Siaka v Sierra Leone Diamonds Limited (CIV APP 18 of 1971) [1972] SLCA 1285 (25 May 1972)

SECTION 17 SIAKA u. SIERRA LEONE DIAMONDS LTD., 1972-73 ALR S.L. 111 SIAKA v. SIERRA LEONE DIAMONDS LIMITED Court of Appeal (Cole, C.J., Cornelius Harding and Percy Davies, JJ.A.): May 25th, 1972 (Civil App. No. 18/71) C.A. [1] Employment-safety-volenti non fit injuria-principle applies when employee's injuries sustained outside course of employment: When a person, voluntarily and with full knowledge of the risks involved, is permitted by his employer to participate in a trial by ordeal at his place of work but not in the course of his employment and suffers personal injury as a result, the principle of volenti non fit injuria applies and he cannot maintain an action against his employer for damages for assault (page 116, lines 1-18). [2] Tort-assault-volenti non fit injuria-no damages for injuries suffered during voluntary participation in trial by ordeal: See [ 1] above. [3) Tort-volenti non fit injuria-assault-no damages for injuries suffered during voluntary participation in trial by ordeal: See [ 1] above. The appellant brought an action against the respondents in the High Court to recover damages for an assault resulting in personal 5 10 15 injuries. 20 The appellant was employed by the respondents as a diamond polisher. Diamonds were stolen from them and they reported the theft to the police. Their employees, including the appellant, invited a juju-man to their workshop to help discover the thief and the missing diamonds. Although the management knew what was 25 happening they were not involved in the proceedings and no-one was forced to take part. The juju-man prepared an ordeal by dropping a stone in a pot of what appeared to be boiling oil. The appellant and other employees were invited to pick out the stone and told that if they were not 30 guilty they would find the liquid ice-cold. The appellant agreed to put his hand in the liquid and as a result it was severely burnt. He then brought the present proceedings against the respondents claiming damages for assault. He alleged that the respondents had ordered him to put his hand in the liquid and contended that 35 since the respondents allowed the juju-man to practice on their premises they were estopped from denying their liability. The respondents contended that the appellant freely consented to take part in the proceedings and that the principle of volenti non fit injuria therefore applied. The trial judge dismissed the 40 appellant's claim but did not consider the question of estoppel. 111 THE AFRICAN LAW REPORTS On appeal the appellant contended that the trial judge erred in failing to consider the plea of estoppel and that since the respon­ dents allowed the juju -man to practise on their premises they were liable for injuries suffered as a result. 5 The appeal was dismissed. 10 15 20 25 30 35 40 Case referred to: (1) Yarmouth v. France (1887), 19 Q.B.D. 647; 57 L.J.Q.B. 7. Gelaga-King for the appellant; S.H. Harding for the respondents. COLE, C.J.: The appellant was at all times material to this case an employee of the respondents who carry on the business of buying rough diamonds, polishing and selling them. The specific duties per­ formed by the appellant were mainly those of polishing rough diamonds. The appellant's case in the court below is clearly set out in paras. (3) to (8) of his statement of claim which read as follows: "(3) On or about March 31st, 1969, the defendants alleged that certain pieces of diamond were stolen from their working premises situate at 25 Pultney Street, Freetown. They reported the matter to the police and two of the defendants' employees, the plaintiff not being one of them, were sub­ sequently arrested and charged. ( 4) The defendants, did not leave the matter entirely with the police, but decided to indulge in fetish for the ostensible purpose of discovering the thief. Accordingly, they procured the services of a juju-man whom they invited to their said premises to perform his weird occult practices as hereinafter mentioned. (5) On or about April 3rd, 1969, the said juju-man duly arrived at the said premises at the invitation and under the auspices of the defendants, to perform his said ceremonies. (6) The said juju-man at the said premises, lit a stove pro­ vided by the defendants, put a pot containing a liquid which looked like oil on the said stove and some of the defendants' employees, the plaintiff being one of them, were then told by the defendants and/or their servants or agents, one Mr. Stanley and one Mr. Elba, that they were to dip their hands into the