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JUDGMENT Introduction and claims The claimant filed this complaint against the defendant on 19th November 2014 seeking the following reliefs: 1. A declaration that the omission of the defendant to fix the faulty Palletizer Machine which eventually result (sic) to an explosion caused the permanent disability of the claimant. 2. A declaration that the permanent disability of the claimant was the consequence of the defendant’s inability to provide a safe working environment amounts to Gross Negligence. 3. A declaration that the claimant is entitled to be compensated by way of damages for permanent disability to his legs and right finger, physical and psychological trauma by the defendant’s acts and omissions. 4. An order of this Honourable Court directing the defendant to pay the sum of N200,000,000.00 (Two Hundred Million Naira) to the claimant for specific damage of his knee cap in the event of neglecting routine maintenance of the factory. 5. An order of this Honourable Court directing the defendant to pay the claimant the sum of N300,000,000.00 (Three Hundred Million Naira) being general damages for living out the rest of his life as an invalid and the continuous physical pain and psychological trauma caused the claimant by the defendant’s act(s) and omission(s). 6. Interest on the judgment sum from the date of delivery of judgment until final liquidation of the judgment sum of 20%. 7. Cost of this action for N10,000,000.00 (Ten Million Naira). Accompanying the complaint is the statement of facts, the claimant’s statement on oath and copies of documents to be relied upon. The defendant entered appearance on 13th March 2015 and filed its statement of defence, witness deposition and copies of documents on 22nd April 2015. Case of the claimant The claimant’s case on the pleadings is that he was until March, 2014 an employee of the defendant and worked at it's at AmaekeNgwo, Enugu State. He averred that the defendant employed him by a letter of employment dated 1st October, 2008 and his employment was confirmed at the end of six months’ probation period by letter dated 28th May, 2009. The claimant stated that on 31st October, 2008 while he was on night duty, at Palletizer Machine with a certain Mr Kenechukwu Chime beside him on Heineken Line ONE (1), for Guilder production Line TWO (2) they both discovered that the “Pallet-Magazine-Discharge-Conveyor Driving Chain” had elongated and it was difficult for pallets to discharge out from that section to the main Palletizing unit where the pallets would be used for palletising crates of full-products-Guilders. The claimant stated that he alerted the Mechanical-Support personnel, in the person of Mr Baba-Ajayi, to effect repairs on the faulty machine but he refused to offer the much needed technical assistance on the excuse that he was tackling another major problem on Labeller-Line-ONE (1). The claimant stated that following the malfunction that occurred at the Production Line ONE (1) Guilder brand, he had to improvise to get the pallets moving from the sector he was to the main palletising zone and to achieve that he climbed the Crates Conveyor edges across to the Magazine Unit to assist the flow of pallets through-out the night. The claimant stated that he had started dragging the pallets and frequently climbing the machines from about 8pm to about 3:30am and at about 3:30am there was a severe malfunction of the Crates Row-Table which caused several bottles to exploded. He stated that the Crates started falling from the Gripper-Fingers, everything thing spiralled out of control and in a state of apprehension as he was crossing over to the main Control Panel to stop the entire machine he slipped and his foot got caught in the Crates-Roller Conveyor Line. The claimant stated that he shouted for help and struggled to extricate himself but nobody was close-by to rescue him as the In-feed Driving Belt pulled him on until he landed with both knees with so much force unto the hard floor. He was still on the floor when he heard voices far away and a few moments later he was carried by some persons and he slipped out of consciousness. The claimant stated that when he regained consciousness he heard his Machine Operator colleague shouting that his little finger was twisted backward and immediately Mr. Derrick-Nwafor tried to reset the finger much to his anguish before assisting him to the defendant’s clinic. The claimant stated that at the clinic, the nurse on night duty administered first aid treatment to him and placed him on bed rest till the defendant’s doctor Dr Obaro came with the Head-Nurse who objected to the idea of taking him for x-ray and proper treatment for the reason that it was totally unnecessary to start spending money on a new employee. The claimant stated that he was sent for an x ray at Niger Foundation Hospital Enugu and Dr Obaro informed him that the x-ray showed that nothing was wrong with his knees but that his finger tendon was strained. The claimant stated that he was deprived of seeing a Specialist despite several complaints