The plaintiff is a former employee of the defendant. The
defendant is a duly incorporated company in terms of the laws of Zimbabwe.
The plaintiff was employed by the defendant from 1990 to
2006. He was employed as a Cibra Machine Operator. Later, he was assigned to
work as an Assistant Tapeline 11 Machine Operator. On
19 to 20 April 2006, the plaintiff was involved in a workplace accident. His
right hand was trapped between machine rollers of the Tapeline 11 machine as he
tried to insert some broken plastic strands. He sustained a crushed right hand
assessed at 65% disability. After the accident, he was taken to hospital. He
remained hospitalised from the 20th April 2006 to 4 September 2006. Upon
discharge from hospital, he was later discharged from employment on medical
grounds with effect from 1 June 2007.
As the defendant was a contributor
to the National Social Security Authority Scheme (hereinafter referred to as
NSSA), relevant documents were completed and the plaintiff was awarded
compensation in terms of the National Social Security Authority Scheme.
Upon receipt of the compensation,
the plaintiff approached his employer for more compensation as he stated that
the compensation from the National Social Security Authority Scheme was too
little. The defendant declined to compensate the plaintiff contending that he
had been adequately compensated in terms of the NSSA scheme.
The plaintiff, being dissatisfied,
sued the defendant in this court for more compensation in the form of damages.
The plaintiff alleged that the accident was caused by the negligence of the
defendant. The particulars of negligence he alluded to were that:-
1. The defendant compelled the plaintiff to operate the
Tapeline 11 Machine to which he had no requisite know how of its operation
since he was a novice at that time.
2. Defendant failed to provide a safe working condition for
the plaintiff.
3. Defendant did not take the necessary steps to avoid such
a happening as the machine had no emergency devices at all regardless of being
informed on innumerable times that the machine was faulty.
The plaintiff's employment was terminated as the defendant
contended he could not continue working with one arm.
The plaintiff's claim, as amended
on the date of trial, was for:
(a) Payment of USD30,000= (thirty thousand United States
dollars) being damages for loss of future earnings.
(b) Payment of USD10,000= (ten thousand United States
dollars) being damages for pain and suffering; and
(c) Payment of USD60,000= (sixty thousand United States
dollars) being damages for permanent disfigurement and loss of amenities of
life.
(d) Costs of suit.
The defendant denied liability and
contended that it was the plaintiff's negligence that led to the accident in
question.
In its plea, the defendant
contended that the plaintiff had been operating similar machines throughout his
ten (10) years or so of his employment with the defendant. The defendant went
on to say the plaintiff had been operating this particular Tapeline II Machine
for more than a year.
In paragraph 3 of its plea, the
defendant stated that:
“…,. At the time of the accident,
the plaintiff was employed as an operator on the Tapeline II Machine and had
been employed in that capacity for more than a year.”
The defendant further stated that the working conditions
were totally safe and the plaintiff had been trained in work and safety
procedures. Shortly before the accident, he had, in fact, attended and
participated in a safety training workshop at the workplace which was conducted
by the National Social Security Authority. Further,
the defendant stated, in its plea, that the Tapeline II Machine in question had,
and still has, cut off switches at very accessible level, which the plaintiff
should have used to stop the machine when the plastic strand broke instead of
inserting his hand into moving machinery. When his hand got trapped the
plaintiff should have used this cut off switch to stop the machine.
The machine had never been faulty
and neither the plaintiff nor his assistant had ever notified anybody that the
machine was faulty. As far as the defendant is concerned, therefore, it was the
plaintiff's own negligence which led to him being injured. The plaintiff also
contravened laid down work procedure and safety rules by inserting his hand
into the moving rollers to try and reconnect the plastic strand leading to his
hand being trapped in the rollers.
It was the defendant's further
contention that the plaintiff had no claim at common law as the plaintiff was
compensated fully in terms of Zimbabwean law and there was no further claim for
damages. The defendant also disputed the quantum of damages as claimed by the
plaintiff.
The issues for determination were
identified as:
1. Whether the plaintiff was a Tapeline II Machine Operator
or was asked to do a job he was not familiar with.
2. Whether or not the injury suffered by the plaintiff was
a result of the defendant's negligence.
3. Whether there is any basis, at common law, on which the
defendant could be liable to the plaintiff for damages.
4. What is the quantum of damages, if any?
The plaintiff gave evidence and called two witnesses,
namely, Mr Themba Mazvipunza and Mr Tawanda Murindi. Two defence witnesses,
namely, Mr Reginald Takura Kawonza and Mr Chrispen Singe, thereafter gave
evidence.
A number of documentary exhibits
were tendered into evidence….,.
