STEPHEN DIAB DARKO V. CHIRANO GOLD MINE LTD.

JUDGMENT

DENNIS ADJEI, J.A.

The defendant/appellant (hereafter called the defendant dissatisfied with the judgment of the High Court Sefwi Wiawso delivered on 9th December,2010 filed an appeal against the said judgment to this court. The plaintiff/respondent would be referred to in this appeal as plaintiff.

The brief facts of the case which culminated in this appeal were that the plaintiff was an employee of the defendant company. The plaintiff worked with the elution section of the processing plant of the defendant mining company. The plaintiff’s work entailed the boiling of chemicals “for stripping of gold” and the taking in a two hourly interval, pressure and temperature readings at the top of the elution strainer column. He worked for 12 hours a day that is from 7:00am to 7:00pm. On 31st December, 2007 when the plaintiff went to take the last readings at the top of the elution strainer column for the day, an explosion occurred from the elution strainer which burnt some parts of his body. He was burnt by the mixture of hot cynide and caustic soda exploded from the elution strainer. He was admitted at the Komfo Anokye Teaching Hospital Kumasi until 23rd January,2008 when he was discharged to the out patient department. He maintained an action against the defendant, his employers for failing to provide safety free environment for him at the High Court. The plaintiff was found to have negligently contributed to the accident and his contribution was assessed at ten percent (10%). The defendant’s contribution to the accident was assessed at ninety percent (90%). The defendant dissatisfied with the judgment of the trial High Court filed an appeal against the judgment. The three (3) ground of appeal filed by the defendant are as follows:

“a. The trial Judge erred when he held by the implication sustained on the job by the plaintiff on 31st December,2007 was caused by the personal negligence or willful act of the Defendant/Appellant.b. the judgment of the trial Judge cannot be supported by the plaintiff’s evidence adduced to prove that it was the Defendant’s personal negligence or willful act that caused the plaintiff’s injury.c. the quantum of damages and costs awarded by the trial was not excessive but that award in particular is not supported by the totality of evidence placed before the trial Judge”.

The combined effect of grounds (a) and (b) of the appeal is that the accident which caused injury to the plaintiff on 31st December,2007 was neither caused by the personal negligence or the willful act of the defendant and the trial High Court Judge therefore erred by not dismissing the plaintiffs action for want of jurisdiction. The workmen’s compensation Act, 1987 PNDCL 187 regulates the compensation payable to employees employed by the Republic as well as private persons except in the case of persons in the Armed Forces. Section 2 of PNDCL 187 provides that an employee who sustains personal injury by accident arising out of and in the course of employment must be paid compensation by his employers and should be in accordance with the Act. However, there are circumstances under which an employer shall refuse to pay compensation to his employee who sustains injury in the course of his employment. An instance where an employer shall not pay compensation to his employee is where an employee sustains injuries arising from an accident whiles working in the scope of his employment and the cause of the accident is attributable to the employee having been under the influence of drink or drug. The Act has made provisions by which an injured employee may decide to sue for damages against the employer in a civil court. Such an action is independent of the Act and the courts may award any damages or compensation they deem fit and the employee cannot decide to go to court as the jurisdictions of the court is ousted. However the parties may also agree in writing as to the compensation to be paid by the employer to the employee. Apart from the provision made in section 24 of the Act, an employee (except persons in the Armed Force) who sustains personal injury by accident shall be paid compensation in accordance with the Act.

The defendant’s case is that the accident which caused injury to the plaintiff was neither caused by the personal negligence or willful act of the defendant nor any other person for whose act or default the employer is responsible and the trial High Court Judge wrongly entertained the suit under section 24 of PNDCL 187.

Section 1 of PNDCL 187 provides as follows:

“(1) This Act applies to employees employed by the Republic as well as Private Pensions except in the case of Persons in the Armed Forces”.

(2)(i) Provides thus:

“Where an employee sustains personal injury by accident arising out of, and in the course of employment, the employer is liable, subject to this Act, to pay compensation in accordance with this Act”.

The circumstance under which an employee may decide not to claim compensation under the Act but may sue the employer in civil court is provided by section 24 of the Act. Section 24 (1) of the Act states thus:

“where the injury was caused by the personal negligence or willful act of the employer or of any other person for whose act or default the employer is responsible, this Act shall not prevent proceedings to recover damages being instituted against the employer in a civil court independently of this Act”.

