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TRUFOODS (NIGERIA) LTD
IN THE COURT OF APPEAL
IBADAN JUDICIAL DIVISION
15TH JUNE 2000
BEFORE THEIR LORDSHIPS
MORONKEJI OMOTAYO ONALAJA, JCA
FRANCIS FEDODE TABAI, JCA
OLUFUNLOLA OYELOLA ADEKEYE, JCA
EMMANUEL IFERE V TRUFOODS (NIGERIA) LTD.
Olaseni Okunloye, with him, M.A. Oke – for the Appellant
Chief M.A. Adegbite – for the Respondent
INTERPRETATION OF STATUTE – STATUTE – Workmen’s Compensation Act Cap. 470 L.F.N. 1990 –compensation
PRACTICE AND PROCEDURE – Special and general damages – how assessed.
OLUFUNMILOLA OYELOLA ADEKEYE, JCA (delivering the leading judgment)
This is an appeal against the judgment of the High court of justice Otta Ogun State – Coram Justice G.O. Shoremi delivered on the 24th of July 1997. The plaintiff now appellant before this court claim against the defendant now respondent according to paragraph 27(a)-(c) of the Amended Statement of Claim amended pursuant to court order of the 21/5/99 which supercedes the particular of the claim as endorsed on the writ of summons filed on 7/3/94 as follows:-
(a) N1 million as special damages for the agony and excruciating pain suffered by him during the accident, the consequent hospitalization and the disability from loss of use of his right hand due to negligence on the defendant’s part 1.8 million as special damage for failing to adequately and promptly rehabilitate and compensate the plaintiff which has led to his leading almost a street life of destitution to survive.
(b) 21% interest rate on the above sum as the prevailing interest rate from date of the accident till date of payment of damages.”
The background of the case in brief is that the appellant was employed in April 1992 by the respondent company Trufoods Nigeria Ltd. as a casual worker. On the 21st of May 1992 the supervisor of the respondent asked him to work on a machine known as Jetmaster J.M 12 MK11 used for Moulding plastics. Prior to this he was given a brief training as to how to operate the machine. As he was working on the machine a plastic got stuck in it. As he attempted to remove the plastic the machine drew in and squeezed his hand. The accident led to the amputation of all his right hand fingers. The respondent through its insurance company Guinea insurance PLC paid the appellant a sum of N6, 190.56 as compensation under the workmen compensation Act. The appellant considered the amount to be inadequate, he pressed for more money through his solicitor. When the respondent failed to meet his demand he resorted to court action. The respondent denied being negligent. In his reserved judgment the learned trial Judge dismissed the appellant’s claim for N1 million Naira special damages as his injury was not caused by the negligence of the defendant, but awarded him a sum of N54,000 under the workmen compensation Act. Being aggrieved by the decision of the learned trial judge the appellant lodged an appeal as follows (without their particulars)
(I) The learned trial judge erred in law by holding that the respondents were not negligent in occasioning the severance by their machine called Jet master MK 2 of the five fingers of the right hand of the plaintiff despite abundant evidence in that regard
(II) The trial judge misdirected himself in law by not determining the nature of the duty of care owed by the respondent to the plaintiff including the standard of care statutorily stipulated as enumerated in paragraph 2 to 4 above and by not holding that the best evidence of negligence is in the breach of statutory imposed duty and standard of care. Rather the trial judge stated that it was the appellant who was negligence by stupidity using his hands to extract crushed plastics particles from the machine and that the respondents had done all a good company should do for the appellant.
(III) The trial judge misdirected himself in law by holding that the appellant did not prove special Damages and that the failure was fatal to the appellant’s case despite abundant evidence in that behalf and the obvious consequences of loss of the entire five fingers of the right hand of a right-handed man.
The respondent in the same vein filed its brief on 24/1/99-whereupon five issues were distilled as follows:-
(1) What was the duty of care owed by the Respondent to the appellant and whether that duty was adequate
(2) Was the machine in good working condition on the day of the incident either before and after the accident and who packed the machine with paper?
(3) Whether the appellant acted wisely or stupidly in putting his hand in the machine when the machine stopped by itself which resulted in his fingers being cut off.
(4) Whether pleadings can constitute evidence
(5) Was the trial judge right in arriving at the amount of damages payable to Appellant under the Workmen’s Compensation Act?
The appellant filed a Reply brief on 19/5/99. Since three of the issues formulated by the respondent issues 3.01, 3.02 and 3.03 tally with the issues for determination raised by the appellant, I shall prefer to adopt the issues formulated by the appellant for the purpose of this appeal. On the first issue for determination which is whether the learned trial judge was right in holding that the defendants were not negligent when they drafted the plaintiff a casual worker, within the first week of his employment to operate a dangerous hazardous machine called Jetmaster MK 2 used in making plastics, which machine cut off the five fingers of the plaintiff’s right hand. In other words did the trial judge determine the nature of the duty of care owed by the defendant to the plaintiff considering the circumstances of this case and the standard laid down in Statutory Provisions namely the Factories Act and the Workmen’s Compensation Act Laws of the Federation 1990 .
