Yatteh v Sierra Leone Development Company Limited (CIV APP 19 of 1971) [1972] SLCA 1280 (15 February 1972)

SECTION 8 YATTEH v. SIERRA LEONE DEV. CO. LTD., 1972-73 ALR S.L. 51 C.A. intelligent clergyman." As an intelligent clergyman, the accused knew or ought to have known of the biblical injunction: "If it be possible, live peaceably with all men." He could have left the meeting when he knew it had turned to a political meeting without making any comments. 5 Appeal dismissed. ,-<~ :-:;: -. y ATIEH v. SIERRA LEONE DEVELOPMENT COMPANY LIMITED Cj'[-U;~:··~) " ,"' /.1'0 I / Court of Appeal (Forster, J.S.C., Cornelius Harding and Percy Davies, JJ.A.): February 15th, 1972 (Civil App. No. 19/71) [1] Employment-safety-breach of common law duty-employer's duty to provide competent staff, adequate plant and appliances, safe place and safe system of work-employer liable if workman negligently injures himself in job for which declared to be incompetent: It is an employer's common law duty to take reasonable care of his workmen's safety so as not to expose them to unnecessary risk, by employing a competent staff of men and providing adequate plant and appliances, a safe place of work and access to it, and a safe system of work and effective supervision; and an employer is in breach of his duty to employ a competent staff if a workman negligently injures himself while carrying out a job for which he has been declared incompetent on professional advice (page 55, line 26- page 56, line 16; page 57, lines 10-15). ' ...... ~~.~~~~/ 15 20 [2] Employment-safety-breach of common law duty-onus on workman 25 injured in course of employment to prove employer's breach of duty of care when seeking damages for injury sustained: The onus in an action for damages for personal injury against his employer lies on a workman to prove that his injury was caused by the employer's breach of his common law duty of care to the workman (page 56, line 17). [3] Evidence-burden of proof-negligence-unsafe conditions of employ­ ment-onus on workman injured in course of employment to prove employer's breach of duty of care when seeking damages for injury sustained: See [ 2] above. [ 4] Tort-negligence-duty of care-duty of employer to provide safe employ­ ment-employer in breach of duty if workman negligently injures himself in job for which declared to be incompetent: See [ 1] above. The appellant brought an action in the High Court against the respondents to recover damages for an injury received through the respondents' negligence. The appellant, a dumper driver with the respondent company, was recommended for promotion to charge-hand to carry out 51 30 35 40 THE AFRICAN LAW REPORTS supervisory duties on the company's conveyor belts. The pro­ motion was initially refused because of low literacy, but after six months' training the appellant was promoted to charge-hand not~ withstanding his continued low literacy and a warning by the 5 officer who trained and tested him that "the appellant must improve literacy before any further advancement." A week after his promotion the appellant broke a finger in his right hand when attempting to remove a stone lodged in a conveyor belt, after two other employees had failed to dislodge it. 10 The appellant brought the present proceedings to recover damages for the respondents' negligence in failing to take due care for their employee's (the appellant's) safety. At the trial he alleged that none of those working on the conveyor belt had authority to start or stop it and that it was their duty to remove stones which 15 were obstructing the smooth running of the conveyor belt by hand. The respondents alleged that at each changeover point there was a man with tools for clearing obstructions who had authority to stop the conveyor belt when necessary and they denied that the appellant had any authority to remove stones by hand from the 20 moving belt. The High Court (Rowland Harding, J.) found the respondents not guilty of negligence and dismissed the appellant's claim. The appellant appealed, inter alia, on the ground that the trial judge misdirected himself as to the facts in that he ignored or dis- 25 carded the evidence of an officer of the company who had tested the appellant and had made it clear that because of his low liter­ acy, the appellant must not be given the job of charge.hand until his literacy improved. The appellant contended that it was an employer's duty in the interests of safety to employ competent 30 servants and that by ignoring the testing officer's advice and giving him, the appellant, a position of responsibility when he was not properly equipped to carry it out, the respondent company was in breach of its duty of care to him as an employee and liable for damages. 35 The appeal was allowed. 40 Cases referred to: (1) Brown v. Rolls Royce Ltd., [1960] 1 All E.R. 577; [1960] 1 W.L.R. 210. (2) Dixon v. Cementation Co. Ltd., [1960] 3 All E.R. 417; [1960] 1 W.L.R. 746. 