Chidule v Malawi Entrepreneurs Development Institute (Civil Cause 450 of 1992) [1992] MWHCCiv 3 (25 November 1992)

.. IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NOo 450 OF 1992 BETWEEN: HQ J CHIDULE (MALE) •..•.•...•.•••..•...•.•.•.••.• PLAINTIFF -and -MALAWI ENTREPRENEURS DEVELOPMENT INSTITUTE ••...... DEFENDANTS CORAM: TAMBALA, J. Nakanga, of counsel, for the Plaintiff Mvalo, of Counsel, for the Defendants Kaundama, Official Interpreter Longwe, Court Reporter JUDGMENT The plaintiff, a young man of 33 years, was working in a metal workshop at the Malawian Entrepreneurs Development Institute (MEDI) in Dowa when he got injured. He was using an angle grinder to smooth the edges of burglar bars which he had made when the disc of the machinery broke apart and some of the broken pieces larcerated his left arm, seriously injuring and disabling him. He brings this action to claim damages for the injury which he suffered. The action is based on breach of statutory duty; it is also based on breach of the common law duty to take care, i.e. negligence. The defendants strongly resist the action. They plead innocence. The plaintiff is a trained general fitter. He obtained Grade I in that field. It would seem that he specialised in metal fabrication o On 1st October 1990 he joined MEDI to receive some training in entrepreneurship. He was supposed to receive training in setting up and managing a business relating to metal work. The training lasted five months. He graduated from the Institution on 28th February 1992. It would seem that the plaintiff performed exceedingly well during his training; for at the end of the training, he was selected together with three other graduates who included Francis Mkandira, PW2, Grey Lipato and H Ghambi, to remain at MEDI to do certain jobs for which they could receive some remuneration. · The work which the plaintiff and the other graduates were required to do was connected with a project undertaken by UNDP and the construction of some staff houses at the Institute. There was also work of different types which was -2 -brought to the Institute by members of the public and the plaintiff and his colleagues were required to attend to it especially if it related to metal fabrication. The remuneration of the plaintiff was based on the work done o Initially he and his colleagues were paid fortnightlyo They were later paid at the end of the month. The amount they used to receive fluctuated each month, as it depended on the amount and value of the work done during each month. Nevertheless, their average monthly earning was KS00.00 for each person. The defendants provided the materials, equipment and tools for carrying out the work. The plaintiff and the other three graduates were expected to employ their own skilled labour. Upon completion, each job had to be costed. In costing the job the cost of the materials used had to be included; again, overheads costs which would include the value for the use of equipment and tools would be added to the cost of the job; then a charge for labour would be added; in the end there would be a mark-up of 25% which went to MEDI as profit. It was the labour charge which was eventually paid to the plaintiffo Before he undertook work for a customer, the plaintiff was required to prepare an invoice/work order. This document described the work required to be done and quoted the price to be paid by the customer. A supervisor of MEDI approved the work by signing on the document. The customer also signed it. Then he would prepare a job card. This document too, would describe the work required to be done. It would show the name of the customer. It would also show a breakdown of the cost of materials, labour and overheads. The profit would also be shown on this document. Then an invoice would be prepared. Before the plaintiff commenced the work he would ask the customer to pay 25% of the total price o This money would be paid to a cashier of MEDI. A general receipt would be issued to the customer. When the customer came to collect the product he would pay the balance of the priceo Again, the money would be paid to a cashier employed by MEDI, who would also issue a general receipt to the customer. All these documents -work order, job card, invoice and general receipt -belonged to MEDI. After doing the work for several weeks the money would be added up and they were paid out of this money at the end of the month. I must now come to the evidence showing how the accident happened. On 20th March 1992 the plaintiff and Francis Mkandira, PW2, were working in a metal workshop 0 They were making burglar bars. After he had welded together some pieces of metal he decided to grind away a piece of metal o He used an angle grinder for that purpose o But as soon as he switched on the equipment, its disc broke apart and the pieces which flew