APPRASIAL OF EMPLOYERS’ LIABILITY FOR INJURIES RESULTING FROM BREACH OF NIGERIAN INDUSTRIAL SAFETY LAWS

Abstract

Safety is one of the most important needs of man today. Safety at workplace on the other hand is paramount and cannot in any way be ignored. Many vibrant and resourceful person have lost their precious lives and some have suffered permanent and temporal incapacities just because safety measures were not put in place.  The June 3rd  2012 ill-

fated Dana Airline crash in Lagos which claimed a lot of lives and the recent crashes that could have been averted if the aviation sector had taken the required safety measures. No matter the monetary compensation that the country and or the airlines pay, it is nothing to be  compared to  the  emotional trauma the  incident  had  caused.    More so,  in other industries, people are dying daily all because of absence or inadequate safety measures in place.  It is therefore very expedient to pursue industrial safety with all vigor to avoid the drastic waste of human resources in our industries. Employers should come to terms with the provisions of the law and know their liabilities. When industrial safety is breached, employees should know their rights to safety at workplaces, how to seek redress where their rights are breached and the compensation due to them as provided by the law. All these necessitated the title of this discourse thus “Apprasial of Employers’ Liabilities for Injuries Resulting from Breach of   Nigerian Industrial Safety laws”.  The study adopted descriptive and explanatory designs and found that industrial safety laws in Nigeria are not adequate to meet up with the contemporary industrial safety demands.  Employers capitalize  on  that  and  neglect  this  all  important  aspect of  industrial life.    Poverty, ignorance unemployment to mention a few worsen the already decrepit situation and thereby subject  the  work  force  into  the  pit  of  desolation.  Proactive  and  preventive measures should be put in place as it remains the best strategy to overcoming industrial injuries. Chapter one is a background and general introduction on the topic, a literature review and other preliminaries on the topic. Chapter two traces the history of industrial safety from the common law era till date in Nigeria and other jurisdictions. Chapter three discusses the liabilities of the employers as provided in the laws. Chapter four provides the remedy which is compensation for breach of industrial safety laws as provided by the Employees Compensation Act 2010 and Workmen Compensation Act, Cap. W6, LFN,

2004.  Chapter five  x-trays the  enforcement  of the  rights of the  employee and  also considers the exclusion of the rights of an employee to industrial safety. The study ends with recommendations and conclusion.

CHAPTER ONE: INTRODUCTION

1.1    Background of the Study

Across all sectors of the economy, workers are sometimes, if not often involved in industrial accidents. Such accidents range from minor to fatal leading to the loss of life and limb. Industrial  accidents are traceable   to   the   period  of Industrial  Revolution which  was the transition  to new  manufacturing  processes    from 1760  to sometime between 1820 and 1840  in England.  During this period, crude machinery invented was used in industrial production.

Over the centuries  machinery  for the production  of goods  and services  has  improved tremendously but   such   improved   machinery   brought with it its own   hazards   to industrial safety.   Stake holders in developed countries   improve in their knowledge and skills to keep abreast with the rapid development while their counterparts in the developing countries seem to advance slowly in this regard, this may be as a result of the sociological and socioeconomic factors.

In Nigeria for instance,  some workers as a  result  of unemployment  and poverty do all manner of work  to earn a living  without    considering the nature  of the job and or the workplace environment which may pose  some health challenges to them.

Employers are legally under a duty to see to the safety of their employees. Thus the English Court in the case of Wilsons & Clyde  Coal & Co  Ltd v English held that there are three main duties  of an employer  to the employee; provision of competent  staff, adequate   plant  and  safe system of work1.   However, employers tend to  prefer the maximization of profits to the safety of the employees.  This seems to be the reason  why industrial safety is treated with much levity by Nigerian employers.

For  example the fire incident that razed a plastic factory in Ikorodu, Lagos in 2002 when many workers were roasted to death at night because the Chinese owners of the company

locked the workers in the factory and went to sleep at their secured resident guarded by

1 (1937) 3 All ER 628.

policemen.   Although members of the National Assembly and officials of the Federal Ministry of  Labour visited the factory, yet the employers seem not to be held liable  for the abrupt death   of their   employees   as nothing seems to have  been done to the employers2.

