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 work[1].  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 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 employers[2].

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 matter[4]. 

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 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 culture[5]”. 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:

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 work[6]. 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 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.[8]

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.[9]

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.[10] 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.[11] 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. 

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’.[12]

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.[13]

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.[14] 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. [15]

Femi Falana discusses the enforcement of the fundamental rights as guaranteed in the constitution with reference to the situation in other jurisdiction.[16] 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.[17]

Other Nigerian law authors in employment and labour laws whose works were consulted are:  Akintunde Emiola in ‘Nigerian Law[18]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.[19]

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.[20] 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.[21]

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 industry[22]”

The word industrial is defined by the same dictionary as; “connected with industry: industrial conflict[23]….” 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”[24].

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-merchandise[25]. 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.

Industrial safety is primarily a management activity which is concerned with reducing, controlling and eliminating hazards from the industries or industrial units[26].  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 large[27]” 

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 appe

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