from the broken disc struck his left arm causing larcerations which cut some tendons and -3 -nerves o '£he "medium nerve" was completely severed and a section of it was missingo The injury was very seriouso He immediately became unconsciouso He lost a lot of bloodo He was rushed to Mponela dispensary in a MEDI vehicleo The medical personnel at the dispensary simply gave him some first aid and referred him to Kamuzu Central Hospital for the actual treatment o He was, on the same day, brought to Kamuzu Central Hospital where Dr Van Hoyweghen carried out a surgical operation on the arm o He was admitted in the paying ward at MEDI Is expense o After eight days he was discharged from the hospital. Upon discharge the fingers were folded o They could not stretch o He was told to be stretching themo He was required to report to the hospital every Monday to see Dr Van Hoyweghen. He was later told by the doctor that the hand could not function because of the tendons and nerves which were cuto It was recommended that he should go to South Africa for specialised surgery. MEDI solicited funds from UNDP and in May 1991 he was sent to South Africa. He was admitted in hospital in South Africa on 29th May and discharged on 7th June 1991" While in South Africa an exploratory operation was carried out on the arm. MEDI paid a total of 7006 o 8 7 South African Rands for the plaintiff Is stay and treatment in South Africao Upon his return to Malawi he went to see Dr Van Hoyweghen at Kamuzu Central Hospital o The doctor recommended that he should be having physiotherapy. He was later advised by the doctor that there was some improvement in the hand. The doctor then said that it would not be worthwhile to spend money to go back to South Africa to receive some treatmento He cannot use the left arm for any work. He told the Court that he cannot now do the work for which he was trainedo He cannot wash himself" He sleeps on one side. He experiences sudden pain and dizzinesso He sometimes feels pain in the affected arm and at times it gets swolleno There is no sensation on the thumb, index finger and the middle finger because of the tendons and veins which were severedo The case presented two principal issues for determination in the light of the available evidence. The first issue which was hotly contested was whether the plaintiff was an employee of MEDI or an independent contractor" It would seem that this issue is relevant for the purpose of establishing liability based on breach of statutory duty" The plaintiff says that he was an employee of MEDI because he only received payment for labour o The defendants were entitled to the profit for each work done, and they provided materials, equipment and tools" He says that he should be regarded as an employee because a supervisor of the defendants had to approve each job which -4 -he had to do and all the necessary documentation was provided by MEDI. The suggestion here is that the defendants controlled the work of the plaintiff to such degree that he should be regarded as their employee. The defendants deny to have employed the plaintiff. It was the evidence of Mr Garry Whitby, the Chief Technical Advisor to MEDI, that the plaintiff was one of four entrepreneurs who had graduated at MEDI and were given an opportunity to start their business at MEDI to raise money to help them when they went back to their village to start their own business. It must be appreciated that at MEDI the plaintiff and his colleagues were trained in the skills of setting up and managing business. They were trained to become small businessmen on their own. It seems that it was consistent with that training policy that the plaintiff was given practical training in running a small business soon after graduation. Both Mr Nyoni, the Principal of the Institute, and Mr Whitby said that vacancies at the Institute are advertised and prospective employees undergo an interview. The successful person is issued with a letter of appointment which is signed personally by the Principal. The employee is also subjet to written terms and conditions of service. Mr Nyoni and Mr Whitby said that this procedure did not apply to the plaintiff because he was not an employee of MEDI. The plaintiff, however, claims that he was verbally employed. Mr Whitby testified that the payment which the plaintiff received carried with it an element of profit. He explained that the plaintiff was free to engage other workers to do a particular job and pay them a sum which would be less than the price agreed with MEDI; in that event the plaintiff would be entitled to the difference as profit. He also explained that a supervisor of MEDI had to approve the work and its value to ensure that MEDI remained competitive in the businesso Mr Whitby said that the plaintiff was free to start work at any time and to knock off at a time