Principles

·  Tort—Damages—Personal injuries—Workmen’s compensation legislation need not affect assessment in common Law action

·  Tort—Contributory negligence—Plaintiff a factory worker in constant foreseeable danger from his machine—Act of carelessness by plaintiff allowing danger to occur not contributory negligence where such act itself foreseeable

·  Tort—Negligence—Duty of employer to provide safe system of work for employees-Duty to provide safe machinery—Liability of employer to employee injured by unsafe machine even where employee careless, where such carelessness foreseeable by employer

Respondent was employed to operate a machine in applicants’ factory. The machine was inherently dangerous in that, to operate it, respondent had to put his hand into the machine every few seconds throughout the working day, and each time, if the hand was not withdrawn quickly enough, it would be caught and crushed by the machine. Respondent, after working the machine for some time, was once too slow in withdrawing his hand, which was injured as a result.
Respondent sued applicants in the High Court, HC-CS-603-1958, (1960) S.L.J.R. 129, for damages in negligence, and judgment was given in his favour. Applicants applied for revision of the High Court’s judgment on the grounds that negligence had not been established against them, that respondent himself had been contributory negligent and that the damages had been wrongly assessed.
Held: i. an employer has a duty to provide safe machinery for his employees to operate. If a machine provided is dangerous, a reasonably foreseeable source of danger to the employee, the employer will be liable in negligence if the foreseen danger occurs to the employee.

ii. The employer will be liable in such circumstances even where the injury to the employee was produced by the employee’s own act of carelessness, where the carelessness is of a kind which may be reasonably expected to occur from time to time.”
iii. Semble such an act of carelessness by the employee in such a case does not amount to contributory negligence.
iv. The assessment of damages in a common law action for personal injuries need not be affected by the provisions of Workmen’s Compensation Ordinance, 1948.

Judgment

   M. A. Hassib J. February 26, 1961:— this application is hopeless and should be summarily dismissed.

The application raises three contentions:

 1. The finding of negligence by applicants is not supported by evidence

2.  The respondent himself was negligent.

3.  The quantum of damages awarded is not reasonable.

   The first and second contentions must go together as they supplement each other, and I deal with them together.

             The trial court viewed the factory and gave a full description of how it works and how dangerous the machinery in it is. It is concluded by saying that there were inherent dangers in the machine.

 The only witness who appeared for the defence and who was the Managing Director and also the Technical Manager of applicants testified as follows:

“There is an element of danger but these employees are skilled labourers. No precaution could possibly be taken in this type of operation. It is only by practice and care that no accidents occur and the employee himself must always be on the alert.”

 In law, machinery is dangerous if it is a reasonably foreseeable source of danger to a person acting even carelessly if the carelessness is of a kind which may be reasonably expected to occur from time to time. For authority on the point, see the judgment in Carr v. Mercantile Produce Co. [1929] 2 K.B. 601.

 Taking into consideration the speed of the machine which caused the injury and that the employee was in imminent danger during the whole period of the daily work, or, as it came in the words of the trial judge, “in one hour it is in peril I,200 times. In eight hours the operator puts his hand in what I call the ‘danger’ zone 9,600 times,” I uphold the finding that the applicants were negligent; whether respondent was also careless it matters not. Dangerous machinery puts the liability on the person who keeps it running when there is imminent danger from operating it, whether the operator was careless or not, when its danger is reasonably foreseeable.

As regards the last contention I am also of the opinion that the damages awarded were not unreasonably assessed. Respondent is a young chap of less than 20 years of age and has permanently lost his right hand in a disability assessed at 25 per cent. I agree that the provisions of the Workmen’s Compensation Ordinance, 1948, are not a bar to the assessment of damages according to the recognized principles of measure of damages.

   In the circumstances of this case I consider the figure arrived at by the trial judge was most fair.

The application therefore is dismissed summarily under Civil Justice Ordinance, 1929, s. 176.