Case No.:

(HC-CS-214-1959)

Court:

The High Court

Issue No.:

1960

Principles

· Contract—Acceptance of compensation in settlement of claim for personal in juries— Fiduciary relationship—Undue influence—Duress NegLigence—Master and servant—Duty to provide safe system of working—Contri hutory negligence

Plaintiff was employed by defendants as a carpenter to help in the fitting of the roof of a building under construction for the Sudan Army Engineering Corps in Omdurman. On May 26, 1958, whilst working on a part of the roof that was still under construction, he tried to cross to the other side of the roof; but he stepped onto an asbestos sheet, which collapsed, and he fell to the ground below, and sustained a fracture to his ankle.
On July 30. 1958. Plaintiff wrote and signed a doctiment whereby he agreed to accept £S.32.500m/ms as compensation for his injury in full and final settle ment and he later signed a receipt re-affirming the contract. Plaintiff was literate, but did not seek legal advice before entering into the agreement. In 1959 plaintiff brought an action claiming damages on the grounds that his personal injuries were caused by the negligence of the defendants.
Held: The plaintiff was aware of the contents of the document and under stood them. His relationship with his employers was not such as to raise a presumption of undue influence and there was no evidence that any pressure had been exercised on him by the defendants. Any pressure on the plaintiff to enter the agreement must he pressure exercised by the defendants. Failure to take legal advice did not make the contract invalid. Accordingly plaintiff was not entitled to recover any damages from the defendants because he accepted in a contract freely entered into, and not contrary to public policy. Compensation from them in full and final settlement of his claim.
Semble: but for the contract the defendants would have been liable for breach of their duty to provide a safe system of work for their servants; however plaintiff had been equally negligent as regards his own safety and damages would have been reduced by 50 per cent.

Judgment

((HGH COURT)

ALl EL HAG MANSOIJR v. EL HAG AHMED ABU ZEID AND MOHAMED TEWFIK HUSSEIN

(HC-CS-214-1959)

Action

/tdvocites: Mubarak Zarroug for defendants Plaintiff appeared in person

June 8, 1960. T. Cotran Acting J.: —In this suit the plaintiff, a car penter, is claiming from the defendants (his employers), damages for personal injuries which he sustained when he fell through an asbestos sheet from the roof of a building which was being constructed for the Sudan Army Engineering Corps in their barracks in Omdurman. The plaintiff was not represented by an advocate but the court will assist the plaintiff as much as it can and bring out all that is in his favour.

The accident took place on May 26, 1958, at about 2 p.m. The plaintiff together with other carpenters was engaged in fitting the roof of the building with asbestos sheets and corrugated iron sheets. This work entailed ‘the co-operation of carpenter and blacksmith. There is an issue relating to the number of days in which the plaintiff was employed. The defendants say he had been working only for twelve days, the plaintiff says it was eighteen days, but I do not think it matters how many days the plaintiff was working, since it is admitted that he was employed by them. Part of the roof had been nearly completed and the asbestos sheets were already fixed. The plaintiff was working on a part that was still under construction, but for some reason or other (plaintiff says he wanted to get a tool, defendants say he wanted to take a cigarette from another workman) he started to cross to the other side of the roof. He walked on the asbestos sheets. One of the asbestos sheets collapsed and he fell through it to the ground below, a height of some 3 metres, and fractured his ankle.

The plaintiff was taken to hospital. He says hewas detained for two months and was then in bed at home for a further period of seven months, but there is a witness who says that the plaintiff resumed work in July on a contract taken by one El Tigani Mohamed Kheir in the airport and worked with him until September when he was declared redundant (DW. 3 p. 32 of the record).