On the 27th  of April, 2015 101.9FM radio Station was bombed and about four media

practitioners on their legitimate duties died in the blast.3  Yes, one would say it was a work place accident, but would it not have been avoided if adequate safety measures were put in place?

More recently, Yomi Olomofe of Prime Magazine was attacked and thoroughly battered at the office of the Nigerian Customs& Excise at the Nigerian- Benin border in Seme where he was investigating a matter4.

These are a few of the several deaths and accidents that occur always in the various industries in Nigeria and beyond and in most cases little or no compensation is paid to the victims or their dependants. The issue of safety in Nigerian industries should be of paramount  importance  and  industrial safety  machines should  keep  abreast  with  the changing   technological means of production of goods and services. In turn this should lead to improvement of working conditions and safe place of work.

Industrial safety can be achieved through concerted efforts of the employers and employees enabled by relevant legislation. In this regard the government enacts enabling law on safety to be enforced by relevant government agencies. Accordingly, this would make the employees adhere to the rules of industrial safety while working for optimal productivity. Employers should come to terms to this very important issue of industrial safety, knowing their liabilities when they are in breach. Employees should also imbibe

the properly managed safety culture based on tested principles of workplace or industrial

2    Oyesola B.” Safety at Work Nigerian workers,the Endangered Specie” January, 2011. www.nigerianbestforum.com/…/safety/…/safety -at-work-nigerian-workers-theendangered species.(accessed 27 September,2016).

3 Audu O.,”Blast at Radio Station Kills Many” Premium Times,(Abuja,27)

June,2015.www.premiumtimesng.com/news/topnew/182171(accessed 15/06/15).

4 Igomu Tessy”Hunted and Killed for Journalim’s Sake”Daily Sun(29th August,2016)  Lagos .38.

safety. This will lead to developing effective control measures and feeling a sense of responsibility for their safety and of others.

According to Fajana in his paper “Safety at Work: Issues and Challenges. “Accepting safety as a responsibility demonstrates a sincere concern for each employee, which establishes the foundation for an effective culture5”. This research is titled, “Appraisal of Employers’ Liability for Injuries Resulting from Breach of Nigerian Industrial Safety Laws”. It also goes ahead to discuss compensation and enforceability of the rights of the employees when these laws are breached.

1.2      Statement of the Problem

The inadequacy of industrial safety measures has really endangered the Nigerian employees and their counterparts’ worldwide. This research wishes to expose the employers’ liabilities thus the rights of the employees as provided in the Nigerian labour laws  and  in  other  jurisdictions.     This  will  go  a  long  way  to  reawakening  the consciousness of the employees rights and intimate them on how and where to seek redress when their rights are breached.

1.3      Research Questions

The study will answer three questions:

1.    To what extent are employers in Nigeria liable for workplace injuries of their employees as provided under the Nigerian labour laws?

2.  Do the present industrial safety laws fully protect the contemporary Nigerian employees from workplace injuries and what is the degree of their enforceability?

3.  Are there any possibilities of improving the health of Nigerian workers and or eradicating industrial injuries in the work place environment?

1.4      Objectives of the Study

The objectives of the research are:

5 Fajana O., “Safety at Work: Issues and Challenges cited in Ogunmosinle S.” Purging Nigeria of Apathy towards Safety”in http://www.pmnewsNigeria.com/201/03/13-purging -nigeria-of-apathy-towards safety practices-sol [.Accessed 27  September,2016.]

1. To determine the extent of the liability of Nigerian employers as provided under the Nigerian laws.

2. To evaluate the present Nigerian industrial safety laws and determine their protective and compensatory capacity to the contemporary employees.

3. To consider the possibility of reducing or eradicating industrial injuries at work place and make   recommendations on how to improve industrial safety standards in Nigeria.

