7/28/2019 Employee Compensation Act Progress or Retrogression
1/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS OR
RETROGRESSION?
By
Femi Aborisade1
Centre for Labour Studies & Department of Business Administration andManagement Studies,
The Polytechnic, Ibadan
INTRODUCTION
Internationally, millions of people are injured, fall ill and die every year as a
result of work-related hazards. In Nigeria, the more or less permanent economic
crisis has meant that the average job seeker is prepared to accept any available
job offer regardless of the health hazards. When health issues arise, the cost of
legal action to seek redress discourages victims from initiating actions. Even
where compensation is paid or action is successfully instituted, the entitlementtends to be too meagre as not to justify the time and resources invested in the
process. It is these challenges and particularly the pressure of organized labour
that brought about the repeal of the Workmens Compensation Act, CAP. W6
Laws of the Federation of Nigeria 2004 and the enactment of the Employees
Compensation Act 2010. It is contended that there is a relationship between
legislation on the one hand and social order and justice on the other. Where
appropriate legislation is lacking, injustice and all forms of abuse of power or
position will prevail. Hence, there is a need to assess, from time to time, the
capacity of existing legislation to cope with the mischief or problems they were
meant to resolve.
This paper is a critical analysis of the Employees Compensation Act, 2010. It
answers one basic question:
Does the Act represent progress or retrogression in terms of the right to
be compensated for occupational injuries and hazards experienced at
work? Put in another way, does the Act expand or restrict the right to
claim compensation for occupational hazards?
1 Paper delivered at the 15th Annual Kolagbodi Memorial Lecture organised by the
Dr. M. E. Kolagbodi Memorial Foundation in collaboration with the Friedrich EbertFoundation (FEF), held on Thursday, 10 November 2011 at Lagos Travels Inn, ToyinStreet, Ikeja, Lagos.
1 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
2/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
The subsidiary questions answered in the paper are:
What are the key provisions that represent progress in terms of
advancement of the right to compensation for hazards at work?
What are those provisions that constitute set back?
In what way can the Act be improved?
The Relationship between Employers Duty and Claim for Compensation
The existence of a contract of employment, whether express or implied, and if itis express, whether oral or in writing means that the employer owes certain
duties to the employee. These duties could be expressly provided for in the
terms of the contract of employment or implied into the terms, even though not
expressly stated.
The sources of the implied duties are two-fold common law and relevant
legislation. Both at common law and in statutory provisions, particularly in the
Factories Act and the Employees Compensation Act, there is the implied duty of
the employer to exercise reasonable care for the employees physical and
psychological well-being. While the legal consequence of ordinary violation of
the Factories Act, for example, is essentially criminal prosecution, violation ofthe Factories Act, which results in injury, occupational disease or death of
the employee arising out of or in the course of employment will validly give rise
to civil litigation, involving claims for compensation under the Employees
Compensation Act or action at common law for damages based on the
employers negligence of the duty of (reasonable) care.
Employers Implied Duty under Common Law2
The employers implied duty to exercise reasonable care, under common law, is
usually divided into three:
Provision of safe plant, including safe equipment, tools, materials and
appliances in the workplace;
Provision of safe and secure system of work, that is, a safe work process,
and
2 Common law is judge-declared law or judicially created law; a body of English law,based on oral tradition of tribal justice, which is judicially developed by judges and foundin precedents over time. Because it is not written (by the legislature), it is often referred
to as unwritten law, which in Latin means Lex non scripta. Common law has beeninfluenced over time by both statute and the principles of equity and where they differfrom common law, take precedence over it.
