HOME [ 1981] GHANA LAW REPORT

EKEM v. WISEWAY CLEANERS LTD. [1981] GLR 801-810

HIGH COURT, SEKONDI

10 AUGUST 1981

TWUMASI J.

Factories—Employers' duties—Provision of safe system of working—Failure of employers to remedy known

defects in machine—Industrial accident—Whether employer in breach of common law duty to provide
proper machinery.

Factories—Employers' duties—Provision of adequate training and supervision—Employee fatally injured

while operating dangerous machine—Claim against employer for negligence and breach of statutory duty
to provide adequate training and supervision—Failure of plaintiff to lead evidence to establish breach of
statutory duties—Nature and scope of employers' duties to provide training and supervision—Factories,
Offices and Shops Act, 1970 (Act 328), s.36.

[p.802]

Factories—Dangerous part of machinery—Duty to fence—Statutory provision requiring employer to fence

dangerous parts of machinery or to provide safety device for the protection of operator—Safety device
on machine defective—Operator fatally injured while operating machine—Whether employer in breach of
statutory duty—Act 328, s. 38.

Factories—Dangerous part of machinery—Manner of operation —Orthodox and unorthodox

methods—Effect on liability—Employee fatally injured while operating machine in unorthodox
manner—Absence of evidence proving knowledge by employers of unorthodox practice —Whether
employer liable in negligence.

Negligence—Statutory duty—Breach of—Causation—Claim against employer for negligence and breach of

statutory duties—Failure of plaintiff to prove causative connection between employer's breach of duty
and injury suffered by employee—Whether employer liable in negligence.

HEADNOTES

E, who was employed by the defendant-company as an operator of an electrically-powered machine

called the "hydro-extractor," died as a result of injuries he sustained in the course of his operation of the
machine. Consequently, the plaintiff, who was the administrator of the estate of E, claimed against the
defendant-company damages for negligence which, it was alleged, caused the death of E. The plaintiff
particularised the negligence of the defendant as including: (a) failure to correct faults in the dry-
cleaning machine; (b) failure to provide adequate or no supervision during the operation of the said
machine; (c) failure to warn the deceased of the inherent dangers of operating the said machine; (d)
failure to equip the deceased with the necessary training for that type of work; and (e) complete
disregard and non-compliance with statutory requirements. At the trial, however, the plaintiff could not
secure even a single witness from the factory of the defendant-company where the deceased worked to
give evidence on his behalf as to how the accident occurred; nor could he call evidence to prove that the
deceased was not given any training and supervision. The plaintiff therefore relied on the evidence of an
independent factory inspector from the Factory Inspectorate Division of the Labour Department to the
effect that when he (the factory inspector) had inspected the hydro-extractor after the accident, and
discovered that two parts of the machine: the brake system and the interlocking safety device were
faulty. The factory inspector further testified that when he pointed out the defects to the manager of
the defendants' factory, the latter told him that the company had no spare parts to repair the faults. On
their part, the defendant-company called evidence to show that the deceased had been trained for nine
months and that he had worked for eighteen months after his training. The first witness for the
defendant-company also gave evidence that he was going round supervising the workers when he saw
the deceased, contrary to what he had been trained to do, attempt to stop the rolling basket, another
part of the machine with a cocoa sack which he was holding in his hand and that in so doing, the rolling
basket threw E down and thereby sustained the fatal injuries.

Held, dismissing the claim:

(1) under the common law, an employer had an inescapable duty not only to provide proper machinery
or plant for his factory, but also to remedy any defect in the machine or plant that came to his notice. In
the instant case, the defendant-company committed a breach of this common law duty because, on the
evidence, they were aware that the brake system and the interlocking safety device of the [p.803]
hydro-extractor installed in their factory were faulty but refused to remedy the defects. Toronto Power
Co., Ltd. v. Paskwan [1915] A.C. 734, P.C.; R. v. Kritz [1950] 1 K.B. 82, C.C.A.; Thurogood v. Van Den
Berghs and Jurgens, Ltd. [1951] 2 K.B. 537; Wilsons & Clyde Coal Co., Ltd. v. English [1938] A.C. 57, H.L.
and Smith v. Baker & Sons [1891] A.C. 325, H.L. cited.

