The Legal Duty Of Employers To Protect Employees From Workplace Injuries In Nigeria By Michael Dugeri

Introduction

In Nigeria, the law requires all employers to take responsibility for preventing workplace injury and disease. As a result, employers must take every precaution reasonable in the circumstances for the protection of their workers. This usually entails the maintenance of a healthy and safe work environment; provision of hazard information, proper safety equipment, training and competent supervision.

Brief facts

In the case of Henry Ihebereme v. Hartland Nigeria Limited, (Unreported Suit No. NICN/ABJ/172/2018, the judgment of which was delivered 23 January 2020) the Claimant sued his former employer to demand compensation for the sum of N250 Million as “compensation for the permanent loss of the use of his hand, for pain and suffering, and for loss of enjoyment of life”. The Claimant had been employed as a bricklayer, with responsibilities, which included moulding of concrete slabs and their removal from the point of moulding to the point of the site where it is needed and such related tasks as the foreman may direct. While at work the Claimant was injured by a forklift that was being operated by his co-employee, leading to the loss of his arm. Specifically, the Claimant suffered ‘multiple fractures of the 2nd, 3rd and 4th middle phalanges of the left hand’. He was first treated at a medical facility at the instance of the Defendant.

The Defendant, however, contended that the Claimant was injured when he negligently climbed the forklift, without authorization. The Defendant also contended that it offered medical treatment to the Claimant, but that the Claimant deliberately refused, neglected and failed to proceed for further medical treatment instead insisted on collecting Ten Million Naira as compensation from the Defendant.

The law

In its judgment, the National Industrial Court examined the merits of the Claimant’s case against the Defendant, which was based on the tort of negligence. The Court pointed out that duty, breach, causation, and damage are the elements which together make up a successful negligence claim. By these requirements, the tort of negligence relies on the blameworthy nature of the defendant’s conduct for success. In other words, for a claimant to succeed in a negligence action, he must prove that the defendant was in fact negligent, that is, he failed to take that degree of care which is reasonable in all circumstances of the case or he failed to act as a reasonable man would have acted. Then if the defendant owes a duty of care, his negligence becomes breach of that duty. The resultant damage on the claimant would then be actionable. Even here, there is still the possibility that the claimant may not recover (or only partly recover) against the defendant given the limiting/control devices of remoteness of damage, contributory negligence and voluntary assumption of risk. In other words, a defendant may owe a duty of care, may breach that duty of care, for which the claimant suffers resultant damage, and yet not be liable or be only partly liable if the damage is too remote, or the claimant contributed to the injury or the claimant voluntarily assumed the risk in issue.

The Court in this case had no difficult coming to the conclusion that the Defendant owed the Claimant a duty of care given the proximate relationship between the two, and the fact that the claimant was injured in the course of working for the Defendant, indicated that there was a breach of the duty of care, and resultant damage. The English case of Smith & ors (FC) v. The Ministry of Defence (2013) LPELR-17965(UKSC); Suit No: [2013] UKSC 41, held thus: “An employer owes his employees a duty to take reasonable care to provide safe equipment and a safe system of work, which includes assessing the tasks to be undertaken, training in how to perform those tasks as safely as possible, and supervision in performing them”. This position is reinforced by IITA v. Amrani, (1994) 3 NWLR (Pt. 332) 296 which held that the standard of the master’s duty towards his servant is to see that reasonable care is taken; the scope of that duty extends to the provisions of safe fellow servants, safe equipment, safe place of work and access to it and a safe system of work.

The earlier authority of Western Nigeria Trading Co. Ltd v. Ajao (1965) All NLR 524 (followed in recent cases like Ola Suleiman v. Hongzing Steel Company Limited unreported Suit No. NICN/LA/73/2011, the judgment of which was delivered on 26th February 2015) is no less instructive: an employer’s duty at common law is not only to provide goggles (safety equipment), but also to see to it that they are used. The case of Green Pack Rubber Ind. Ltd v. Ossai (2004) 2 FWLR (Pt. 194) 668, on its part stressed that when a statutory duty is imposed on an employer but not also on the workman who is injured and there is breach of that duty which is a cause of the accident to the workman, the employer will be liable subject to an apportionment for contributory negligence. The case stated further that the employer will be completely exonerated if the workman, having been given appropriate equipment and instructions, disobeyed those instructions or did some deliberate wrongful act which breaks the causal connection.

