TIMOTHY THOMAS KOFI ODOOM V. BCM INTERNATIONAL LTD

JUDGMENT

DEKYEM, J.

Plaintiff was an employee of Defendant company. Plaintiff was employed as a  mechanic and service supervisor with the Gulf Mining at Kalsaka, Burkina Faso. On  28th October, 2013, Plaintiff was involved in a motor accident whilst travelling in Defendant’s vehicle being driven by one Richard Kotey, also Defendant’s employee. Plaintiff sustained injuries. He was operated upon his broken right  hand and a metal inserted into the injured hand. 

It is Plaintiff’s case that, the doctor who conducted the surgery on him fixed a  date for the removal of the metal and that whilst awaiting the date for the  removal of the metal, Plaintiff was served with a termination letter dated 14th February, 2014. Plaintiff argued that, the Workmen Compensation law mandates  an injured worker not to suffer any loss of pay while the worker is undergoing  medical treatment and has not been certified fit by the attending Medical Officer.  In this regard, Plaintiff contends that, whilst he was undergoing medical  treatment, had not been declared fit and the metal still in his hand, Defendant in breach of the Workmen Compensation law terminated his appointment thus  rendering the purported termination of his appointment unlawful. Plaintiff is thus  claiming the following reliefs: 

a. An order to the Chief Labour Officer to compute the compensation the  Plaintiff is entitled to based on SECTION 38 which provides that in case of a  right handed workman, an injury to the left arm or hand and in case of a  left-handed workman the injury to the left arm or hand shall be rated at  ninety percent of the above percentage. 

b. In the alternative compensation awarded by this Honourable Court  commensurate with the serious injuries sustained by the Plaintiff on  28/10/2013 from an accident arising out of and in the cause of Plaintiff’s  employment. 

c. Interest on the compensation awarded or computed effective 17th March  2014 at the prevailing commercial bank interest rate till date of final  payment. 

d. Compensation for wrongful termination of Plaintiff’s employment on 17th March 2014. 

Defendant denies Plaintiff’s claim and contends that Plaintiff was on the said  vehicle without authority thereby he unlawfully and unreasonably caused injury  to himself. Defendant contended further that, Plaintiff was due to be disengaged  but due to the injury, the decision was suspended pending Plaintiff’s substantial  recovery. Defendant averred that, Plaintiff was attended to by West Africa Rescue  Association (WARA), a reputed medical service provider and received good  medical care and attention. Defendant’s case is that the employment contract was subsequently terminated when the appropriate time came. Defendant  contends that, Plaintiff was paid his entitlement and not entitled to compensation  for the injury thus not entitled to his claim. 

At the directions stage, the following issues and additional issues were settled for  trial: 

Issues  

a. Whether the injury sustained by the Plaintiff on 28/10/13 when moving within  the Sequenega Pit on the Defendant vehicle marked as LV 185 driven by  Richard Kotey a Drill and Blast Trainer Supervisor was self-inflicted injury. 

b. Whether the termination of plaintiff’s employment on 17/3/2014 before a  final medical report declaring Plaintiff fit is issued by the attending medical  officer is unlawful. 

c. Whether the Plaintiff having sustained personal injury from an accident arising  out of and in the course of his employment on 28/10/13 is entitled to  compensation under the Workmen’s Compensation Law 1987, P.N.D.C.L 187. 

d. Whether the Plaintiff is entitled to all the reliefs endorsed on the Writ of  Summons 

Additional issues 

1. Whether or not there was a final medical report. 

2. Whether or not the Plaintiff’s employment was terminated according to the  terms of his contract. 

3. Any further orders(s) and/or direction(s) as this Honourable Court may  deem fit. 

The Supreme Court in Poku v. Poku [2007 -2008] 2 SCGLR 996 at 1022 per  Georgina Wood CJ stated the statutory duty on a party in a civil suit to discharge  the burden of proof when it held as follows:- 

“It raises the legal question of who bears the burden of persuasion in such  civil matters, ….Who has the onus of proof and what is the degree or  standard of proof? Generally speaking, this depends largely on …. the fact  averred and therefore the facts in issue… Generally, the burden of proof is  therefore on the party asserting the facts, with the evidential burden  shifting as the justice of the case demands. The standard or degree of proof  must also necessarily be proof on the preponderance of the probabilities  within the meaning of section 12(2) of the Evidence Act, 1975 (NRCD 323).”