(2) Section 36 of the Factories, Offices and Shops Act, 1970 (Act 328), imposed a mandatory duty on an
employer to place an employee under adequate supervision by a person who had a thorough knowledge
and experience of the machine or process only where the employee was inexperienced. The
requirements of section 36 would be satisfied where the employee had been adequately trained or
instructed on how to operate the machine, the dangers likely to arise in connection therewith and the
precautions to be observed. In the instant case, the plaintiff, on whom the onus lay, led no evidence to
establish that the defendants had failed in their duty to provide adequate training or supervision for the
deceased. On the contrary, the evidence was that the deceased had received proper training and was
experienced in operating the machine. Fibre Bag Manufacturing Co. v. Sarpong [1967] G.L.R. 657, C.A.
distinguished.
(3) There was a statutory duty on employers under section 38 of Act 328 to fence the dangerous parts
of their machines. In the instant case, the rolling basket of the defendants' hydro-extractor was a
dangerous part within the meaning of section 38 of Act 328 which ought to be fenced. But because of
the nature of its operation, the interlocking safety device could be considered as enough protection for
the operator within the requirements of section 38. However, since the interlocking safety device was
defective to the knowledge of the defendants and had not been repaired, the defendants were in
breach of their statutory duty under section 38.

(4) The employer would be liable where the unfenced dangerous part of a machine had directly caused
or contributed to cause injury to the operator while operating the machine in an orthodox manner.
Where an unorthodox method was used by an employee, the employer would be liable if there was
evidence that he was aware of the practice of the unorthodox method and yet did nothing to remedy
the danger which necessitated such an unorthodox practice. In the instant case, the method used by the
deceased to stop the rolling basket, i.e. with a cocoa sack in hand, was unorthodox yet there was no
evidence adduced to show that what the deceased did was the practice of the defendants' factory or
that the defendant-company knew of such a dangerous practice by employees of the factory. McGhee v.
National Coal Board [1972] 3 All E.R. 1008, H.L.; British Railways Board v. Liptrot [1969] 1 A.C. 136, H.L.;
Fibre Bag Manufacturing Co. v. Sarpong (supra); Joof v. Gambian Minerals Ltd. (1957) 2 W.A.L.R. 224;
Nelson v. Mensah [1976] 1 G.L.R. 178 and Goodman Moshie v. Kwaku [1965] G.L.R. 566 cited.

(5) In all claims for damages for negligence, an onus lay on the plaintiff to establish a causative
connection between the defendant's breach of duty, common law or statutory, and the injury suffered
by him; and if the plaintiff failed to do so, he ought to fail in his claim. In the instant case, the plaintiff
never adduced any evidence to establish how the accident occurred and could not therefore establish
whether the accident was directly or indirectly caused by the defective interlocking safety device of the
hydro-extractor. Consequently, the plaintiff failed to establish the vital causative connection.
Bonnington Castings Ltd. v. Wardlaw [1956] [p.804] A.C. 613, H.L.; Cummings (or McWilliams) v. Sir
William Arrol & Co., Ltd. [1962] 1 All E.R. 623, H.L.; Ginty v. Belmont Building Supplies Ltd. [1959] 1 All
E.R. 414; Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152, H.L. and Stimson v.
Standard Telephones and Cables Ltd. [1940] 1 K.B. 342, C.A. cited.

CASES REFERRED TO

(1) Toronto Power Co. Ltd. v. Paskwan [1915] A.C. 734; 84 L.J.P.C. 148; 113 L.T. 353, P.C.

(2) R v. Kritz [1950] 1 K.B. 82; [1949] L.J.R. 1535; 65 T.L.R. 505; 113 J.P. 449; 93 S.J. 648; [1949] 2 All E.R.
406; 33 Cr.App.R. 169, C.C.A.

(3) Thurogood v. Van Den Berghs, and Jurgens, Ltd. [1951] 2 K.B. 537; [1951] 1 T.L.R. 557; 95 S.J. 317;
49 L.G.R. 504.

(4) Wilsons & Clyde Coal Co., Ltd. v. English [1938] A.C. 57; [1937] 3 All E.R. 628; 106 L.J.P.C. 117; 157 L.T.
406; 53 T.L.R. 944; 81 S.J. 700, H.L.
(5) Smith v. Baker & Sons [1891] A.C. 325; 60 L.J.Q.B. 683; 65 L.T. 467; 55 J.P. 660; 40 W.R. 392; 7 T.L.R
679, H.L.

(6) Fibre Bag Manufacturing Co. v. Sarpong [1967] G.L.R. 657, C.A.

(7) Bonnington Castings Ltd. v. Wardlaw [1956] 1 A.C. 613; [1956] 2 W.L.R. 707; 100 S.J. 207; [1956] 1 All
E.R. 615, H.L.

(8) Cummings (or McWilliams) v. Sir William Arrol & Co. Ltd. [1962] 1 All E.R. 623, H.L.

