Lihoma v Anchor Industries (Soap Division) Limited (Personal Injury Cause No. 254 of 2014) [2017] MWHC 17 (06 January 2017);

IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

PERSONAL INJURY CAUSE NO. 254 OF 2014

BETWEEN

THOM SAIZI LIHOMA .................................................. PLAINTIFF

AND

ANCHOR INDUSTRIES (SOAP DIVISION) LIMITED ....... DEFENDANT

CORAM: HON. JUSTICE R. MBVUNDULA

Zambezi, Counsel for the Plaintiff

Malijani, Counsel for the Defendant

Chitsulo, Official Interpreter

JUDGMENT

The plaintiff was employed by at the defendant's factory in Blantyre as a soap maker. His claim against the defendant is for damages for injuries suffered by him whilst working in the factory which he alleges were occasioned by the negligence of a fellow employee, Mr Msisha, which the defendant denies, claiming that the injuries were solely caused or greatly contributed to by the plaintiff s own negligence .

The plaintiff evidence in chief as to what led to the injury was that on the day in question, the 23rd of June 2013, he was called by Mr Msisha, the then operator of the "Chemco plant" (the plant) to go and repair a pump which pumped liquid soap into the plant. The pump had just stopped. The pump would usually stop when some foreign matter was trapped by valves inside the pump as a precaution against damage to the whole machine.

The plaintiff stated that before starting to work on the pump he checked that all the electrical switches were off and then proceeded to remove four bolts from the pump in order to open the pump, but, so he alleged in his evidence in chief, without warning or taking any precaution, Mr Msisha switched on the machine and the valves of the plant forced hot jets of liquid soap to splash in his face, both arms and the lower part of his leg thereby causing him severe injury.

Apart from blaming Mr Msisha for negligence, the plaintiff also attributed his injuries, or, at least, their seriousness, to an alleged failure by the defendant to provide him with protective wear, namely, gumboots, gloves, hand cap, goggles and overalls which, in his assertion, would protect him from "the foam which comes out of the hot liquid soap".

It was the plaintiff’s further evidence that after sustaining the injuries the defendant refused to maintain him as its employee, and dismissed him on 7th February 2014.

The court visited the factory where the plaintiff was cross examined.

The court learnt that the pump in question has two passages, one which conveys liquid soap and another which releases very hot steam. The machine is equipped with some valves which are meant to stop the flow of the liquid soap as well as the steam. The plaintiff acknowledged that as he was working on the pump it was possible to stop the flow of the steam as well as the liquid soap. He knew, as he went to work on the machine, that there could have been hot soap and hot steam flowing in the pipes. He had been working there for a period of two years since June 2011. It was his evidence that when he was going in to work on the pump he did not check whether the valves which are meant to stop the flow of the liquid soap as well as the steam were closed at that particular time. The plaintiff was coy when asked if he was careless in his conduct.

With regard to the switches the plaintiff had earlier on referred to, it was observed during his evidence in cross examination, that there are two sets of switches, one at the switchboard the other just before the pumps where the plaintiff went to work. In further explaining the events of the day in question, the plaintiff stated that at the material time Mr Msisha was at the switchboard and that the plaintiff checked the switches and found that they were off. He said that if the switch on the switchboard was off the switch to the pump would not work. He said that at the time he was removing the bolts the switches were off. Whilst he initially maintained that Mr Msisha switched on the switches, he later admitted that Mr Msisha never went to the switch while he was working on the pump and, further, that even if Mr Msisha had switched on the switch on the switchboard while the switch to the pump was off, the pump could not start working, that the switching on of the switchboard would have no effect if the pump switch was off. At the material time the pump switch was in fact off.

Further it was the plaintiff s evidence, during cross examination, that if the switchboard was off the steam would still flow because the valves would not be closed. He conceded that whether the switchboard was on or off did not affect the flow of the steam, and that whether or not Mr Msisha switched on the switchboard would have no effect on the steam flowing through the pipe, that the electricity had nothing to do with the steam.

Upon further cross examination the plaintiff conceded that the only act that occasioned his being burnt was the removal of the cover of the pump and not whether Mr Msisha switched on the switchboard as that would have no effect whatsoever, that the reason he got burned was that he started opening the pump without checking whether the switch to the pump was on or off. Curiously though, despite this admission, the plaintiff continued to deny that it was his own carelessness by not checking the pump and the switch to it that caused the accident.

