Factory Related Injury And Employee Compensation Under Nigerian Law (part 2) By Ewere Odiase ESQ, ACIArb.

The laws and regulations governing the safety of the work place have been the subject of wanton violation especially in factories and industrial settings. The reason for the prevalence of the disregard for extant labour laws by industrialists is the unholy zeal to enhance profit margin at the peril of the working citizen who is entitled to safety in his work place. The ignorance of the rights of the workers as enshrined in the laws of the land as well as remedies available to the worker in the event of untoward occurrences has also not helped matters.

Recently, I encountered a citizen who suffered a machine injury while he was working at an Aluminum Factory in Asaba, Delta State of Nigeria. Suffice it to say that the victim was compelled to work on a public holiday. Investigations revealed that the provisions of 18(1) of the Labour Act ,which provides that every worker is entitled to at an holiday of at least six working days after every twelve months of continuous service, was not complied with by the employer. The victim had been working without leave or holiday for seven years.

Despite having been compelled to report for duty on a National Public Holiday, his employer deprived him of his mandatory rest usually commenced by 12noon. It is of note that the break period for factory workers is not a privilege. It is a Right. Section 13(3) of the Nigerian Labour Act provides that where a worker is at work for six hours or more a day, his work shall be interrupted by allowing him not less than one hour. Section 13(4) of the Labour Act removes every doubt as to the interpretation of “rest interval” or “break period”, as the law insists that such period must be fixed before hand, and the worker must be free to dispose of his time within that period and shall not be required to remain at the place of work.

Indeed, section 13(5) of the same Law provides that factory workers who operate a mechanical process which are continuous or strenuous shall be entitled to additional breaks in work.
Clearly, a factory worker who is deprived of his break is prone to hazards and accidents in view of the pressure on his muscular and neurological system. His concentration is compromised due to mental, nervous and physical exhaustion.

MANDATORY DUTY OF FACTORY OWNER TO ENSURE SAFETY OF WORKERS AND THE WORK PLACE.
1. Primarily, every employer is under a duty to provide a safe means of access and a safe place of employment. This is provided by section 28 of the Factories Act.

2. There is an obligation to ensure that every machinery in a factory should be fitted with safeguards to prevent injury to workers or any person who may come in contact with such dangerous part of the machinery. Such machines include prime movers, transmission machinery, self-acting machines, etc. the safeguards may be by way of fencing, constructed guards or censors as the case may be. The employer is not only bound to ensure the existence of these safe guards, but to also constantly, maintain same. See sections 14 to 26 of the Factories Act.

3. Indeed, the Factories Act specifically provides for standard precautions in places where dangerous fumes are likely to be present in a factory. Such precautions include, a notification of such operation to the Director of Factories before its commencement. Above all, any confined place containing dangerous fumes must be provided with adequate means of exit for workers entering therein. See section 29 of the Factories Act. Further safety precautions are also specified for Factories dealing with inflammable or explosive materials.

4. In addition to the precautionary measures specific to each work environment, it is mandatory that the worker should be provided with protective clothing and appliances. Painfully, the victim of our discussion was working with a mechanical press machine which is meant to be fitted with a censor to prevent injury to the operator. The factory workers had consistently requested for the censor to be fitted. However, the management of the factory refused to install the censor because such installation would reduce the speed of the machine and therefore reduce productivity. Apparently, the factory owner deliberately enhanced the risk of injury to the citizen, for the selfish interest of promoting profit. The result is that the machine chopped off all the fingers of the victim.

The loss is far reaching for the victim. Due to the injury, the victim who is literate, has lost the ability to write or even sign his signature. Therefore half of his literacy skill acquired in his formative years his life has been permanently lost. The victim who had the intention of enhancing his education cannot participate in any competitive entrance examination because the ability to write has been lost due to the avoidable traumatic amputation of his entire right fingers. Further, the victim is deprived of securing any other employment whether for manual labour or otherwise, primarily because of his obvious disability, and secondarily because of the obvious social unacceptability of deformed person in the work place. This is the reality which the victim will face for the rest of his life, with grave implications for his livelihood and that of his dependants. The situation is made worse because of the dearth or total lack of suitable rehabilitation facilities in Nigeria to deal with the post traumatic disorder as well as provide adequate technological remedy to substitute the lost limb. Where such remedy is secured outside the country, the bill is beyond the means of a factory worker.