52 I \ YATTEH v. SIERRA LEONE DEV. CO. LTD., 1972-73 ALR S.L. 51 C.A. (3) Smith v. Baker & Sons, [1891] A.C. 325; [1891-94] All E.R. Rep. 96, applied. (4) Wilsons and Clyde Coal Co. Ltd. v. English, [1938] A.C. 57; [1937] 3 All E.R. 628, applied. _ Gelaga King for the appellant; Barlatt for the respondents. PERCY DAVIES, J.A., delivering the judgment of the court: This is an appeal by the appellant, who was the plaintiff in the 5 court below, from the judgment dated June 28th, 1971 of Row- 10 land Harding, J. in favour of the respondent company who were the defendants in the court below. In the action, the appellant by his writ of summons dated March 21st, 1968, claimed damages for negligence against the respondents. 15 The facts of the case are these: In the year 1966 three men were required for junior supervising duties in connection with conveyor belts. Those recommended were J.M. Brima, Abu Thomas and Ibrima Yatteh, the appellant, who was a dumper driver. The appellant was rejected because of his low literacy. He was, how- 20 ever, allowed to do the work under expatriate supervision and instruction. When he was first tested and recommended, his score was 80%. His arithmetic and English scores were low because of illiteracy. The managing director, Peter Rams by, rejected the recommendation for the appellant's upgrading to a charge-hand. 25 After six months' further training by an expatriate supervisor, and test taking, he was upgraded to the post of charge-hand notwith­ standing his low literacy and notwithstanding the definite warning of Mr. Tindale, the testing officer, that the appellant "must improve literacy before any further advancement." This warning 30 was made on July 1st, 1966 and on February 18th, 1967 the appellant was informed by the respondent company that he had been promoted to the grade of charge-hand to take effect as from March 1st, 1967, on a salary scale of Le590 to Le7 40 per annum. On or about March 8th, 1967, exactly a week after the appellant 35 was appointed, he was involved in an accident whilst in the course of his employment. The respondent company in their defence admitted that the appellant was injured whilst on duty at their works and said that they had offered him compensation under the Workmen's Compensation Act. 40 After the appellant had been injured and before he resumed his 53 THE AFRICAN LAW REPORTS duties on June 27th, 1967, the respondent company caused him to enter into an agreement dated June 26th, 1967, between the respondent company and himself. In that agreement, the appel­ lant's left thumb print was affixed to it. 5 The learned trial judge found that the respondents were not guilty of negligence and that the appellant's claim for negligence failed. After this finding, the learned trial judge proceeded to deal with the question of special damage, which in view of his finding was unnecessary. It is against this decision that the appellant has 10 appealed to this court and for this purpose has filed six grounds of appeal as follows: 1. The learned trial judge erred in law in applying too high a standard of proof of negligence in that he failed to give effect to the practice that stones which got fastened in the conveyor belt 15 were removed by hand as contained in the evidence of the plain­ tiff's fourth witness, Lamina Kamara, who said " ... stones get fastened and we remove them from the belt in this way; if not removed the belt will be burnt." 2. The learned trial judge, in holding that the defendants selected 20 a competent staff of men to do the work and provided effective supervision, not only erred in law, but misdirected himself as to the facts in that he misapplied the evidence of the expatriate who had tested the plaintiff as to his competence and had warned the defendants that the plaintiff must improve his literacy before any 25 further advancement. Further, even though the plaintiff's literacy had not improved, he was nevertheless instructed to do the work of a charge-hand despite the warning of the said testing officer. 3. The learned trial judge confused himself by assuming to know more than the testing officer who actually tested the plaintiff's 30 capability for the work, and having as a result misdirected himself in holding that the work of charge-hand does not require know­ ledge of English, further misdirected himself as to the facts in that he ignored or discarded the evidence of the said testing officer who had made it clear that the plaintiff must not be made to do 35 the job until his literacy had improved. 4. The learned trial judge, having found that those who instruc­ ted and tested the plaintiff were expatriates, immediately thereafter misdirected himself as to the facts by holding that those who tested him were satisfied that he could do the work of a charge- 40 hand. The learned trial judge made this latter finding in the teeth of the said testing officer's warning to the defendants that the 54 _l YATTEH v. SIERRA LEONE DEV. CO. LTD .