Awards N30m against firm for breach of duty of care
The National Industrial Court of Nigeria (NICN) has held that the Employee Compensation Act (ECA) 2010, which is the current law dealing with compensation for work-related injury claims, does not exclude right of action in negligence for industrial injury claims.
The trial judge of the Owerri division of the NICN, Nelson Ogbuanya, delivered the judgment in the suit filed by Anthony Utibe against his erstwhile employer, Jiuxng Intergrity Industries Ltd, a Chinese Construction Company, over the permanent disability injury he sustained at work.
The Claimant, who worked as a Mason with the Defendant got injured while washing the cement mixer machine on instruction of his supervisor.
As the machine was not switched off, the machine held his right hand inside and immediately cut off his two fingers and fractured the third finger which was later amputated by surgery.
After all medication and surgery, a final medical report confirmed that he has sustained permanent disability on his right hand.
He was quickly laid off by the company, which refused to pay him any compensation, and he sued the firm for negligence.
The Defendant through its counsel contended in a reply letter that the Defendant other than bearing the medical expenses and costs associated with the treatment, is no longer liable to pay any amount to the Claimant, and if there is any more liability, it should be made under the Employee Compensation Act 2010 (ECA).
The Defendant also maintained the position that the Claimant’s right of action lies only under the ECA, and also set up a defence of contributory negligence, on the basis that the Claimant was aware that the machine was not switched off when he put his hand inside to wash it.
After a careful evaluation of evidence and pleadings of the parties, Justice Ogbuanya, resolved the issue in favour of the Claimant and held that the legal route for seeking compensation for workplace injury is not only available under the ECA, but also by way of general damages in an action founded on common law principle of negligence.
“A cursory review of the current legal regime for injury claim arising from industrial accident since the enactment of ECA Act, 2010, presents two optional but mutually exclusive routes to receiving remedy of compensation for injury sustained at work – (1) the statutory route through ECA and (2) through the common law principle of negligence,” he pointed out.
He held that the established ‘principle of election’ set up under the ECA, is to the effect that a victim of workplace injury is enjoined to elect which of the two routes (statutory or common law), to take in search for remedy to compensate for the resulting incapacitation.
“If the statutory route is taken, the NICN can only be approached on Appeal over review of the disputed compensation computed and paid by the Nigeria Social Insurance Trust Fund (NSITF) Board, as recovery of compensation under the statutory route is payable by the NSITF Board.
“If, however, the common law route is elected, the NICN has original jurisdiction and compensation can be payable by way of general damages for proven acts of negligence on the part of the employer,” he explained.
Justice Ogbuanya held that bearing cost of medical treatment does not, ipso jure (by the law itself), relieve the Defendant from paying a compensation to the victim-employee or even to his/her dependent in case of injury resulting in death.
He, therefore, found the Defendant liable in negligence for breach of duty of care owed to the Claimant.
He noted that “appropriate Health, Safety & Environment (HSE) protocols indicating that safety measures are in place at the construction site, were lacking in the Defendant’s organisation, as the Defendant failed to lay any evidence in support of its averments on the alleged non adherence to proper safety protocol by the Claimant”.
The Court, using ‘annuity-format’ measure of the quantum of damages awardable and after considering the issue of unfair labour practice arising from the manner the Claimant was laid off after sustaining the permanent injury in the course of duty awarded N30 million against the Defendant in favour of the Claimant.
The money, it declared, serves as compensation by way of general damages, arising from the breach of duty of care owed to him that resulted in damage of the functionality of his right hand, which is of permanent nature, coupled with acts of unfair labour practice of exiting him from the firm.
The Court also awarded a N1 million cost in favour of the Claimant against the Defendant.