to the medical personnel of severe and excruciating pains to his knees; instead he was threatened by Dr Obaro that he will send a report to Human Resource Department to terminate his appointment if his incessant complaint did not cease. The claimant stated that for fear of losing his job, he stopped the complaints and resorted to buying painkillers at the chemist but that when the pain reached a certain crescendo and it was becoming hard to effectively discharge his duties he returned to the clinic and saw Dr Chukwumah Patrick who referred him an Orthopaedic Surgeon at Niger Foundation Hospital. The claimant stated that he was seen by Dr Harcourt and after several tests he was informed that his kneecap (Patellar) had suffered serious cracks and injuries as a result of force of his fall to the floor during the explosion at the defendant’s. Dr Harcourt stated that the effects of the damage would have been mitigated if he had sought professional help immediately. The claimant stated that Dr Harcourt recommended Patellectomy which is a surgical procedure of the partial or total removal of the patella commonly called the kneecap, and no prosthesis or artificial replacement part is put in its place; and that failure to perform the procedure would lead to an early knee replacement or him becoming permanently disabled. The claimant averred that he gave Dr Chukwumah Patrick the resident Doctor at the defendant’s clinic the feedback from Dr Harcourt on the prognosis and treatment. The claimant stated that he expressed his fears about the Patellectomy and the need to seek a second expert opinion before going ahead with the surgery, but Dr Chuwukah’s response to his reservations was that the brewery doesn’t use quack medical practitioners and approved the surgery. The claimant stated that he then went to Dr Harcourt who tried to allay his fears by pointing out that he will be able to walk normally with his legs but might experience difficulty in stretching the knees and running. The claimant stated that on 24th December 2009, Dr Harcourt carried out the surgery on his left knee and he was placed on epidural which allowed him to view the whole procedure. On opening the knee it became obvious that the damage was massive and full patellectomy, totally removal of the knee cap was performed. The claimant stated that he did not receive physical therapy to strengthen the knee which should have started as soon as tolerable after surgery, and the cast on his legs were left unattended for over several months. The claimant stated that he was abruptly discharged from the hospital by Dr Harcourt when he complained about the lack of after surgical care, by the defendant. The claimant averred that his entire femoral thigh-muscles (Quadriceps-Femoris) collapsed due to the overstay of the cast; the leg Fussed-up and became very stiff that it was impossible to bend or flex the knee joint even at 0-5 degree radius. As a result Dr Chukwumah brought in a nurse from National Orthopaedic Hospital Enugu who upon examining the knees stated that his condition was so dire and cannot be treated from home. The claimant stated that at the Orthopaedic Hospital, Dr Nwadinigwe was consulted and after his examination advised that the claimant be admitted immediately with rigorous physiotherapy. Little progress was made and the slim hope of recovery was shattered when it was discovered through an MRI scan that serious wears and tears had taken place internally with the affected knee Joint that the right-knee, cartilages were worn-out severely, the patella edges were seriously damaged and the re constructed ligament had being over stretched during the Intensive Physio-therapy session. The claimant averred that after several consultations were made by the defendant while his medical condition deteriorated, it was agreed that he be flown abroad for further treatment and the Protocol-Officer of the defendant abandoned him to his fate despite his incapacitated state thereby subjecting him to unimaginable suffering in pursuit of the travelling visas. The claimant stated that on 22nd of March 2012 he travelled out of Nigeria to Mexico and on arrival was checked into the hospital. After about 6 invasive surgical procedures including Anthroscopy were performed on him, he was told that the surgery was a minor corrective procedure to mitigate the initial mistakes made by the defendant and its medical doctors. The claimant avers that his legs became worse after the surgery performed by the expatriate doctors. The claimant stated that he was brought back to Nigeria and was trying to get used to life as an invalid when he was laid off by the defendant on the 21st day of March, 2014 and subsequently paid the sum of 10,180,745.66 as gratuity and entitlements with the exclusion of service gratuity as stated in the defendant’s termination letter. The claimant stated that since that fateful day the defendant’s negligence and inability to make the work place safe caused the explosion at the defendant’s Factory, his life has gradually taken a turn for the worse and life as he knew it has changed to become