(9) Ginty v. Belmont Building Supplies Ltd. [1959] 1 All E.R. 414.

(10) Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152; [1939] 3 All E.R. 722; 108
L.J.K.B. 779; 161 L.T. 374; 55 T.L.R. 1004; 83 S.J. 976, H.L.

(11) Stimson v. Standard Telephones and Cables Ltd. [1940] K.B. 342; [1939] 4 All E.R. 225; 161 L.T. 387;
56 T.L.R. 90; 83 S.J. 941; 32 B.W. C.C. 253, C.A.

(12) Callow F.E. (Engineers), Ltd. v. Johnson [1971] A.C. 335, H.L.

(13) Goodman Moshie v. Kwaku [1965] G.L.R. 566.

(14) Joof v. Gambian Minerals Ltd. [1957] 2 W.A.L.R. 224.

(15) Nelson v. Mensah [1976] 1 G.L.R. 178.

(16) McGhee v. National Coal Board [1972] 3 All E.R. 1008; [1973] 1 W.L.R. 1; 13 K.I.R. 471, H.L.

(17) British Railway Board. v. Liptrot [1969] 1 A.C. 136; [1967] 3 W.L.R. 770; 111 S.J. 516; [1967] 2 All
E.R. 1072; 3 K.I.R. 257, H.L.

[p.805]

NATURE OF PROCEEDINGS

ACTION for damages for negligence and breach of statutory duties brought by the administrator of the
estate of a deceased employee against defendant-company in whose factory the employee lost his life
as a result of an industrial accident. The facts are sufficiently set out in the judgment.

COUNSEL

Forson for the plaintiff.

Bentsi-Enchill for the defendants.

JUDGMENT OF TWUMASI J.

By his action, the plaintiff, suing as the administrator of the estate of his deceased son, Isaac Ekem,
claims against the defendants, Wiseway Cleaners Ltd., damages for negligence which, it is alleged,
caused the death of the said Isaac Ekem. The defendants were at all times material to this case engaged
in dry cleaning and ancillary jobs. They had a factory equipped with mechanically-propelled apparatus
for the operation of their dry cleaning business. The plaintiff's son, Isaac Ekem, was at the time of his
death employed as an operator of a machine called the "hydro-extractor." For the purpose of this
judgment, the vital parts of the machine were: the brake system, the interlocking safety device and the
rolling basket. The machine operated by means of electric energy.

On 12 January 1979, Isaac Ekem succumbed to injuries sustained by him in the course of his operation of
the machine. In his statement of claim, the plaintiff attributed the fatal injuries to the negligence of the
defendants. He particularised the negligence as including: (a) failure to correct faults in the drying
machine; (b) failure to provide adequate or no supervision during the operation of the said machine; (c)
failure to warn the deceased of the inherent dangers in operating the said machine; (d) failure to equip
the deceased with the necessary training for that type of work; and (e) complete disregard and non-
compliance with statutory requirements. This catalogue of defaults has by all accounts an incalculable
devastating potential against any defendant if proved satisfactorily by a prospective plaintiff. In this
case, however, the plaintiff's prospects of success in proving all the imposing array of defaults appeared
rather saturnine right at the outset. And the reason is not far to seek. He was faced with an initial
handicap in the fact that his son, a would-be eye-witness of the accident, had died. Worse still, he was
literally beset with centrifugal forces in the sense that while he stood at the centre, all potential
witnesses to the accident tendered to run away from him. He had not a single witness from the factory
to give evidence on his behalf as to how the accident occurred; nor could he call evidence to prove that
[p.806] the deceased was not given any warning of any inherent danger in the machine, nor to prove
that he was not given any training and supervision. He could only rely, rather perilously, on the tenuous
account by an independent factory inspector from the Factory Inspectorate Division of the Labour
Department.

But let us see whether, despite the exiguity of the evidence, the plaintiff was successful or not. The star
witness for the plaintiff, who avowedly had to his credit the expertise in occupational safety and
hygiene, with a master's degree in that field from Birmingham University, England, testified that when
he inspected the defendants' machine after the accident, he discovered that the brake system and the
interlocking device were both faulty. He said further that when he pointed this out to the manager of
the defendants' factory, the latter told him that the company had no spare parts to repair those faults.
This part of the evidence of the expert was vehemently denied, but upon a meticulous examination of
the evidence given by the witnesses on either side, I arrived at the conclusion that the expert spoke the
truth and found that those two parts of the defendants' machine were faulty.