In his submission Mr. C.A. Anyanwu counsel for the appellant contended that the respondent was negligent in not training and supervising the appellant for the hazardous job of operating a plastic moulding machine. The learned trial Judge ignored the provision of the law establishing standard of care applicable to workmen like the appellant. Section 23 of the Factories Act Laws of the Federation Cap. 126 1990. provides that:-
“No person shall be employed at any machine or in any process liable to cause bodily injury unless he had been fully instructed as to the dangers likely to arise in connection therewith and the precautions to be observed and (a) has received a sufficient training to work at the machine and in the process or (b) is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process.”
The standard of care expected of an employer under this provision is mandatory.
The evidence given by the respondent as to the level of training given to the appellant is at variance with the statement of defence. At pages 16 and 17 of the records one Abayomi Adejuwon – the plastic engineer in the Respondent’s company maintained that the appellant was on the machine JM 12 which gave him the injury. One Anthony Ilo the production engineer trained the appellant and he satisfied them before putting him on the machine. The training given to any staff working on the machine usually last for not less than one week. The plaintiff was trained on 7 machines and he was monitoring his capability to work on the machine whereas in paragraph 4 (c) of the statement of defence the respondent stated that: –
4(c) The plaintiff was duly put on an induction course for a full day before he was entrusted to operate the machine.”
Evidence unpleaded at variance with pleadings must be disregarded. Vanderpuye v Gbadebo (1998) 2 SCNJ 9
No certificate of proficiency was issued after training and there was no supervisior with him on the day of accident – page 17 lines 23-29. As his conclusion the appellant neither fully instructed, nor sufficiently trained, nor adequately supervised which amounts to gross negligence on the part of the respondents. The test of the adequacy of training must be that of a reasonable man or as determined by court. Since training is a statutory requirement it must be strictly proved. A machine with the electrical control packed cannot be said to be in good condition. The first issue should be resolved in favour of the appellant In his reply to issue one – Chief M.A. Adegbite for the respondent referred to Section 23 of the Factories Act, 1990 and disclosed that the law did not lay emphasis on the duration for training but that the employee must receive sufficient training. Sufficiency of training can only be determined by an employer. Mr. Abayomi confirmed that the training given to the appellant was sufficient. He was asked questions which he answered – he had been working on the machine for four weeks – while his capability to use the machines was being monitored”. The appellant confirmed under cross-examination that he was trained on the machine for two weeks vide page 16 lines 32-36, page 17 lines 4-25 and quoting from his evidence:-
“Myself and one Anthony Ilo production engineer trained the plaintiff on the machine in the factory. We know that he understood because we asked him questions and he answered. The plaintiff has been working on the machine for about 4 weeks before the accident. There is no certificate issued. I do monitor his capability to use the machine.”
From the evidence available the respondent had satisfied the provision of Section 23 of the Factories Act 1990 Cap126. The respondent had taken a duty of care by –
(a) The provisions of machines which were in proper working condition
(b) By providing adequate supervision by the presence of the Engineer and the supervisor at the factory floor at all times.
The learned trial judge concluded from the foregoing that the respondent cannot be said to be negligent. Before considering the issue of Negligence and duty of care which are the major factors for consideration in issue No. I shall quote that portion of the judgment of the learned trial judge relevant to the contention of the parties. On page 29 lines 20-21 the learned trail judge said: –
“I asked the question again has the plaintiff proved his case as to the negligence of the defendant?
On page 31 lines 11-17 he had this to say
“In the circumstance of this case I hold that the plaintiff had not proved his case against the defendant as no negligence is proved, on the other hand it was the plaintiff that was negligent. I will therefore dismiss his action for the sum of N1. Million Special damages for the agony cause by his Injury because it was not caused as a result of the negligence of the defendant.”
Paragraph 14 of the Amended Statements of Claim the appellant stated: –
Particulars of Negligence
(a) Failure to provide any or any adequate training and supervision for the plaintiff before ordering him to perform such a hazardous job
(b) Failure to provide a safe working condition for the plaintiff as per the machine in question
(c) Res ipsa loquitor on the facts and circumstances of this case.
(d) Failure to pay any adequate compensation to the plaintiff by the defendants
The respondent in the statement of defence denied the foregoing while putting the appellant to strictest proof.
