EKEM vs. WISEWAY CLEANERS LTD. [1980]DLHC1576

Date	1980-08-10
Suit No.
Citation No.	[1980]DLHC1576

TWUMASI J.

FORSON FOR THE PLAINTIFF.

BENTSI-ENCHILL FOR THE DEFENDANTS.

[1980]DLHC1576
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													<main id="main" class="content" style="min-height: 60rem" >EKEM <o:p></o:p>vs. <o:p></o:p>WISEWAY CLEANERS LTD.<o:p></o:p>[HIGH COURT, SEKONDI] <o:p></o:p>[1980] GLR 801<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:
10
AUGUST 1981<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">

FORSON 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF TWUMASI J.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 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.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 &amp; Clyde Coal
Co., Ltd. v. English [1938] A.C. 57, H.L. and Smith v. Baker &amp; Sons [1891]
A.C. 325, H.L.<o:p></o:p><o:p>&nbsp;</o:p>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 du</main>