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Court Rules Employee Compensation Act Does not Exclude Right of Action in Negligence


The National Industrial Court has held that Employee Compensation Act 2010, the current law dealing with compensation for work-related injury claims, does not exclude the right of action in negligence for industrial injury claims.

The decision was handed down by the Presiding Judge of Owerri Judicial Division of the Court, Hon. Justice Nelson Ogbuanya, while delivering Judgment in the suit filed by Anthony Utibe against his erstwhile employer, Jiuxng Intergrity Industries Ltd, over the permanent disability injury he sustained at work.

The Court awarded the sum of N30,000,000.00 (Thirty Million Naira) in favour of Anthony Utibe, as compensation by way of general damages, arising from the company’s breach of duty of care which resulted in permanent damage of the functionality of his right hand, coupled with acts of unfair labour practice in the ill-treatment meted to him, culminating in his exit from Construction Company upon sustaining the injury in the industrial accident, and the sum of N1, 000,000.00(One Million Naira) as cost of action.

From facts, the Claimant- Anthony Utibe who worked as a Mason with Jiuxng Intergrity Industries Ltd Construction had submitted that he got injured while at work. After all medication and surgery, a final medical report confirmed that he had sustained permanent disability on his right hand and he was quickly laid off by the company which refused to pay him any compensation, and he sued under the common law principle of negligence.

In defense, the Defendant- Jiuxng Intergrity Industries Ltd Construction had through its counsel contended that the company other than bearing the medical expenses and costs associated with the treatment, is no longer liable to pay any amount to the Claimant, and if there is any more liability, it should be made under the Employee Compensation Act.

The Construction Company further maintained the position that Anthony Utibe’s right of action lies only under the ECA, and also set up a defence of contributory negligence, and urged the Court to dismiss the case.

After a careful evaluation of evidence and pleadings of the parties, Justice Ogbuanya, in a well-considered Judgment, resolved the issue in favour of Anthony Utibe and held that the legal route for seeking compensation for workplace injury is not only available under the Employee Compensation Act (ECA), but also by way of general damages in action founded on common law principle of negligence, as in the instant suit.

His Lordship pointed that “a cursory review of the current legal regime for injury claim arising from industrial accident since the enactment of Employees’ Compensation Act (ECA) 2010, has presented two optional but mutually exclusive routes to receiving remedy of compensation for injury sustained at work or workplace– (1) the statutory route through ECA and (2) through the common law principle of negligence”.

Justice Ogbuanya further stated that “the established ‘principle of election’ set up under the ECA, is to the effect that a victim of workplace injury is enjoined to elect which of the two routes (statutory or common law), to take in the search for remedy to compensate for the resulting incapacitation, with the consequence, that once a decision is made, there is no going back”.

On the substantive suit, Justice Ogbuanya, while holding that bearing the cost of medical treatment does not, ipso jure, relieve the employer from making payment for compensation of the victim-employee or even to his/her dependent in case of injury resulting in death, found the construction company liable in negligence for breach of duty of care owed to the Claimant, noting that “appropriate Health, Safety & Environment (HSE) safety protocols indicating safety measures in place at the construction site, were lacking in the Defendant’s organization, as the Defendant failed to lay any evidence in support of its bare averments on the alleged non-adherence to ‘proper safety protocol’ by the Claimant”.

According to the Judge “it is impressed upon the Court that the Defendant’s liability ends with its bearing of the cost of various medical treatments on the Claimant’s injury, without minding the impact of the resulting incapacitation of the Claimant’s right hand for his livelihood and future endeavours, which is where the issue of compensation comes in, as bearing cost of treatment does not, ipso jure, relieve the Defendant employer from making payment for compensation of the victim employee or even to his/her dependent in case of injury resulting in death. Both common law principle of negligence and statutory remedy under the ECA are in tandem with this rule”.

On the whole, the Court, using ‘annuity-format’ measure of the quantum of damages awardable, and after considering the issue of unfair labour practice arising from the manner the Claimant was laid off after sustaining the permanent injury in the course of duty for the Defendant company,  awarded the sum of N30,000,000.00 (Thirty Million Naira) against the Defendant in favour of the Claimant, as compensation by way of general damages

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