For the defendant to succeed on grounds (a) and (b) of the appeal, he must satisfy the court that the injury sustained by the plaintiff in the accident was not caused by the personal negligence of the defendant as found by the trial High Court Judge. What then constitutes negligence? The defendant quoted what the plaintiff must prove in negligence as enunciated by the Supreme Court in the case of Edward Nasser and Co. Ltd. v. Mc Vroom and another [1996-97] SCGLR 468 the court per holding 4 of the head notes stated thus:

“In proving negligence in tort the plaintiff must establish a duty of care owed by the defendant toward plaintiff which duty must arise from the nature of relationship between them. Although a relationship of proximity must exist before a duty of care could arise the duty must depend on all circumstances of the case and it must be considered whether it was just and reasonable to impose a duty”.

The ratio quoted above will not assist the court to determine what constitutes negligence. The plaintiff sustained the injury from the accident when he was an employee of the defendant and was working in the scope of his employment so the defendant owed the plaintiff a duty of care and the relationship is proximate and the only thing to consider is whether or not the defendant sustained injuries as a result of the personal negligence or willful act of the employer or any other person for whose act of default the employer is responsible. From the facts on record the accident did not occur as a result of the willful act of the defendant or any other person for whose act or default the employer is responsible. What is to be ascertained is whether or not the accident was caused by the personal negligence of the defendant. The celebrated case ofBlyth v. Birmingham Watermarks Co. [1856] II Exch 781 at 784 the Court per Anderson B described negligence thus;

“Negligence is the omission to do something that a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”.

The law is that Standard of care is not the standard of the defendant himself but of a man of ordinary prudence or a man using ordinary care and skill. Lord Macmillan explained Standard of Care in the case of Glasgow Corporation v. Muiv [1943] AC 448 at 457 thus:

“The Standard of foresight of the reasonable man... eliminates the personal equation and is independent of the idiosyn-crasies of the particular person whose conduct is in question.”

The main issues to resolve are:

1. How did the explosion which released a mixture of hot cyanide and caustic soda on the plaintiff occur

2. Was it released as a result of the negligence act of the parties herein?

This can be ascertained from the evidence on record particularly the evidence of PW1 and DW1.

The Assistant Chief Inspector of Mines at the Minerals Commission gave evidence as PW1. He tendered Exhibit ‘C’. He gave the cause of the accident in Exhibit ‘C’ as follows:

“(a) The original bolts heads were in ‘v’ wing for manual tightening. With time, the bolts heads were modified with the removal of the ‘v’ shape wings to allow operators to use greater torque to tighten the bolts on the lid instead of being done manually.(b) The repeated loading of additional torque placed on the bolt heads initiated cracks and failure of the holding down system which eventually led to the failure and explosion and the release of the hot solution on the victim.”

When he was under cross-examination the following questions and answers emerged:

“Q. Did I hear you say that as at the time of the accident some modifications had been made to the bolts holding down strainer cap?A. YesQ. Did you find out why the modification was made? Was it to improve the tightening of the lid cap to the opening?A. Not necessarily to improve on the tightening system. The original bolt as shown in the photograph of Exhibit ‘C’ was for manual screwing but the bold holding the lid at the time of the incident was modified to use a spanner to tighten it.Q. So with your experience, manual tightening process as against the use of a spanner to tighten it; which one was better having regard to the nature of the system?A. Something made for manual tightening does not require application of much force; once you change to mechanical tightening the bolt should have been changed, and not the same as the one for manual tightening.”

From the evidence, the elution strainer column was used to boil chemicals for stripping of gold. When it is exploded, it would release mixture of hot cyanide and caustic soda. It must therefore be handled with care as hot cyanide and caustic soda can cause serious burns to the people who work on the machine. It may even kill if the hot cynide and the caustic soda splash on the attendant. The defendant who should have taken precaution against the release of hot cyanide and caustic soda from the machine modified its lid. The original bolts heads which were ‘v’ wing and was for manual tightening were modified from manual use to the use of spanner to tighten the bolts. The repeated loading of additional torque placed on the bolt heads initiated cracks in them. It also weakened the holding down system which caused it to explode to cause injuries to the plaintiff. The defendant who converted the use of manual tightening of the lid to the use of spanners should have changed the bolts but did not and it would definitely make it unsafe to use.

The evidence on record clearly shows that the defendant did not act as a hypothetical or a reasonable man because they should have changed the bolts which were meant for manual use to bolts meant for the use of spanners. The defendant should have foreseen that failing to change the original bolts was likely to explode and cause harm to the plaintiff.

It is the duty of employers to take care to provide safe premises and plant for their workers. Street on Torts by John Murphy (11th Edition) page 269 discusses the duty of the employer to the employee as follows:

“The employer must take care to provide safe premises and plant for his workers. Both the failure to provide some necessary equipment and the provision of defective appliances will constitute breaches of this duty. So, the failure of ship-owners to provide essential spare ropes for a voyage was actionable negligence. There is probability also a duty not merely to provide the material, but also to maintain it.”

