STEPHEN DIAB DARKO vs. CHIRANO GOLD MINE LTD. [2013]DLCA3638

Date	2013-04-18
Suit No.	SUIT NO. 158/2011
Citation No.	[2013]DLCA3638

ADJEI J.A. (PRESIDING

ACKAH-YENSU J.A

KWASI DANSO ACHEAMPONG ESQ. FOR THE 1ST DEFENDANT/APPELLANT

J.B. DARKWA DWAMENA ESQ. FOR THE PLAINTIFFS/RESPONDENT

[2013]DLCA3638
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													<main id="main" class="content" style="min-height: 60rem" >STEPHEN DIAB DARKO<o:p></o:p>vs.<o:p></o:p>CHIRANO GOLD MINE LTD.<o:p></o:p>&nbsp;[COURT OF APPEAL, CAPE
COAST]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. 158/2011&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 18TH
APRIL, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KWASI DANSO ACHEAMPONG
ESQ. FOR THE 1ST DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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ADJEI,
J.A. (PRESIDING), ACKAH-YENSU, J.A. AND C.J.
HONYENUGA<o:p></o:p>

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

</div>DENNIS ADJEI,J.A:<o:p></o:p>The
defendant/appellant (hereafter called the defendant dissatisfied with the
judgment of the High Court Sefwi Wiawso delivered on 9th
December,2010 filed an appeal against the said judgment to this court. The
plaintiff/respondent would be referred to in this appeal as plaintiff.<o:p></o:p>The
brief facts of the case which culminated in this appeal were that the plaintiff
was an employee of the defendant company. The plaintiff worked with the elution
section of the processing plant of the defendant mining company. The
plaintiff’s work entailed the boiling of chemicals “for stripping of gold” and
the taking in a two hourly interval, pressure and temperature readings at the
top of the elution strainer column. He worked for 12 hours a day that is from
7:00am to 7:00pm. On 31st December, 2007 when the plaintiff went to
take the last readings at the top of the elution strainer column for the day, an
explosion occurred from the elution strainer which burnt some parts of his body.
He was burnt by the mixture of hot cynide and caustic soda exploded from the
elution strainer. He was admitted at the Komfo Anokye Teaching Hospital Kumasi
until 23rd January,2008 when he was discharged to the&nbsp; out patient department. He maintained an
action against the defendant, his employers for failing to provide safety free
environment for him at the High Court. The plaintiff was found to have
negligently contributed to the accident and his contribution was assessed at
ten percent (10%). The defendant’s contribution to the accident was assessed at
ninety percent (90%). The defendant dissatisfied with the judgment of the trial
High Court filed an appeal against the judgment. The three (3) ground of appeal
filed by the defendant are as follows:<o:p></o:p>“a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 
The
trial Judge erred&nbsp; when he held&nbsp; by the&nbsp;
implication&nbsp; sustained on the job
by the plaintiff on 31st December,2007 was&nbsp; caused by the personal negligence or willful
act of the Defendant/Appellant.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; the
judgment of the trial Judge cannot be supported by the plaintiff’s evidence
adduced to prove that it was the Defendant’s personal negligence or willful act
that caused the plaintiff’s injury.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; the
&nbsp;quantum of damages&nbsp; and costs&nbsp;
awarded by the trial was not&nbsp;
excessive but&nbsp; that award in
particular&nbsp; is not supported by the &nbsp;totality of evidence placed before the trial
Judge”.<o:p></o:p>The
combined effect of grounds (a) and (b) of the appeal is that the accident which
caused injury to the plaintiff on 31st December,2007 was neither
caused by the personal negligence or the willful act of the defendant and the
trial High Court Judge therefore erred by not dismissing the plaintiffs action
for want of jurisdiction. The workmen’s compensation Act, 1987 PNDCL 187 regulates
the compensation payable to employees employed by the Republic as well as
private persons except in the case of persons in the Armed Forces. Section 2 of
PNDCL 187 provides that an employee who sustains personal injury by accident
arising out of and in the course of employment must be paid compensation by his
employers and should be in accordance with the Act. However, there are
circumstances under which an employer shall refuse to pay compensation to his
employee who sustains injury in the course of his employment. An instance where
an employer shall not pay compensation to his employee is where an employee
sustains injuries arising from an accident whiles working in the scope of his
employment and the cause of the accident is attributable to the employee having
been under the influence of drink or drug. The Act has made provisions by which
an injured employee may decide to sue for damages against the employer in a
civil court. Such an action is independent of the Act and the&nbsp; courts may&nbsp;
award any damages&nbsp; or compensation
they deem&nbsp; fit and the employee cannot
decide to go to court as the jurisdictions of the court is ousted. However the
parties may also agree in writing as to the compensation to be paid by the
employer to the employee. Apart from the provision made&nbsp; in section 24 of the Act, an&nbsp; employee( except persons in the Armed Force)
who sustains personal injury by accident shall be&nbsp; paid compensation in accordance with the Act.<o:p></o:p>The
defendant’s case is that the accident which caused injury to the&nbsp; plaintiff was neither caused by the personal
negligence or willful act of the defendant nor any other person&nbsp; for whose act or default the employer is
responsible and the trial High Court Judge wrongly entertained the suit under
section 24 of PNDCL 187.<o:p></o:p>