Liability For Negligence In Factory Accidents
This brings us to the question of liability for negligence of the factory owner for injury suffered by a worker in the course of his employment. According to one of the most profound legal minds in the history of Nigeria, late Chief Rotimi Williams SAN, “The seed of the law for the regulation of industrial activities and processes is to be found in the common law relating to negligence” the law of negligence was masterfully elucidated by one of the most distinguished exponents of the common law, namely Lord Atkin in the case of Donoghue V Stevenson (1932) AC 562 at page 580. According to Lord Atkin, the rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question who is my neigbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. In law therefore, my neighbor seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the act and omissions concerned.

 There is therefore no doubt that an employer who installs potentially dangerous machinery or equipment in his factory owes a duty of care to workers. This duty of care includes providing adequate safe guards such as insulators, protective devices, censors or fencing. It also includes providing the worker with protective clothing and appliances and indeed ensuring that the workers are not compelled to work in circumstance that render them exceptionally prone to accidents such as deprivation of rest-intervals or break in work.

 In the case of Union Bank of Nigeria Plc V Omniproducts Nig. Ltd decided by the Nigeria Court of Appeal sitting at Enugu on the 27th of March 2006, the court held that the essentials of actionable negligence are as follows:

a. Existence of the duty of care.
b. Breach of that duty of care.
c. Damages suffered as a result of the breach.

 Consequently a factory worker is eminently entitled to redress in the law court. The redress shall include monetary damages.

 It is of note that a factory worker who successfully maintains an action in law against his employer on the basis of injury caused by the negligence of his employer is also entitled to statutory compensation under the employee compensation Act 2010 as set out in sections 7 to 30 of the said Act.

 The principal objective of the law is to provide for an open and fair system of guaranteed and adequate compensation for all employees or their dependants for any death, injury, disease or disability arising out of or in the course of employment.

 The areas covered include occupational diseases. That is illness which is caused directly because of the nature of the work, as well as injuries and disabilities, whether full or partial, arising from the work.

 Aside from the right of the affected worker to obtain redress from the court of law, the offending employer is also liable to criminal proceedings on account of failure to comply with the safety requirements of law. Indeed, section 69 of the Factories Act provides that the owner or occupier of a factory who contravenes the provisions of the factories Act shall be guilty of an offence under the Act.

CONCEALMENT OF DANGEROUS AND INJURIOUS OCCURRENCE BY EMPLOYERS OF FACTORY WORKERS.
The most inhumane, and immoral aspect of factory related injury and employee compensation under the Nigerian Labour Law is the calculated effort by factory owners and employers to conceal dangerous and injurious occurrences within the factory both from the regulatory agencies of the Government as well as the General Public. Indeed, the victim of the industrial accident who approached me disclosed that in his personal attempt to secure a remedy from his employer, the Managing Director instructed never to come in the company a relative or any other person. In reply to a pointed question as regards what plans the company had to redress his injury, the victim was told that “Gods time is the best” and that he should leave everything “in the hands of God” that was a euphemism representing that the employer had no intention to ameliorate the injury of their employee who became a victim of permanent disability in the cause of his work for his employer.

• By law, where a dangerous or injurious occurrence happens in a factory, the employer in charge is expected to report same to appropriate Government agencies, whether or not such dangerous occurrence led to the injury of a person. See Factories (Dangerous occurrences) Regulation L.N 105 of 1961.

• Where any accident occurs in a factory which either:

a. Causes loss of life to a person employed in that factory.

b. Disable any such person employed for more than three days from performing the duties for which he is employed, written notice of the accident in the prescribed form and accompanied by the prescribed particulars shall be sent to the inspector of Factories for that district. See section 51(1) of the Factories Act.

• The employer has a paramount duty imposed by the Employee Compensation Act to report every occurrence of injury to an employee arising out of or in the course of employment. The report shall be made within seven days of the said occurrence to the board of the National Social Insurance Trust Fund see section 5(1) of the Act.

• In defiance of the express provisions of the law, many operators of factories in Nigeria exploit the ignorance and apathy of injured workers and dependants of dead employees. They carry on with business as usual at the peril of the work force who drop dead or are permanently disfigured or disabled in advancing the output and profit of their callous employers.

This calls for vigilance on the part of the worker and proactive approach on the part of dependants who have suffered from occupational decease or injury or even death. There is now sufficient provision for compensation on a predictable scale which will assuage the pain of the victim and ensure justice.


Ewere Odiase Esq ACIArb.
Principal partner Odiase-Lawyers Consulting
For further information, visit www.odiaselawyers.com
Suit 14 & 15 Avanti Plaza,453 Nnebisi Road, Asaba

Good Job. Well appreciated.
But Counsel, is there any existing law that specifically provides that the Employer must compensate the employee who suffered injury in the course of his duty for the company?
I need Laws and sections, if you please.