The National Industrial Court has held that the Employee Compensation Act 2010, the extant law dealing with compensation for work-related injury claims, does not exclude the right of action in negligence for industrial injury claims.

The decision was handed down by the Presiding Judge of Owerri Judicial Division, Justice Nelson Ogbuanya while delivering Judgment in the suit filed by Anthony Utibe against his erstwhile employer, Jiuxng Intergrity Industries Ltd, a Chinese Construction Company, over the permanent disability injury he sustained at work.

The claimant, who worked as a mason with the defendant, got injured while washing the cement mixer machine at the instruction of his supervisor.

As the machine was not switched off, the machine held his right hand inside and immediately cut off his two fingers and fractured the third finger, which was later amputated by surgery.

After all medication and surgery, a final medical report confirmed that he had sustained permanent disability on his right hand.

He was laid off by the company, which refused to pay him any compensation, and he sued under the common law principle of negligence.

The defendant had through its counsel contended that other than bearing the medical expenses and costs associated with the treatment, it was no longer liable to pay any amount to the claimant, and if there is any more liability, it should be made under the Employee Compensation Act 2010 (ECA).

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The company maintained the position that the claimant’s right of action lies only under the ECA.

It raised the issue of contributory negligence on the basis that the claimant was aware that the machine was not switched off when he put his hand inside to wash it.

After a careful evaluation of evidence and pleadings of the parties, Justice Ogbuanya, in a well-considered judgment, resolved the issue in favour of the claimant.

He held that the legal route for seeking compensation for workplace injury is not only available under the ECA but also by way of general damages in an action founded on the common law principle of negligence, as in the instant suit.

His Lordship said: “A cursory review of the current legal regime for injury claims arising from industrial accident since the enactment of Employees’ Compensation Act (ECA) 2010, has presented two optional but mutually exclusive routes to receiving remedy of compensation for injury sustained at work or workplace– (1) the statutory route through ECA and (2) through the common law principle of negligence.”

He noted that the established ‘principle of election’ set up under the ECA, is to the effect that a victim of workplace injury is enjoined to elect which of the two routes (statutory or common law), to take in search for remedy.

According to the judge, if the statutory route is taken, the National Industrial Court can only be approached on Appeal over the review of the disputed compensation computed and paid by the Nigeria Social Insurance Trust Fund (NSITF) Board, as the recovery of compensation under the statutory route is payable by the NSITF Board.

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If, however, the common law route is elected, the National Industrial Court has original jurisdiction, and compensation can be payable by way of general damages for proven acts of negligence on the part of the defendant’s employer.

On the substantive suit, Justice Ogbuanya, while holding that bearing the cost of medical treatment does not, ipso jure (by the law itself), relieve the defendant employer from making payment for compensation of the victim-employee or even to his/her dependent in case of injury resulting in death, found the defendant liable in negligence for breach of duty of care owed to the claimant.

The judge noted: “Appropriate Health, Safety & Environment (HSE) safety protocols indicating safety measures in place at the construction site were lacking in the defendant’s organisation.

“The defendant failed to lay any evidence in support of its bare averments on the alleged non-adherence to ‘proper safety protocol’ by the claimant.”

On the whole, the court, using an ‘annuity-format’ measure of the quantum of damages awardable, and after considering the issue of unfair labour practice arising from the manner the claimant was laid off after sustaining the permanent injury in the course of duty for the defendant company, awarded compensation to the claimant.

Source: The Nation

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