From the evidence on record, the defendant failed to provide safe equipment for the use of the plaintiff. The defendant’s failure to make the equipment safe for use to defective equipment to be used by the plaintiff and that constitutes a breach of their duty to the plaintiff.

The evidence of DW1 also corroborated negligence on the part of the defendant. When DW1 was under cross-examination, the following questions and answers emerged:

“Q. From you own investigations, (Exhibit 1 page 3) strainer housing bolt was found broken due to pressure and temperature to which it was subjected. This is your own finding and it is true.A. YesQ. And by Exhibit ‘C’ page 2(3), cause of the accident, the Minerals Commission Report found that “two bolts holding down the lid originally had heads with ‘v’ shape wings for manual tightening but at the time of the accident the bolt heads had been modified with the removal of the ‘v’ shaped wings to allow operators to use spanner and greater torque to tighten instead of being done manually.” You are aware of this finding also.A. YesQ. The repeated loading of the additional torque placed on the bolts initiated cracks and failure of the holding system. This eventually led to the breaking up of the bolts and release of hot solution on the victim.”Your company did the modification of the ‘v’ shaped wings for manual tightening and by the modification, you were now using spanner to tighten the bolts. You are also aware of this.A. Yes.”

I am satisfied that the risk of injury to the plaintiff was reasonably foreseeable. The defendant failed to change the bolts to the lid of the elution strainer column equipment when it changed it from manual to the state the accident occurred. The response the defendant provided to the risk was not reasonable that is the use of spanners to tighten the bolts. The defendant therefore failed to meet the requisite standard of care it owed to the plaintiff and there was a breach to that duty. The defendant should have known that the higher the degree of risk the less reasonable it would be for them (defendant) to fail to take steps to prevent it from occurring. The defendant by failing to change the bolts when it changed the equipment from manual to the using spanner to tighten the bolts failed to act as a reasonable man and must be held liable for negligence. No man of ordinary prudence would behave the way the defendant behaved if they worked to maintain the standard of care they owed to the plaintiff. In the case ofVaughan v. Menlovc [1837] 3 Bing NC 468 at 475 the court per Tindal CJ in considering the test for standard of care held that it should not be the standard of the defendant himself but of a man of ordinary prudence. In the same vein, Lord Denning LJ in the case of King v. Philips [1953] IQB 429 at 441 held that the test that is used to measure standard of care is that of a hypothetical man. The court was equally right when it found that the plaintiff also contributed to the occurrence of the accident. The trial High Court Judge properly determined the extent of the plaintiff’s negligence to the accident as well as that of the defendant. The trial High Court Judge rightly entertained the Suit and awarded damages because there is evidence on record that the accident was caused by the personal negligence of the defendant even though the plaintiff also was found to have contributed insignificantly. The grounds (a) and (b) of the appeal fail as without merits.

The ground (c) of the appeal is that the damages and costs awarded by the trial Judge was not only excessive but that award in particular is not supported by the totality of evidence placed before the trial Judge. The only submission made by the defendant on grounds (c) of the appeal was the plaintiff was given a whopping sum of GH¢ 180,000.00 and it is not supported by the evidence led by the plaintiff.

The plaintiff sustained serious degree of injuries and according to him he cannot have sexual intercourse with his wife. This evidence was not controverted by the defendant. The medical report issued on the plaintiff too stated that erectile power of the penis decreased leading to a weak erection and an inability to penetrate during sexual intercourse. The permanent disfigurement of the plaintiff was assessed as thirty percent. The percentage of non functional loss is of genital organ (erectile dysfunction) was assessed as seventy-five percent. The purpose of damages is compensatory. It is not meant neither to punish the tortfeasor nor confer a windfall on the victim. The sum of GH¢200,000.00 awarded could not compensate the plaintiff for the injuries he sustained from the accident. I am of the opinion that the award of GH¢180,000 by the trial High court is fair and was exercised in accordance with law and should be affirmed.

The costs of GH¢ 7,000 assessed in favour of the plaintiff is neither harsh nor excessive. The parties called witnesses and had a complete trial. I will also dismiss ground© of the appeal as without merits.

The judgment of the trial High Court dated 9th December, 2010 is hereby affirmed.

SGD

DENNIS ADJEI

JUSTICE OF APPEAL

SGD

C.J. HONYENUGA

JUSTICE OF APPEAL

SGD

BARBARA ACKAH-YENSU

JUSTICE OF APPEAL

COUNSEL

KWASI DANSO ACHEAMPONG ESQ. FOR THE 1ST DEFENDANT/APPELLANT

J.B. DARKWA DWAMENA ESQ. FOR THE PLAINTIFFS/RESPONDENT