GOODMAN MOSHIE vs. KWAKU [1965]DLHC1806

Date	1965-06-30
Suit No.
Citation No.	[1965]DLHC1806

ATTOH J.

MMIEH FOR THE PLAINTIFF.

OSAFO FOR POODO FOR THE DEFENDANT.

[1965]DLHC1806
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													<main id="main" class="content" style="min-height: 60rem" >GOODMAN MOSHIE <o:p></o:p>vs. <o:p></o:p>KWAKU <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1965] GLR 566<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
30 JUNE 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

MMIEH FOR THE PLAINTIFF.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ATTOH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ATTOH J.<o:p></o:p>In this
case the plaintiff claims damages (general and special) for injuries he
suffered while operating a machine in the course of the employment by the
defendant. The plaintiff alleged that under the Factories Ordinance, 1952,1 and
the regulations made thereunder the defendant failed to provide adequate protection
to a circular saw in his workshop or factory and through the defendant’s
negligence under the Ordinance and at common law he suffered injuries which led
to the amputation of his left thumb.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence on the whole case is meagre indeed. The plaintiff said that while
operating the circular saw on 24 April 1964 in the defendant’s factory, the saw
which was not properly fixed got bent to one side and his left hand was caught
in it and the left thumb was cut, leaving a bit of flesh holding it. He was attended
to by the plaintiff’s first witness at Kumasi Central Hospital and although
attempts were made to save his thumb it was ultimately amputated by the
plaintiff’s first witness, as it developed gangrene.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff said he spent some time at the hospital and was discharged three
weeks after admittance. He approached the defendant for work but the defendant
would not have him as the defendant said he was useless without his thumb. He
could not get other work, although he tried to secure it. He finally got work
as an ice-water seller in March 1965. The plaintiff said he was naturally a
left-handed person and could not now use the fingers of his left hand properly.
The plaintiff’s first witness gave evidence that she attended the plaintiff who
was found to be psychologically shocked on admission. Later she amputated the
thumb as it had developed gangrene.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant denied the plaintiff’s claim and averred that the plaintiff having
been compensated under the Workmen’s Compensation Act, 1963,2 he was estopped
from bringing a further action. The defendant called the labour officer as his
only witness. The fact that the plaintiff was injured while operating the
machine in the defendant’s workshop was not denied.<o:p></o:p><o:p>&nbsp;</o:p>The other
workmen in the defendant’s workshop were not called by the defendant as
witnesses. The defendant had no idea as to how the plaintiff was injured
because he was himself absent from the workshop when the plaintiff was injured.
The defendant said in evidence that he instructed the plaintiff as to the use
of the machine when he was employed. The defendant denied negligence on his
part.<o:p></o:p><o:p>&nbsp;</o:p>At the
beginning of the case, on 2 June 1965 the legal point as to estoppel was
raised, in view of the acceptance of compensation by the plaintiff under the
Workmen’s Compensation Act, 1963, and argued as a preliminary point of law. I
ruled on that day that the plaintiff was not barred from bringing further
action and ordered the case to proceed on its merits. At the close of the case
for the defence, counsel on both sides addressed the court at length and the
full notes of their respective address have been made and considered by the
court. The matter of estoppel was revived by counsel for the defendant and it
was replied to by counsel for the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>From the
whole evidence before the court it appears that under section 5 (1) (c), (v)
and (3) of the Factories Ordinance, 1952, the defendant’s workshop is a
factory, since the defendant employed about four persons in his workshop. There
is the evidence of the plainti</main>