2 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
3/67
7/28/2019 Employee Compensation Act Progress or Retrogression
4/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
The Constitution of the Federal Republic of Nigeria, CFRN, 1999,
which provides, among others that the State shall direct its policy towards
ensuring that conditions of work are just and humane, there are adequate
medical and health facilities, and that the health, safety and welfare of allpersons are safeguarded.6
International Labour Organisations Conventions and
Recommendations, particularly Convention Nos.:
o 155, Occupational Safety and Health, 1981
o 12, Workmens Compensation (Agriculture) 1921
o 17, Workmens Compensation (Accident) 1925
o 18, Workmens Compensation (Occupational Diseases) 1925
o 19, Equality of Treatment (Accident Compensation) 1925
o 42, Workmens Compensation (Occupational Diseases) (Revised)
1934.
o 121, Employment Injury Benefits, 1964, and
o ILO Recommendation No. 121, concerning Benefits in the case of
Employment Injury
HISTORICAL ORIGIN OF WORKMENS COMPENSATION
In order to have proper understanding of the provisions of the Employees
Compensation Act and the criticisms that have been proffered, it is considered
important to do a broad review of the origin of workmens compensation.
On 7 April 2011, Workers Compensation Centennial Symposium held in Boston,
USA. This implies a century history of workmens compensation. The first State in
the U.S. adopted workers compensation law in 1911 while majority of them didso between 1911 and 19207. The first English workmens legislation was the
1897 Act over a century ago. Under it, the workman only needed to show he
had been injured to claim compensation, unlike the earlier 1880 Employers
Liability Act that put the burden of proving negligence on the employee before
he could claim. The Workmens Compensation Act of 1906 fixed the
5 See for example S. 27 (1) of NESREA. However, it should be noted that NESREAprovides an easy escape route for the Defendant in that the Plaintiff has to prove that thequantity discharged is harmful. Also, the same section contains a proviso which suggeststhat the defendant will not be liable if he can show that the discharge of the harmful
substance is authorised under some law.6 S. 17 (3), CFRN, 1999.7 See www.workerscompresources.com
4 | P a g e
http://www.workerscompresources.com/http://www.workerscompresources.com/http://www.workerscompresources.com/7/28/2019 Employee Compensation Act Progress or Retrogression
5/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
compensation the workman could recover from the employer, except in cases of
serious and wilful misconduct. In Nigeria8, the first workmens compensation
legislation was the Ordinance of 1942, which was tailored after the English Act of
1925. It later became known as the Workmens Compensation Act, CAP 222,Laws of the Federation of Nigeria, 1958. It was followed by the Workmens
Compensation Decree No. 17 of 1987, which was later codified as CAP 470, Laws
of the Federation of Nigeria 1990 and later re-codified as the Workmens
Compensation Act, CAP W6, Laws of the Federation of Nigeria 2004, which the
current Act repeals.
The system of workers compensation has its origins in the system of negligence
liability. In other words, prior to the introduction of Workmens Compensation
system, workers injured at work were compensated under the system of
negligence liability. This system requires the employee to prove the following
ingredients9 conjunctively:
a) The employer or Defendant has a duty of care, owed to the worker or
claimant.
b) an accident has occurred
c) the accident was caused because the employer was negligent or failed to
exercise the duty of care
d) the accident caused personal injury to the employee
The case ofChagaury v. Yakubu10can be used to explain the critical weakness
of action based on Negligent Liability the employer will not be liable if it is not
proved that the employer was negligent. In the case,Yakubu was employed as
a driver with a company and attached to one of the top officers of the
company. As part of the schedule of his work, he had to take the cooks
of Chagaury to their residences late in the night, for which he received
overtime payment. On one of the occasions, he was attacked by armed
robbers who shot at his face. He was able to escape with the car. His
boss, Chaguary rushed him to the hospital. The company paid hospital
expenses. After treatment, five pellets of bullets were extracted,
leaving one pellet, which could only be extracted at the risk of serious
negative health problems. Though Yakubu admitted he was no longer
8 See R. Idubor (1999). Employment and trade dispute law in Nigeria. Benin City: SylvaPublishers Ltd. and E. E. Uvieghara (2001). Labour law in Nigeria. Lagos: Malthouse PressLtd.9 See Iyere v. B.F.F.M. Ltd. (2008) 18 NWLR Pt. 1119 page 300 at 326 paras B-C (citedby Hon. Justice Bolaji-Yusuff in the judgement in Oyelade v. Inaolaji, Suit No.I/660/2003) where the Supreme Court reiterated the principle that there can be noactionable negligence unless there is damage. Negligence alone does not give a causeof action, damage alone does not give a cause of action; the two must co-exist. In other
words, there must be causal connection between the negligence to exercise duty of careand the damage suffered.10 (2006) 3 NWLR 138
5 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
6/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
feeling any pains. Yakubu instituted a legal action, claiming N15m
N5m as special damages and N10m as general damages. The trial court
found that Chagaury and the company were not negligent. But the
court went ahead to award Yakubu N300, 000 (three hundred thousandNaira) damages as compensation for psychological feelings of having
the pellet in his body for the rest of his life. The company and Chaguary
appealed the decision of the trial court. The Court of Appeal held that
damages should not have been awarded against the Appellants since no
finding of negligence was made. But a few years after, Yakubu was one
of those laid off on ground of redundancy.
