ATAA AND OTHERS V. ASHANTI GOLDFIELDS CORPORATION AND OTHERS

MENSA BOISON J.

On 19 November 1963 a very distressing accident occurred in the gold mines of the first defendants at Obuasi as a result of which one Kofi Boateng died. The said Kofi Boateng was employed by the first defendants as an underground workman. On the aforesaid date, the deceased and other miners were being hauled up from the 23rd level station of a mine shaft to the surface, when the cage carrying the men ran away and dropped into the bottom of the flooded shaft. The cage was submerged, and needless to say, the deceased and the other occupants died.

In consequence of the death the defendants paid compensation under the Workmen’s Compensation Act, 1963 (Act 174), to the first plaintiff for herself and on behalf of the four infant plaintiffs, as widow and children respectively of the late Kofi Boateng. The first plaintiff, however, now brings this action in negligence for the benefit of herself and the four infant plaintiffs as dependants of the deceased against the first defendants or their servants (the second, third and fourth defendants) or both. The third and fourth defendants did not bother to appear, and the second defendant was never served with the writ.

The plaintiffs charged the defendants with the following negligence:

(1) Wrongfully permitting persons to enter and travel in the single unbalanced cage.(2) Operating on an engine with a defective mechanical brake whose effectiveness was completely lost.(3) Operating on an engine whose dynamic brake was defective and unstable.(4) Failing properly to manage and control the engine so as to avoid the accident.(5) Failing to give the proper signals thereby causing and or contributing to the accident.

Apart from denying the issue of negligence and damages, the first defendants raised a plea in bar to the present proceedings by virtue of section 24 (3) of the Act, which, though the most crucial issue, I intend to deal with last.

The plaintiff’s third witness was a senior inspector of machinery employed at the Government Mines Department and with some ten years’ experience he impressed me as very able in his field. On behalf of his department he conducted an inquiry into the cause of the accident the very next day after the occurrence as required by the mining regulations.

He found that the deceased and his mates were carried in a single cage which should normally be used in carrying goods. In his opinion it was unsafe to allow persons to ride in a single cage. The safe practice is to allow persons in when the cages are balanced. Although when he inspected the machine he found no fault, he was of the opinion that at the time of the accident the mechanical brakes were defective, due in all probability to water having been dropping on the mechanical brakes. He did notice at the time a leakage from the roof of the engine room. Even so the accident might have been prevented if the driver had applied dynamic breaking. The driver of the engine was the fourth defendant who must have worked under the second and third defendants as cage boss and assistant cage boss respectively.

An employer is under a duty not to expose his workmen to undue risk, and to have allowed about 21 persons to ride in a single cage, with the brakes of the winding machine rendered defective as a result of water dropping onto them which could have been prevented, is in my opinion a breach of that duty and amounts to negligence. Besides a master is under a duty to employ competent servants in a job requiring reasonable skill. In failing to apply the dynamic braking, I find that driver Otabil the fourth defendant did not use the reasonable skill and efficiency required in his job. I therefore hold that the defendants were negligent and that their negligence caused the accident by which the deceased died.

From the evidence I am satisfied that the first plaintiff and the four other plaintiffs as widow and children respectively were dependants of the late Kofi Boateng. Exhibit A being documents addressed to the Labour Inspector, Obuasi, from the defendants, in connection with an earlier claim, gives the earnings of the deceased as N¢20.20 per month. There was no evidence as to the age of the deceased at the time of his death. The first plaintiff did not know. An averment in paragraph (5) of the statement of claim that he was 30 years old at the time of death was not admitted by the defendants. I am invited by counsel for the plaintiff to find a life purchase of twenty years. The deceased was on his second innings in marriage, the first plaintiff being the second wife. He had four children, the eldest by his first wife being nine years old according to exhibit C. The probability is that the deceased would not have been less than 35 years old. With the hazardous and uncertain nature of his work as an underground miner, and allowing for every contingency, I think fifteen years’ purchase is reasonable. At the rate of N¢20.20 per month there will be a total earning of about N¢3,600 for the fifteen years. What the deceased could have spent on the plaintiffs as dependants could not be more than half his income which I assess at N¢1,800. 00. With a discount of about one-sixth for the lump payment it comes to about N¢1,500.00.