The plaintiff, however, received from the defendants a sum of money (LS.32.500m/ms) as compensation and agreed that that was all he wanted and that he would not complain further to the Department of Labour or lodge a case against them—Exh. D. 1—(Exh. C is a copy)

The first question that must be decided, in my opinion, is wh her the contract between the parties in which the plaintiff agreed to receive £S.32.500m/ms in full and final settlement of his claim to compensation is a bar to these proceedings. This document is dated July 30, 1958. It was written by the plaintiff in his own handwriting and signed by him. He accepted the money offered in full and final settlement and signed a receipt (Exh. D. 2 reaffirming the contract. Now of course the court must give effect to this agreement unless the plaintiff proves (and the onus is on him), that he has entered into it without understanding or appreciating its contents: or that he entered into it under pressure, duress or undue influence. Plaintiff has not raised, much less proved, non est factum. He is not a blind or illiterate man, and he knew what were the contents of the document because he himself has written it. Therefore the principle embodied in the well-known case of Foster v. Mackinnon (1869) L.R. 4 C.P 704 cannot be applied. Duress has not been pleaded either and though the plaintiff did not allege undue influence, the court of its own motion, in view of the fact that the plaintiff was not represented, has looked carefully into the evidence to see if there is any possibility that undue influence was exercised. I am afraid there is no evidence whatsoever of pressure exercised on the plaintiff.to write this document or to accept against his will the offer of compensation. Of course I can understand that the plaintiff, after his injury, was in need of money to feed his family or to treat himself, but I cannot hold that simply because the plaintiff was in a state of pecuniary embarrassment, therefore pressure was put on him to justify cancelling the contract. The relationship between the plaintiff and the defendants was that of employer and employee, but it must be remembered that that relationship was only of a very short duration, and taking all the circumstances of this case into consideration I am not prepared to hold that there is a presumption of undue influence in this transaction which shifts the onus of disproving it to the defendants. Fletcher Moulton L.J. observed in one case (Re Coomber [1911] 1 Ch. 723 at pp. 728—729) that fiduciary relations are many and various, including even the case of an errand boy who is bound to bring back change to his master, and to say that every kind of fiduciary relauon justifies the interterence of equity is absurd. “The nature of the relation must be such that it justifies the interference.” I am not saying that there can never be fiduciary relations between employer and employee to give rise to the presumption of undue influence, but I do say that 1 cannot find from the facts before me any evidence to justify this inference. There is in fact remarkably little evidence on how the contract (Exh. P. 1) came to be executed, but it cannot be held that bcca of this lack of evidence, the defendants exercised pressure on the plaintiff. The pressure must be a pressure exercised by the defendant. It is not enough that the plaintiff was pressed for money and accepted an arrangement which he. Would probably not have accepted if he had been wealthy. It may be that if the plaintiff had consulted a lawyer, the latter would not have advised him to accept this sum, but again I am not prepared, on the evidence, to hold that because the plaintiff did not have legal advice, therefore the contract is invalid. The contract appears to me to have been entered into freely between the parties, though no external advice appears to have been given. In Inche Noriah v. Shaik Allie Bin Omar [1929] A.C. 127, a Privy Council case, it was stated:

“Their Lordships are not prepared to accept the view that independent legal advice is the only way in which the presumption can be rebutted; nor are they prepared to affirm that independent legal advice, when given does not rebut the presumption unless it be shown that the advice was taken.”

The Privy Council was dealing with a case of a gift, but the same principle is applicable to all fiduciary relations where the presumption operates.

Nor could I see a way out for the plaintiff on the ground that the agreement is contrary to public policy. It has never been held nor do I know of any case where it was held that one party who freely agrees to accept compensation from the other party in full and final settlement of an alleged civil wrong can go back on this agreement on this ground; and judges should not, in the Words of Cheshire and Fifoot on Contract, 1st edition, p. 223, ‘5nvent anew head of Public Policy.” For this reason alone, this case, in my opinion, should be dismissed.

Should a higher court hold a different view, then the findings of this court on other issues are as follows: The plaintiff, as has been said, was working as a carpenter on the roof of a building fixing asbestos sheets. The law is clear. Every employer is bound to take reasonable care for the safety of his servants by providing:

(a) A competent staff of men;

(b) Proper and safe plant and appliances for the work; and

(c) A proper system of conducting his work and proper supervision of

It. (Wilson’s and Clyde Coal Company v. English [1938] AC. 57.)