It should also be noted that under common law rules, the employer enjoys the
following three defences and would not be liable for damages if any of the
defences can be proved:
a) Defence of voluntary assumption of riskor volenti non-fit injuria - that
the worker knew of the dangers or risks involved in the work and willingly
assumed risks by accepting the job. This means that by accepting the job
offer, the worker has abdicated the right to sue for injuries.
b) Fellow-servant defence or defence of common employment that a
fellow worker of the claimant-worker caused the accident.
c) Contributory negligence that the injured employees negligence
contributed to the occurrence of the accident.
In many cases, it could not be difficult for employers to avoid liability under any
of the above three defences.
However, the common law defences have been influenced by both statute and
equity. Thus, for example, the British Employers Liability Act (1880)
abolished the old common law defences in theory but did not establish a no
fault system; a proof of negligence on the part of the employer was still
necessary for the employee to be entitled to damages.
On the defence ofvoluntary assumption of risk, the trend of judicial decisions
today is that where negligence of the duty of care is proved, the employercannot rely on the maxim ofvolenti non-fit injuriato protect him from liability
for his wrong11. As the Court had held in another case, his (i.e. the employees)
poverty, not his will consented to incur the danger.12
The defence of common employment was also abolished in Wilsons &
Clyde Coal Ltd. v. English.13 In the case, an employee was killed as a result of
an accident at work caused by co-workers. He was crushed while repairing an
airway leading off a Mine, a main haulage road. The employer argued that the
11 See smith v. Baker (1891) Ac 325 at 362, per Lord Herschell.12
Thrussel v. Handyside (1888) 20 QBD 359 at 364.13 Wilsons & Clyde Coal Co. Ltd v. English (1938) AC 57. (cited in D. Cabrelli (2010).Employment Law. 2nd ed. London: Pearson Education Ltd.
6 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
7/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
company was not liable to pay damages on the grounds that the deceased
employee contributed to his own death by not taking an alternative route to
escape the accident or failing to make his colleagues aware of his location.
Alternatively, that the duty to provide a safe system of work had been delegatedto the colleagues of the deceased who caused the accident. The court held the
employer-company liable for negligence in the performance of the duty to
exercise reasonable care and to provide a reasonably safe system of working.
That the implied duty of care was personal to the employer-company and it could
not be devolved upon one of its employees - the employer has a non-delegable
duty to create a safe system of work. This position has been affirmed by the
Supreme Court of Nigeria in the case ofAgunane v. NTC14.
The defence of common employment has also been statutorily abolished in
Nigeria as follows: in the Federal Territory of Lagos, in 1961; Eastern Region,
1962; Western Region, 1963; and for the whole country in 198815.
Also, the court has rejected employers defence of not being liable on ground of
employees negligence and self-inflicted injury in refusing to use Personal
Protective Equipment (PPE). In Western Nigeria Trading Co. Ltd. v. Busari
Ajao,16the court, relying on Nolan v. Dental Manufacturing Co. Ltd.17 held
that it was the duty of the employers, at common law, not just to supply Personal
Protective Equipment such as goggles, but to also ensure they are used by strict
orders and effective supervision.
