The Factories Act Case: A Dispute over Employer's Duty of Care and Machine Safety, Schemes and Mind Maps of Law

Download The Factories Act Case: A Dispute over Employer's Duty of Care and Machine Safety and more Schemes and Mind Maps Law in PDF only on Docsity! IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: PATSON SAKALA AND HEINRICH'S SYNDICATE LTD HEINRICH'S BEVERAGE 11 2015/HP/001O PLAINTIFF 1ST DEFENDANT 2ND DEFENDANT BEFORE THE HONORABLEMRS. JUSTICE P. C. M. NGULUBEIN CHAMBERS FOR THE PLAINTIFF FOR THE DEFENDANT Cases cited Ms Mwansa, Messrs EBM Chambers Mr Tembo, Messrs Tembo Ngulube and Associates JUDGM ENT 1. Bradford v Robinson Rentals Limited (1967) 1 ALL ER 267 2. Kalunga (suing Administratrix of the estate of the late Emmanuel Bwalya) v Konkola Copper Mines (2004) Z.R. 40 3. O'Hill v Kayel Shipping [1980) PNGLR 361 4. Brady (Inspector of Taxes) v Group Lotus Car Cos pic and another [1987] 2 ALL ER 692 5. Wilsons and Clyde Coal Co Ltd v English [1938) AC, 110 6. Wilson v Tyneside Window Cleaning Co [1958)2 QB 110 @124 7. K.B. Davies and Company (Zambia) Limited v Musunu Appeal number 181 of 2006 J2 Legislation cited 1. The Factories Act, Chapter 441 of the Laws OF Zambia Other Materials referred to: 1. Halsbury's Laws of England, 4th Edition 2. Mark Lunney, Ken Oliphant, Tort Law, Texts and Materials, 2nd Edition The Plaintiff commenced this matter by way of Writ of Summons claiming the followingreliefs; 1. Compensation for personal injuries suffered as a result of an accident. 2. Damages for consequential loss suffered as a result of the discharge from employment. 3. Any relief the Court may deem fit. 4. Interest 5. Costs In the accompanying Statement of Claim, the Plaintiff averred that on 12th October, 2012 while he was in the employ of the Defendant Companies as a machine operator, he experienced a fault with one of the grinding machines. On checking the machine, he discovered that the machine had been blocked by a mesh. He thus proceeded to switch off the grinding machine so as to fix it. That as he was fixing the machine, the machine rota started running, as a result, his right hand which was inside the machine sustained injuries and four of his fingers were amputated. The Plaintiff alleged that the Machine was switched on by one of the Defendants' employees who he could not identify as the switch for the machine was almost three metres away. As a consequence of the accident, the Plaintiff J5 enough for his family's livelihood and that he was unable to work due to his disability. Under Cross Examination, the Plaintiff averred that he was entitled to receive payment from Workers Compensation ?und for life. That his disability had been caused by the Defendant's machine while working with a Moses Phiri and Bernard Chikwete. He admitted not knowing who switched on the machine because he had his back towards the switches. The Plaintiff maintained that he followed the safety instructions by switching off the grinding machine at the main switch and that the machine did not have a start button. In Re-examination, the Plaintiff stated that when he started working on the machine, it was off. That it was not possible for the machine to run on its own and someone must have switched it on. At the close of the Plaintiffs case, the Defendants moved the Court to the site of the accident, a recycling plant belonging to the Defendants and one witness was examined on site. Edwin Nyambe, the Protection Supervisor in the Defendant company testified that the plant was used for recycling "used maheu bottles". The recycling process included grinding the used bottles to produce new material. He stated that the plant had safety instructions which included wearing of protective clothing as well as guidelines. That the grinding machines used in the plant had three points of switching or. and off.The first point was the main circuit breaker (MCB),thereafter, isolation of power cable from the main socket and finally the emergency unit switch on the machine. That the three switching points were essential in preventing inju:-y as well as ensuring safety of the machine. The said safety instructions were inscribed on the grinding machines and on the walls of the plant. J6 The witness demonstrated the switching off and on of the grinding machine and maintained that the grinding machine only ran upon switching on all the three points. He stated that on the material day, the Plaintiff worked on machine number 9 which had since been dismantled and was in the process of being removed from the plant. It thus had no power cable nor the emergency switch button. The witness just indicated where the switch and the sieve of the machine were supposed to be located had the machine been functional. The witness stated that in any given shift, the plant would have three employees and on that particular day, the Plaintiff was working on the grinding machine with one other employee. Further that had the Plaintiff followed the safety guidelines, he would not have sdfered injury and that the Defendant Companies was not to blame. Under Cross Examination, the witness demonstrated the position that the Plaintiff could have assumed when wor~jng on the grinding machine on that day. He stated that it was not possible for one to work on the machine while it was running. He admitted that Machine number 9 was not in the state that it was on the day of the incident but maintained