a harrowing experience. The claimant averred that he was laid off by the defendant because he had become redundant, and as a skilled worker a permanently damaged knee stands as a death sentence on his career and future prospects of getting any kind of job. The claimant’s personal and social life is non-existent and he has been forced to depend on other people to survive. The claimant testified in support of his case. He adopted his statement on oath. It was in the exact terms of the pleadings and relied on his admitted documents. Under cross-examination, the claimant told the court that the defendant employed him as a machine operator which is the same thing as a packaging operator, and that his qualification is Ordinary National Diploma (OND) Electronics. He explained that the team of the maintenance personnel team is to identify a fault in the machine and carry out repairs. The claimant told the court that while on night duty on 31st October 2008 he discovered that the Pallete conveyor was malfunctioning and they called in the maintenance team. The claimant stated that he knew about the reporting escalating procedure, which is to call in the maintenance team when there is a fault and they will come and attend to it. The claimant told the court that he was given first aid treatment on the night of the accident and he admitted that he received medical attention at Niger Foundation Hospital, National Orthopaedic Hospital and Lagoon Hospital in Mexico. He told the court that the defendant was responsible for his medical bills and that his salary was paid to him all through. The claimant said the accident occurred about one month after his employment, and he admitted that his employment was confirmed. The claimant said when he was at home, the medical personnel came to see him at home. The claimant said he saw the Orthopaedic surgeon one year after the accident and he was referred to Niger Foundation hospital. The claimant told the court that his left knee was operated upon on the 24th December 2009 and he was in hospital for about two months. He said he was admitted at the Orthopaedic Hospital because of the wrong procedure done on his leg and that he travelled to Mexico for treatment and he was there for more than three months. The claimant informed the court that when he came back from Mexico, he was recalled and he was assigned to a desk job in the security unit. He said the defendant disengaged him in March 2014 on grounds of redundancy and he was not the only one who was laid off. He admitted he received N1.4Million on the day of disengagement and another N7.2Million was subsequently transferred to his account but he did not know what it was for. He said he saw the letter written by the defendant in August 2014 stating that it had paid N10Million and he is waiting for an explanation on the sum. The claimant said his disability was not taken into account when he was paid his entitlements and that he was not paid his service gratuity because he has not seen any documentation to that effect. The claimant then closed his case. Case of the defendant The defendant’s case on the pleadings is that the claimant was its employee at its Ama Brewery in Enugu until March, 2014 was trained as Palletizer Operator. That prior to his confirmation, the claimant attended series of trainings one of which was on the procedure for machine stop and Ama reporting escalation procedure. The defendant stated that the claimant was on night duty at Palletizer machine, on 31st October, 2008 and he had a work accident on 1st November, 2008, at about 3.00 am. The defendant stated that the claimant was jumping across a conveyor on returning from freeing a jammed pallet when he tripped and fell, injuring his left hand; bruised his left leg and landed on both knees. The claimant attempted to break his fall by grabbing on an Isolator handle and in the process injured his right hand; the Isolator broke off under his weight and he landed on the ground on both knees. The defendant stated that the claimant was immediately rushed to the on-site clinic within the factory and was properly administered first aid by the nurse on duty and there was no loss of consciousness. The claimant was later seen by Doctor Obaro and the Head Nurse, and he was sent for x-ray at Niger Foundation Hospital, Enugu. The defendant stated that the claimant’s main complaint then was pain on his right hand, restricted flexion of the right little finger and pain in the right wrist and that x-rays revealed normal soft tissues and phalanges, and no fractures; and on day 18th of the injury the claimant was again reviewed at the clinic for pain on the right hand, and given a referral to see the Orthopaedic surgeon at the provider hospital, Niger Foundation Hospital (NFH). The defendant stated that the first recorded complaint by the claimant about the knee was on Sunday 28 December, 2008, eight weeks after the fall, when he presented with a swollen painful knee, and was managed with analgesics and referred to the surgeon at the provider hospital, NFH. The defendant stated that the claimant continued to attend