EKEM vs. WISEWAY CLEANERS LTD [1985]DLCA911

Date	1985-05-29
Suit No.
Citation No.	[1985]DLCA911

FRANCOIS JSC

ABBAN JA

OSEI-HWERE JA

AMEGATCHER FOR THE PLAINTIFF-APPELLANT.

BENTSI-ENCHILL (WITH HIM CARSON) FOR THE DEFENDANT-RESPONDENTS.

[1985]DLCA911
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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EKEM <o:p></o:p>

{COURT OF APPEAL} <o:p></o:p>

[1984-86] 1 GLR 61<o:p></o:p>

DATE:
29 MAY 1985<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

AMEGATCHER FOR THE PLAINTIFF-APPELLANT. <o:p></o:p>

BENTSI-ENCHILL (WITH HIM CARSON) FOR THE
DEFENDANT-RESPONDENTS.<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;
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FRANCOIS JSC, ABBAN AND OSEI-HWERE JJA<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS JSC<o:p></o:p>On 12
January 1979 a fatal accident occurred at the respondents’ dry-cleaning
establishment at Takoradi. An employee, Isaac Ekem, who the respondent claimed
to have acquired requisite experience in the working of the respondent-company’s
laundry equipment, sustained fatal injuries while operating an extractor
machine. An action for negligence and breach of statutory duty was brought by
the personal representative of the deceased in the High Court, Sekondi. It
failed. The present appeal is the sequel of that lack of success.<o:p></o:p><o:p>&nbsp;</o:p>It is
necessary to state briefly the working of the machine the deceased was
operating, as far as can be gleaned from the record, to enable a proper
assessment of the viability of the appellant’s claim to be made. The machine
was a hydro-extractor which, as the name implies, extracts water from wet
clothing by its high velocity revolutions. It functions this way: Wet garments
are fed into a basket attached to the machine. When sufficient material has
been piled into the basket it is closed firmly with its metal lid. Electric
power is then switched on setting it in motion. The basket then revolves at
very high speed. It seems the high velocity revolution sucks up and induces air
currents to dry up the clothing in the basket. When the garments are
sufficiently dry they are removed and replaced by a new set.<o:p></o:p><o:p>&nbsp;</o:p>To this
end, there is fitted to the machine an interlocking safety device and a
foot-brake whose combined effect brings the machine to a stop. This is the
simple process the deceased was engaged in for his livelihood and in the course
of which he met his untimely end. A factory inspector, the first plaintiff
witness, who inspected the machinery after the accident found “the interlocking
safety device was ineffective and the foot-brake was also not working at all.”<o:p></o:p><o:p>&nbsp;</o:p>The
evidence of what actually occurred at the machine site that fateful day was
given by the respondent’s own electrical supervisor (the first defendant
witness). The appellant being a stranger to the establishment could hardly
summon any worker to testify on his behalf as that would jeopardise that
worker’s prospects of continued service with the respondent-company. I have no
doubt such a worker would be an unwilling witness if not a hostile one. The
threat of dismissal is not an empty one: see Fibre Bag Manufacturing Co v
Sarpong [1967] GLR 65 at 666, CA. In any case, the evidence of the electrical
supervisor is to the effect that he was the only living eye-witness to the
incident. Consequently, no blame can possibly attach to the appellant’s
inability to produce an eye-witness. But it was this failure to proffer
evidence on the cause of the accident that led the trial judge to take a dim
view of the plaintiff-appellant’s discharge of proof. He said in Ekem v Wiseway
Cleaners Ltd [1981] GLR 801 at 805-807.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“[T]he
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 tended 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 ... [I]n 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
cannot expect the defence to send him the proof on a silver platter.”<o:p></o:p>