Employee duty to mitigate damage

In the case of Henry Ihebereme v. Hartland Nigeria Limited, which is under review, the Defendant acknowledged via correspondence that the Claimant was its sailor, and in the normal course of his duties, was injured when the wire rope holding a snatch block broke and a block fell on him. The Court therefore had no difficulty in concluding that the acknowledgment of negligence on the part of the Defendant resulted in the injury that the Clamant suffered.

However, in inadvertently admitting negligence, the Defendant contended that the Claimant aggravated the state of his injury by discharging himself from the hospital even when the hospital advised against this. To the defendant, the decision to discharge himself and go to bone healers was completely that of the claimant and his relations contrary to the advice of the hospital. The Claimant did not contradict this piece of evidence. As a result, the Court found and held that it was the duty of the Claimant to mitigate the damage; he cannot recover damages for an aggravation or prolongation of his injuries which is due to his neglect or willful default; such unreasonable conduct being novus actus interveniens. (i.e, an intervening unforeseeable event that occurs after the defendant’s negligent act and operates to precipitate or worsen the plaintiff’s loss).

The Court made reference to two older case law authorities on the doctrine of novus actus interveniens. The first was the case of Ekwo v. Enechukwu (1954) 14 WACA 512. The plaintiff’s hand in this case was seriously injured as a result of the negligent fixing of a seat belt in the defendant’s lorry. Immediately after the accident, a servant of the defendant offered to take the plaintiff to a hospital for medical attention, but the plaintiff refused, preferring instead to consult a native doctor. Seven days later, the plaintiff did go to a hospital, by which time the hand had become septic and gangrenous and so had to be amputated. The doctor who attended to the plaintiff in the hospital testified that the amputation was the result of the wound becoming septic, and he was of the opinion that had the plaintiff come to the hospital immediately, he might have been saved from amputation and the fracture would have been cured. The Court held that the plaintiff did not act unreasonably in consulting a native doctor instead of going immediately to a hospital.

The second case is Mange v. Drurie (1970) NNLR 62. Here, the Plaintiff was riding a bicycle when he was knocked down and suffered injury to his leg as a result of the careless driving of a lorry by the Defendant. He was immediately taken to the hospital by the Defendant. However, before treatment was complete and against medical advice, the Plaintiff discharged himself and did not return to the hospital for two days. During this two-day period, the leg became infected and so had to be amputated. The Plaintiff’s claim for damages for loss of the leg was rejected by the Court.

The Court applied the cases of Ekwo v. Enechukwu and Mange v. Drurie in holding that the Claimant in the instant case failed to mitigate his damage and could therefore not recover against the Defendant for the aggravated injury.

Conclusion

The law on employers’ liability for injuries that occur to employees in the course of employment ensures that no employee who is injured in the course of employment goes without compensation for the injury.  It provides the employee with choice of legal regimes to utilize for the purpose of seeking compensation.  An employee can either:

1. Sue his employer in negligence founded on the breach of the common law duty of care;
2. Sue the employer where injury occurred due to a breach by the employer, of a statutory duty, for example, as contemplated by the Factories Act. 
3. When the employer is not blameworthy in negligence, sue an occupier of premises for negligence founded on Occupiers’ Liability.
4. Sue another employer for injury or loss sustained by an employee, which is caused by the employer’s employee in the course of his employment; in which case the liability is vicarious; 
5. Seek compensation under the Employees’ Compensation Act, for injuries which occurred in the course of employment, either by accident or as a consequence of the employment.

The choice is usually that of the Claimant’s.  Each regime has its pre-conditions to be met before the Claimant can be entitled to the claim.  Where the employee is unable to fulfil the conditions, then he may lose a deserved compensation.