The plaintiff stated during re-examination that on being employed he was taken through the machine and informed how it operated. He said it was the responsibility of the operator to switch on and off the machine and that on this day it was Mr Msisha who was operating the machine. He further said that at the time the machines were running hot steam and hot soap would be flowing through the machines. He went on to state that the defendant company did not provide him with safety ware, that he was wearing only cotton clothing and worn out gumboots which enabled the heat to penetrate his trousers and bum his legs.

Defence evidence came from one witness, Mr Dalitso Msisha, who was a soap maker at the defendant company's factory. His evidence in chief was that on 23rd June 2013 whilst working on the upper floor of the plant that transfers soap pulp from clutchers to a feed tank or waiting pot, he noticed that the pump which transfers the pulp had stopped functioning. At this time, he said, he had not "cleared the lines" such that the soap pulp was still in the pipe. As usual, in such cases, he called the plaintiff, who was the general fitter, and told him that the pump had stopped working. He stated that usually the plaintiff would ask him which pump had stopped functioning but on this day the plaintiff did not ask but just went downstairs where he loosened the valves of the pipe which still had steam and soap pulp and had not been cleared yet. He stated that the pump had nothing to do with the switch to the machine. He further said that steam is released from downstairs where the plaintiff was working and not from upstairs where Mr Msisha was working. He denied switching on the machine while the plaintiff was working, that even if he had switched on the machine no steam would have thereby been released because the pump had actually stopped functioning. He further said that as a matter of fact when he called the plaintiff to attend to the machine, the machine was on, that the machine was always on. He stated that what caused the steam to be released was the plaintiff s act of opening the pipe, knowing fully well that the same had hot steam. He said every time it created problems he called the plaintiff, who was a competent general fitter, to fix it.

Mr Msisha went on to state that he was surprised by the procedure the plaintiff followed on this day. He said the procedure was that when a problem arose with the machine, one had to be told first which pump had developed a problem, but on this day the plaintiff proceeded without the faulty pump being singled out. The other thing, he said, that surprised him was that every time there was a problem they would work on it together but this time the plaintiff undertook the exercise alone. He denied releasing soap into the holding tank. He said that he closed the valve which releases soap and opened the one that releases steam. He said the steam is released so that the soap goes into the tank in order to "clear the line" i.e. to clear the soap already in the pipe. The reason for opening the steam valve was for the soap in the line to flow into the waiting pot and there was nothing wrong with doing that because failing to do that the soap in the pipe would dry up rendering the job which the plaintiff had to do more complicated. He said he did not warn the plaintiff that he had opened the valve which releases steam as the plaintiff was supposed to ask if the line had already been cleared before embarking on the job. He also stated that there was nothing wrong with the plaintiff working on the pump whilst the machine was on. The plaintiff ought to have known that there could have been hot air in the pipe because the steam passed through that pipe. Mr Msisha said he followed all the procedures set by the company, maintaining that the plaintiff as a fitter was supposed to check whether the valve was open. He was supposed to inquire with Msisha. On all other occasions he did inquire. The valve can be opened or closed even when the machine is on.

Finally Mr Msisha stated that if the plaintiff had had protective clothing on, such as a helmet, a mask etc. the plaintiff could still have been injured as much. He was firm that the plaintiff was injured mainly because he did not inquire whether the prerequisites had been taken care of.

Issues:

1.   whether the plaintiff has established, on a balance of probabilities, that his injuries were occasioned by the negligence of Mr Msisha such that the defendant ought to be held vicariously liable for the same

2.   whether the plaintiff s injuries would have been averted or mitigated had he been wearing safety clothing

3.   whether the plaintiff was unfairly dismissed by the defendant

Regarding the first issue, from the totality of the evidence of both the plaintiff s himself and that of the defence witness, Mr Msisha, the following are the court's findings:

1.   that prior to the plaintiff embarking on the task the plaintiff checked the switches and found that they were off;

2.   that when the switch on the switchboard was off the switch to the pump would not function;

3.   that when the plaintiff was removing the bolts the switches were off;

4.   that Mr Msisha never went to the switch while the plaintiff was working on the pump;

5.   that even if Mr Msisha had switched on the switch on the switchboard while the switch to the pump was off, the pump could not start working, in other words the switching on of the switchboard would have no effect if the pump switch was off; the electricity had nothing to do with the steam;

6.   that at the material time the machines were running and hot steam and hot soap were flowing through the machines;

7.   that the steam would still flow, notwithstanding the absence of electricity, unless the valves were closed, as such whether or not Mr Msisha switched on the switchboard would have had no effect on the steam flowing through the pipe;.