• 1972-73 ALR S.L. 51 C.A. plaintiff must improve his literacy before any further advancement. A fortiori the learned trial judge failed to take cognisance of the fact that although the work of a charge~hand might not require knowledge of English to the extent of that of "an Oxford don," yet it is trite to say that if a trainee is being trained by someone 5 who speaks English he must understand what he is being told in English if he is to be properly trained and if communication of ideas and thoughts are to flow between teacher and trainee. 5. There was a miscarriage of justice in that the learned trial judge interrupted the evidence of both the plaintiff and the defence on 10 numerous occasions for the purpose of insisting that a witness should say what he, the judge, thought they should say, or wanted them to say, or to have a personal furore with counsel for the defence as to whether or not he, the judge, was a qualified electri- cal engineer. By so doing, the learned trial judge not only petrified 15 witnesses but made it impossible for the case to be conducted properly. 6. The verdict was unreasonable, unjust and could not be sup­ ported having regard to the evidence. Learned counsel for the appellant argued all the grounds together 20 except ground 5 which he abandoned because, according to him, he had not filed the necessary affidavits. I now propose to deal with grounds 1, 2, 3 and 4 together. The appellant's claim is at common law against the respondent company and not under the Workmen's Compensation Act. It is therefore 25 necessary to state a master's duty of care at common law. A master owes a duty to his servant to take reasonable care for his servant's safety. This duty was described by Lord Herschell in Smith v. Baker & Sons (3) ([1891] A.C. at 362; [1891-94] All E.R. Rep. at 88) as "the duty of taking reasonable care to provide 30 proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk." The classic statement of the duty is to be found in the speeches of Lord Wright and Lord Maugham in Wilsons and Clyde Coal Co. Ltd. v. English ( 4). Lord Wright, 35 quoting from earlier authorities, formulated it as follows ( [1938] A.C. at 78; [1937] 3 All E.R. at 640): "The obligation is three­ fold-'the provision of a competent staff of men, adequate material, and a proper system and effective supervision .... ' " In order to appreciate the implications of this statement, it 40 should be set against the background of the unpopular doctrine of 55 THE AFRICAN LAW REPORTS common employment which existed at the time it was propounded. According to this doctrine, it was an implied term in a contract of employment that a servant agreed to run the risks incidental to his employment, including the risks of injury from the defaults of 5 fellow servants. Uniform dislike of this rule has led the courts to limit its operation as far as possible and as part of this minimising process the House of Lords in the Wilsons case (4) laid it down that a defence of common employment would not be open to an employer who was in breach of his obligation. 10 It is the practice to deal with the duty under four heads, namely: 1. To employ competent servants. 2. To provide and maintain adequate plant and appliances for the work to be carried out. 3. To provide and maintain a safe place of work and access to 15 it, and 4. To provide and enforce a safe system of work. The onus is on the appellant to prove negligence in the employer. This he may be able to do in appropriate circumstances by show~ ing that a situation of danger existed; but as the House of Lords 20 pointed out in Brown v. Rolls Royce Ltd. (1) the mere existence of a danger does not necessarily connote negligence. In other cases [i.e., where an unsafe system of work or unsafe apparatus is alleged], in order to make out a case of negligence against the employer, it may become necessary for the plaintiff to prove an 25 alternative safer system or device, but it is not essential for him to do so: see Dixon v. Cementation Co. Ltd. (2). The employer's duty is to take reasonable care and the question whether he has done so or not is one of fact. The appellant and two others were recommended to be pro~ 30 rooted to the grade of charge~hand. The recommendation in respect of the appellant was rejected because, according to the managing director, Peter Ramsby, "his literacy was low." On August 18th, 1966 a Mr. Tin dale, a testing officer of the respondent company, tested the appellant and commented "must improve literacy 35 before any further advancement". In 1967 the testing officer observed that the literacy of the appellant was still low. Notwith­ standing these comments Mr. Ramsby, the respondent company's managing director, testified that after his first rejection of the recommendation for the appellant's promotion to