During trial of the case the counsel did not touch upon the plea of Res ipsa loquitor. It is trite that any averment or pleading not supported by evidence is deemed abandoned. F.C.D.A v. Waibi (1990) 3 NWLR (Pt. 138) p. 270 Abusonwan v. Mercantile Bank Nig. Ltd. (No 2) (1987) 3 NWLR (Pt. 60) 196.
This court shall therefore discountenance that plea. Negligence is defined as the omission to do something which a reasonable man guided upon the consideration which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do. What amounts to negligence depends on the facts of each particular case as the categories are not closed First Bank of Nig Plc. v. Ibennah (1996) 5 NWLR (Pt. 451) p. 725 Kalla v. Jarmakani Transport Ltd. (1961) 1 All NLR 747 Enyika v. Shell BP Petroleum Development Co. Nig. Ltd. (1997) 10 NWLR (Pt. 526) 638.
Techno Mechanical Nig Ltd v. Ogunbayo 1 NWLR (Pt. 639) 150
The doctrine of proximity as foundation of duty of care is tort is now firmly established as the basis of an action in negligence. The question whether there is a duty of care and to whom it is owed has to be approached in two stages. First one has to ask whether as between the wrong doer and the person who has suffered damages there is a sufficient relationship or neighbourhood such that in the reasonable contemplation of the former carelessness on his parts may likely cause damage to the later in which case a prima facie duty of care arises. Secondly if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negate, or to reduce, or limit the scope of the duty or the class of persons to whom it Is owed or the damage to which a breach of it may give rise to. Enyika v. Shell BP Petroleum Development Co. Ltd. (1997) 10 NWLR (Pt. 526) 638 Techno Mechanical Nig. Ltd. v. Ogunbayo (2000)1 NWLR (Pt. 639) 150 Obimiami Brick & Stone Nig Ltd v. ACB Ltd. (1992) 3 NWLR (Pt. 229),260 ANTS v. Atoloye (1993) 6 NWLR (Pt. 298) p. 233.
For a claim in negligence to succeed, the plaintiff must prove that defendant owes him a duty of care, and was in breach of that duty. Orhue v. NEPA (1998) 7 NWLR (Pt. 557) pg 187 Ngilani v Motherscraft Ltd. (1999) 14 NWLR (Pt. 636) 626.
In understanding the relationship of the parties – the appellant was engaged by the respondent as a casual worker on the 18th of May 1992. The appellant gave evidence that he was employed at the end of April 1992 as a casual worker to undertake laboural and other menial jobs by the respondent. The respondent averred in paragraph 3(b) of the Statement of Defence that:-
3(b) “The plaintiff was not specifically employed to operate a machine called Jettmaster J.M. 12 MK II. Being a casual worker the plaintiff could be assigned to any department of the defendant company to perform any other menial job.”
The law placed a duty on employers in respect of their employees in such circumstances.
Section 23 of the Factories Act Laws of the Federation Cap 1990, provides as follows:-
“No person shall be employed at any machine or in any process being a machine or process liable to cause bodily injury unless he had been fully instructed as to the dangers likely to arise in connection therewith and the precaution to be observed and (a) has received a sufficient training to work at the machine and in the process or (b) is under adequate supervision by a person who has a thorough knowledge and experience of the machine or process.”
The foregoing law places upon an employer mandatory duties where an employee is to operate a machine –
(1) Giving full instructions as against operating the machine
(2) Ensuring that the employee has received sufficient training about the machine
(3) Else he must be placed under adequate supervision.
The law is on the other hand emphasizing that an employee must have the requisite skill and experience before being left to manage and operate a machine. The appellant was employed as a casual labourer and not a machinist. A machinist is one who has been trained and has the necessary skill and experience to operate a particular machine. The respondent maintained that within three weeks of employing the appellant he had been given full instruction, sufficient training – to be left alone to operate a hazardous machine. On the 21st of May 1992 when the accident claiming his five fingers occurred no supervisor was with him. In order to decide whether he was given a full instruction and sufficient training I have to refer the record of or the nature of the instructions and training and the duration . Needless to say there is no record of the instructions given to the appellant about the Jetmaster MK II machine. There is evidence about how the machine works given by the 1st DW as follows:-
“The material will go into the banal and will inject into the mould, the machine will then open and the product will drop. The operator will then pick the product and the runner. When the runner does not drop the operator will put the machine into manual and he would open the door and remove the runner.”
Vide page 77 lines 16-22.