ISSUES
1. Whether the
plaintiff was a Tapeline II Machine Operator or was asked to do a job he was
not familiar with
The plaintiff's evidence was to the
effect that he was not a Tapeline II Machine Operator. He was a Cibra Machine
Operator. He was assigned to go and work at the Tapeline II Machine as an
assistant to Themba Mazvipunza in March 2006 when there was a shortage of raw
materials for his Cibra Machine.
He categorically denied the
defendant's contention that he started working as Assistant Tapeline II Machine
Operator in August 2005. He maintained that he was only assigned to assist
Themba Mazvipunza in March 2006.
As Assistant Tapeline II Machine
Operator, his duties comprised taking job cards to the workshop, mixing the
material used to make plastics, and pouring the mixture into the hooper. He
would also be sent by the operator on errands. He was very clear that his
duties did not include operating the machine as the operator.
Mr Themba Mazvipunza gave evidence
next. He was the Tapeline II Machine Operator.
His evidence was to the effect that
the plaintiff was not a Tapeline II Machine Operator, but a Cibra Machine
Operator. He confirmed the plaintiff's evidence on the circumstances that led
to the plaintiff joining him on the Tapeline II Machine. He also confirmed that
the plaintiff was assigned to assist him in March 2006 and not in August 2005. The
plaintiff was thus his assistant from March 2006 to 19 April 2006. During that
period, the plaintiff had not worked as an operator of the Tapeline II Machine
but only as his assistant. Mr Themba Mazvipunza further confirmed that there
was no formal training given to the plaintiff. Whatever the plaintiff learnt
was by observing what Themba Mazvipunza was doing.
It is clear from the plaintiff's
evidence and that of Mr Mazvipunza that, at the time the plaintiff was asked to
operate the Tapeline II Machine, he had not received any training as a Tapeline
II Machine Operator. He had merely been an assistant to Themba Mazvipunza for a
few weeks.
The defendant's contention on this
aspect was without support….,.
The defendant's second witness was
Chrispen Singe, also known as Nyikadzino. He was the plaintiff's supervisor.
As a supervisor he exercised some
authority over the plaintiff.
Mr Singe's evidence was to the
effect that the plaintiff was assigned to work as Themba Mazvipunza's assistant
on the Tapeline II Machine in August 2005. He confirmed that there was no
formal training for the job but one had to train on the job by observing what
the Tapeline II Machine Operator was doing.
Though Mr Singe insisted that the
plaintiff was assigned as assistant to Themba Mazvipunza in August 2005, he
could not produce any evidence to confirm the date of the assignment. It thus
remained a question of his word against that of the plaintiff and Mr
Mazvipunza. On the status of the plaintiff at the time of the accident, Mr
Singe confirmed what both the plaintiff and Mr Mazvipunza said that he was an
assistant Tapeline II Machine Operator. The night of the incident was his first
time to act as the operator of the Tapeline II machine.
Mr Singe's evidence contradicted
the defendant's defence as depicted in the plea and summary of evidence in some
material way.
Firstly, on the status of the
plaintiff; whilst in the plea and summary of evidence, the defendant contended
that the plaintiff was employed as a Tapeline II Operator, Mr Singe confirmed
the plaintiff's assertion that he was an assistant Tapeline II operator.
Secondly, whilst in its plea the
defendant contended that the plaintiff had been operating similar machines
throughout the ten (10) years of his employment with defendant, Mr Singe did
not support this contention.
Mr Singe said the plaintiff only
started working at the Tapeline II Machine in August 2005 as an assistant to Mr
Themba Mazvipunza. The machine that the plaintiff had been operating prior to
that was the Cibra machine.
That machine was in no way similar
to the Tapeline II machine.
The inspection in loco revealed
that the Cibra machine was a much simpler machine comprising one station where
as the Tapeline II machine is a heavy duty machine with several segments
operating at the same time. It is no doubt a much more complicated machine than
the Cibra machine.
According to the defendant's summary of evidence, Mr Singe
was to come and say that the plaintiff was in fact the substantive operator of
the Tapeline II machine and he had no assistant. The person who had gone for a
funeral was working on a different machine altogether.
Unfortunately, Mr Singe's evidence was not to that effect.
He, in fact, confirmed that the substantive operator of this machine was Mr
Themba Mazvipunza with the plaintiff as his assistant. It is Mr Themba
Mazvipunza who had gone for a funeral thus leaving the plaintiff alone at the
machine.
In the summary of evidence, it was
contended that there existed laid down procedures and safety regulations that
the plaintiff contravened. Mr Singe did not confirm this. He could not tender
any such laid down procedures and safety regulations that the plaintiff had
been trained in when operating the Tapeline II machine.
The inconsistencies and
contradictions between Mr Singe's evidence and the defendant's plea and summary
of evidence creates doubt on the veracity of the defendant's version of events.
Mr Singe was the defendant's key witness; yet his testimony was materially
different from the defendant's plea and summary of evidence. It is thus
difficult to rely on Mr Singe's evidence or the defendant's evidence especially
were it conflicts with the plaintiff's evidence.