the grade of 40 charge.hand the appellant was given six months' further training by an expatriate supervisor and even though the testing officer 56 YATTEH v. SIERRA LEONE DEY. CO. LTD., 1972-73 ALR S.L. 51 C.A. reported that his literacy was still low, the appellant was up-graded to the grade of charge-hand. I think I am right in concluding from the testing officer's comments that in so far as the appellant in the set-up of the respondent company was concerned, literacy was a condition 5 precedent to his further advancement. The test which the testing officer appointed by the respondent company set was an examin- ation designed to elicit responses upon which appraisal of the appellant's aptitude could be based. In other words, it was an intelligence test. I find that the respondent company was negligent 10 in appointing the appellant a charge-hand contrary to the definite comments of the testing officer that the appellant "must improve literacy before any further advancement." It is the duty of the respondent company, as laid down in Wilsons' case (4) already referred to, to employ competent servants. 15 [The learned judge then set out the appellant's evidence as given in the court below in which the appellant described how, as charge­ hand on one of the conveyor belts, it was his duty to remove by hand stones that obstructed the movement of the conveyor belt and how, while trying to remove one particular stone, the acci- 20 dent to his finger had occurred. He also testified that he had no authority to start or stop the conveyor belt. The learned judge continued:] Two witnesses, Brima Kanu and Lamina Kamara, testified that they tried to remove the stone from the conveyor belt but were 25 unable to do so and the appellant went to assist them. As the appellant held the stone, his hand came against an iron which was fixed on the leading point and the fifth finger of his right hand was broken. They confirmed the appellant's story that it was their practice to remove stones from the conveyor belt with their hands. 30 They also confirmed that neither of them had authority to stop the conveyor belt when in motion. As against the evidence of the appellant and his witnesses, Mr. Franklin, assistant mines superintendent in the respondent company, testified that at each change-over point there was a man 35 with tools for clearing obstructions and he had authority to stop the belt if it was at all necessary. He said it was not true that to stop the belt for any reason authority must come from him, as stated by the appellant. The appellant said that none of those working on the belt had authority to stop it. 40 I find that the respondent company was also negligent in not 57 SECTION 9 THE AFRICAN LAW REPORTS providing a competent and proper person to superintend and direct the work. I also find that the appellant was negligent in rushing to the assistance of Kanu and Kamara without first stop­ ping the conveyor belt which I am satisfied he knew how to do. 5 As regards ground 6, it is clear from what I have already stated above that the verdict is unreasonable and cannot be supported having regard to the evidence. The result is that the appeal succeeds. The appellant is awarded damages to the extent of 90% and the respondent company to the 10 extent of 10% even though they have not pleaded contributory negligence. We order that the matter be referred to the court below for assessment of damages after hearing argument. The costs in the court below and in this court to the appellant are to be taxed. 15 Order accordingly. 20 25 30 35 40 PARKINS and ANOTHER v. JALLOH and 14 OTHERS Court of Appeal (Forster, J.S.C., Cornelius Harding and Percy Davies, JJ.A.): March 2nd, 1972 (Civil App. No. 32/71) [1] Civil Procedure-judgments and orders-default judgment-plaintiff in default of appearance per incuriam-entitled to apply to trial court to have judgment set aside and case retried: Although the Court of Appeal has jurisdiction to hear a direct appeal from a judgment given in default of the plaintiff's appearance per incuriam, such appeals will not be encouraged: the proper procedure, which the plaintiff is entitled to follow by reason of the High Court Rules, O.XXV, r.12, is to apply to the trial court to have the judgment set aside and the case relisted for trial (page 62, lines 14-29; page 63, lines 10-16). [2] Civil Procedure-judgments and orders-default judgment-plaintiff's application to set aside judgment to be made first to trial court, not Court of Appeal: See [1] above. · [3] Courts-court of Appeal-jurisdiction-appeals from default judgments­ court has jurisdiction but party in default should apply first to trial court: See [1] above. The appellants brought an action in the High Court against the respondents seeking damages for trespass. As all but one of the respondents were evading service of the writ of summons upon them, the appellants applied to the High 58