On page 16 lines 26-27 – the machine is said to have three safety devices – one mechanical, one electrical and one hydrolic. The machine cannot be said to be a toy machine that can be fiddled with by anybody without training. There is confusion as to the period of training given to the appellant which varied between one day and two weeks. Paragraph 4 (c ) of the statement of defence said that the appellant was given a one day induction course before being entrusted to operate the machine. On page 16 lines all employees are said to be trained for one week. On page 17 lines 11 DW1 disclosed that the appellant was trained on seven machines all within the date of his employment and the day of the accident – a period under one month. As to the safety of the machine – the DW1 said that his first duty on resumption was to ensure that all machines are in good working condition and the Jetmaster was no exception on the day of the accident. Immediately after the accident he found that the electrical device of the machine was packed. The entire evidence was silent on an explanation on why the electrical device was packed – neither was the appellant blamed for this. He was instructed that when the machine stopped he should remove the scrap. When on the day of the incident – the plastic material did not come out from the machine he wanted to remove the plastic when it squeezed his hand. With the duration of instruction and training given to the appellant can it be said that he had acquired the requisite skill and experience to manage the machine in question? If he could operate the machine what about the experience to cope with emergencies? Could it be said that a fresher trainee like the appellant – had enough supervision in operating the machine, particularly leaving him alone to operate the machine instead of under the watchful eye of an experienced employee? Obviously training and inexperienced casual labourer on seven machines within a period of two to three weeks will not give him a thorough skill – such exercise was only a crash programme. The Factories Act succinctly laid emphasis on experience to operate a machine which the appellant obviously lacked at the time of accident. The respondent did not advert its mind to the level of intelligence of the appellant and whether he would be able to cope and exercise his discretion correctly in the event of an emergency. Any answer to the foregoing question is in the negative and the chain of event shows that the respondent have breached the provision of section 23 of the Factories Act by putting somebody lacking in skill and experience to operate a machine without giving him close supervision. Such an omission obviously amount to negligence and failure to exercise duty of care owed to the appellant in the course of his employment. Contrary to the conclusion of the learned trial judge l find that the respondent was negligent in this circumstance of this case. I am well aware of the attitude of the appellate court to an appeal affecting the finding of fact of the lower court. The Court of Appeal will not interfere with or reverse findings of facts made by a court of trial unless such finding are perverse or unsound, do not conform with principles of law or has occasioned a miscarriage of justice etc.
EBBA v. EZODO (1984) 1 SCNLR 372; Abusomwan v. Mercantile Bank Ltd. (1987) 3 NWLR (Pt. 60 198; Adejumo v. Ayantagbe (1989) 3 NWLR (Pt. 110) 417; Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) 172 CA ; Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 .
The findings of the lower court from the evidence on printed records is obviously perverse and this court must disturb same in the interest of justice.
The first issue is resolved in favour of the appellant.
The second issue is whether the trial judge was right to apply contributory negligence for the defendant when he said that the plaintiff/appellant was negligent by stupidly putting his hand in the machine to be crushed. Learned counsel for the appellant – Mr. Anyanwu referred to the zeal of the learned trial judge to build the defendant’s defence said that the appellant was negligent and stupid by using his hand to extract the remnant of plastic (runner) from the mould. Under cross-examination DW1 explained the normal working of the machine. It was therefore normal for the appellant to extract the remnants with his hand. Vide page 29 line 30 and page 17 lines 15-25 of the records. The learned trial judge found against the appellant for not obeying instruction, whereas the respondent was absolved from all culpability. The learned counsel for the respondent held that the appellant agreed on page 10 line 15 of the record that he did not use the stop device when the machine got faulty. The parking of the electrical device must have been done by the plaintiff or appellant himself. Contributory negligence is simply apportioning of blame between parties in tort. The learned trail judge absorbed the respondent of any negligence in the matter, and blamed the appellant for the loss of the entire five fingers in his right hand.
The third issue – was whether the learned trial judge was right to hold that the plaintiff whose five fingers were amputated, did not prove special damages and that the particulars of his special damages must be strictly proved despite abundant evidence in that behalf and the obvious consequences of loss of the entire five fingers of the right hand of a right handed man. I have to explain that the appellant came to court because he deemed the compensation paid to him for sustaining injury not enough. He was paid a sum of N6, 190.56. I have to point out at this stage that the acceptance of compensation by a workman under the Act is not a bar to an action in tort except the workman knows or is deemed to know that he has no option as to whether to accept compensation under the Act or to claim damages. Famuyiwa v Folarin & Ors. (1972) NSCC vol 7 pg 307
As this leg of the issue for determination is on the award of damage by the lower court, I will start at this opportuned time that by virtue of Section 16 of the Court of Appeal Act, the court of Appeal has the power to assess the damages awardable as compensation to an appellant. Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt. 139) pg 435 Kalu v Mbuko (1988) 3 NWLR pt 80 pg 86 Okhai v C & C Construction Co. Ltd. (1999) 3 NWLR pt.