1.5      Methodology

The study adopts the descriptive and explanatory designs in the examination of the employer’s liability for injuries resulting from breach of Nigerian industrial safety laws. The research will also consider the compensation of the employees when these laws are breached and the degree of their enforceability.   Reliance will be placed on primary source of data which include status and case law. Also secondary source of data will be placed on textbooks, journals, newspapers, internet and so on. No part of it will be empirical but just analytical.

1.6      Scope of Study

The scope covers the employer’s liability both at common law and up to the  present day labour legislation on industrial safety. Comparing such with what obtains in some other select jurisdictions.    The research will also consider the defences of the employers in breach  of  industrial  safety  laws  and  employees  rights  to  compensation  for  injuries suffered as a result of such industrial safety breaches.

1.7      Organization of the Study

The study will be covered in six chapters, chapter one introduces the entire work with a background and general introduction on the topics a literature review and other preliminaries on the  topic.  Chapter two  traces the  history of  industrial safety from common law era till date  in Nigeria and other  jurisdictions. Chapter three discuses remedy for breach of industrial safety laws. The remedy is compensation as provided by the employees Compensation Act 2010 and Workmen Compensation Cap W6 LFN 2004. Chapter five examines the enforcement of the rights of the employee and also considers

the exclusion of the rights of an employee to industrial safety. The employee and also considers the exclusion of the rights of an employee to industrial safety. The research ends with findings, recommendations and conclusion.

1.8      Literature Review

Industrial safety in Nigeria seems to be a developing phenomenon. This could be the reason for the dearth of local works on the subject. The opposite seems to be the case in the Western countries or other jurisdictions where industrial safety has developed so much that labour law and employment law authors have lots of works on the subject. That notwithstanding, there seem not to be works on employers’ liability for injuries resulting from breach of industrial safety.  However, some literary works were referred to in the course of this research and there are hereunder briefly reviewed.

Cotter B. et al in ‘Munkman on Employers Liability’ sees employers’ liabilities as the duties owed by employers to workers to take care to prevent personal injury (accident, injury and ill health) to the latter arising in or out of their work6. The book also traced the history of industrial safety in European countries till date .It equally deals in passing with health and safety duties to people affected not as workers but as members of the general public e.g. local inhabitants, consumers, road users and so on.

Singh  discusses  the  origin  of  industrial  safety  in  Indian.  According  to  the  author, industrial safety came about as a result of the changes in the environment including the sophistication of machines and this led to insecurity at work places. This book also highlights the effective management of safety measures to optimize performance.7

Jeremy Stranks:  sees health and safety as a duty of employers to their staff. This duty enables managers to comply with the law and draw up health and safety procedure for their workplace.8   Pradeep Chaturvedi, an Indian author in his book, discusses safety in

6Cotter B. et al, Munkman on Employer’s Liability 14th ed., (London: Lexis Nexis,2008).

7 Singh U.K., Safety Security and Risk Management, (New Delji: APH Publishing Company, 2009).

8 Stranks J. , The Health and safety Handbook (A Practical Guide to Health and Safety Law Management

Policies and Procedures (London: Kagan page Limited, (2006).

industries by using case studies analysis. According to him laws have been made but for the laws to be effective all the stakeholders should put hands together for its implementation.  He  holds  the  view  that  industrial  injuries  are  avoidable  if  safety measures are sustained.9

R.K Jain & Sunil S. Rao see safety as a very important aspect of industrialization and by this should not in any way be neglected but rather full proof safety systems must be designed and incorporated and workers/people in general trained to ensure its maximum implementation. They further maintained that there are other two related aspects of safety

– health which they see as employees well-being and the environment.10

Deshmukh, discusses  industrial safety management. He  opines that  industrial safety demands a critical and systematic assessment of the existing standard of safety achieved in the company with respect to the targeted goals to be achieved for the fulfillment of the system.11 Lawrence Bamber et al discusses in an elaborate way, the issue of health and safety  in  industries.  The  authors  are  of  the  view  that  absence  of  management, occupational health support and reduction in the number of people on incapacity benefits are uniting management, trade union and Government in a  new  vision of health at workplace.12  The wide range of subjects covered provides considerable detail on legal requirements, practical ways of achieving compliance in health and safety.