However, it must be explained that the employee too, having held himself18 out
as possessing certain degree of skill, is expected to demonstrate due care and
skill in the performance of his work; otherwise, where he suffers injury as a result
of his own carelessness or contributory negligence is established, the employer
may be declared not liable. Thus, in Ogunnusi v. Lagos City Caretaker
Committee19, the claimant (Ogunnusi), a bus conductor, was injured while
attempting to board a moving vehicle. The trial court (Magistrate court) found in
his favour. But the High Court set aside the decision, holding that the injury was
caused by the claimants wilful misconduct.20
However, the position of law under Statutory provisions now is that the court
could, as it thinks fit, reduce the damages the injured employee would have
14 (1995) 5 NWLR (Pt. 397) 541 SC.15 See S. 3, Law Reform (Torts) Act 1961; S. 4, Torts law CAP 125 laws of Eastern Nigeria,1963; S. 13 torts Law, CAP 122 Laws of Western Region of Nigeria, 1959 and S. 12,Labour Act, CAP 198 LFN, 1990, all cited in E. E. Uvieghara (2001). Labour Law in Nigeria.Lagos: Malthouse Press Ltd.16 (1965) 2 ALL NLR 100. In the case, a splinter of steel entered into the eyes of Ajaocausing injury. The employer had argued that it was not liable as the employee wasnegligent in not using the goggles provided.17 (1958) 2 All ER 449.18 All references to he or himself in this paper means he or she. Where appropriate,
an attempt is made to use a gender free concept of employee.19 Suit No. YB/216/69 OF 1973.20 See F. Falana (1997). Op. Cit., pp. 14 -15.
7 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
8/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
recovered if he were not contributorily negligent, having regard to the
claimants share in the responsibility for the damage21.
From the foregoing, though the common law defences available to the
employer have largely been abolished, the employee is still required to
prove the guilt or negligence of the duty of care on the part of the
employer before he can succeed in an action for damages.
On the other hand, the system of workmens compensation, particularly as
represented in the Employees Compensation Act, 2010 is characterised by
eligibility or non-eligibility no longer being based on:
proving that the employer was at fault or negligent
workers contributory negligence
But the employee has to show that:
the injury is personal. Thus, for example, there is no compensation for
damage to personal property.
The injury or illness is work-related. This factor however does not consider
that certain illnesses could have multiple causes, work related and non-
work related causes, e.g. mental stress and other general psychological
conditions.
The Act is based on a no-fault principle22, such that the injured worker is entitled
to compensation, whoever may be at fault. For example, Section 1 (a) of the
Act declares that the Act sets out to provide a system of guaranteed
compensation for all employees or their dependants for any death, injury,
disease or disability arising out of or in the course of employment. Section 7
(1) of the same Act also restates the same principle by providing that:
Any employee, whether or not in a workplace, who suffers any disabling injury
arising out of or in the course of employment, shall be entitled to payment of
compensation in accordance with Part IV of this Act.
In addition, the express provision that No compensation shall be payable under
this Act in respect of any incapacity or death resulting from a deliberate self-
injury23 is no longer contained in the current Act. Though it may be ordinarily
difficult to succeed in claiming compensation for deliberate self-injury, the
occurrence of such an incidence may even be compensable, under the current
Act, where it is medically proved to be caused by mental stress, occasioned by
21 S. 16, Law reform (Torts) Law, CAP 115, Laws of Lagos State of Nigeria. Similarprovisions exist in the laws of other states.22 This is in conformity with S. 5(a) of ILO Recommendation No. 121 of 1964
concerning Benefits in the case of Employment Injury, which provides for benefits in theevent of accidents, regardless of their cause.23 S. 3 sub section (4) of the repealed Act.
8 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
9/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
the nature of work or the occurrence of any event in the course of employment
or an acute reaction to a sudden and unexpected traumatic event arising out of
or in the course of employees employment which is covered under Section 8 (1)
of the Act.