said pot, and if they were not the thief, the liquid in the pot, 112 -- SIAKA v. SIERRA LEONE DIAMONDS LTD., 1972-73 ALR S.L.lll C.A. although it was being heated would feel ice cold and they would be unscathed. · (7) In furtherance of the aforesaid purpose, the said juju­ man dropped a stone into the contents of the said pot. The defendants and/or their said servants or agents then ordered 5 the plaintiff to dip his hand into the said pot which was being heated by fire from the said stove and to remove the said stone which was at the bottom of the said pot. (8) The plaintiff, well knowing that he was not the thief, and in obedience to the said order plunged his right hand into 10 the bottom of the pot in order to remove the said stone but instead of the contents of the pot being ice cold, the whole of the plaintiff's right hand was severely burnt and cauterized and injured and he has suffered loss and damage." He claimed special damages for medical fees, loss of earnings, cost 15 of transport to and from hospital for 21 days as well as general damages. [The learned judge then read the statement of defence which included the following:] "(3) The defendants admit that on April 3rd, 1969 a man 20 went to their premises but deny that he went there at their invitation or under their auspices and say that the man went to the said premises at the invitation of the plaintiff and other workers employed by the defendants. ( 4) Save that the defendants admit that the said man lit a 25 stove and put a pot containing liquid thereon they deny the allegations contained in para. 6 of the statement of claim and in particular deny that the defendants, Mr. Stanley or Mr. Elba or any servant or agent told the plaintiff or any employee of the defendants to dip their hands into the said pot. 30 (7) The defendants say that the plaintiff voluntarily con­ sented to put his hand into the said pot and consented to whatever injuries he sustained." [The learned judge read the appellant's reply which stated inter 35 alia that the respondents were estopped from denying the alle­ gations contained in paras. 5, 6 and 7 of the statement of claim since the practice complained of took place with their consent. He then quoted part of the trial judge's judgment including the following:] 40 "In para. 7, the plaintiff alleged that the defendant 113 THE AFRICAN LAW REPORTS company, its servants or agents ordered the plaintiff to dip his hand into the pot which was being heated by fire from the stove and to remove the said stone from the bottom of the pot. In his evidence the plaintiff said that the juju-man told 5 him to put his hand into the pot and that because Mr. Stanley had answered them that the oil would be ice cold he put his hand into the pot. He did not say whether anyone of manage­ ment was in the room when his tum arrived. In any case he did not say that anyone of management spoke before he put 10 in his hand. The defendant company denied that any of its servants or agents ordered the plaintiff to dip his hand into the pot and this was confirmed by the evidence of defence witnesses. The plaintiff went further to say that the boy in front of him refused to put in his hand and that although 15 Mr. Stanley shouted at him the boy still refused and was asked to stand aside, he was the next but agreed to put his hand in to the pot. Mustapha Mansaray said that it was Mr. Stanley who had asked them to put their hands into the pot after him when 20 they were downstairs that the plaintiff put his hand after him (the witness). He did not say that anyone spoke to plaintiff immediately before he did so. When cross-examined he said that when informed of the suggestion, he put up his hand signifying that he was in agreement. He was cautious 25 enough to say that he was not particular about what the plaintiff did. This witness admitted that he was in court during part of the plaintiff's evidence. I do not believe that he was in court only for three minutes. Mr. Stanley, the first witness for the defendant, appears 30 to me to be truthful. He even agreed that he told the juju­ man when he was brought to the factory that before he would be paid by management and union he should be able to discover the thief and discover the missing diamonds. I believe the evidence of Mr. Stanley and the two other wit- 35 nesses (Elba and Brown), who were officers of the union, that the workers and not management suggested that a juju­ man must be invited to operate at the factory. The advance paid to the juju-man was made by the union. This was not contradicted by the plaintiff. If the management was respon- 40 