It seems that one common characteristic of the foreign or Indian authors is their in depth perception of industrial safety issues.  This could be as a result of their social cultural ideology. They tend to understand the importance of their workforce in economic development and they canvass to their maximal welfare in the discussion of industrial

safety.

9 P. Chaturvedi ,Occupational Safety Health and Environment and Sustainable Economic Development and

Sustainable Economic Development (New Dehili: Concept Publishing Company, 2001).

10 R.K. Jain. et al, Industrial Safety, Health and Environment Management System 2nd edition, (New Dehili: Khana publishers, 2010).

11L.M., Deshmukh ,  , Industrials Safety Management Hazard Identification and Risk Control, 4th Edition

(New Deihi: Tata McGraw Hill Publishing Company Limited, 2009).

12   L.Bamber et al, Tolley’s Health and Safety at Work Handbook 23rd Edition, (London: Lexis Nexis,

2010).

Employers as elaborated in this research can be natural human person or a corporate entity. Even where an employer is a non human being, such an employer should promote industrial safety of its workers otherwise; it can be civilly or criminally responsible when there is breach of industrial safety laws. Thus Stephen Griffin sees a company as a legal entity but emphasizes the conceptual difficulties involved in seeking to impose liability

on a company for a wrong which requires proof of a ‘guilty mind’.13

Michael Welham in his  view holds that  having safety management systems in place is no guarantee that criminal sanctions will not be imposed; however that the jury will take the degree of positive health and safety management into consideration when performing judicial  functions.14      While  William  Wilson opines that  the  liability of a  corporate employer in criminal matters is not a case of vicarious liability but rather of direct liability, as the company is identified with its controlling officers. He further stated that in some cases the mens rea of an employee may be attributed to the employer with the principle of delegation.15

Linus  Ali  brings  out  the  criminal  liability  of  a  corporation  in  Nigeria.  The  book establishes concrete conceptual and legal bases for corporate criminal liability in the country.16  It is worthy to note that the liability of the employer does not automatically earn the employee his rights, but the   enforceability of these rights poses a challenge in most cases. Adewumi et al, write about the state of workers in some of our industries. They discuss the important role of trade unions in ensuring that workers enforce their rights even in the midst of challenges. They urge every sector of the economy all and

sundry to wake up to protect and enforce the rights of workers at work. 17

13 S. Griffin, Company Law Fundamental Principles 4th Edition, (London: Pearson Education 2006)

14 M. Welman, Corporate Manslaughter and Corporate Homicide. A Managers Guide to legal compliance

2nd Edition( London Tottel Publishers, 2008).

15 W. Wilson, Criminal Law Doctrine and  Theory. 2nd Edition, (United Kingdom: Pearson Education, 2003).

16 L. Ali, Corporate Criminal Liability in Nigeria, (Surulere Lagos: Malthoute Press 2008).

17 F. Adewuni et al, The State of Workers Rights in Nigeria: An Examination of Banking Oil and Gas

Telecommunication Sectors. (Abuja: 2010).

Femi Falana discusses the enforcement of the fundamental rights as guaranteed in the constitution with reference to the situation in other jurisdiction.18 Agomo Kanu Chioma. analyses the current developments in labour and employment laws.      The book also discusses social security and occupational diseases. The author draws inference from relevant international labour standards as yardsticks for measuring the efficiency and decency of national laws and practice. The writer holds the view that Nigerian laws are

yet to develop to meet up to the standard of their international counterparts.  The writer shares this same view and is hopeful that with the development of our democracy the nation will realize its dream.19

Other Nigerian law authors in employment and labour laws whose works were consulted are:  Akintunde Emiola in ‘Nigerian Law20   who writes on the various labour law topics. He brings out the employers liabilities as provided by the Nigerian law. E.E. Uvieghara: brings out the injuries at work places and the Employers’ duty to the Employee but does not cover the contemporary employee thus, there is need for a more comprehensive work on employers’ liability.21