The principle is based on sections 10, 11, 12, 14 and 17 of the Evidence Decree, 1975 (NRCD 323) as follows: 

Section 10—Burden of Persuasion Defined. 

(1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. 

(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 

Section 11—Burden of Producing Evidence Defined. 

(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. 

(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. 

Section 12—Proof by a Preponderance of the Probabilities. 

(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. 

(2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. 

Section 14—Allocation of Burden of Persuasion. 

Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. 

Section 17—Allocation of Burden of Producing Evidence. 

(1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof. 

(2) Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. 

I shall now deal with the issues. Whether the injury sustained by the Plaintiff on 28/10/13 when moving within the Sequenega Pit on Defendant’s vehicle marked as LV 185 and driven by Richard Kotey was self-inflicted injury. It is Defendant’s  case that, the said Richard Kotey had a suspended licence following over speeding  and unsafe behaviour; which misconduct had been brought to the notice of all  employees. Defendant therefore, contends that, Plaintiff being aware of Richard Kotey’s suspended licence and allowing him to drive him (Plaintiff), took an unlawful and unreasonable risk resulting in a self-inflicted injury. The onus is on Defendant to prove that the injury sustained by Plaintiff was self-inflicted. Self-inflicted injury occurs when one purposely harms him/herself. In support of this assertion, Defendant tenders exhibit 2 and 3.  

Exhibit 2 is an email with an attached ‘Notification of Unsafe Act’. The  notification was addressed to one Reynolds Anim Yeboah reporting of Richard  Kotey’s over speeding and unsafe behaviour consequent of which his permit to  drive to the KMSA/SMSA sites was withdrawn for six months. The said notification  was copied to the Mines manager, Kalsaka/Sega, KMSA OHS Manager, KMSA HR  Manager and Business Partners Project Manager and copy of the notice recorded  on the KMSA site safety register. In cross examination of Plaintiff, the following  ensued: 

Q Does Richard Kotey’s Department have its own vehicle? 

A Yes My Lord 

Q I am suggesting to you that Richard Kotey driving licence was  suspended? 

A I don’t know anything about that 

Q I also suggest to you that your (sic) notice that Richard Kotey’s licence has been suspended. 

A No idea My Lord. 

Exhibit 2 does not show that, Plaintiff was copied the notification or how the notification ought to have come to his attention. In the face of outright denial,  exhibit 2 fails to substantiate Defendant’s assertion that Plaintiff was aware of the  withdrawal of Richard Kotey’s permit to drive at Defendant’s sites. Exhibit 3 is the ‘Accident/Incident Report’ which stated inter alia that: ‘(Richard Kotey was suspended for poor driving on site and given a notification of unsafe behaviour few weeks ago).’ Exhibit 3 which was prepared after the accident did not show that, prior to the accident Plaintiff was aware that Richard Kotey’s permit to drive at Defendant’s sites had been withdrawn a few weeks earlier. ‘Preponderance of the probabilities’ means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. This is achieved by adducing credible evidence from which a safe inference can be made that, that which is being asserted exists in fact. It was held in Amah v. Kaifio [1959] GLR 23 at 25 that, ‘The  principle of law is that “the burden of proof rests upon the party who would fail if  no evidence at all, or no more evidence, as the case may be, were given on either  side - i.e. it rests, before evidence is gone into, upon the party asserting the  affirmative of the issue; and it rests, after evidence is gone into, upon the party  [p.26] against whom the tribunal, at the time the question arises, would give  judgment if no further evidence were adduced” Defendant has failed to discharge  the burden it assumed when it asserted that, Plaintiff knew Richard Kotey’s  permit to drive had been withdrawn. 