Learned counsel for the appellant Mr. Anyanwu submitted that the learned trail judge did not award damages to the appellant because he did not specially prove special damages. Whereas the same judge acknowledged that the appellant lost the whole five fingers of his right hand – page 30 lines 20-25 of the records.
In paragraph 27(a) of his amended statement of claim – page 13 of the records stated that-
“he claim special damages for agony and excruciating pains suffered by him during the accident the consequent long hospitalization, and disability from loss of use of his right hand.”
In paragraph 15 of the same amended statement of claim the appellant averred that he is married to one wife and presently has eight children, all of who depend on him for feeding, clothing, education, shelter and general upkeep and as a consequence of the disability he shall not be able to work, being a right handed man, to discharge his family responsibilities. In paragraph 27 of this same amended statement of claim the appellant averred that the accident had rendered him unproductive and that when Respondents terminated his appointment during the pendency of his action to be able to feed himself his wife and eight children they may have no choice but to resort to the street for begging as destitutes. Strict proof is no more than adducing credible evidence in support of claim ACB v. Neka BB.B MFG Co. Ltd. (1996) 4 NWLR (Pt. 4) 567. The basic principle of awarding damages is Restititio in Integrum – which is to compensate a party in damages as far as money can satisfy. NSPA v R.O Alli (1992) 10 SCNJ 34. The court are entitled in awarding damages to take into consideration the economic trend and the purchasing power of the Naira over the past years. Onwu & 11 Ors v. Nke & Ors. (1996) 7 NWLR (Pt. 458) 6. This court is to award monetary terms sufficient compensation that would enable the appellant to start a new life. The learned counsel for the respondent only mentioned about the amount paid to the appellant as compensation. He supported calculation of the appellant’s monthly salary as N1,000, and the amount of N54.000 paid to him under Section 5 of the Workmen’s Compensation Act Cap 470 Laws of the Federation 1990.
I have mentioned earlier that a Court of Appeal under the status has power to re-assess award of damages. However award of damages by court is an exercise of judicial discretion. In order to justify reversing the decision of a trail court on question of the amount of damages, it will generally be necessary that the appellant appellate court should be convinced either that:-
(a) The court acted upon some wrong principles of law or (b) The amount was too high or so small as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled or
(c) The award is arbitrary or
(d) There has been a wrong exercise of judicial discretion
(e) Where injustice would result if the Appeal court does not interfere Zika Press Ltd. v. Ekoku (1951) 13 WACA 188; Idahosa v. Oronsaye (1959) SCNLR 407; Bala v. Bankole (1986) 3 NWLR (Pt. 27) 141; Onaga v. Micho & Co (1961) 2 SCNLR 101; Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124; Onwu v. Nke (1996) 7 NWLR (Pt. 458) 1; Ebe v. Nnamani (1997) 7 NWLR (Pt. 513) 479.
The Appeal Court will proceed to interfere with an award of damages made by a judge where the circumstances calling for such an interference are shown to the court. Union Bank of Nigeria Ltd. v. Odusote Bookstore Ltd. (1995) 9 NWLR (Pt. 421) 558. The appellant is maintaining that the learned trial judge was in error to have refused to award both the special and general damages claimed by him. The learned trial judge arrived at that conclusion having found that the respondent was not negligent. It must be borne in mind that the Court of Appeal will not ordinarily interfere with the finding of facts by the trial judge but where there is ample evidence and the trial judge fail to evaluate it and make correct findings on the issue, or the findings are perverse, the Court of Appeal is in as much a good position as the trial court to deal with the facts and to make proper findings. The learned trial judge in the instant appeal failed to make correct findings from the abundant evident before him during the trial of this case – hence his conclusion on the issue of negligence of the respondent had to be reversed. Shell BP Petroleum Development Co. Nig Ltd v Cole (1978) 3-4 SC 184; Whyte v. Jacks (1995) 2 NWLR (Pt. 431) pg 407; Western Steel Works v. Iron & Steel Workers Union (1987) 1 NWLR (Pt. 49) 284; Woluchem v. Gudi (1981) 5 SC 291; Nwobodo v. Onoh (1984) 1 SCNLR 1; Ude v. Chimbo (1998) 12 NWLR (Pt. 577)169.
I will now consider what is damages and the rational for awarding same. Damages in the sense relevant to this appeal are the pecuniary compensation or award given by process of law to a person for the actionable wrong that another has done. It is pecuniary compensation indemnity which may be recovered in the court by any person who has suffered loss, detriment, or injury, whether to his person, property or right through the unlawful act or omission of another. It is the sum of money awarded as remedy for breach of contract or for tortious acts. Damages are categorized into special and general. The rational for awarding damages is to compensate the aggrieved party for the loss of injury suffered by him so as to place the party in a position in which he would have been if he had not suffered damage or injury for which he is claiming compensation. This is translated in the Latin phrase Restitutio in integrum. Maximum INS Co. Ltd. v. Owoniyi (1994) 3 NWLR (Pt. 331) 178; Bamgbade v. Balogun 1994 1 NWLR (Pt. 323) 718; Shell Petroleum Development Co. v. Tiebo (1996) 4 NWLR (Pt. 445) 657.
