Case No.:

(HC-CS-603-1958).

Court:

The High Court

Issue No.:

1960

Principles

·  Negligence—Master and Servant—Master’s common law duty to take reasonable care for servant’s safety—Volenti non fit injuria—Contributory negligence. Labour—Master and servant—Master’s common law duty to take reasonable care for servant’s safety—Measure of damages not governed by Workmen’s Compensa tion Ordinance—Workmen’s Compensation Ordinance, s. 26 Tort—Breach of statu duty—Civil action for infringement of Workshops and Factories Regulations, ss. 33 (2), 37,44

The plaintiff was the operator of a machine for moulding aluminium sheets into pots and pans in the defendants’ factory. His job was to feed the sheets into the machine by hand and to withdraw the shaped pans from the machine, also by hand. The machine was set at ten strokes per minute and it was calcu lated that an operator’s hand was in danger of being trapped in the machine I200 times in one hour. While working on an eight-hour shift the plaintiff’s  right hand was trapped in the machine with the result that he lost three middle fingers and half of the little finger. The plaintiff had received eight days’ training and had worked on the machine for an aggregate of six months, but not continuously.
In an action against them for negligence in failing to provide a safe system of wcirk the defendants maintained that there had been no negligence and no effective precautions, such as fencing, could be taken with this type of machine, that adequate training and instructions had been given and that the workman knew of the danger and had always to be careful and on the alert. It was further contended that, if there was liability, damages should be limited to the amount fixed by the scale of compensation set out in the Workmen’s Compensation Ordinance.
Held: (i) That the defendants owed a duty to the plaintiff to take reasonable care for h safety by providing proper and safe plant and a proper system of working an superv and that they were in breach of this duty because there were measures, e.g., providing a footbrake and arranging closer super vision, which they could reasonably have taken, but did not take, to minimise the risk.
Wilsons and Clyde Coal Co. V. English [1938] A.C. 57 applied.
(ii) The defence of volenti non fit injuria did not apply, as knowledge of danger per se does not amount to consent to the danger.
Smith v. Baker [1891] A.C. 325 and Bowater v. Bowley Regis [1944] K.B. 479 followed.
(iii) A single momentary lapse in eight hours in the circumstances did not amount to contributory negligence.
Lord Wright in Caswell v. Powell Duff ryn Associated Collieries, Ltd. [1940] A.C. 152 approved.
(iv) The scale of compensation under the Workmen’s Compensation Ordinance is only a guide in tortious actions and does not limit the powers of the court to fix damages at a sum, which it regards as just and reasonable.
Bastawi Suleiman Musa v. Mohamed Nur Kheiri, Digest 1953—54, No. 6 followed.
(v) Semble: A civil action for breach of statutory duty can be brought for infringements of the Workshops and Factories Regulations and the defendants had infringed sections 33 (2), 37 and 44.
Plaintiff awarded £S.6 damages plus costs

Judgment

(HIGH couRT)

HAMAD EL NUR v. MODERN ALUMINIUM WORKS

(HC-CS-603-1958).

Action

Advocates: Ahmed Suleiman for plaintiff

Ahmed Gurnaa for defendants

March 17, 196o. T. Cotran Acting I.: —The defendants own an alumi nium factory in Khartoum ihdustrial area. The plaintiff was one of their workmen. He was working on one of their machines, when on November 25, 1957, his right hand was trapped by the plateholder of the drawing press and he lost completely the three middle fingers and half of the little finger. The plaintiff at the time of the accident was earning PT.50 a day. He had worked on this machine for an aggregate period of about six months. But it was not continuous. Work was interrupted due to lack of raw materials and workmen had to be laid off. The accident happened two or three days after the plaintiff was reinstated after one of those interruptions. The accident to the plaintiff occurred in the second shift (between 3.3o p.m. and 11.30 p.m).

The plaintiff is suing the defendants for negligence in failing to provide a safe system of work. The defendants in their pleadings simply denied liability. From the evidence the defence appears to be that no precautions such as gloves, fence, cover, etc., could be taken on this type of machine; that the management trains the workman in its operation until he becomes skilled, and that if an accident happens it is he himself that is to blame because he knows of the danger and must be always careful and on the alert, and obey the instructions given to him.