Exhibit 3 further states how the accident occurred resulting in Plaintiff’s injury. It  states: ‘…After Gambo village (Richard says) he drove through a curved road in  which a car overlooked their vehicle, at the same time they saw another car  coming ahead of them so he decided to park side of the road for proper visibility  instead he drove into a trench which resulted LV rolled over onto R/H side…. Richard had pains on his neck and Thomas Odoom to had wounds on his head, nose, chest trauma and suspicions of fracture of his right arm…’

The recount indicated that, Richard Kotey, the driver of the vehicle Plaintiff was traveling in at the material time, encountered visibility problems accounting for his poor judgment in moving the vehicle into a trench instead of parking same on the side of the road. It is not in dispute that, the Plaintiff sustained the injuries as a result of the accident. Indeed, the medical report, exhibit B, dated 7th November, 2013 states clearly that: ‘Mr Thomas was the victim of a traffic accident that occurred on the October 28th 2013 and which caused the fracture of the right humerus, the homolateral scapula and the two straight front ribs…’ There is no scintilla of evidence to suggest otherwise. I therefore, fail to see how the injuries sustained by Plaintiff could have been due to self-harm or purposely inflicted by him especially so when it has not been proven that he was aware of the suspension of Richard Kotey’s driving license. Defendant has failed to prove its assertion by failing to adduce the requisite evidence. 

Whether the Plaintiff having sustained personal injury from an accident arising out of and in the course of his employment on 28/10/13 is entitled to compensation under the Workmen’s Compensation Law 1987, P.N.D.C.L 187. Plaintiff contends that having sustained injuries resulting from the accident, he is  entitled to compensation under PNDL 187. Defendant on the contrary contends  that, Plaintiff having been declared fit by a medical expert is not entitled to  compensation pursuant to PNDCL 187. The onus is on parties to prove their  respective assertions. Section 2(3) of PNDCL 187 provides that: “Where an  attending Medical Officer assesses any incapacity in respect of an injured workman, the workman's employer shall pay the injured workman  compensation commensurate with the incapacity so assessed.” The question to  ask is, has Plaintiff any incapacity resulting from the injury sustained and if yes has  the incapacity been assessed by a medical officer and if so what is the degree of  the incapacity? Clearly from these hypothetical questions, the hurdles to be  overcome to enable entitlement under PNDCL 187 become apparent. In cross  examination, Plaintiff testified thus: 

Q I suggest to you, as well as the doctor’s report declare you medically  fit 

A Yes My Lord 

Q I also suggest to you that the orthopaedic specialist also declared  you fit for work 

A Yes My Lord 

Q I also suggest to you that the doctors at Wa declared you fit for work  as far back as 27th December, 2013 

A Yes My Lord 

Q I suggest to you that the two medical officials and reports declared  you fit for work 

A Yes My Lord. 

Q So do you have your own independent medical report to show that  you are still in pain? 

A I have the old one with my lawyer but now that I was terminated on the 14th March 2013, I have no money to go to the hospital again. The date that the doctor gave me has passed. 

From the above, Plaintiff concedes that, he was declared fit by medical doctors. A  medical report dated 12th February, 2014, exhibit 7 is instructive. Exhibit 7 states  as follows: 

“Medical Report on Mr. Thomas Odoom 

I evaluated Mr. Thomas Odoom today 12th February 2014 as a follow up to  his injury. He had sustained a fracture to the proximal third of his left  humerus which had been operated on with plates and screws five months  prior. He had no complaints at the time and the fracture was clinically united with a full range of both shoulder and elbow movement. Strength testing of the left upper limb was comparable to the contralateral side. 

X-rays confirmed union of the fracture. He was concerned about the presence of the implant in his arm. I explained to him that such implants would have to be removed if necessary only after 18 months post-surgery.  However, the location (of) his fracture was such that it could be left in-situ indefinitely since removal carries with it significant risk. He was in agreement with the decision not to remove the implant unless as such time that it ever causes significant problems by its presence. 

In his current condition I found him fit to resume work activity without any restrictions. 

Dr Agbeko Ocloo [signed] 

Orthopedic Surgeon” 

From exhibit 7, Plaintiff was found to be medically fit to resume work. Plaintiff did  not place any further medical report before the court to the contrary assessing  any incapacity in respect of his injury to entitle him to compensation under the PNDCL 187. Incapacity has been defined in terms of partial and total in section 38  of the PNDCL 187 as follows: 

"partial incapacity" means, where the incapacity is of temporary nature,  such incapacity as reduces the earning capacity of a workman in any  employment in which he was engaged at the time of the accident resulting  in the incapacity and, where the incapacity is of a permanent nature, such  incapacity as reduces his earning capacity in every employment which he  was capable of undertaking at that time:…. 