Where the workman is engaged in a hazardous job, all the necessary precautions to prevent accidents must be supplied by the employer. Where workmen are engaged on top of buildings, adequate scaffolding must be provided. If they are engaged in fixing asbestos sheets for the roofs there must be a firm place where the workman should stand because asbestos is a breakable material and the workman should not be expected to walk on it. The employer must see to it not only that safety precautions are available but also that there is adequate supervision over the workman to ensure that he uses those precautions. Unfortunately, most of the evidence in this case has been heard by another judge and there is some conflict in the evidence between the plaintiff and the defendants. The plaintiff says that the defendants did not provide scaffoldings. The defendants, on the contrary, say that these were provided. The evidence of PW. 3 Ali El Haj Hussein, who is a Supervisor in the Department of Public Works, states that scaffoldings were available for workmen’s use though there were none on the roof through which the plaintiff fell because work had finished there. DW. 2 and DW. 3 and DW. 4 also confirm that wooden “sagayel” for use of the workmen was available in abundance. The truth seems to me to be that scaffoldings (sagayel) were available for use but that in the place where plaintiff walked there were none and he (plaintiff) did not bother to bring some in order to cross to the other side. Although the defendants allege that the work on the roof through which the plaintiff fell was finished, I find as a fact that this was not so because there was still one more operation to do, viz., the ridging of the sheets. In this case it was negligence on defendants’ part to remove the scaffolding from that part of the roof where there was still something to be done, however minor. But commonsense demands that the workman should also take care of him. The plaintiff as a carpenter shourd know that asbestos sheets were fragile and he should not have walked on them or should have walked on the nailed part of the sheets because this part has the support of the beam underneath it.

It has been suggested that the plaintiff should not have walked to that part because he had no business to be there. It has been said that he went to borrow a cigarette from another workman. There is no substantial evidence to support this allegation. It was stated by a witness who was not at the scene when the accident took place. There is no reason to disbelieve the plaintiff that he left his place of work and walked across to the other part to get a tool.

In a recent case in the United States of America a messenger boy in one of the offices injured his eye when he was playing with a common paper clip during office hours. It was held that he was entitled to recover compensation from his employers and that the habit of playing with paper-clips was incidental to the work of the office boy. So even if the plaintiff really had gone to borrow a cigarette from another workman that does not prevent him from recovering compensation if his employers had failed in their duty to provide a safe system of work. In this case both the employers and the workman were equally negligent, the first for not ensuring that scaffolding was fitted until final completion of the roof, and the workman for not bothering to take care of himself.

The assessment of damages is a difficult problem, particularly in this case, when the medical evidence is very meagre. The plaintiff is claiming general damages of £S.600. The plaintiff, as I said, was not represented, and his Statement of Claim could have been better drafted. There is evidence that he was laid ii’ bed in hospital for two months without earning a salary. DW. 3 Abbas Gasm Allah worked with the plaintiff as a carpenter in the airport in July, September and October 1958. 1 do not think therefore that plaintiff’s statement that he was in bed for nine months can be true. According to the certificate (Exh. A) The plaintiff has a disability of to percent. He says that he cannot work as a carpenter any more, but this is nonsense. His disability does not appear to me to be such as to impede his work or profession. It may be that because of this injury it would be risky for him to work up on roofs but surely the great majority of carpenters earn their living by working in workshops on the ground. Taking all these facts into consideration I assess the damages at £S.250.

To summarise my findings, these are as follows: (A) The plaintiff is not entitled to recover any damages from the defendants because he accepted, in a contract freely entered into, compensation from them in full and final settlement of his claim. (B) 1. If Iam wrong in my views, then I find that the defendants in the circumstances failed in their duty to provide a safe system of work for their servants, and are therefore liable in negligence to the plaintiff. 2. The plaintiff himself failed to take reasonable care of him and is at least equally to blame for the accident.

3.I assess the damages at £S.25o of which plaintiff would get £S.125.

(Judgment for defendants)*

*Application for revision (HC/Revision/ 322/1960) summarily dismissed.