Thus, from the foregoing, the injured worker is more likely to receive
compensation (no matter how meagre) under the system of workmens
compensation than under the system of Negligence Liability, which is marked by
uncertainties in the litigation process, considering the elements that have to be
proved or disproved and the defences available to the employer.
It is argued in this paper that both systems of compensation
Negligent Liability and Workmen Compensation should be statutorily
allowed; at least, Negligent Liability should not be prohibited. There are
certain situations in which Negligent Liability will be the only suitablecourse of action, for example, in Personal Injury Claims involving third parties
who do not have any employment relationship with any employer, such as
Product Liability cases and incidences of intentional torts. Legislation could be
enacted to limit the rules of common law, including defences available to the
employer. Indeed, in a few jurisdictions, the worker is allowed to opt out of the
system of workmens compensation, having the right to choose between
pursuing a claim for guaranteed benefits under workmens compensation or to
pursue a personal injury action24.
COMPONENTS OF THE EMPLOYEES COMPENSATION ACT, 2010
The Employees Compensation Act, 2010, which is referred to in this paper as
the Act comprises nine (9) Parts and two (2) Schedules as follows:
Part I Preliminary Provisions
Part II Procedures for Making Claims
Part III Compensation for Death, Injury or Disease
Part IV Scale of Compensation
Part V Powers and Functions of the Board
Part VI Employers Assessment and Contributions
Part VII Financial Provisions
Part VIII Establishment of the Investment Committee
24 See A. Larson (2005). Workers Compensation as the Exclusive Remedy. (Availableonline at www.attorneys-usa.com/workers_comp/exclusive_remedy.html
9 | P a g e
http://www.attorneys-usa.com/workers_comp/exclusive_remedy.htmlhttp://www.attorneys-usa.com/workers_comp/exclusive_remedy.html7/28/2019 Employee Compensation Act Progress or Retrogression
10/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
Part IX Miscellaneous Provisions
First Schedule List of Occupational Diseases
Second Schedule Percentage of Disability
The paper undertakes an analysis of the Act, Part by Part, commencing
substantially from Part II.
PROCEDURE FOR MAKING CLAIMS (PART II)
Part II of the Act, comprising sections 4 to 6, provides for a three-stage
procedure:
1. Either the employee (or victim of an injury or disabling occupational
disease) or the dependant of the victim, in case of death of the victim,
shall report to the employer or immediate representative or superior of
the employee within 14 days of occurrence25.
2. The employer, in turn, shall be required to report to the Board and the
nearest office of the National Council for Occupational Safety and Health,
within 7 days of occurrence of any injury or disabling occupational
disease26.The Board is defined as the Nigerian Social Insurance Trust Fund
Management Board established under the Nigerian Social Insurance Trust
Fund Act, 1993.
3. Completion of formal Application, in the form prescribed by the Board, for
compensation signed by the employee or the employees dependant and
submitted to the Board27.
Weaknesses in the Procedure for making claims
1. Whereas the whole of Part II is devoted to Procedure for making
claims, there is still a provision28 that the Board may make rules of
procedures for making claims for compensation, thus suggesting or
confirming that Part II of the Act, which comprises three (3) main sections,have not fully set out the procedure for making claims. The concern is that
the perceived full procedure ought to have been set out rather than
burdening the Board with a responsibility that is discretionary and which if
not done, may throw up uncertainties in the procedure for making claims
under the Act. Examples29 of procedures for making compensation claims
in other countries, including opportunity for updating reports of
25 S. 4 Employees Compensation Act, 201026 ibid., S. 5.27
Ibid., S. 6.28 Ibid., S.5(8)29 Examples arewww.wcfgroup.com andwww.wcb.ab.ca
10 | P a g e
http://www.wcfgroup.com/http://www.wcb.ab.ca/http://www.wcb.ab.ca/http://www.wcfgroup.com/http://www.wcb.ab.ca/7/28/2019 Employee Compensation Act Progress or Retrogression
11/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
injuries/claims submitted, exist online and they should have been
consulted, modified and improved to suit the particular Nigerian situation.