that the procedure on switching on and offwas standard. Further that the Defendant Companie5 provided protective gloves to their employees. Final written submissions were filed by the Plaintiff, where he contended that according to Bradford v Robinson Rentals Limited (1967) 1 ALLER 267, the Defendant had a duty to provide safe working premises, competent fellow employees and a safe system of work. That failure to ensure such precautions makes an employer amenable and liable in negligence. That the Defendants breached their common law duty when they did not ensure that no other j7 employees would cause injury to the Plaintiff by turning on the machine while the Plaintiff was working on it. Relying on Kalunga (suing Administratrix of the estate of the late Emmanuel Bwalyal v Konkola Copper Mines (2004) Z.R. 40, it was submitted that the defence of volenti non fit injuria was not available to the Defendant. Further relying on the case ofO'Hill v Kayel Shipping [1980] PNGLR361 and section 10 (1) of the Law Reform (Miscellaneous Provisions) Act Chapter 74 of the Laws of Zambia, it was submitted that to successfully plead the defence of contributory negligence, the employer had the onus of satisfying the Court that the employee was negligent in the sense that he acted in a manner so unreasonable as to put himself in the domain of the injury which was foreseeable to him and actually suffered. The Plaintiff submitted in sum that the facts presented a. case of breach of common law duty to provide a safe system of work and that the Plaintiff had proved his case on a balance of probabilities. In response, the Defendant submitted that there were set parameters in the common law duty of care and that to be successful, the Plaintiff must prove on a balance of probabilities, that the breach of duty caused, or materially contributed to, his injury. It was contended that the Plaintiff did not adhere to the safety precautions set by the employers and therefore, the accident was caused by his own negligence. Relying on Brady (Inspector of Taxes) v Group Lotus Car Cos pIc and another [1987] 2 ALL ER 692, it was submitted that the Plaintiff lamentably failed to discharge the burden of proof i:1 relation to the allegations that the emergency button was placed after the accident happened and that some "mystical person" must have switched on the Grinding Machine. 110 Main Circuit Breaker, isolating the cable from the main socket and switching off the emergency button on the machine itself. The Plaintiff alleged that the particular machine did not have an en:ergency button and therefore he only switched it off at the main circuit breaker. He equally made no mention of isolating the particular cable of the machine from the main socket. Thus, apart from merely asserting that the machine did not have the emergency button, the Plaintiff did not provide any evidence to substantiate the allegation. I find it difficult to accept that the machine could only be switched off at the main circuit breaker in the face of there being no evidence to prove this fact. I am so guided by K.B. Davies and Company (Zambia) Limited v Musunu Appeal number 181 of 2006 , the Supreme Court stated as follows; "Where there is a lacuna in the evidence, the trite position of the law is that the lacuna should be resolved in favour of the party who is not responsible for that lacuna and in this case, it is the defendant." Even if the Plaintiffs assertion is accepted, it is apparent from the evidence that the Plaintiff did not isolate the cable of the particular machine when he switched it off at the main which also indicates his disregard of the safety Instructions. Having had the occasion to view the operations of the Granulator Machines when the Court was moved to site, it was clearly established that unless all the three switches were on, the machine would not run. I thus find that while the Plaintiff switched off the Machine at the Main Circuit Breaker, he did not isolate the power cable of the machine nor switch off the emergency button. Notwithstanding, it was an accepted fact that at the time that the Plaintiff started repairing the machine, it was off and further that for the Machine to run, it had to be switched on. It is clear that it would not have been the J11 Plaintiff as he was positioned 3 metres away from the Main Circuit Breaker. The Accident Reports produced in both the Plaintiffs and the Defendants' bundles indicate that the findings revealed that an unknown employee had switched on the machine while the Plaintiff was trying to fix the sieve. This in my view does not aid the Plaintiffs case for the simple reason that had the machine been switched off at all the three points, the intervening act of an unknown employee of switching on the machine at one point would not have resulted in the machine running. The Plaintiff appears to be at the centre of his misfortune by his failure to followthe laid down guidelines of switching off the machine at all the three points. Therefore, on the totality of the evidence, I do not see any fault on the part of the Defendants nor that the Defendants failed to uphold their duty of care towards the Plaintiff which ultimately resulted in the accident. Based on the foregoing, the Plaintiffs case fails and costs to the Defendants to be taxed in default of agreement. Dated this 7th June, 2016 ~........................... P. C. M. NGULUBE HIGH COURT JUDGE