both the Orthopaedic clinic of the provider hospital and its on-site clinic as the need arose, over some months. On November 28, 2009, the consultant orthopaedic surgeon diagnosed multiple loose bodies in the knee joints (a usual feature of osteo-arthritis) and mild wasting of the quadriceps musculature (thigh muscles) and recommended debridement and irrigation of the knee joints along with intensive physiotherapy. A month later, on December 29, 2009, the claimant underwent a surgery and thereafter continued with physiotherapy, pending a planned surgery on the right knee, after recovery from that on the left knee. The defendant stated that within the period, the claimant was referred to the National Orthopaedic Hospital, NOH, Enugu, where he had further physiotherapy and the knee achieved a flexion of 45 degrees from a restricted flexion of near 90 degrees and he was advised to continue with physiotherapy in order to improve functionality of the knee joint. The defendant stated that from the time of the surgery till early 2013, he remained out of work with payment. That all through 2010, the claimant had regular physiotherapy to rebuild his thigh muscles and attempt to wean off the crutches, and by November 2010, he was on a cane, having dropped the two weight-bearing crutches. The defendant stated that in the months of October and November 2010, the claimant was sent to Lagoon Hospital, Lagos, for a review by a team of Orthopaedic surgeons from the United Kingdom. He was asked to continue with physiotherapy to improve knee joint stability and function; and that the claimant rejected further palliative surgery at the Lagoon Hospital and insisted that any further intervention should be done outside the country. The defendant stated that the claimant continued physiotherapy and follow-up visits at NOH, NFH and on site clinic all through 2011 till mid-2012 when he travelled to Mexico and had both open and anthroscopic surgery on both knees. On his return, after six weeks in Mexico, the claimant was admitted for in-patient care and supervised physiotherapy at Annunciation hospital for one month, under the same consultant surgeon at the National Orthopaedic Hospital. The defendant stated that upon his discharge, the claimant continued follow-up visits to the surgeon and physiotherapy from home, with occasional visits to the on-site clinic. Medical personnel, doctors and nurses carried out home visits in addition and the claimant improved progressively till he was well enough. On the recommendation of its Doctor and claimant’s Physician to resume work, he was assigned a a desk job in Security Department, while continuing with physiotherapy, hospital and on-site clinic visits but the claimant became inconsistent with his outpatient physiotherapy programmes. The defendant stated that it spared nothing to ensure that proper medical care was given to the claimant, in and out of hospital and he was eventually certified fit to resume work in 2013 by its medical doctor and the claimant’s physician. The defendant averred that it places high priority on weekly, monthly routine maintenance of its factory equipment and identifies and corrects any faults promptly by competent professionals. The defendant stated that the claimant is aware of its policy with the acronym “if it is unsafe, don’t do it” and that there is no provision for any staff to improvise in order to carry out his duties. The defendant averred that the equipment has always worked well and a team is always available to intervene in case of breakdown. The defendant averred that there was no report of a faulty Palletizer machine by the claimant or any other person or explosion in the factory. The defendant stated that it provides and maintains a safe working environment at all times and was never negligent; the claimant flouted the safety and security policies. The defendant stated that following a need to re align company operations in order to remain competitive, it embarked on an outplacement and early retirement exercise to affect a maximum of two hundred (200) employees and 90 early retirement. The claimant was among those outplaced in March and relieved of his job together with other staff on March 21, 2014. The defendant averred that he was paid a total sum of N10,180,745.66 (Ten Million, One Hundred and Eighty Thousand, Seven Hundred and Forty-Five Naira, Sixty-Six Kobo) being his gratuity and terminal benefits. In addition to NJIC industry negotiated redundancy benefits in the industry, it paid ex-gratia goodwill bonus to the claimant. The defendant averred that it paid the claimant all his entitlements in addition to employee’s compensation of N7,654,622.76 assessed at 100% disability by the second schedule of Employee’s Compensation Act 2010. The defendant stated that the claimant is not entitled to any of his claims and that the entire action is baseless, vexatious, gold digging and should be dismissed with substantial costs. The defendant called one witness Onyeka Okoh (DW) H.R. Policy/Admin Manager. He adopted his statement on oath. It was in terms of the pleadings and he relied