The crux of the defendants’ case is that the action in negligence is barred. If that is right then the finding of negligence or assessment of damages does not arise. The bar in this case is grounded on the fact that on 11 December 1963 there was a proceeding before the District Court, Obuasi, in which an order was made for compensation of £G424 5s. 9d. under Act 174 to be paid to the first plaintiff. The relevant documents in respect of that proceeding are exhibits El, E2 and E3 and there is no doubt that by exhibit E1, the court ordered payment of the compensation of the sum named to the first plaintiff.

What the first plaintiff however says is that she never understood the said sum as compensation for the death of her husband, and did not receive it as such compensation nor was she informed of her rights to accept that payment or to take action at common law. According to the first plaintiff she deposed to the affidavit exhibit C, a copy of which she handed to the labour inspector, the plaintiffs’ first witness, without the contents being read to her. It was the labour officer, the plaintiffs’ first witness, who later informed her that the money to be paid to her was “inteteho,” that is deductions from her husband’s wages, meaning possibly social security benefits.

On this, the plaintiffs’ first witness the labour inspector, who processed exhibits E2 and E3 for the court proceedings and represented the plaintiff, confesses that at no time did he explain the nature of the money to be paid to the plaintiff to her. He agreed it was his practice to explain these matters to applicants. But in this case he did not because the first plaintiff came with an affidavit, exhibit E2, already prepared in support of her claim, and he assumed she knew the nature of her claim and of her alternative rights.

With his twelve years’ experience as a labour inspector his conduct, to say the least, is strikingly surprising. By exhibits A and B he had been in communication with the defendants over the claims in general in respect of the persons who died in that accident. At his direction he had exhibit E3 prepared for the first plaintiff to thumbprint. I think it incredible of him to have led the first plaintiff as a dumb lamb to attend the court proceedings, with the first plaintiff completely in the dark as to the fact that the money she was to be paid was compensation for the death of her husband. I am inclined to this view, because there is evidence of a payment of N¢600.00. This the plaintiff placed in a bank account without the intervention of the plaintiffs’ first witness. It is unrealistic in my view to argue that the first plaintiff blindly accompanied the plaintiffs’ first witness to the court proceedings.

As to the first plaintiff’s own account of what she thought the money was, the evidence of the plaintiffs’ first witness does not support her version that he told her the sum to be paid was deductions from her husband’s salary. So far as he was concerned he told her nothing. In evidence-in-chief the first plaintiff said:

“A month after [receipt of the compensation] I went back to Obuasi to attend the coroner’s inquest. There were present relatives of the other persons who had died in the mine mishap. I attended the hearing about four times. Though I had been paid the N¢800 I still attended the coroner’s inquest because the amount paid to me was not sufficient for the maintenance of all the children; so I attended on those occasions to listen, for the purpose of expecting that I may be paid some more money. At the conclusion of the inquest I was not paid any more money and that was why I handed the matter to my solicitor.”

The court proceedings preceded the inquest. The first plaintiff agreed that a clerk in the district court registry interpreted exhibit C to her. Again under cross-examination she said, “I was told I had been called [i.e. by the management of the mines] because of the death of my husband and with reference to money to be paid to me.” On going to the plaintiffs’ first witness she also told him she had come to collect money in connection with the death of her husband. She was already armed with exhibit C. Now if it was true that the N¢800.00 represented deductions from the wages of the deceased, how could the first plaintiff expect to be paid “more money” and from what source?

Although there is no evidence to the contrary from the defendants, against the denials of the first plaintiff and the plaintiffs’ first witness to the suggestions that the plaintiff was aware of the nature of the sum paid to her, I think I am entitled to disbelieve the first plaintiff and the plaintiffs’ first witness as I am convinced they were not truthful on this issue. The truth as I find it, despite the first plaintiff’s unholy alliance with her first witness, is that the first plaintiff knew that the N¢800 odd was compensation as a result of the death of the husband. She sought the aid of a solicitor for the reason that the amount received was not enough. That in my view is a complaint of ignorance of her right of option. I am obliged to hold that there is no evidence to satisfy me that the first plaintiff was at any time informed of her alternative rights of proceeding under Act 174 or independently of it.

The question then arises whether the plaintiffs are barred by the proceeding at the district court from proceeding at common law when the first plaintiff was not informed of her right of option? Now section 11 (1) of the Act so far as is material provides that,

“Compensation payable where the death of a workman has resulted from an injury shall be paid to the Court, and the Court may order any sum so paid to be apportioned among the defendants of the deceased workman.”