The distinction between special and general damages must be made before considering award under them. Special damages are such as that the law will not presume to flow or infer from the nature of the act or breach of duty complained of by the plaintiff as a matter of course. They are exceptional in their character and connote specific items of loss which the plaintiff alleges are the result of the defendant’s act or breach of duty complained of. Special damages must be clamed specially and strictly proved and the court is not entitled to make its own estimate of the same. It does not mean that the law requires an extraordinary measure of evidence to establish entitlement to special damages. Strict proof of special damages means that the evidence must show particularity, and while basing his claim upon a precise calculation must give the defendant access to the facts which make such calculations possible. Ngilari v Mothercet Ltd. (1999) 3 NWLR (Pt. 636) 626; Imana v. Robinson (1979) 3-4 SC 1
General Damages means such as the law itself implies or presumes to have accrued from the wrong complained of for the reason that they are its immediate, direct and proximate result or such as necessary results from the injury. The judge will grant this when it cannot point out any measure that they are to be assessed except the opinion and judgment of a reasonable man. In an award arising out of negligence the damages must be forseable and not too remote or through the act of third party. Okhai v C&C Construction Co. Ltd. (1998) 5 NWLR (Pt. 543) 584; Ebe v. Nnamani 1997 7 NWLR (Pt. 513) 419; Obasuyi v. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668.
In personal injury cases, two main factors have to be taken into consideration in assessing damages in cases of liability, namely:-
(a) Financial loss resulting from injury
(b) The personal injury involving not only pain and suffering but loss of the pressure of life
The award of damages is assessed under four main heads –
(a) Special damages in the shape of money actually expended
(b) Cost of further nursing the attendance and medical expenses
(c) Pains and suffering and loss of amenities
(d) And loss of further earnings.
Ebe v. Nnamani 1997 7 NWLR (Pt. 513) p. 479; D.B Solanke v. Tajudeen Ogunbanwo (1985) HCNLR p. 385; Limpohchoo v. Camden & Iglington Area Authority (1979) 2 All ER 332.
It is possible to claim both general and special damages as whatever the amount awarded to him will not take the place of his lost fingers but it will go a long way to prevent him and his family to face a life of hardship and destitution for the rest of his life. There is no law against double compensation in tort. I shall first consider the award of special damages for money actually expended and cost of nursing and medical expenses. The appellant did not give evidence to support this in the printed records. In the pleadings statement of defence and page 26 of the record lines 18-22 the medical expenses of N76,000 at OTA Specialist Hospital and also at Igbobi Orthopaedic Hospital Lagos were settled by the respondent. On page 26 lines 23-25 the appellant was given a better offer of job when he resume work. The appointment was however terminated when he instituted this action. This bring me to consider damages under (c ) and (d) supra which are for Pain and Suffering and lost of Amenities of life and loss of further earning.
The heads of claim of damages for pain and suffering and loss of amenities of life in personal injury cases are two distinct and separate claims arising from the same damage and injury. Pain and suffering is a term employed to describe the pain associated with the injury resulting from the damage suffered.
The worse the injury the greater the pain. Loss of amenities of life as a head of claim encompasses all the claim which result from the injury and by reason of which the plaintiff’s enjoyment of the ordinary pleasure or facilities of life have been impaired. This claim depends on the extent of disability and will be awarded as long as the disability has been established. Okhai v. C & C Construction Co. Ltd. 1998 2 NWLR (Pt. 543) 584; Ebe v. Nnamani (1997) 7 NWLR (Pt. 513) p. 479 UBA Ltd. v. Anchon (1990) 6 NWLR (Pt. 156) 254.
The injury suffered by the appellant is well-established – loss of five right hand fingers to an active right handed man. The award of disability is 85% by virtue of the Second Schedule of the Workmen’s Compensation Act; and the permanent disability and loss of use of his five fingers. I make bold to say that engaging an employee in a hazardous job for which he has no requisite qualification and skill, no proper training amounts to be complete disregard for human life and safety. It is gross negligence to say the least. In the case of the appellant a casual worker the post is not that achieved by merit or promotion but surely that of exploitation. This is a means of securing cheap labour whereas the proper and correct step is to employ a qualified mechanic for the job.