"total incapacity" means such incapacity whether of a temporary or permanent nature, as incapacitates a workman for any employment which he was capable of undertaking at the time of the accident resulting in such incapacity:….” 

Plaintiff has not demonstrated that, he has been incapacitated by the injury. This would have been demonstrated by a medical report assessing any incapacity of Plaintiff resulting from the injury. What the medical report, exhibit 7, indicates is that, Plaintiff is medically fit to resume work without restriction meaning there was no incapacitation to prevent him from doing the work that he did prior to the accident. The court, therefore, finds that, Plaintiff has not been incapacitated as a result of the injuries he sustained in the accident to entitle him to compensation under PNDCL 187 and will so hold. 

Whether the termination of plaintiff’s employment on 17/3/2014 before a final medical report declaring Plaintiff fit is issued by the attending medical officer is unlawful? Plaintiff averred that, Defendant was mandated to keep him on the job till the attending medical officer certifies him as medically fit and assesses the percentage of incapacity if any and commensurate workman compensation paid to him before any disengagement can take place. Section 2 (2) of PNDCL 187 provides that: “An injured workman shall not suffer any diminution in his earnings while he undergoes treatment for injuries he has sustained through an accident arising out of, and in the course of, his employment.” By this statutory provision, Defendant is mandated to pay Plaintiff his earnings whilst undergoing treatment for the injuries he sustained in the accident. Plaintiff stated at paragraph 12 of his witness statement thus:  

“The Defendant effective 17th March 2013 failed to pay me salary even though  no final medical report that should indicate the percentage of my incapacity if  any upon which I will be paid workmen’s compensation has not been issued by  either the surgeon who performed the surgery in Burkina Faso or the  orthopedic who purportedly found me fit in Ghana.” 

The initial medical report, exhibit B, dated 7th November 2013 states inter alia that:  

“On October 30th, 2013, he underwent a surgical operation for the broken humerus.

A bone plate was performed.  

The aftermath of the surgery was very simple, and the patient was discharged from hospital on the November 04th 2013. 

He is currently following a treatment with Curam tablet and codeine  efferalgan. The right upper limb is immobilized by mayo clinic. 

The wound dressing is provided twice per week up to 21 days. 

Check-ups are scheduled for November 14th and 28 and January 09 with an X- ray. 

Meanwhile the rehabilitation will begin on a date determined by clinical assessment and will last until resumption, that is to say in about 4 months apart from any complication. 

The removal of the osteosynthesis material can only be done after 18 months after the surgery, but the surgeon will assess its necessity and advisability. 

[sgd]

Dr Fidele SAWADOGO”  

From exhibit B, Plaintiff was to follow a treatment with Curam tablet and codeine  efferalgan. It was not shown how long the treatment was for and Plaintiff did not  lead evidence to show how long the treatment was for to support his assertion that, whilst he was receiving treatment Defendant stopped paying him. He was to have follow ups, the last being 9th January 2014. His dressing I suppose on the wound was to last for twenty-one days and his rehabilitation to last four months apart from any complications. The removal of the osteosynthesis was subject to a surgeon’s assessment and not automatic even 18 months after the surgery. The further medical report, exhibit 7 dated 12th February 2014 concluded with Plaintiff’s consent that, the removal of the implant was not necessary and will not be removed in the foreseeable future. Plaintiff was found to be fit to resume duty and exhibit 7 did not indicate that Plaintiff was on any treatment or that, further follow ups were required. A further medical report was not needed. Exhibit 7 is thus the final medical report declaring Plaintiff fit to resume duty, the fracture in his hand having healed and will so hold. The court can safely conclude that Plaintiff’s treatment ended by the date of exhibit 7 and ought to have been paid until then. The termination of Plaintiff’s employment was effective 17th March, 2014, well after the final medical report declaring him fit and the absence of a further medical report couldn’t be basis to render the termination of Plaintiff’s employment unlawful. This resolves additional issue 1.