By the Act and the Workmen’s Compensation (Rules of Court) Rules (No. 59 of 1941 and No. 3 of 1948) made under the Workmen’s Compensation Ordinance, Cap. 94 (1951 Rev.) the labour officer of the district is given administrative superintendence of the operation of the Act, and besides ensuring that the compensation paid to the court is the correct amount payable under the Act, he will on behalf of the workman or his dependants make an application to the court for payment. The form of the application and other necessary documents are likewise prescribed by the Schedule to the aforesaid Rules. It may be stressed that in such a case the amount of compensation is fixed by the Act and not by the act of the parties. This, as I find, is what happened in this case.

It seems to me therefore that section 15 of the Act, which permits the employer and workman to agree on the amount of compensation to be paid to the workman, has no application in case of death where the dependants claim. This conclusion rests on the interpretation of “workman” as provided by section 35 (4) of the Act which reads:

“Except for the purposes of section 15 any reference to a workman who has been injured shall, unless the context otherwise requires, where the workman is dead, include a reference to his legal personal representative or to his dependants or any of them or the Attorney-General or such other officer as the Minister may appoint to act on behalf of the dependants of the workman.”

Unlike compensation to be paid in a case where death results from the injury, section 15 (2) permits the parties to agree upon any amount so long as it is not less than the compensation payable under the Act. It follows that the other provisions of section 15 such as the minimum amount to be agreed upon, the manner of the agreement, and the requirement of a certificate of the labour officer of his having read and explained the terms of the agreement to the illiterate workman do not apply to the present case either.

Counsel for the plaintiff referred me to the case of Akufo v. Issaka, a ruling of the High Court, Kumasi dated 24 May 1962 per Apaloo J. (as he then was) unreported, and Moshie v. State Gold Mining Corporation, High Court, Kumasi, 22 October 1968 unreported; digested in (1969) C.C. 77. Both cases deal with facts within section 15. In both cases it was sought to pin the living workman to an agreement by which he received an amount paid as compensation under the Act. In both it was held that the requirements of section 15 had not been complied with in so far as the alternative rights of the workman had not been made known to him. Those cases do not in my view apply to the facts of the present case, but they serve as a useful warning to labour inspectors, like the first prosecution witness, of their obligation at all times to take the precaution of explaining the rights of election to the workman, and also in cases of death to the dependants.

By reason of the mandatory provision of section 11 (1) and the statutory role of the labour inspector, the plaintiff in my view cannot be heard to say either that she did not institute proceedings under the Act or that this was not done on her behalf. It is of no avail to say that the plaintiff did not agree to the amount of compensation, because the compensation payable in case of death is calculated under the Act, and requires no agreement between the parties.

The provisions of the Act material to the issue of a bar are the following:

“24 (1) Where the injury was caused by the personal negligence or wilful act of the employer or some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a Civil Court independently of this Act.(2) A judgment in such proceedings whether for or against the employer shall be a bar to proceedings at the suit of any person by whom, or on whose behalf, such proceedings were taken, in respect of the same injury under the Act.(3) A judgment in proceedings under this Act whether for or against the employer shall be a bar to proceedings at the suit of any person by whom, or on whose behalf, such proceedings were taken, in respect of the same injury independently of this Act.”

The first question to determine is whether the proceedings at the Obuasi District Court terminated in a judgment and whether the proceedings were on behalf of the present plaintiffs?

The record of the hearing at the court is as in exhibit E1 the material part read as follows:

“Applicant Ama Ataa present represented by Mr. J. E. B. Quansah, Senior Labour Inspector, S. H. K. Cleland, P/O (Personnel Officer) for A.G.C. Ltd. Obuasi, present. Mr. Quansah moves in terms of affidavit attached to application. By court: Application granted. Let the sum of £G424 5s. 9d. paid to court be withdrawn and paid forthwith to applicant. (Sgd. ............. District Magistrate.”

The Courts Decree, 1966 (N.L.C.D. 84), paragraph 94 defines “judgment” to include a “decree, order, decision or any other finding whatsoever.” In my opinion the order made by the district court was a judgment within the meaning of section 24 (3) of Act 174, and consequently before the commencement of the present action there was an existing judgment. Further by exhibits C, E2 and E3, I hold that the first plaintiff took the former proceedings for herself and on behalf of the other infant plaintiffs.

The next question then is whether the existence of the prior judgment is sufficient to bar the present action as contemplated by section 24 (3) ? It will be necessary to refer to the provisions of the English Workmen’s Compensation Act, 1925 (15 and 16 Geo. 5, c. 84). There the like provision corresponding to section 24 (1), (2) and (3) of the Ghanaian Act, is section 29 (1) which provides:

“29 (1) When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act or take proceedings independently of this Act; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act except in case of such personal negligence or wilful act as aforesaid.”