which suited him. He could choose not to work on any particular day. He said that MEDI did not control the manner in which the plaintiff performed his work. The defendants, therefore, claim that the plaintiff was an independent contractor. The learned author of SALMOND on TORT, 13th Edn, at p.113 gives a distinction between servant and independent contractor as follows: "What, then, is the test of this distinction between a servant and an independent contractor? The test is the existence of a right of control over the agent in respect of the manner in which his work is to be doneo A servant is an agent who works under the supervision and direction of his employer; an independent contractor is one who is his own master. A servant is -------------- r. -5 -a person engaged to 0;::icy his e'nploye1· 's orders from time to time; an indep~~urJ.ent cont::.-actor is a person engaged to do certain \!Ork, b--1.'.: ·::o e::ercise his own discretion as to th2 rnce~ and tim2 of d~ing it -he is bound by his contract, but ao·:.: by '1is employer's orders. Thus my chauff2-1r is r::-:::2r-va·-,t; and if by negligent drivin3 he rl'ilS ever SC".11'30:,e in the street, I am responsible:,. But -'.::he c.:::b:.1an c:--1om I engage for a particular jourr ~y is : '>t m~ .:ec".'2:-1 :~.; he is not under my orders; he ·,as rn2c -:c c1 C',.;,; ',:rac i: ,,.,i t'.1 me, not that he will obey my d.:..r:2c :..:-'J,l'j, be.,,: t'::;c-_t he will drive me to a certain plac~i -'-a.:·1 z· -:c:i_c'., .:t happens by his negli02nce' he is rc.:..p,' si'J::,J.r'" 2' c'. t'. Ut I' il This passage was quotH:i \::. :() c:;.-;,>;_-c,v· Performing Ei~-:-ht s~ciety L ~; i '.::c;,~'. Ltd (1924} l XB 7C2 at p.16~. ,1. in the case of -E tcLell and Booker The plair.tiff ;,13.s ,,ngb..:r,,r.i. ·i:o do ,:,;.:!rticular jobs and his remuneration dcper:C'.ed 0:1 __ , __ ::,oDs c. :;:,,_ and completedo He had no fixed s2lc1ry. Hi::; · :::·,,_--:~::r,~ d 0n .c (. Gct1lated each month depending ,1pon the tas'.~,-cr,;;--;:--:i ,,··:e~: ell:, __ i.:,,J that montho The defendants had no cor :::oJ. c · :"r ·:.::.-:: :.,2n1;.2r in which he carried out his worko !-L} l1c..d 1:id:?. ,:> · s_,:-et5.lrn over the mode and time of doing his wo~~. T ca~\ly came to the conclusion, on ~oth authority ~nd f2c~2 !:1fore me, that the plaintiff was not an er:i~>:o~·ec c£ i,l',:J:~, He was an independent con~ractor. The second issue ••1n·_;_cit 1--L1.s ;:::o:-, c.o.'--:-ce:d by the parties was the cause~ of the acci<le:1-t: 0 ;~"l:'; p:'..c.i.n·::i_ff contended that the defendani:.s s·1pplied ',ii.i '\':' t11 -::.n , :i-;;:1_0 g:;_·j_nder which had no safety ~uard an:i ·.v21s oJ.c~; it~-,,_'·:~.-'. :0:1c1J,:1:~ when switched on. He also Si..1ic'!. tint t:ie c..:'..:::: h2.d 1u :·i:::,r,-3 to strengthen ito He said tha-1: th:::s2 .;:,-:ci;:'.')l-~~ --.:,~7:_i:::.2·j to cause the accident. Mr Garry Whitby sh0wcd ::::12 c.,.:iv1.:t c:r .::.nqle grinder and demonstrato.:' hm-; i::: fucctio.1::::. :;," sz:.i,_: '.::1-,at every such equipment 11as a sa:; _ _'ecy '::iuc.1 .... 0 ,-ii1l(..i; .i:, pa:.-.: ai,<i parcel of it. The guard :::an 1:.2 c'.et2.c;1cd, 1)~:·,:: ~-:::; su,)~:.osed to remain connected to che grir.dt~1· 0-·:: all tim, s, -...:.sp:2:-:ially when the equipment is ::_n op2r2.t:'..ono ::c ;0o:;.('c th:~;: t!-,o guard is part of the safety measu:u~ 2.;1c': ·,,he,. cr--i:--1C::2.:0:;,-or cu':ting the guard is supposed to protect the per3co up:~cJ.~ing it. He said every angl~ ~r~nde~ h2~ 2 set of instructions stamped upon it by manufacturers as part of safety measure. The information is eng-rav~d en the bc~y of the equipment so that it c:::innot be erased, Es said th2.t the instructions indicate tl1e disc size which c;;in he L ct2d on the grinder and the re'.'olution per r,1inu·:1'.:! of tl:e disc. He said that a disc is usually removed from '::he grind2;:· and fixed to it by means of a :-11..!t. He sa.id tlut in -Uc: case of the grinder which the plaintiff u;ed on the day or the accident, it -6 -carried instructions that it could use a 7-inch disc whose revolution per minute was 8500. He said that other grinders require 9-inch discs which revolve 6500 times per minute. There is uncontroverted evidence that the plaintiff was fully trained and experienced in metal fabrication before he came to MEDI and he was conversant with all safety requirements connected with his occupation. He fully appreciated the hazard of operating an angle grinder without a safety guard. He, however, told the Court that during the training at MEDI they were taught that as small businessmen they should not expect to have all the tools and equipment and that what was important was to have the work done. He said it was emphasised at MEDI that they should be prepared to take risks. He said that he had seen trainees using the angle grinder without a guard and that was the reason