2. Four contradictory timelines are given for reporting injuries and/or making
applications for compensation:
a. Section 4(1) provides for 14 days within which the employee-victim
is to inform the employer, after the occurrence of an injury or
disabling occupational disease.
b. Section 5(1) provides that the employer shall report to the Board
and the nearest office of the National Council for Occupational
Safety and Health within 7 days of its occurrence. Meanwhile,
the employee whose information the employer acts upon reports
within 14 days of the occurrence of the injury.It might have made
better sense if the employer were required to report to the Board
within a period after the employee-victim has first filed a report.
c. Section 6(2) provides that no compensation shall be payable unless
application is filed within one year of the occurrence of injury or
disabling occupational disease.
d. Section 12 (3) of the Act also provides that an election to claim
compensation (rather than bringing an action at common law for
damages, where the cause of death, injury or disability of an
employee is such that an action lies against some person,other than an employer or employee) shall be done within 6
months of the occurrence of the injury, disability or death. One
wonders why the time limit of 6 months should be stipulated. There
is the possibility that certain diseases might not have sufficiently
developed within six months. The clause in section 12 stating within
6 months ... or any longer period as the Board may, from time to
time, determine.... will hardly be of help to the employee-victim
when section 12 has to be constructed where there are objective
and substantial reasons for delays in making an election to claim
compensation.
3. The Board is also given a discretionary power of defining and prescribing a
category of minor injuries not required to be reported to the Board 30. The
concern here is that the Act should have gone ahead to set out the
category of such minor injuries rather than giving discretionary power to
the Board on such a key object for which the Act itself was enacted. For
the avoidance of doubt, S. 5(6) provides in part ... the Board may, by
regulation, define and prescribe a category of minor injuries not required
to be reported ...
30 Ibid., S. 5(6).
11 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
12/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
4. The Nigerian Employees Compensation Act 2010 may learn from the
American Occupational Safety and Health Act (OSHA) 1970 on what and
when to report rather than piling up unnecessary arbitrary powers for the
administering Board.
5. The OSHA, 1970 provides for the following to be reported:
a. Incidences of death
b. Incidences of illnesses, or
c. Injuries involving:
i. Treatment by a physician (other than first aid)
ii. Absence at work or restriction from work
iii. Loss of consciousness
iv. Transfer to another job.
6. The OSHA, 197031 also provides that the following may not be reported:
injuries that require only first aid and involve no loss of work time.
7. Indeed, borrowing from the American OSHA, 1970 referred to above, the
Nigerian Act should provide the right of the employees and/or their unions
to request inspection of circumstances leading to injuries or death as the
case may be. In addition, the Act should provide that reported incidencesof injuries, diseases and deaths be conspicuously displayed by employers
in prominent places at the workplace, using prescribed formal forms. This
will prevent attempts by some employers to avoid reporting incidences of
industrial accidents.
8. It is also noted that the information required to be supplied in reporting
injuries or disabling occupational disease and/or making application for
compensation is fuller under Section 5(4) than what is required under
Section 4(1). Similar information, as set out in S. 5(4) and modified below
should have been set out under the two sections in order to avoidconfusion and controversy at the stage of implementation of the Act or
litigation arising over claims
a. The name and address of the employee
b. The name and address of the employer
c. The time and place of the disease, injury or death
31 Cited in J. M. Ivancevich, (2007). Human Resource Managment. New York:
McGraw Hill. Pp. 555-556.
12 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
13/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
d. The nature of the injury or alleged injury, in ordinary or technical
language
e. A general description or brief account of the cause of the injury
f. Name of any available witness or evidence in support
g. The name and address of any specialist or accredited medical
practitioner who attends to the employee; and
h. Any other particular required by the Board under the Act or any
regulation it may make under the Act.
9. Part II of the Act should have also imposed on the employer the
responsibility to report to the Board if it can be established that an
employee has sustained injury or suffered a disabling occupationaldisease or died, particularly where no dependant is aware or available to
make formal reports to the employer.
10.In the same vein, Part II of the Act should have made provisions for
admissibility of oral report, which an officer of the employer or Board will
be required to reduce into writing in case the employee is an illiterate. As
it is, there is a fallacious presumption that all employees are likely to be
literate.