On issue number one, it appears
common cause, from all who testified on it, that the plaintiff was not a
Tapeline II Machine operator.
2. Whether he was asked
to do a job he was not familiar with
That should follow from the above finding.
The plaintiff had never operated
the machine in question. He had not received any formal training. The person
who was expected to have trained him on the job, Themba Mazvipunza, confirmed
that no formal training had occurred. The few weeks the plaintiff worked with
Mr Mazvipunza were spent as an Assistant Tapeline II Operator performing duties
expected of an assistant.
Mr Singe did not say there was
anytime the plaintiff was trained to be a Tapeline II Machine Operator; neither
did he ever witness the plaintiff operating the machine as the operator. Thus,
even from the defendant's evidence there was no concrete evidence to rebut the
assertion that the plaintiff was not familiar with the job of a Tapeline II
Machine operator. From the evidence adduced, I am inclined to believe the
plaintiff when he said that he did not volunteer to operate the machine. The
probabilities are that he could not have volunteered to operate a machine he
had never operated before. Mr Singe, as the supervisor, had authority over him
and so when his initial refusal was turned down, the plaintiff proceeded to do
the job as instructed by the supervisor. He had to comply with the order of the
supervisor moreso as he knew that the supervisor had consulted another senior
person. It was thus not proper for Mr Singe to order the plaintiff to operate
the machine in the circumstances.
3.
The next issue is whether or not the injury suffered by the plaintiff was a
result of the defendant's negligence
The defendant contended that it was not negligent at all.
It is the plaintiff who was negligent in attempting to insert the broken
plastic strands in between the rollers when the machine was in motion.
The plaintiff, on the other hand,
said that he was not negligent at all.
It should be apparent from my
findings on the first issue that the plaintiff was a novice in the operations
of the machine in question. The plaintiff had only been assistant to Themba
Mazvipunza for about five (5) weeks. He had not received any training on how to
operate the machine. All he had learnt was from observing Mr Mazvipunza
operating the machine whilst he performed his duties as an assistant.
During these operations, he had
observed Mr Mazvipunza connect and insert broken plastic strands into the
rollers without first stopping the machine.
That novice operator was assigned a
novice assistant operator, Mr T. Murindi. Mr Murindi confirmed that he had not
worked on the machine before and so he did not know much about this particular
machine. There was no denying that Mr Murindi had not been trained, or even
been introduced, to the safety procedures and emergency devices on this machine;
it was thus a tale of two novices being ordered to operate the Tapeline II
Machine which they were clearly not familiar with.
Since the plaintiff had seen Mr
Mazvipunza reconnect or insert the broken plastic strands into the rollers
without first stopping the machine, he proceeded to do the same.
Mr Mazvipunza, in his evidence,
confirmed that he would connect the broken plastic strands whilst the machine
was in motion just as the plaintiff had tried to do. He would only stop the
machine when a lot of the strands broke. In cases of only 1 or 2 strands
breaking he did not stop the machine to connect the strands.
It was in a bid to do what he had
seen Mr Mazvipunza doing, inserting the broken strands in the rollers whilst
the machine was in motion, that the plaintiff's overall was trapped on the arm.
When this happened, a fellow novice, who had no clue about the safety or
emergency device of the machine, was expected to switch off the machine.
The plaintiff indicated that at the
time of the accident no emergency switch was in place and within reach. Though
Mr Singe indicated that there was such an emergency device within reach, the
inspection in loco confirmed that the one he referred to could not effectively
and swiftly turn off the machine. It needed to be wound for sometime before it
could stop the machine. It also needed to be wound by someone who had knowledge
about its operations.
In casu, both the plaintiff and Mr Murindi were not shown to have been
trained in its effective use. A more effective emergency device was only put in
place after the accident.
A number of scenarios maybe
observed.
Had Mr Singe not ordered the
plaintiff to operate a machine he was not familiar with probably the accident
would not have occurred. Equally, had the defendant put protective bars, as it
has now done, on the rollers, the plaintiff would not have had his hand trapped
by the rollers. It may also be said that had the plaintiff been trained on the
operation of the machine, and on the dangers associated with the machine, he
would probably not have been tempted to do as he had seen Mr Mazvipunza doing.
It is also apparent that had the
defendant installed a more effective emergency stop device and ensured that
only trained personnel worked on that machine either the plaintiff or Mr Murindi
could possibly have stopped the machine as soon as the plaintiff's hand was
trapped.
I thus conclude that the defendant
was negligent. It is that negligence that caused the plaintiff to be injured.
4.
The next issue is whether there is any basis at common law on which the
defendant could be liable to the plaintiff for damages
The defendant contended that the
plaintiff had no claim against the defendant at common law as the injury
occurred in the course of the plaintiff's employment with the defendant and the
plaintiff was fully compensated in terms of the Zimbabwean law.