Bimbo Atilola discusses some of the protective legislation but opines that some of these laws are obsolete and do  not  meet  up to the current standard as obtained in other countries. In his view which the researcher shares there is a great need to amend such laws  to  meet  up  with  the  current  standard.22   Ogunniyi  writes  on  contemporary employment law topics. On the issue of health and safety, he opines inter alia that there is a  need to more rigorously enforce the Factories Act and to strengthen the Ministry of

Labour both in terms of machines and manpower to avoid the rampant disaster that

occurs as a result of inadequate safety system.23

18 F. Falana, Fundamental Rights Enforcement (1st Edition, Ojodu Lagos: Legal Text Publishing Company

2004).

19 C. Agomo, Nigerian Employment and Labour Relations Law and Practice. (Lagos: Concept Publications,

2011).

20 A. Emiola, Nigeria Labour Law, (Ogbomoso Nigeria; 2000).

21 E.E. Uniegbara, Labour Law in Nigeria (Ikega: Mlthouse Press 2001).

22 B. Atiola, Annotated Nigerian Labour Legislature (Surulere Lagos: Hybrid Consult 2008).

23 O. Ogunniyi, Nigerian Labour and Employment Law 2nd Edition, (Ikeja: Folio Publishers 2004).

1.9      Meaning of Industrial Safety

The  Blacks  Law Dictionary defines an  industry as  “a  particular  form or  branch of productive labour, an aggregate of enterprises employing similar production and marketing  facilities  to  produce  items  having  markedly  similar  characteristics”.  The Oxford Advanced Learners Dictionary of current English defines an industry as the production of goods  from raw material especially in factories: heavy/light industry,

(2) The people and activities involved in producing a particular thing or providing a particular service: the steel industry24”

The word industrial is defined by the same dictionary as; “connected with industry: industrial conflict25….” On the other hand, safety is defined by the Oxford Advanced Learners Dictionary of Current English as “the state of being safe and protected from danger or harm…. The Blacks Law’s Dictionary does not define safety but defines a safe work place as:  “A place of employment in which all dangers that should reasonably be removed have been removed, a place of employment that is reasonably safe given the nature of the work performed”26.

From the foregoing definitions industrial safety could mean every process connected with the production of goods from raw materials or offering of services by people and all the activities involved in the production in a place free from all manner of danger or risk. Industrial safety is also defined as measures or techniques as implemented to reduce the risk of injury, loss and dangers to persons, property or the environment in any facility or

place involving the manufacturing, producing, processing of goods, co-merchandise27.

The above definition seems to  be all encompassing as  it  includes the safety of the industrial environment which recently has become a matter of a great interest.

24 S.Wehmeler, 6th Edition, Oxford University Press, 2000) p.611.

25 Ibid 2010 Edition.

26 Supra p. 1458.

27“ Definition of Industrial safety ‘ Source ODE. Http: www.eionet/europa.eu/gemet/ accessed

18/08/2014.

Industrial safety is primarily a management activity which is concerned with reducing, controlling and eliminating hazards from the industries or industrial units28. The safety of workers in industries is paramount and therefore obligatory to the employers and to the nation at large. That was the decision in the Chemical & non Metallic Product of Senior Staff Association v Benue Cement Company Plc where the court held, “The safety of workers is of paramount importance not just to the company but also to the country at large29”

Consequently in the instant case, the National Industrial Court confirmed the IAP award in this regard and ordered that the management of the respondent company should ensure that all safety and health equipment in the plant are functioning. Also, that those appellant members should be issued with all the relevant safety gears such as boots, overalls,

helmet, goggles, gloves, respirators and welding jackets on regular basis.30

1.10    Safety Mechanisms in Industries

It is worthy to note that this study may not exclusively provide all the safety equipment in use in the industries to ensure safety but will precisely discuss them. The Factories Acts31 make provisions for health and safety of workers in industries. The Acts equally made provisions for safety gears/equipment that industrial workers must use to protect themselves against danger.32

