a foster child and that later, he was asked to work on the mill machine, he was paid as an employee”. The Workmen compensation law PNDCL 187 is now Workmens Compensation Act, 1987. An employee is described by Section 38 as follows; “employee” subject to Section 1 and subsection 2 of this section, means a person who has entered into or is working under a contract of service or apprenticeship with an employer, whether skilled or unskilled and whether the contract is expressed or implied, or in writing. There is abundant evidence on record from both parties that respondent worked and was paid for the services he rendered to the appellants. The appellant in his evidence told the court that plaintiff was being paid ¢640, 000 per month after the accident while he received ¢30,000 per week prior to the accident. The plaintiff himself told the court that he was paid ¢160,000 per week after the accident while the other workers were paid ¢180,000 per week. The absence of a formal letter of appointment is not fatal since the law is clear that a contract under the law can be express, implied, oral or written. In the instant case there is a clear oral evidence to support the existence of a valid contract of employment between the parties. The workmen compensation law according to its memorandum “is an act to consolidate with amendment the law relating to compensation to workmen for personal injuries caused by accident arising out and in the course of their employment” It makes no distinction as to where one is employed and indeed Section 1 provides “This Act applies to employees employed by the republic as well as private persons, except in the case of persons in the Armed Forces”. The law applies to everybody except those in the armed forces and therefore applicable to the plaintiff/respondent in this appeal. Clearly then the respondent is covered by the law and the learned trial judge was right in finding that the plaintiff was a worker for the purposes of this law and therefore qualifies for compensation. This ground of appeal lacks merit and therefore fails. The employer is not entitled to terminate the employment on account of injury sustained in the course of employment where he can be found a corresponding job in the company. See Section 50 of the labour Act, Act 651 of 2003. The evidence here is clear that plaintiff/respondent continued to work for three (3) years after the accident and was given a lower pay because he did minor jobs, in the bakery. In any event, the plaintiff/respondent was only awarded compensation for the injuries he sustained but no damages as a result of negligence. Since there was no award for negligence, it does not arise in this appeal. Ground ‘C’ of the appeal sought to show that the respondent brought the accident to himself because he was engaged to cut cellophane and wrappers. The evidence however stands uncontroverted that the accident occurred on a Sunday i.e. 22nd December, 2003 when the applicants specifically asked him to come to work and was put on the mill machine to work. He did the work on the instructions of his employers. In any event Section 1, 6 & 7 of the act seems to have relegated the doctrine of “Volenti Non fit Injuria” into the dustbin when it opts for compulsory payment of compensation. Section 1(6) reads “for the purposes of the Act, an accident resulting in the death or serious and permanent incapacity of an employee arises out of and in the course of employment, and 6(a) reads “Although the employee was at the time when the accident happened acting in contravention of a statutory or any other regulation applicable to the employment, or was acting without the instruction from the employee, and 6(b) if the act was done by the employee for the purposes of and in connection with the employers trade or business”. The respondent was neither known to be drunk or labouring under the influence of drugs or was said to be suffering from a self-inflicted injury. A careful reading of the memorandum accompanying this law shows that Volenti Non fit Injuria, a common law defence does not apply to this case. The appellant is bound to pay compensation for injuries sustained while the plaintiff was working in the interest of the bakery notwithstanding any breach of work place ethics or regulation. The fact and the law support the judgment delivered by the High Court on 1st April 2008 and we are satisfied that there is nothing wrong with the said judgment for it to be set aside. We are however worried about the award of interest. There is no provision in the law making room for the award of interest. In this case, the plaintiff/respondent continued to work after the accident and was paid and he would have remained employed if he had not left on his own as a result of a dispute between him and his employers. He was not dismissed or terminated. We view the award of interest as unacceptable and hereby set it side. We agree that in arriving at what is to be paid as compensation, the right formula as set out in the law was used and we do not intend to disturb it. The respondent is therefore entitled to recover GH¢4,300.80 together with the cost GH¢500 awarded in the court below. The appeal is therefore allowed in part. SGD P. K. GYAESAYOR (JUSTICE OF APPEAL) SGD G. M. QUAYE (JUSTICE OF APPEAL) QUAYE, JA I agree KUSI-APPIAH, JA I also agree SGD F. KUSI-APPIAH (JUSTICE OF APPEAL) Counsels : Mr. Paul Opoku for plaintiff/respondent Mr. Willie Amarfio for defendants/appellants 12