8.   that at the material time the pump switch was in fact off;

9.   that when the switchboard was off the steam would still flow unless the valves were closed;

10.that at the material time the valves were still open because Mr Msisha was yet to clear the lines;

11. that despite Mr Msisha not warning the plaintiff that he had opened the valve which releases steam, the onus was on the plaintiff to establish if the line had already been cleared before embarking on the job he undertook;

12. that the plaintiff, who was an experienced fitter and had undergone orientation on how the system functioned, when he was employed, ought to have known that there could hot air in the pipe because the steam passed through that pipe; 13.that the only act that occasioned the plaintiff being burnt was the removal by him of the cover to the pump before inquiring or checking whether there was still some steam in the pipes and not whether Mr Msisha switched on the switchboard as that would have no effect whatsoever.

This court therefore finds, as regards the first issue, that the plaintiff's claim that the injuries were caused by the negligence of Mr Msisha not proved. The same is accordingly dismissed.

As regards the second issue, i.e. whether the plaintiff's injuries would have been averted or mitigated had he been wearing safety clothing,

It will be recalled that the plaintiff in his evidence in chief also attributed his injuries, or, at least, it would seem, their seriousness, to an alleged failure by the defendant to provide him with protective wear, namely, gumboots, gloves, hand cap, goggles and overalls which, in his assertion, would protect him from "the foam which comes out of the hot liquid soap". He repeated the claim during re-examination further said that the fact that he was wearing only cotton clothing and worn out gumboots enabled the heat to penetrate his trousers and bum his legs. In his statement of claim the plaintiff particularized his injuries as "severe bums in the face, both left and right arms and the lower left leg". The plaintiff however fell short of demonstrating to the court how the injuries he suffered would have been prevented had he been wearing the protective clothes he claims to have been entitled to be provided b' the defendant. Would any of the protective wear he lays claim to have protected him from any of the injuries he suffered? Would any of it had prevented the heat from penetrating his trousers as he laments? The onus lies with the plaintiff to prove that assertion. He has not. The claim must therefore fail.

The final issue is whether it has been proved that the plaintiff was unfairly dismissed by the defendant. To support this claim the plaintiff put in evidence a letter from the defendant which stated that due to the plaintiff s prolonged illness due to the injury he had suffered herein management of the company had decided to terminate his services with the defendant company in terms of the company's policy allowing an employee sick leave of three months in any year one month full pay and two months half pay and also in line with section 46 of the Employment Act 2000, further pointing out that the company had been "so kind" to extend the period to seven months in the hope that the plaintiff would recover and return to work. The letter also states that the plaintiff had confirmed to the defendant that he was yet to be fit to return to work. The letter records that the defendant paid the plaintiff one month severance notice pay and severance pay for each of the plaintiff s completed year of service less any loans the plaintiff may have owed the defendant with computations thereof attached thereto. The only issue raised out of the defendant's decision in both the statement of claim and the plaintiff s evidence is that by its aforesaid decision the defendant "dismissed" the plaintiff for having been sick as a result of his injury. This court will thus confine itself to determining only that issue.

The plaintiff's claim here is clearly misguided. He was not dismissed. Rather his employment was terminated for reasons of his incapacity which incapacity arose out of his own negligent conduct, as already held herein. In terms of section 28(1) as read with section 29( 1) of Employment Act a contract of employment for an unspecified period of time may be terminated by either party upon either party giving specified minimum periods of notice. As already observed the plaintiff does not fault the defendant as regards these matters. Under section 57(1) of the Act the employment of an employee may be terminated in connection with, inter alia, the capacity of the employee. In the present case the plaintiff does not dispute that he was at the time of the termination of his employment incapable of carrying out his duties as was alleged in the letter aforesaid. He does not also dispute that he himself confirmed to his employer the fact that at the time he was still not fit to resume his duties. It is therefore the finding of this court that the plaintiff's employment was terminated by the defendant in accordance with the provisions of the Employment Act and that contrary to his claim the defendant did not dismiss him.