In Industries attempts are made to design process for efficient and safe operation for all hazards to  be kept under control, however for there to be industrial safety according to R.K. Jain et al, it is necessary to use Personal Protective Equipment” (PPE)33. He further stated that these PPE do not eliminate the hazard, but that they are designed to interpose

28 (http://www.scrbd.com/doc    accessed 18/09/2016

29 K.Oluwole, Digest of Judgements of National Industrial Court 1979-2006,p.416 at 421.

30 Ibid.

31 From the first factories Act of 1802 to the most recent one, the Act will be exhaustively discussed later in this research.

32 Sections 7-12 and sections 14-36 of the Factories Acts.

33 R.K. Jain & Sunil S. Ra O, Industrial Safety, Health and Environment Management System second Edition, (Romesh Chander Khanna for Khanna Publishers 2010).

an effective barrier between a person and harmful objects, substances or radiations34. Jeremy Stranks viewed Personal Protective Equipment (PPE) as “safe person’ strategy. Provided it is worn or used correctly all the time that the person is exposed to a hazard, PPE seems to be a complete safety measure.35 It is worthy to note that safety measures

are most of the times in the three pronged strategy36.

THREE PRONGED STRATEGY

(1)

ELIMINATION OF HAZARDOUS EQUIPMENT

(2)

SAFEGUARDS IN PLANT AND PROTECTIVE EQUIPMENT

(3)

USE OF PPE

Note (1) and (2) are essential and not substitutes for (3) Example

A welder needs three protections

(i)        Protection of Eye

(ii)       Protection from Electric shock

(iii)      And consequential loss of muscle control37.

Use of special protective Equipment that is the PPE minimizes the risk of injury in the event of exposures to the hazard. A typical example is at a construction site, wearing a hard hat eliminates the possibility of head injury by falling object. Objects falling from height attain velocity and cause head injury to workers on floor level. Use of protective head gear will prevent or minimize the injury.

One impediment to Personal Protective Equipments (PPE) is resistance from workers because the use of PPE  may be slightly less comfortable initially,  but with practice

workers could become accustomed to them.

34 Ibid.

35 J. Stranks, Health & Safety Handbook,( Kogan Page Limited (120 Pentoville Road London N19JN United

Kindgom 2006) www.kogan_page.co.uk.

36 R.K. Jain p. 107.

37 Ibid.

Personal Protective Equipment and costumes according to R. K.Jain38  are here under provided in a table.

Personal Protective Equipment and Costumes

Protected Part	Personal Protective Equipment
1. Protection against Electric shock	1.1 Insulating glows, shoes   1.2 Faraday cage   1.3 Insulated tools   1.4 Safety belt against fall
2. Protection of Eye	1.1 Goggle   2.2 Cover goggle   2.3 Spectacle   2.4 Shields   2.5 Combination lenses   2.6 Dust screen   2.7 Head frame   2.8 Lenses   2.9 Wire mesh
3. Protection of face and Eye	1.1 to 2.9 above,   2.10 Welders helmet   2.11 Hoods
4. Protection of Arms, hand and finger	4.1 Finger cots or stalls   4.2 Gloves band cuff
5. Protection of foot and leg	5.1 Shoes   5.2 Guards   5.3 Safety to shoe
6. Protection of head	6.1 Head safe guards   6.2 Hard hats   6.3 Protective caps
7. Protection of ears against Audible Noise	7.1 Ear plug   7.2 cushion   7.3 Helmet
8. Protection of Respiration system	8.1 Respirator   8.2 Gas mask   8.3 Airline helmet, hoods   8.4 Hose blower

38 Ibid p. 108.

	8.5 Chemical cartridge   8.6 Mechanical filler
9. Protection of skin and Body against Heat or fire	9.1 Protective costumes   (a) Leather apron (b) Asbestos apron (c) PVC apron (d) Lead apron   (e) Safety belt
10. Safety against fall	10.1 Safety Belt

Employees must be trained and motivated by the employers to enable them achieve industrial safety.

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