Whether or not the Plaintiff’s employment was terminated according to the terms of his contract? It is Defendant’s contention that, Plaintiff’s employment was terminated in accordance with the employment contract. Bank of West Africa Ltd v. Ackun [1963] 1 GLR 176-182 SC holding 2 held that: “The onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof…” The onus is thus on Defendant to prove its assertion. In support thereof, Defendant tendered exhibits 1, the employment contract and exhibit 8, the termination letter (same as exhibit C). Paragraphs 1 and 13 of exhibit 1 are instructive and hereby reproduced: 

1. BCM International has agreed to engage the service of Mr. Timothy Thomas Odoom… as a Mechanic for a period of Three (3) years beginning from 25th November 2012 and may be subject to renewal based on acceptable performance and availability of work. 

13. Either party to this agreement can terminate this contract by giving the other party 30 (thirty) days' notice (or pay in lieu of notice) of intention to do so. This contract terminates 30 days after such notice. 

It was held in Miller and Partners Ltd. v. Whitworth Street Estates (Manchester)  Ltd.[1970] 1 All E.R. 796, H.L. that “in construing a contract, e.g. for the purposes  of ascertaining any intention of the parties thereto ….., it was not proper to have  regard to the conduct of the parties after the contract had been made.  "Otherwise," as Lord Reid observed at p.798, "one might have the result that a contract meant one [p.422] thing the day it was signed, but by reason of subsequent events meant something different a month or a year later. The same  principle was espoused in the case of BCM Ghana Limited v. Ashanti Goldfields  Limited [2005-2006] SCGLR 602 at 611, where the Supreme Court observed that,  ‘The cardinal presumption in the interpretation of a document is that the parties  are presumed to have intended what they have in fact written or said’ and further  in Akim Akroso Stool v. Akim Manso Stool [1989-90] 2GLR 100 it was held inter alia that ‘What the words in a document meant could only be derived from the  document itself.’ In applying these principles to the facts, the court finds that, although the parties entered into a three years employment contract, same could be terminated by either party at the notice of thirty days or payment in lieu thereof. In order to terminate the employment contract lawfully and in accordance with the contract, Defendant was required to give thirty days’ notice of payment in lieu thereof.  

Exhibit 8 (C) state as follows: 

“14th February, 2014 

Dear Thomas 

TERMINATION OF CONTRACT 

We refer to our Contract and wish to serve you notice of the termination of the contract with effect from 17th March, 2014. 

You will be paid any unpaid workdays as well as any outstanding leave days not taken. 

Also the Trustees will refund your Provident Fund Contributions to you less any indebtedness to the Company..... 

[sgd]

HR MANAGER” 

The termination of contract letter in no uncertain terms made reference to the employment contract and in accordance thereof, served notice of thirty clear days on Plaintiff to end the contract effective 17th March, 2014. The evidence is sufficient and leads to one irresistible conclusion that, the employment contract was terminated in line with the terms of the employment contract, thus not unlawful and will so hold. This resolves additional issue 2. 

Is Plaintiff entitled to his claim? Plaintiff is praying the court in its relief “a” for “An  order to the Chief Labour Officer to compute the compensation the Plaintiff is  entitled to based on SECTION 38 which provides that in case of a right handed  workman, an injury to the left arm or hand and in case of a left-handed workman  the injury to the left arm or hand shall be rated at ninety percent of the above  percentage.” The above percentages being referred to under section 38 (Third Schedule) of PNDCL 187 is under the heading “Injury Percentage of Incapacity”.  The bases for the compensation is injury resulting in incapacity. Incapacity here means whether of a temporary or permanent nature, incapacitates a workman for employment which he was capable of undertaking at the time of the accident resulting in such incapacity. The question to ask is has the injury incapacitated Plaintiff in such a way that he is unable to perform his work as he did immediately before the accident? Exhibit 7, in the concluding paragraph, the orthopedic  surgeon stated that: “In his current condition I found him fit to resume full work activity without any restriction” suggesting that no incapacity had been occasioned. Plaintiff is thus not entitled to any compensation under section 38 (Third Schedule) of PNDCL 187. 

In the light of the above, Plaintiff’s claim fails in its entirety and same is dismissed.  Costs is assessed at two thousand Ghana Cedis (GHS2,000.00) in favour of Defendant. 

SGD

Justice Gifty Dekyem (Mrs) 

Justice of the High Court

Labour Division I, Accra 

COUNSEL

K Danso Acheampong ESQ for Plaintiff

Kwasi Addo Yobo ESQ holding brief of Atta Akyea ESQ for Defendant.