The court has gone with the plaintiff, the defendants’ manager, and both counsel to inspect the factory. The factory looks like a long garage, it is rectangular in shape, about twenty metres long and six metres wide. In the midst of the factory in a row there are four or five huge machines. The machines are surrounded with boxes containing aluminium sheets and other materials needed for the production of the finished articles. There were many workmen, apart from those operating the machines, who were going to and fro doing one thing or another. All the machines were working together and there was immense noise. The court got the impres sion that the factory was too overcrowded. It was necessary for the court and counsel and witnesses to walk single file to the machine in question to observe an operator working it. One had to shout to make oneself heard.

The machine that caused the accident was observed whilst an operator was working it. The worker sits facing the machine. The plateholder goes up and down automatically by electric power. The plateholder falls down on the steel frame every six seconds, the acceleration of the whole Deck Drawing Power Press being ten strokes per minute. In these six seconds the operator must do the following: immediately as theplateholder goes up, the operator must with his left hand draw an aluminium sheet of a certain size from a container on his left side and insert it in the frame. The plateholder then falls down automatically on to the frame thus moulding by sheer force the aluminium sheet into a specified pot or pan that looks like a basin (tusht). As the plateholder starts to go up t operator removes with his right hand the “tusht” shaped pan from the machine and puts it in a container on his right. This goes on for eight hours continuously with a break of thirty minutes for the “fatur” in the day shift, and no break during the night shift. The machine is auto matically set at ten strokes per minute. At every stroke an operator’s hand is in peril twice, once his left hand when he puts in the aluminium sheet and once his right hand when he removes the finished aluminium pan. In one minute an operator’s hand (either the left or the right) is in peril twenty times, in one hour it is in peril 1,200 times. In eight hours, the operator puts his hands in what I call the danger zone 9,600 times. A split-second makes the difference between safety and danger, so that if the operator lapses only one or two seconds out of the 28,800 seconds (which is the duration of the shifts) then the workman might lose his hand or indeed his life. It is said that it is useless on this machine to put a fence or to wear gloves. It is an old-fashioned machine. New machines have press buttons and a workman’s hand does not go on the press.

There is no doubt at all that there is an inherent danger in this machine. I can see the difficulty of the defendants when they state that physical precautions are useless, but I think that there is something that could be done to this machine, which would minimise this inherent danger. It could be provided with a foot brake (similar to one I had seen at defen dants’ same factory); when a workman feels a danger or even feels sudden tiredness or headache he can stop the machine in time. This machine has a hand brake on the right side of the operator but obviously this is almost useless, as both hands during the operation are occupied either in inserting the aluminium sheet or in removing the finished aluminium pot.

The law on the subject, in my opinion, is clear. At common law the 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 supervision of it (Wilsons & Clyde Coal Co., Ltd. v. English [1938] A.C. p. 57). This duty, though of course not absolute, is higher in pro cesses that are notoriously dangerous. In my opinion, defendants were negligent because the machine was not provided with a foot emergency brake, and because not enough training was given to this workman after he resumed work after the interruption, and because even if adequate training had been given, there was not enough supervision in the factory. The defendants cannot escape by saying that they have trained the work- man and made him skilled and having known and appreciated the danger, he must take care of himself and be always on the alert. Lord Hers in Smith v. Baker [1891] A.C. 325 put the position in the following words:

“Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks invariably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has been done to him, even though the cause from which he suffers might ive to others a right of action.” But “where a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer, does the mere continuance in service, with knowledge of the risk, preclude the employed, if he suffer from such negligence, from recovering in respect of his employer’s breach of duty? I cannot assent to the proposition that the maxim ‘ volenti non ht injuria,’ applies to such a case, and that the mployer can invoke its aid to protect him from liability for his wrong.” In hundreds of cases since Smith v. Baker it was held that mere knowledge of the existence of a risk is not the same as assenting to the risk. “Free dom of choice,” said Scott L.J. in Bowater v. Bowley Regis B.C. [1944] K.B. 176 “predicates, not only full knowledge of the circumstances upon which the exercise of choice is conditioned, so that he (the plaintiff) may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will.” The employer, in my judgment, cannot be heard to say, “The operation is admittedly risky, but we have trained our workman and he must take care of himself, and if he is injured he has only himself to blame.” A court must take into account all the circumstances under which the plaintiff was working. I am not prepared to hold that just because the accident happened, the plaintiff has been negligent. I’ see no negligence on his part at all. On the contrary the negligence is on the part of the employer to allo a workman to operate this type of machine for eight Continuous hours. Could he not have cut it into four or even two? A lapse of a second or so in eight continuous hours under the conditions in which the plaintiff was working is not negligence. I can do no more than repeat the following passage from Lord Wright in Cas v. Powell Duifryn Associ ated Colliers, Ltd. [1940] A.C. 152.

“What is all-important is to adopt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, the long hours and the fatigue, to the slackening of attention which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his preoccupation in what he is actually doing at the cost perhaps of some inattention to his own safety.”

But apart from the defendants’ liability at common law, they are, in my opinion, liable for breach of statutory duty. The defendants have infringed at least three sections of the Workshops and Factories Regulations, viz.

Section 33 (2), which provides: “Every power-driven machine shall have onie sufficient means readily accessible to the operator for stopping and starting such machine.” The hand brake on the right of .the operator is not readily accessible to the operator in an emergency, as I have above described.

Section 37 provides that: “There shall be sufficient clear and un obstructed space round every machine to ensure safety.” The space round the machine was not sufficient.

 Section provides that: “Any inexperienced person being required to operate any machinery, gear, tackle, tool or other thing liable to cause bodily injury to such a person, or to any other person, or to work at any process liable to cause bodily injury or injury to health shall be fully instructed both as to the dangers likely to arise iand as to the precautions to be observed, and shall thereafter, until he has received sufficient training and experience, work thereat only under adequate supervision.” In this case the initial period of instruction of eight days is not sufficient; and a fortiori, it is not sufficient when the workman has been laid off for a period and then re-engaged without giving him a further short course of instruc tion. Nor does it appear to me that there was any supervision at all, let alone adequate supervision.

The plaintiff’s four fingers of the right hand have been amputated. He is a young man of twenty. He was then earning PT.50 a day or about £S.15per month. It was true that he was working on a daily basis, but I think, with the present policy of the Government to encourage local industries, he had reasonable prospects of a steady job and possibly pro motion. Unfortunately the statement of claim does not disclose the special damage he suffered though, no doubt, there must have been some as, for example, loss of wages during the time he was in plaster. The plaintiff is a skilled labourer by profession and there is no doubt that whilst he would still be able to do some labour, it will be impossible for him to do any skilled labour by the use of his hands. I do not think that he could after this accident earn more than PT. 20 or 25 a day working as a ghaffir or some such light work.

The defendants have referred me to the Workmen’s Compensation Ordinance. It has been said many times before, e.g., in Bastawi Suleiman Musa v. Mohamed Nur Kheiri, Digest 1953—54, No. 6, that the scale of compensation under the Workmen’s Compensation Ordinance, though a guide on the percentage of disability, does not at all limit the power of the courts to award damages according to what the court itself regards as just and reasonable. Different rules and considerations are applicable to workmen’s compensation. To extend the rate of compensation in that Ordinance to the measure of damages, which a Civil Court can award in tort is contrary to the provisions of the Workmen’s Compensation Ordi nance itself because, by section 26, the right of the workman to sue his employer for negligdice is preserved. If the intention of the legislature was to limit damages to a workman to a certain scale, then why on earth should it preserve his right to sue for damages before the ordinary tribunals of the country?

Taking all the circumstances of the plaintiff into consideration especially the fact that he has lost for ever any prospects of earning more than PT.2o to 25 a day, also his age, the pain and suffering he had until the fingers healed, I assess all the damages at £S.650

Judgment is entered in plaintiff’s favour for this amount together with costs and advocates’ fees.

                                                                                (Judgment for plaintiff)

*Application for revision (AC-Revisjon-11-1961) was summarily dismissed.