Now referring to section 24 (1), (2) and (3) although the word “option” or “election” is not used anywhere, I am of the opinion that the combined effect is that subsection (1) gives the workmen a choice of alternative remedies, and when he has made a concluded election, he is barred from taking the alternative proceedings.

Now, as I have found, the first plaintiff at the time she made the claim and received payment of the compensation under the Act did not know of the existence of her right to elect which of the alternative remedies she could pursue. It cannot be said that the plaintiff exercised any election. The mistake may be one of fact or ignorance of law in not knowing that an alternative choice was open to her. Yet it would seem that by the existing judgment in exhibit E1 the first defendants had discharged their liability under the Act. In that case to protect the defendants from a second liability at common law, subsection (3) says that the subsisting judgment is a bar to proceeding at common law. Such was the case of Perkins v. Hugh Stevenson and Sons Ltd. [1940] 1 K.B. 56, C.A. There the plaintiff having been injured by an accident in his employment applied for and was paid weekly sums by way of compensation under the Workmen’s Compensation Act, 1925. Subsequently on the advice of a solicitor the plaintiff informed his employers that the sums already received and any future receipts would be “without prejudice” to any remedy outside the Act. This view was not accepted by the employers who continued to pay the plaintiff the weekly sums. When subsequently the plaintiff brought an action to recover damages at common law or in the alternative under the Employers’ Liability Act, 1880 (43 and 44 Vict., c. 42), it was held that as the plaintiff had claimed and been paid compensation under the Workmen’s Compensation Act, 1925, his employers could not also be made liable for damages independently of the Act in view of the direct provision to the contrary of section 29 (1) of the Act.

At pp. 64-65 of the judgment of the English Court of Appeal, Greene M.R. posed the issue thus:

“What is to happen where the workman, having at the time of making his claim and receiving the money ex hypothesi no knowledge of his right of option, nevertheless receives and puts into his pocket money paid in pursuance of that claim and in liquidation of the employer’s statutory liability under the Act? In answering that question it is important to consider the language of what I may call the second limb of the subsection [i.e. section 29 (1)] ... The effect of the second limb of the section is to exempt the employer from liability to pay compensation, both under the Act and outside the Act.”

This case was followed and applied in Selwood v. Townley Coal and Fireclay Co., Ltd. [1940] 1 K.B. 180, C.A. There the injured plaintiff workman without any application, received while in hospital, weekly sums which were sent to him as compensation under the Workmen’s Compensation Act, 1925, and which the plaintiff received and accepted as compensation under the Act. Subsequently on the advice of a solicitor he refused to accept further payment and then brought an action at common law for damages. It was held that although he had made no claim, having known those payments to be compensation under the Workmen’s Compensation Act, 1925, he was precluded under section 29 (1) from also recovering damages at common law for the same injuries. See also Arhin v. Brenya, High Court, Cape Coast, 21 December 1967, unreported; digested in (1968) C.C. 59.

I must mention the case of Unsworth v. Elder Dempster Lines Ltd. [1940] 1 K.B. 658, C.A. There the injured workman also did not know of his right of electing between a claim under the Workmen’s Compensation Act, 1925, and a claim for damages at common law, when he received weekly payments. On learning of his rights he continued to receive them but did so “without prejudice,” to which his employers did not assert any objection. It was held by the English Court of Appeal reversing the court below, that there had been no payment of compensation under the Workmen’s Compensation Act, 1925. That case is distinguishable from Perkins case (supra), in that in Unsworth there was no proof that the workman received the weekly half wages as compensation under the Act, but only as solatium.

In the present case the payment of compensation in this case was ordered by a judgment. This judgment bars proceedings for an alternative claim. Although section 24 (1), (2) and (3) of Act 174 departs from the wording of section 29 (1) of the English Act, it seems both have the same effect in that under both there cannot be a liability to satisfy compensation under the Act as well as under common law, at the suit of the same person for the same injury. This is achieved under the Ghana Act by section 24 (2) and (3) making a judgment in one claim bar proceedings for the alternative claim. In my judgment the statement of the law as above leads me to the conclusion that the present action of the first plaintiff is barred by section 24 (3) of Act 174.