Consequently, I found that the defendants had breached their common law duty. Under the common
law, an employer has an inescapable duty, not only to provide proper machinery or plant for his factory,
but also to remedy any defect in the machine or plant that has come to his notice: see Toronto Power
Co., Ltd. v. Paskwan [1915] A.C. 734, P.C.; R. v. Kritz [1950] 1 K.B. 82, C.C.A; Thurogood v. Van Den
Berghs and Jurgens Ltd.[1951] 2 K.B. 537; Wilsons & Clyde Coal Co., Ltd. v. English [1938] A.C. 57, H.L.
and Smith v. Baker & Sons [1891] A.C. 325, H.L.
There is also a statutory duty imposed upon employers or manufacturers by various Acts whose
introduction has been necessitated by the proliferation of manufacturing houses. In this country, we
started with the Factories Ordinance, 1952 (No. 33 of 1952). This Ordinance was repealed in 1970 and
superseded by the Factories, Offices and Shops Act, 1970 (Act 328), a much more expansive and
comprehensive enactment. The latter statute obsequiously followed the lines of the English Offices,
Shops and Railway Premises Act, 1963, and the Factories Act, 1961, in its essentials. The relevant
sections in our Factories, Offices and Shops Act, 1970, are section 36, which imposes a duty on
employers to provide adequate training and supervision for their employees who operate their
machines, and section 38 which requires employers to fence dangerous parts of their machines. As I
have already stated, the plaintiff could not lead any evidence to prove that the defendants failed in their
duty to provide the plaintiff with adequate training and [p.807] supervision. Rather, the defendants gave
evidence that the deceased was given nine months' training and had worked for eighteen months after
his training. No breach of statutory duty arises at all.

From the side of the defendants, the first witness testified that he was going round supervising the
workers when he saw the deceased use his hand to stop the rolling basket then in motion and he
shouted at him to stop but it was too late. The machine hit and threw the deceased down. This piece of
evidence, whatever its worth, could not inure to the benefit of the plaintiff because in civil cases, the
plaintiff, whose pleading on a material fact is denied, bears the onus of proving the allegation and
cannot close his case without the required proof and expect the defence to send him the proof on a
silver platter. So even if I found that at the material time the accident occurred no supervisor was so
immediately juxtaposed to the deceased that it could be said that he was directly under proper
supervision, the position of the plaintiff would still not be a whit better.

Section 36 of Act 328 reads:

"36. No person shall be employed at any machine or in any process liable to cause bodily injury, unless—

(a) he has been fully instructed as to the dangers likely to arise in connection therewith and the
precautions to be observed; and

(b) he has received a sufficient training in work at the machine or in the process, or is under adequate
supervision by a person who has a thorough knowledge and experience of the machine or process."

The plain meaning of section 36 of Act 328 is that it does not in all cases impose a duty on an employer
to place an employee under adequate supervision by a person who has a thorough knowledge and
experience of the machine or process. If the employee has been adequately instructed on how to
operate the machine, the dangers likely to arise in connection therewith and the precautions to be
observed, the requirement is satisfied. It is only where the employee is inexperienced that direct
supervision over him by an experienced officer becomes a mandatory statutory duty. Thus in Fibre Bag
Manufacturing Co. v. Sarpong [1967] G.L.R. 657, C.A. the defendants were held liable for leaving an
inexperienced worker to operate a machine without supervision. This is not the case here because the
deceased had received proper training and he was experienced in operating it.
[p.808]

The next question is whether the defendants were in breach of section 38 of Act 328 which reads:

"38. (1) Every dangerous part of any machinery shall be securely fenced unless it is in such a position or
of such construction as to be as safe to every person employed or working in the premises as it would be
if securely fenced.

(2) In so far as the safety of a dangerous part of any machinery cannot by reason of the nature of the
operation be secured by means of a fixed guard, the requirements of this section shall be deemed to
have been complied with if a device is provided which in the opinion of an inspector satisfactorily
prevents the operator from coming into contact with that part.

(3) Without prejudice to the generality of subsection (1), `dangerous part' includes every moving part of
a prime mover, every flywheel directly connected to a prime mover, any part of a stock-bar which
projects beyond the headstock of a lathe, every part of any electric generator, motor or rotary
converter, and every part of transmission machinery."