In their addresses, counsel for
both parties referred to compensation schemes in terms of the National Social
Security Authority [Chapter 17:04]. The National Social Security Authority
(Accident, Prevention and Workers Compensation Scheme) Notice (1990) (S.I. 287/90),
hereinafter referred to as “the Notice”, sets out the compensation payable in
the event of the death or injury of an employee.
The defendant's contention was
based on section 8 of the National Social Security Authority (Accident,
Prevention and Workers Compensation Scheme) Notice (1990) (S.I.287 of 1990). That
section states that:
“From and after the 1st January, 1960 –
(a) No action at common law shall lie by a worker or any
dependant of a worker against such worker's employer to recover any damages in
respect of any injury resulting in the disablement or death of such worker
arising out of and in the course of his employment; and
(b) No liability for compensation shall arise save under
and in accordance with this scheme in respect of such disablement or death;…,.”
The plaintiff, on the other hand, argued that his case was
for additional compensation as provided for under section 9 of the National Social Security Authority (Accident, Prevention and
Workers Compensation Scheme) Notice (1990) (S.I.287 of 1990) as the
employer was negligent. Section 9(1) of the Notice states that:
“Notwithstanding anything to the
contrary contained in this scheme if a worker meets with an accident which is
due:-
(a) To the negligence -
(i) Of his employer; or
(ii) Of a person entrusted by his employer with the
management or in charge of such employer's trade or business or any branch or
department thereof; or
(iii) Of a person having the right to engage or discharge
workers on behalf of his employer; or
(b) To a patent defect in the condition of the premises,
works, plant or machinery used in such trade or business, which defect his
employer or any person referred to in para (a) has knowingly or negligently
failed to remedy or caused…,.
the worker or, in the case of his
death as a result of such accident, his representative, may, within three years
of such accident, proceed by action in a court of law against his employer,
where the employer is an employer individually liable, or otherwise against his
employer and the General Manager, jointly, for further compensation in addition
to the compensation ordinarily payable under this scheme.
Provided that in the case of an
action in which the employer and the General Manager are joined, nothing in
this section shall be construed to mean that any compensation awarded under
this section is payable by the employer.”
In casu, it is common cause that
the plaintiff was paid the compensation ordinarily payable under the scheme.
It was after that, that he
approached his employer for more compensation as he deemed the compensation
paid inadequate and also alleged negligence on the part of his employer.
In his correspondence to his
employer, dated 31 July 2007 and 25 September 2007 (exhibits 9 and 12
respectively), he made it clear the employer was at fault in forcing him to
operate a machine he was not familiar with with another person who was also new
to the machine. In his level of English he wrote thus:
“It was caused by some illegitimate
inference of management which forced me to operate a machine which I was not
great at.”…,.
It is clear from the correspondence
that what the plaintiff was seeking was additional compensation due to the
employer's negligence.
In order for the plaintiff to be
entitled to such additional or further compensation he must show that his case
falls within the provision of section 9 of the National Social Security
Authority (Accident, Prevention and Workers Compensation Scheme) Notice (1990)
(S.I.287 of 1990), that is, that the employer was negligent in one or more of
the ways stated therein.
The plaintiff based his claim on
the negligence of the employer as provided for in section 9(1)(c)(i) of the
Notice and also on the fact that the machine was not safe because it did not
have emergency stop devices.
When ruling on the second issue, I found the defendant to
have been negligent. The question of the lack of emergency stop devices on the
machine was quite evident. Whilst the defendant contended that there was an
emergency switch, even as on the date of the accident, that switch, as observed
during the inspection in loco, was not that effective.
The report by the Inspector of Factories,
Mr Marufu, dated 12 March 2008, confirmed as much. That report shows that the
safety provisions on the machine were highly inadequate. Mr Marufu made a
number of findings which included that:
“1. The machine had no emergency switch off button.
2. Nip points of the machine were not guarded.
3. The operator was not trained on the safe procedure of
the machine.”
Those findings were consistent with
the plaintiff's evidence on the lack of an emergency switch off device and lack
of training. The lack of an emergency switch off device was something that the
employer was well aware of as confirmed by Themba Mazvipunza. The employer had,
nevertheless, not seen it fit to attend to the issue.The appropriate emergency
stop devices were only put in place after the accident.
Section 9(2) of the National Social
Security Authority (Accident, Prevention and Workers Compensation Scheme)
Notice (1990) (S.I.287 of 1990) provides that:
“If the court is satisfied that the
accident was due to any such negligence or defect as is referred to in
subsection (1), it shall award the applicant such additional compensation as it
would deem equitable to award as damages in an action at common law.”
It is my view that in this case I am satisfied
that the plaintiff is entitled to be awarded damages.