NANA YAW OSEI vs. GHANAIAN AUSTRALIAN GOLDFIELD LTD. [2003]DLSC2391

Date	2003-01-22
Suit No.	CIVIL APPEAL NO. 5/2002
Citation No.	[2003]DLSC2391

AMPIAH J.S.C. (PRESIDING

ATUGUBA J.S.C

MRS. WOOD J.S.C

BROBBEY J.S.C

BADDOO J.S.C.

A. K. DABI FOR THE APPELLANT.

SAMUEL DZIGBA FOR THE DEFENDANT/APPT./RESPONDENT.

[2003]DLSC2391
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													<main id="main" class="content" style="min-height: 60rem" >NANA YAW OSEI<o:p></o:p>vs.<o:p></o:p>GHANAIAN AUSTRALIAN GOLDFIELD LTD.<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. 5/2002<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:
22ND JANUARY, 2003.<o:p></o:p>

</div>COUNSEL<o:p></o:p>A.
K. DABI FOR THE APPELLANT.<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">

SAMUEL
DZIGBA FOR THE DEFENDANT/APPT./RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp; <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">

AMPIAH,
J.S.C. (PRESIDING), ATUGUBA, J.S.C., MRS. WOOD, J.S.C., BROBBEY, J.S.C.,
BADDOO, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>MRS.
WOOD, J.S.C.:<o:p></o:p>The
appellant, who was employed by the respondent company as a mine operator, was
subsequently diagnosed with a cardiac disease and therefore retired on medical
grounds.<o:p></o:p>Contending
that his illness was occupational, in that it developed by reason of his work
schedule as a heavy machine operator, he sued to recover what he thought he was
entitled to under the section (c) of Article 11.09 of the Collective Bargaining
Agreement (CBA), together with interest thereon.<o:p></o:p>Both
the trial High Court and the Appeal Court, to which the respondents who, was
clearly dissatisfied with the original decision turned to for redress, rightly
in my view, identified only one key issue for determination. It was this:
Whether or not the appellants medical condition was work related, or to put it
in the language of the CBA, an occupational ill-health.<o:p></o:p>The
trial court gave an affirmative answer to this question and consequently
awarded him ¢12 million as damages. The Court of Appeal upon a very critical
examination of the available evidence, particularly exhibit C and E, concluded
otherwise, reversed this critical finding and set aside the decision and the
award made thereunder.<o:p></o:p>Obviously
dissatisfied with this reversal, the appellant has understandably appealed to
us on a sole ground, in spite of the clear advance notice that further grounds
would be filed on receipt of the record of proceedings.&nbsp; The ground reads as follows:-<o:p></o:p>“The Court of Appeal erred in the
interpretation of Exhibits “C” and “E” in holding that the appellants condition
was not occupational”.<o:p></o:p>It
follows that this appeal turns on the same narrow, primary and fundamental
issue of whether or not his ill-health was occupational. The importance of this
question is not difficult to fathom. An affirmative answer would, under the
contract of employment, entitle him to 20 months of his basic salary, rather
than the relatively paltry sum of 4 months salary which was offered him, by the
respondents as his true and just terminal benefit.<o:p></o:p>Two
simple arguments were advanced in support of this sole ground of appeal. At the
trial, the court had found that a pre employment medical examination of the
appellant, had disclosed no tell tale signs of any such malady and had
therefore inferred from the Exhibit E, the medical report, that his subsequent
ill health was occupational, which finding which the appellate court reversed.
It was therefore submitted in this court, that the proper inference to be drawn
from the Exhibit E was that which was made by the learned trial judge, namely
that his condition was as a result of his employment with GAG, in other words
that his illness is occupational. We have therefore been urged to revert to
this finding in view of the contents of Exhibit E.<o:p></o:p>However,
it was urged in the alternative that we ought not to overlook the contributory
role of the occupation in the development of the disease and were invited to
rule positively to that effect. <o:p></o:p>I
have not the slightest difficulty in dismissing this later alternate argument
on the contributory role of his work schedule i.e operating heavy
equipment.&nbsp; <o:p></o:p>The
action was not premised on this fact and therefore, this case was not fought
along these lines also. The issue therefore never arose for the courts
consideration. The following extract from his pleadings, discloses the lines
along which this case was fought.<o:p></o:p>By
the paragraph 2 of the accompanying statement of claim the appellant averred:<o:p></o:p>“By reason of the nature of his work,
the plaintiff developed some ailment which eventually caused the defendant to
retire him on medical grounds …..”.<o:p></o:p>The
respondents countered these facts by the paragraph 2 of their statement of
defence as follows:<o:p></o:p>“The defendant admit retiring the
plaintiff on medical grounds but denies that the plaintiffs ailment was
occupational, that is due to the nature of the work assigned him by the
defendant”.<o:p></o:p>Thus,
both at the trial and understandably, appellate court levels, the case was
fought on the fundamental issue of whether or not there was a causal link
between his medical condition and assigned work.<o:p></o:p>The
introduction of the contributory role of his occupation in the development of
the disease is rather a completely new point of fact and offends the most basic
and well settled rule that an appellant cannot be permitted to raise on appeal
a completely new issue of fact which if it had been raised at the trial, the
parties</main>