11.Section 4(4) of the Act provides that failure on the part of the employee-
victim to supply specified information to the employer is a bar toclaim compensation. Section 6(2) also provides that no compensation
shall be payable if a claim is not made within one year of the
occurrence of an injury or disabling occupational disease. Rather than
pursuing the goal of preventing payment of compensation if claim or
report is not made within specified periods, it is advocated that the law
should regard industrial injuries and disabling occupational diseases as a
strict liability category such that employers are made liable,
without a rigid time limit on when reports and/or claims are made
by employee-victims or their dependants, provided the occurrence of the
injury or disabling occupational disease can be proved.
12. Who has responsibility to report injuries to the employer? S. 4(1) makes
provision on who can report injuries to the employer. Either the employee-
victim of an injury or disabling occupational disease or the dependant of
the victim, in case of death of the employee-victim shall report to the
employer or immediate representative or superior of the employee within
14 days of occurrence32. But borrowing from the reform introduced by
the Fundamental Human Rights Enforcement Procedure Rules,
2009, anyone, particularly co-employees and/or union representatives,
should be able to report industrial accidents on behalf of victims.Health32 S. 4, Employees Compensation Act, 2010.
13 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
14/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
protection at work should be conceived as a category of fundamental
rights, to which everyone should, in the religious sense, be their brothers
keeper. We could learn from the Health and Safety legislation in the
United Kingdom, which from 1977 recognises the right of trade unions toappoint Health and Safety Representatives who have recognised power to
make inspections and reports in their working hours33.
13.There is a lacuna in the Employees Compensation Act, 2010 on who has
responsibility to report to the Board where the employer fails or
refuses to do so. S. 5 sub sections (1), (2) and (3) of the Act provide
that the occurrence of every injury, disabling occupational disease and
death respectively shall be reported by the employer to the Board.
Section 5(5) provides that failure of the employer to report constitutes an
offence, unless the failure is caused by a sufficient ground allowed by the
Board. But beyond criminalising employers failure to report, there is noprovision for an alternative way by which the Board could be notified. It is
suggested that there should be a provision which empowers the
employee-victim to report to both the employer and the Board in the
prescribed formal Form. The template of the formal forms (hard and e-
copies) with which to report and to make claims should be available, not
only at the physical offices of the employer and the Board, but also on the
internet, at their websites.
14.There is no time limit within which the injured-employee must be paid
compensation. In this regard, the Act could incorporate the provision ofArticle 6, Convention No. 17 of 1925, concerning Workmens
Compensation for Accidents, which states that In case of incapacity,
compensation shall be paid not later than as from the fifth day after
the accident...
Part III: TYPES OF COMPENSATION
The discussion of this Part of the Act (Part III) relates, not only to types of
compensation, but also covers other legal issues thrown up in sections 7 to 16,which make up the Part. The issues examined in this section of the paper, as
dictated by Part III of the Act, are:
Types of compensation
Abolition of employers strict liability in payment of employees
compensation for injuries
The concept of arising out of or in the course of employment
33 See http://www.tuc.org.uk/extras/SafetyRep_1b.pdf
14 | P a g e
http://www.tuc.org.uk/extras/SafetyRep_1b.pdfhttp://www.tuc.org.uk/extras/SafetyRep_1b.pdfhttp://www.tuc.org.uk/extras/SafetyRep_1b.pdf7/28/2019 Employee Compensation Act Progress or Retrogression
15/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
Employees optional choice to bring an action at common law or to claim
compensation under the Employees Compensation Act, and
Employment by contractors and payment of compensation
Part III of the Act recognises the following seven (7) types of compensation:
1. Compensation for disabling injury arising out of or in the course of
employment34
2. Provided the employer has prior notification of the following
specified places, compensation in respect of accident sustained by the
employee while commuting between the place of work and
a. residence, principal or secondary;
b. the place where the employee usually takes meals; or
c. the place where he usually receives remuneration35.
