Samuel Obere V. The Board Of Management, Eku Baptist Hospital (1978)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C.

The plaintiff was at all material times employed by the defendant as a boiler and steam operator at its Baptist Hospital at Eku. In that capacity, he was obliged to operate a defective machine which is the property of the defendant and which the defendant neglected to put right despite, incessant complaint by the plaintiff. On or about 8th October, 1970, whilst in the course of the said employment at the Hospital, the plaintiff had his right thumb “chopped’ off by the said defective machine and he thereby suffered damage.

The plaintiff therefore commenced proceedings in the Sapele High Court in which he claimed from the defendant the sum of N20,000.00 as special and general damages suffered by him in consequence of the defendant’s negligence.

In the course of his testimony in support of the claim, the plaintiff stated that the electric motor by which the machine was operated was defective and that this defect was known to him and to the defendant to whom he complained about the defect on several occasions. He then explained how he sustained the injury to his thumb as a result of this defect as follows:-

“In that defective condition, to start the electric motor, one had to pull the pulley system with one hand while one would simultaneously switch on the starter with the other hand. Both had to be done quickly, else it would not work. I operated it for four years and had an accident on 8th October, 1970.

On that day, when I was trying to get the motor working as earlier described, I held the pulley with the right hand and put on the switch with the left hand, and the belt on an exposed fly wheel attached to the electric motor held my right thumb to the edge of the fly wheel and my right thumb was cut off. It bled so furiously that I also collapsed. I was admitted into defendant’s hospital and was in bed for over a week before I was discharged. I was treated free of charge. After I had been discharged I continued treatment for many weeks before I fully recovered.

When the Hospital considered it necessary for me to resume duty I did so. Before the accident I was operating the machine alone, but after the accident two other people were employed to assist me. This was because I was unable to use my injured thumb in operating the defective machine. During the treatment, part of the skin on my right was removed and grafted to the injured thumb.” (The underlining is ours).

Although the plaintiff was cross-examined at length about his testimony, no evidence was adduced by the defendant in rebuttal though it must have been clear to them that his testimony was not seriously affected by the cross-examination. In a reserved judgment, the trial Judge, after considering the evidence adduced by the plaintiff, the defendant having decided not to call any evidence, found as follows:-

“On the whole I am satisfied that the plaintiff has proved his case against the defendants.

The plaintiff is claiming N20,000 special and general damages, but no particulars of any special damage was pleaded nor given in evidence. The evidence which I have accepted is that after the injury, for three years until his appointment was terminated, he continued to do the work and he also admitted that he would not have filed this action against the defendant if he had continued to remain on the job.

There is also the evidence that after the injury his wages were increased by twelve naira a month, and plaintiff did not state that the increase in the salary affected other workers doing identical work at the hospital. It ought to have been obvious to him that the increase in his salary which he received of three years and which he could have received until his retirement age was a special favour shown to him by the defendants for the injury he suffered while serving them. The plaintiff also stated that he was unable to get another job as a result of the injury but this statement was not supported by any independent witness.

On the whole I am satisfied that the plaintiff is not entitled to exemplary damages as his conduct has mitigated whatever suffering he had experienced. In the circumstances he will only be entitled to nominal damages; and this I assess at N400.00.” The defendant did not appeal against the judgment. The plaintiff was, however, dissatisfied with the quantum of damages awarded to him and he has, therefore appealed on the following grounds;-

“1. The learned trial Judge erred in law and on the facts in assessing damages by allowing his mind to be influenced by his finding that plaintiff ‘after the injury for three years until his appointment was terminated he continued to do the work and he also admitted that he would not have filed this action against the defendants if he had continued to remain on the job.

PARTICULARS OF ERROR