sible the normal procedure would have been for the manage­ ment to advance the money. I also believe the evidence that 114 SIAKA v. SIERRA LEONE DIAMONDS LTD., 1972-73 ALR S.L.lll C.A. the plaintiff even suggested a man at Kenema and that if the management failed to agree the workers would set 'dombolo'. Mr. Stanley in his evidence said that he reminded the plaintiff of the active part he took in the whole affair in spite of which the defendants paid his hospital fees and gave him sick 5 pay. Exhibits A and B do not affect the issues in this case. The evidence given by the defence witnesses in my view is very convincing even moreso when two of such witnesses and the plaintiff were members of the union. Reviewing the evidence 10 as a whole, I hold that the plaintiff has failed to prove his case and the action is therefore dismissed." The appellant is dissatisfied with this decision and so he has appealed against the judgment of the court below to this court on the following grounds, namely- 15 "(1) that the learned trial judge erred in law in that he failed to consider the plea of estoppel raised by the plaintiff in his reply and thus came to the wrong conclusion that the defend­ ants were not liable for the assault; ( 2) that the learned trial judge failed to direct himself to the 20 fact that the juju-man went to the defendants' premises to the knowledge of the defendants and/or their servants or agents and with their consent performed his weird and occult practice in the said premises to the knowledge and consent of the defendants and/or their servants or agents and conse- 25 quently came to the wrong conclusion in holding that the defendants were not liable; (3) that the learned trial judge did not base the decision on the issue on which pleadings were joined but put liability on the plaintiff's union even though this question was not raised 30 in the defence or any of the pleadings; ( 4) that the decision is unreasonable and cannot be sup­ ported by the law and the facts." Ground ( 4) of the grounds of appeal was not pressed on us, and I think, quite rightly so. It is my considered view, after giving 35 careful consideration to the evidence as a whole adduced at the trial, that the learned trial judge acted on correct legal principles not only in determining the truthfulness of the particular witnesses but also in determining the proper deductions he drew from the evidence as a whole. I am in complete agreement with his findings 40 and deductions of facts which are supported by the evidence. 115 THE AFRICAN LAW REPORTS These deductions show in no unmistakable terms that the appellant received his injuries under circumstances leading necessarily to the inference that he encountered the full risk of them freely, voluntarily and with full knowledge of the nature and extent of 5 the risk involved. The consent was one given really and freely by the appellant. It is trite law that damage suffered by consent gives rise to no cause of action. This is based on two legal maxims, namely, damnum sen tire non videtur qui sibi damnum dedit and volenti non fit injuria. I most heartily support the dictum of 10 Lindley, L.J. as he then was, when in the case of Yarmouth v. France (1) he said, inter alia, that whether the maxim volenti non fit injuria ought to be applied in a particular case is often a ques­ tion rather of fact than law. The facts as found by the learned trial judge in my considered view fall well within the ambit of the 15 maxim giving the appellant no good cause of action. The perform­ ance in question giving rise to the action was, in my view, neither part of what the appellant was employed by the respondents to do nor was it incidental thereto. The appellant was not obliged to dip his hand into the pot. In fact there is evidence that the co-employee 20 who was immediately before him refused to do so. With regard to the question of estoppel, bearing in mind the legal principle that acquiesence may operate by way of estoppel to debar a person from maintaining an action for an act which otherwise would constitute an actionable wrong or from obtaining 25 a particular remedy, it was, with respect, a defence open more to the respondents than to the appellant. In view of the learned trial judge's findings and deductions of fact, with which I do not quarrel, it was unnecessary in the circumstances of this particular case for the learned trial judge to have considered this question. 30 I find no substance in any of the grounds of appeal. I would dismiss this appeal with costs. CORNELIUS HARDING and PERCY DAVIES, JJ.A. concurred. Appeal dismissed. 35 40 116