The act of the respondent had deprived the appellant of his five right hand fingers. The appellant is a right-handed man. According to the evidence – the traumatic experience he had when the machine trapped his hand causing him to lose consciousness immediately. He was hospitalized and from henceforth he faces the embarrassment of amputation of the five fingers. Loss of the five fingers will deprive him from enjoyment of life, will prevent him from pursuing activities such as leisure, sports, past times, natural functions like helping his family with household chores, and inability to pursue and enjoy any occupation of his own choice. I have to emphasize another aspect of the embarrassment which he is likely to face should in case the Sharia law is entrenched into Nigeria Legal System. He is likely to be mistaken: for a criminal whose fingers were severed following a criminal offence.
In awarding general damages to which he is entitled I cannot but advert my mind to and take judicial notice of the global inflation, which is taken its toll on Nigeria, and the resultant decline in the purchasing power of the Naira over the past few years. One Dollar is an equivalent of between one hundred and five Nigeria currency while the price of fuel which was a few years back is now N22 though subject to an imminent increase. Kalu v. Mbuko (1988) 3 NWLR (Pt. 80) 86; Onwu v. Nka (1996) 7 NWLR (Pt. 458) 1.
I have to emphasize again that the appellant is now jobless and he has a wife and family of eight children with the burden of extended family in the Nigeria context on his shoulders. A sum of N300,000 will not be out of place in the circumstances of this case. This will enable him to face the future in another occupation where he will not rely entirely on his right hand. The appellant’s counsel did not justify the claim of 21% interest on the sum claimed. This appeal succeeds – a sum of N300,000 is awarded in favour of the appellant as general damages. The sum of N54,000 less sum of N6,190.56 awarded as compensation under the Workmen’s Compensation Act by the lower court stands. Costs of this appeal is N5000 in favour of the appellant.
MORONKEJI OMOTAYO ONALAJA, JCA
It has been a pleasure reading in draft and a purview of the lead judgment of ADEKEYE JCA just delivered, the appeal is concerned with negligence at work and as governed by the FACTORIES ACT carefully considered and analysed. The interpretation of the statute is in line with the interpretation of statute by the courts Edozien v. Edozien (1998) 12 NWLR (Pt. 580) 133 CA; Shitta – Bey v. A.G. Federation 1998 10 NWLR (Pt. 570) 392; SC, Military Administration Delta State v. Olu of Warri (1998) 8 NWLR (Pt. 562) 480 CA; Adeniji Adele & Ors v. Ogbe & Ors.( 1998) 9 NWLR (Pt. 567) 650 CA.
Applying the above authorities I am in complete agreement with the lead judgment that the Respondent was in breach of section 23 FACTORIES Act Cap. 126 Laws of the Federation of Nigeria 1990, the decision of the learned trial judge to the contrary was rightly reversed and has my concurrence, that Respondent was negligent in contravention of Section 23 FACTORIES ACT aforesaid.
The next crucial issue that engaged the attention of the lead judgment was having found the Respondent liable in negligence the amount of compensation to which the Appellant would be entitled under his claim of special and general damages.
After a careful appraisal of the principle of law to guide the appeal court on award of damages of special and general damages in personal injury cases exhaustively considered by this court in Shell Petroleum Development Co. Ltd v. HRH Tiebo VII 1996 4 NWLR (Pt. 445) 657 CA, Okhai v. C & C Constructions Co. Ltd 1998 3 NWLR (Pt. 543) 584 CA; Paul S. Ebe v Albert Nnamani & Anor (1997) 7 NWLR (Pt. 513) 479 which adopted and followed the judgment of the Supreme Court in Ediagbonya v. Dumez Nig. Ltd. (1986) 3 NWLR (Pt. 31) 753. 1986 6 SC 149 and United Bank for Africa Ltd. & Anor v. Mrs. Ngozi Achoru (1990) 6 NWLR (Pt. 156) 254 at 280-286 SC. That the lead judgment applied and followed them, in my personal assessment rightly. I agree that the Respondent having paid the hospital expenses for the sum of N76,000.00 that taking that into consideration I agree that the sum of N250,000.00 granted as general damages in the circumstances of this case to the appellant is responsible and the award has my blessing. I also abide with the consequential order of costs.
FRANCIS FEDODE TABAI, J.C.A.
I had the privilege of reading, before now, the leading judgment of my learned brother, ADEKEYE, J.C.A. I agree with his reasoning and conclusion contained therein and I also abide by the order of costs as contained in the leading judgment.
Cases referred to in the judgment
Abunsonwan v. Mercantile Bank Nig. Ltd. (No. 2) 1987 3 NWLR (Pt. 60) 196.
Abusomwa v. Mercantile Bank Ltd. (1987) 3 NWLR (Pt. 60) 198.