From the foregoing definition it is clear that the rolling basket of the defendants' machine as described
by the inspector, the first plaintiff witness, is a "dangerous part" which requires fencing but because of
the nature of its operation, the interlocking safety device was enough protection for the operator.
Consequently, since this device was found by the inspector to be defective and had not been repaired, I
am impelled to hold that the defendants were in breach of their statutory duty as well. The next hurdle
whose jumping was requisite to the success of the plaintiff's claim was whether the fatal injury was
directly attributable to the defendants' breach. Was the fatal injury caused by the defendants' breach?
The question that ought to be asked and satisfactorily answered in all claims for damages for negligence
is whether there is a causative connection between the defendants' breach of duty, common law or
statutory, and the injury suffered by the plaintiff. The onus lies on the plaintiff to establish the causative
connection. If he fails to do so, he must also fail in his claim: see Bonnington Castings Ltd. v. Wardlaw
[1956] A.C. 613, H.L.; Cummings (or McWilliams) v. Sir William Arrol & Co., Ltd.[1962] 1 All E.R. 623, H.L.;
Ginty v. Belmont Building Supplies Ltd.[1959] 1 All E.R. 414; Caswell v. Powell Duffryn Associated
Collieries Ltd.[1940] A.C. 152, H.L. and Stimson v. Standard Telephones and Cables Ltd.[1940] 1 K.B. 342,
C.A.

[p.809]

How did the plaintiff discharge this vital onus of proof? He never adduced evidence of how the accident
occurred. So he could not prove to the court whether the accident was directly or indirectly caused by
the defective interlocking safety device. An accident may be caused solely by the negligence of an
employee. It may also be caused by the negligence of the employee and partly by the employer's breach
of his common law or statutory duty. Yet it may be caused solely by the breach of the employer's duty.
Whether a case falls under any of these categories, depends enormously on the evidence adduced by
the plaintiff. Rather curiously in this case, the evidence as to how the accident occurred was supplied by
the defendants who said that the plaintiff, who had never been introduced to use a cocoa sack in
stopping the rolling basket, attempted to stop the rolling basket with a cocoa sack which he held in his
hand and in doing so, the rolling basket threw him down and he sustained the fatal injury.

Even assuming that this piece of evidence had been adduced by the plaintiff or any witness on his
behalf, his case would still not be a whit better. I would illustrate it by an English case: F.E. Callow
(Engineers), Ltd. v. Johnson [1971] A.C. 335, H.L. where the facts, shortly put, were that an employee
used a plastic squeezy which he held in his hand in stopping a moving machine instead of using an
automatic system and in the process, his hand was caught between the revolving workpiece and an
imperceptibly moving boring bar of the lathe and was injured. It was held that once it was established by
a plaintiff that there had been a breach of section 14 of the Factories Act, 1961 (9 & 10 Eliz. 2, c. 34)
(which is the equivalent of section 38 of Act 328) and that an accident to him had been the result of that
breach, it did not matter that he was not able to establish exactly how the particular accident had come
about; that since on the evidence, the practice of using the squeezy by hand in stopping the machine
had been known by the employers, although they did not approve of it, and the danger of an accident of
the type which had occurred was reasonably foreseeable by the employers because there was a nip in
the machine which could cause an accident but which the employers had failed to fence, they were
liable. The principle of law is that there must be evidence that the employers knew of a dangerous
practice by employees of his factory. In the instant case, no evidence was adduced to show that what
the deceased allegedly did was the practice at the defendants' factory. In fact, the inspector, the first
plaintiff witness, stated in his report on the accident that the deceased had used an unorthodox method
in stopping the rolling basket. So the essential element [p.810] of foreseeability in the proof of breach of
duty in negligence was lacking in the plaintiff's evidence. In all the few cases on occupational injuries I
have read, one golden thread is ubiquitous and it is that the unfenced dangerous part of a machine must
directly have caused or contributed to cause injury to the operator while he was operating the machine
in the orthodox manner: see Goodman Moshie v. Kwaku [1965] G.L.R. 566; Fibre Bag Manufacturing Co.
v. Sarpong [1967] G.L.R.; 657, C.A.; Joof v. Gambian Minerals Ltd. (1957) 2 W.A.L.R. 224; Nelson v.
Mensah [1967] 1 G.L.R. 178; McGhee v. National Coal Board [1972] 3 All E.R. 1008, H.L. and British
Railways Board v. Liptrot [1969] 1 A.C. 136. Where an unorthodox method is used by an employee, the
employer will be liable if there is evidence that he was aware of the practice of the unorthodox method
and yet did nothing to remedy the danger which necessitated such unorthodox practice.

On the evidence adduced by the plaintiff, I find myself, rather regrettably, unable to hold that he is
entitled to his claim. The claim fails. But in the circumstances of the case, I would strongly recommend
that the defendants pay to the plaintiff what is due to the deceased under the Workmen's
Compensation Act, 1963 (Act 174). The defendants would be awarded › 300 costs.

DECISION

Action dismissed.

J. K. E. E.