But it is not so with the infant plaintiffs. In transactions on behalf of infants the question whether the transaction was for the benefit of the infant is relevant and unless the court is satisfied that it was for the benefit of the infant, the transaction will not bind the infant. Such was the case of Stimpson v. Standard Telephone and Cables Ltd. [1940] 1 K. B. 342, C.A. There an infant working girl, by her father, a solicitor’s clerk, upon the advice of solicitors, claimed through her father and was paid compensation under the Workmen’s Compensation Act, 1925, for injuries she sustained by accident in the course of her employment in a factory. Subsequently the infant plaintiff brought an action claiming damages for her personal injuries. It was held that although an adult would be barred by section 29 (1) of the Act of 1925 from recovering damages independently of the Act for the injuries sustained, the infant working girl was not so debarred unless the court came to the conclusion that it was for the benefit of the infant that she should obtain compensation under the Act of 1925 instead of damages independently of the Act. At page 354 of his judgment Greene M.R. pointed out that a payment under the Workmen’s Compensation Act will only have the quality of discharging the employer from his liability if it was paid as a workman compensation payment and was received as such. He continued:

“In the case of adults, no difficulty arises in dealing with that particular matter. But, in the case of an infant, when once it is clear that in order to find the requisite quality in the payment a mental operation on the part of the recipient is required, the question arises: Was it for the infant’s benefit that that particular decision should be taken? If the payment was made under an agreement, if the parties rested not merely on the statutory position but also on a contractual position, it is clear that the question of the infant’s benefit becomes immediately relevant ... In my judgment, quite apart from cases involving an actual contract, where there is need of a mental operation of the infant, whether it is in the exercise of the option before receiving payment, or whether it is looked at from the point of view of actual receipt of payment, the question must always be investigated, was it for the infant’s benefit that the payment should be made?”

Now the position here is that the decision to accept the payment of £G424 odd as compensation under the order of the court was taken by the first plaintiff without advice on behalf of the four infant plaintiffs. May be under competent advice she would have acted otherwise. The infants were not in a position to exercise any mental operation in the matter. I think it makes no difference that the first plaintiff as an adult was acting on behalf of the four infants. For in the Stimpson’s case (supra) the claim and receipt of compensation under the Act of 1925 was by and through the father who had the advice of solicitors. So in this case one should ask, would the first plaintiff have decided to accept the compensation under the Act if she had sought advice on behalf of the infants? Her subsequent prosecution of the present suit is proof that she would not have. So this court must answer the question whether that claim was for the benefit of the infants? Of the four infants the eldest was nine at the time the compensation under the Act was received. For many years to come they will remain dependants and, as it seems that a claim at common law would have given them a greater sum as dependants, my answer is that the receipt of compensation under Act 174 was not for the benefit of the infants. The liability of the first defendants in my opinion was not discharged by the judgment of the district court. In my opinion it seems the judgment in that proceeding before the district court does not bar proceedings at common law at the suit of the infants.

I have already assessed the damages at N¢1,500 and as I think it can only be apportioned among the infant plaintiffs who are not barred, I apportion it as follows:

Yaa Kwaa aged 9 350.00

Adwoa Gyamfua aged 6 350.00

Kwabena Twumasi aged 4 400.00

Abena Boakyewa age 1 400.00

1,500.00

The case of Kinneil Cannel and Coking Coal Co., Ltd. v. Sneddon (or Waddell) [1931] A.C. 575, H.L. decides that each dependant has the right to exercise an election as to whether he would proceed under the Act for compensation or at common law for damages. Therefore the four infant plaintiffs have no share in the compensation of £G424 5s. 9d. paid under the Act. That goes solely to the first plaintiff who, as I have found, accepted that compensation.

In the result I would enter judgment for the four infant plaintiffs in the sum of N¢1,500.00 against the defendants. There will also be judgment for the first defendants against the first plaintiff. The action against the other defendants is dismissed.

As the first defendants have succeeded against the first plaintiff they are entitled to substantial costs and taking that into consideration I would on balance assess costs for the four infant plaintiffs at N¢150.00 against the defendants.

By reason of the minority of the four infant plaintiffs I order that the sum of N¢1,200 be deposited in a bank account for the use and benefit of the said infant plaintiffs as and when they come of age or as the need arises, and in that case subject to approval of the court. The Senior High Court Registrar, Kumasi, for the time being, and the first plaintiff as mother are appointed trustees of the fund.

COUNSEL

JOSEPH PREMPEH FOR THE PLAINTIFFS

MENSA BONSU FOR THE FIRST DEFENDANTS.