ACB v. Neka BB. B MFG Co. Ltd. (1996) 4 NWLR (Pt. 4) 567
Adejumo v. Ayantgbe (1989) 3 NWLR (Pt. 110) 417
Adele & Ors. v. Ogbe & Ors. (1998) 9 NWLR (Pt. 567) 650 CA.
ANTS v. Atoloye (1993) 6 NWLR (Pt. 298) 233
Bala v. Bankole (1986) 3 NWLR (Pt. 27) 141.
Bamgbade v. Balogun (1994) 1 NWLR (Pt. 323) 718
D.B Solanke v. Tajudeen Ogunbanwo (2985) HC NLR 385
Ebba v. Ezodo (1984) 1 SC NLR 372
Ebe v. Nnamani (1997) 7 NWLR (Pt. 513) 479.
Elendu v . Ekwoaba (1995) 3 NWLR (Pt. 380) 704
Enyinka v. shell BP Petoleum Development Co. Ltd. (1997) 10 NWLR (Pt. 526) 638
F.C.D.A v. Waibi (1990) 3 NWLR (Pt. 138) 270
Famuyiwa v. Folarin & Ors. (1972) NSCC (Vo. 7) 307
First Bank of Nig. Plc. v. Ibennah (1996) 5 NWLR (Pt. 451)
Idahosa v. Oronsaye (1959) SCNLR 407.
Imana v. Robinson (1979) 3-4 SC 1
Kalla v. Jarmakani Transport Ltd. (1961) 1 All NLR 747.
Kalu v. Mbuko (1988) 3 NWLR (Pt. 80) 86
Kalu v. Mbuko (1988) 3 NWLR (Pt. 80) 86
Limpohchoo v. Camden & Iglington Area Authority (1979) 2 All ER 332.
Maximum Ins. Co. Ltd. v. Owoniyi (1994) 3 NWLR (Pt. 331) 178.
Military Administration Delta State v. Olu of Warri (1998) 8 NWLR (Pt. 562) 480
Ngilani v. Mother Scaft Ltd. (1999) 14 NWLR (Pt. 636) 626
NSPA v. R.O. Alli (1992) 10 SCNJ 34.
Nwachukwu v. Egbuchu (1990) 3 NWLR (Pt. 139) 435
Nwobodo v. Onoh (1984) 1 SCNLR 1
Nwokoro v. Nwosu (1994) 4 NWLR (Pt. 337) 172 CA
Nzeribe v. Dare Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124.
Obasuji v. Business Ventures Ltd. (2000) 5 NWLR (Pt. 658) 668
Obinnami Brick & Store Nig. Ltd. v. ACB Ltd. (1992) 3 NWLR (Pt. 229) 260.
Okahi c. C&C Construction Co. Ltd. (1998) 3 NWLR (Pt. 543)
Onaga v. Micho & Co. (1961) 2 SCNLR 101
Onwu & 11 Ors. v. Nke & Ors. (1996) 7 NWLR (Pt. 458) 6
Onwu v. Nka (1996) 7 NWLR (Pt. 458) 1
Onwu v. Nke (1996) 7 NWLR (Pt. 458) 1
Orhue v. NEPA (1998) 7 NWLR (Pt. 227) 187
Shell BP Petroleum Co. Nig. Ltd. v. Cole (1978) 3- SC 184.
Shell BP. Petroleum Development Co. Nig. Ltd. (1997) 10 NWLR (Pt. 526) 638.
Shell Petroleum Development Co. v. Tiebo (1996) 4 NWLR (Pt. 445) 657
Shitta –Bey v. A.G. Federation (1998) 10 NWLR (Pt. 570) 392 SC
Techno Mechanical Nig. Ltd. v. Ogunbayo (2000) 1 NWLR (Pt. 639)150
UBA Ltd. v. Achon (1990) 6 NWLR (Pt. 156) 254.
Ude v. Chimbo (1998) 12 NWLR (Pt. 577) 169
Union Bank Of Nigeria Ltd. v. Odusote Bookstore Ltd. (1995) 9 NWLR (Pt. 421) 558.
Vanderpuge v. Gbadebo (1998) 2 SCNJ 9
Western Steel Works v. Iron 7 Steel Workers Union (1987) 1 NWLR (Pt. 49) 284.
Whyte v. Jacks (1995) 2 NWLR (Pt. 431) 407
Woluchem v. Gudi (1981) 5 SC 291
Zika Press Ltd. v. Ekoku (1951) 13 WACA 188.
Statutes referred to in the judgment
Court of Appeal Act, Section 16.
Factories Act Cap. 126 Laws of the Federation of Nigeria, 1990. section 23
Workmen’s Compensation Act Cap. 470 Laws of the Federation of Nigeria, 1990, S. 5.