on the defendant’s admitted documents. Under cross-examination, DW told the court that he joined the defendant in 2010. He said the accident occurred in 2008 and that the claimant was in the defendant’s employment up till 2014. He told the court that a report was sent to HR on the day of the incident and that he did not have the report. The defendant then closed his case. Final address The defendant’s final address is dated 29th March 2017 and is filed the same day. The claimant’s final address is dated 5th February 2018 and is filed on the 6th February 2018. The defendant’s reply on point of law is dated and filed on 20th February 2018. Learned counsel to the defendant submitted the following issues for determination 1. Whether in its relationship with the claimant, the defendant failed to provide a safe working environment, was negligent and or breached the duty of care? 2. Whether the claimant was paid his entitlement, including Pension, Service Gratuity and workmen’s compensation. 3. Whether claimant is entitled to any compensation by way of claims, general damages and or special damages for permanent disability from the defendant. Learned counsel to the claimant in response submitted the following issues for determination: I. Whether the defendant owe the claimant a duty to care and provide a safe working environment. II. Whether the defendant was in breach of such duty owed to the claimant and liable in breach of the said duty. III. Whether the claimant suffered damage and sustained injury as a result of defendant’s omission and negligence. IV. Whether or not the evidence tendered by ‘DWI’ and admitted before this Honourable Court meet the condition precedent of section 84 (2) a to c of the evidence act 2011. V. Whether or not the evidence tendered by ‘DWI’ and admitted before this Honourable Court meet the condition precedent of section 90 (a) a to e (IV) of the evidence act 2011. Decision I have carefully considered all the processes filed, the evidence led, the written submissions, arguments and authorities canvassed by counsel in the final addresses in this matter. In my view, the issues formulated by learned counsel to the defendant capture and encapsulate all the issues raised by the parties. I will therefore adopt the issues submitted by defence counsel. The claimant as required has put in evidence his letter of employment contract (exhibit C1), confirmation of appointment (exhibits C2), letter of disengagement (exhibit C3), letters of demand (exhibit C4 & C5). I will begin with the preliminary issue raised by the claimant’s counsel in the final address submitted as issue IV. He has submitted that the defendants documents admitted as exhibits D1, D4, D5, D6, D7, D8, D12, D13, D14, D15, D16 & D17 are computer generated evidence and the defendant did not produce a certificate. At this juncture, I must state that the claimant’s documents admitted are D1 to D15 only. There are no documents marked D16 and D17. The foundation was laid during the trial with no objection by the claimant’s counsel for the admissibility of exhibits D1, D4, D5, D6, D14. These documents are the defendant’s Palletizer maintenance records, the claimant’s technical learning report with a score of 76%, and his medical reports. They are not computer generated documents, neither are exhibits D7, D8, D12, D13, D15. The documents are the typed conclusions reached between the trade union NUFBTE and the defendant on the redundancy, letters, memos, hospital records, payment advice, and they have all been typed on a computer. The intent of Section 84 (2) of the Evidence Act 2011 is not for certificates be produced for letters typed on the computer. If it was, even the claimant’s documents will be inadmissible having been typed on a computer with no certificate attached. Learned counsel abandoned issue V he submitted for determination. There is no dispute between the parties that the claimant was in the employment of the defendant from October 2008 till March 2014. There is also no dispute that he sustained an injury in the course of his employment that resulted in some form of disability. It is the law that an employer has a duty at common law and a statutory duty to take reasonable care to ensure the safety of its employees/workmen and in particular in respect of the place of work, plant, system of work and fellow employees and ensure that he is not exposed to the risk of injury. See Iyere V Bendel Feed and Flour Mills Ltd [2008] 18 NWLR (Pt 1119) 300 at 326, Wilson and Clyde Coal Co V English [1938] AC 57, Nasmith V London Film Production Ltd [1939] 1AER 794. Therefore, the defendant by law is under a duty to take reasonable care for the safety of the claimant in all the circumstances of this case so as not to expose him to unnecessary risk. The claimant asserts that the defendant was negligent in not maintaining its Palletiser machine and providing a safe working environment for him. It is the law the law is that he who asserts must prove. See Sections 131 (1) & (2) and 132 of the Evidence Act 2011, Calabar Co-operative Ltd VEkpo [2008] 1-2 SC 229 at 255, Elegushi