why on the fateful day he willingly used the equipment without a guard fitted to it. The plaintiff was supported in this evidence by Francis Mkandira, PW2. Regarding the training at MEDI, Mr Whitby said that they teach their trainees that they must know where to seek useful information. They emphasise on quality of work, efficiency and self-confidence. They also teach entrepreneurs to take calculated and reasonable risks in business decisions in order to get an advantage over competitors. He denied that they teach trainees to take the risk of personal injury. He said that they do not allow trainees to use an angle grinder without a safety guard. He said that at MEDI he never saw an angle grinder without a guard attached to it. I was unable to believe the evidence of the plaintiff and Francis Mkandira that at MEDI they were taught to disregard personal safety. No responsible institution would do that. I agree with Mr Whitby that the trainees were taught, inter alia, to take calculated and reasonable risk in their business decisions. I also believe Mr Whitby that trainees were not permitted to use an angle grinder without a safety guard. I find as a fact that the practice at MEDI was that an angle grinder had a safety guard attached to it at all timeso Mr Whitby told the Court that the plaintiff used a 9-inch disc instead of the required 7-inch disc during the time of the accident. He said that to fit the 9-inch disc he had to remove the safety guard. He said that the larger disc was designed by the manufacturers to revolve at a lesser speed than the 7-inch disc. When fitted to the grinder the larger disc was forced to revolve at a greater speed and that contributed to its breaking apart. He explained that the broken pieces injured the plaintiff because there was no safety guard to protect himo -7 -I believed Mr Whitby e I was convinced that he told the truth" I was satisfied that a safety guard is part and parcel of an angle grinder o I was also satisfied that the plaintiff deliberately removed the safety guard in order to fit a larger disco I find that the accident occurred because the plaintiff fitted a wrong disc to the angle grinder and at the same time removed the safety guard which could have protected himo I am satisfied that the plaintiff lied when he said that the disc which broke apart had no fibres o When he fitted a wrong disc to the angle grinder and deliberately removed the safety guard before operating the equipment the plaintiff was, in my view, reckless and showed total disregard for his own safetyo He deliberately assumed risk of personal injury o I am satisfied that the defence of volenti non fit injuria is available to the defendants" The evidence showed that there was a metal substore within the metal workshop in which were kept some gloves, boots, goggles and overalls" The plaintiff was free to obtain these articles to use when working in the metal workshopo From the available evidence I am unable to find that the defendants contravened sections 23 and 49 of the Factories Act" Before I rest, let me say a word asbout the conduct of Mr Whitby, DW3" When this witness heard about the injury sustained by the plaintiff he followed him to Kamuzu Central Hospitalo He found the plaintiff had been operated on, but he was lying on a bed where there was only some mattress and a single bedsheet covered his body, He was in a crowded ward" Mr Whitby negotiated with hospital authorities to transfer the plaintiff to the paying wardo He was successful and the plaintiff was on the same day transferred to the paying ward" The witness used his personal money to pay the required deposito While at the hospital the plaintiff was frequently visited by officials from MEDI who usually brought him foodo Transport was also readily made available to himo It was also Mr Whitby who solicited funds required to send the plaintiff to South Africa for treatment o I am satisfied that Mr Whitby is a person who has love and kindness for humankind regardless of race, creed or social statuso The conduct of this witness deserves commendationo The plaintiff gave me the distinct impression that he was ungrateful for what MEDI did to him O He still blames MEDI for not sending him to South Africa a second time for treatment even after Dr Van Hoyweghen had recommended against a second visit to South Afri~a. The plaintiff should realise that most of the things which MEDI did for him after the accident were done purely on humanitarian groundso -8 -Having resolved the two issues in favour of the defendants, the inevitable conclusion which I reach is that the plaintiff has failed to establish his claim against the defendants. The plaintiff's action is dismissed with costs. PRONOUNCED in open Court this 25th day of November 1992, at Blantyre. !'--... I , I t .( 1 . ..:3 \. ,., .. .r-·-•. D G Tambala JUDGE