v Oseni [2005] 14 NWLR (Pt 945) 348. The burden of proof is therefore on the claimant to prove that the defendant was negligent in maintaining its equipment and providing a safe working environment for him. There is no evidence adduced by the claimant that prior to the accident, the Palletiser machine had malfunctioned and a report or reports were made; neither has the claimant adduced evidence that the defendant was negligent and failed to regularly maintain the machine or to train him in its use. It is the claimants evidence that his duty is to operate the machine and that he is aware of the ‘reporting escalating procedure’ to call in the maintenance team to attend to a fault. He reported the malfunction and was required to wait for the maintenance team. By the claimant’s own his own evidence, upon reporting the fault, he did not wait for the maintenance team to come and effect repairs but he decided to ‘improvise’. There is no evidence that the defendant asked him to improvise in the event of a malfunction. I hereby reproduce relevant paragraphs of his deposition as follows; 5. That I alerted the Mechanical-Support personnel, in the person of Mr Baba-Ajayi, to effect repairs on the faulty machine. The Mechanical Support Personnel refused to offer the much needed technical assistance with the over worn excuse that he was tackling another major problem on Labeller-Line-ONE (1). 6. That following the malfunction that occurred at the Production Line ONE (1) Gulder brand, that I had to improvise to get the pallets moving from the Sector I was at to the main palletising zone, to achieve that purpose, I climbed the Crates-Conveyor edges across to the Magazine Unit to assist the flow of pallets through-out the night. 7. That I had started dragging the pallets and frequently climbing the machines from about 8pm to about 3:30am. That at about 3:30am there was a severe malfunction of the Crates Row-Table which caused several bottles to explode, Crates started falling from the Gripper-Fingers, everything spiralled out of control, in a state of apprehension I had to cross over to the main Control Panel to stop the entire machine when I slipped and had my foot caught in the Crates-Roller Conveyor Line. I find that the defendant put in place a reporting escalating procedure for faults and there was a maintenance team on duty that night. I also find that the claimant after complying with the safety procedure of reporting the fault to the maintenance team on duty was not patient enough to wait for the team to and rectify the fault. I find that the claimant in deciding to ‘improvise’ in the reckless and dangerous manner of ‘dragging the pallets and frequently climbing the machines from about 8pm to about 3:30am’ exposed himself to the risk of accident and injury. I hold that it was the claimant’s ill thought out decision to ‘improvise’ rather than wait for the maintenance team to rectify the fault that resulted in his fall, injury, and the permanent disability he sustained. The defendant complied with its statutory duty to take reasonable care to ensure the safety of the claimant and to provide a safe working environment; and I so hold. Reliefs 1 and 2 therefore fail. The evidence placed before the court by the parties reveals that the defendant provided adequate medical care and treatment for the claimant including sending him overseas for treatment to ensure that he is back to his feet. The claimant himself under cross examination informed the court that the accident occurred one month after he was employed; and his employment was confirmed, all his salaries paid to him for the period he was away from work and he was given a desk job after his recall to duty. The claimant’s disability is assessed as 100% and he was paid the sum of N7,654,622.76 as workman compensation. He was also paid the following sums of money having been declared redundant in the restructuring exercise: outplacement N1,495,433.68, exit benefit settlement N995,536.40, personal account N35,152.82. These sums are a total of N10,180,745.66 (Ten Million, One Hundred and Eighty Thousand, Seven Hundred and Forty-Five Naira, Sixty-Six Kobo) paid into the claimant’s Zenith Bank account as compensation and terminal benefits. The claimant admitted that the sums were paid into his account. I therefore find that the claimant has already been compensated with the sum of N7,654,622.76 (Seven Million, Six Hundred and Fifty Four Thousand, Six Hundred and Twenty Two Naira, Seventy Six Kobo) for his injury and permanent disability that occurred as a result of his own action of dragging the pallets and climbing the machines from about 8pm to about 3:30am. He is not entitled to any further sum of money for his disability. Reliefs 3, 4, 5, 6 and 7 are refused. The claimant by this action is not challenging his disengagement on grounds of redundancy. For all the reasons given above, the claimant’s case must fail. It is hereby dismissed in its entirety. Costs of N50,000.00 awarded in favour of the defendant. Judgement is entered accordingly. ____________________________ Hon Justice O.A.Obaseki-Osaghae