3. Compensation for mental stress36, provided the mental stress is -
a. An acute reaction to a sudden and unexpected traumatic event
arising out of or in the course of the employees employment, 37 or
b. Diagnosed by an accredited medical practitioner as a mental orphysical condition amounting to mental stress arising out of the
nature of work or the occurrence of any event in the course of the
employees employment,38 or
c. Caused by the decision of the employer to change the work or the
working conditions of work organization in such a way as to unfairly
exceed the work ability and capacity of the employee.39
4. Compensation for occupational disease which disables the employee from
earning full remuneration at the workplace.40
5. Compensation for any occupational disease listed in the First Schedule to
the Act.41
34 Ibid, S. 7(1).35 Ibi., S. 7(2).36 ILO Convention No. 155 (of 1981) concerning Occupational Safety and Health and theWorking Environment in Article 3(e) defines health as ...not merely the absence ofdisease or infirmity; it also includes the physical and mental elements affecting healthwhich are directly related to safety and hygiene at work.37 Ibid., S. 8(1).38 Ibid., S. 8(2).39
Ibid., S. 8(2).40 Ibid., S. 8(3)(1)(a).41 Ibi., S.8(3)(1)(d).
15 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
16/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
6. Compensation for death resulting from an occupational disease.42
7. Compensation for hearing impairment arising out of or in the course of
employment.43
This Part of the Act reflects inelegant drafting as it contains avoidable
repetition, duplication and overlapping categories of types of compensation.
For example categories (1) and (7) above are the same, as category (7) is a
subset of category (1).
However, the second category of the type of compensation identified above
(compensation in respect of accident sustained by the employee while
commuting to or from the place of work) requires some analysis. It indirectly
raises the question of when employment begins and ends.
It is an important positive development for S. 7(2) of the EmployeesCompensation Act to recognise that compensation is payable in the event of
accidents when the employee commutes to or from work. That section of the
Act appears to be a codification of a precedent holding of the court in the
case ofJohn Stewart & Son Ltd44 that the course of employment is not
limited to the time or place where the workman is to carry out his specific
work. However, the proviso that prior notification of principal or secondary
residential address be given to the employer before the employee can claim
compensation in the event of accidents on the way appears to fall short of the
position of the court in the case of Northumbrian Shipping C. Ltd.45The
essence of the holding of the court in this case is that what is crucial is theaccessor route the workman has to take in going or coming from work, not
whether he goes from or to the principal, secondary or any other place of
abode. For the avoidance of doubt, the attitude of the court in this respect is
partly reproduced below:
It has been recognised time and again that the sphere of a
workmans employment is not necessarily limited to the actual
place where he does his work. If in going to or coming from his work
he has to use an access which is part of his employers premises or
which he is only entitled to traverse because he is going to orcoming from his work, he is held to be on his masters business while
he is using that access46.
Indeed, S. 5 (c) (i) ofILORecommendation No. 121, concerning Benefits
in the case of Employment Injury provides that accidents sustained while
the employee is on the direct way between the place of work and the
employees principal or secondary residence should be treated as industrial
42 Ibi., S. 8(3)(1)(b)43 Ibid., S. 10(1).44
John Stewart & Son Ltd v. Longhurst (1917) AC 249.45Northumbrian Shipping C. Ltd. v. McCullum (1932)48 TLR 568.46 Id.
16 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
17/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
accidents; the Recommendation does not include the requirement of
prior notification of secondary residence to the employer. As the court
has held in some other instances, it should be appreciated that the workman
is not a machine.
But the identified shortcoming in S. 7(2) of the Act should not becloud its
positive side. It appears to have statutorily overruled Smith v. Elder
Dempster Lines Ltd47where it was held that even where a workman travels
in a vehicle provided by the employer, he is not in the course of his
employment until he commences actual work.
COMPENSATION FOR OCCUPATIONAL DISEASES
Section 9 of the Act makes specific provision for compensation for occupational
diseases. Two of the subsections [sub sections (1) and (4)] under this section
deserve analysis.
Section 9 subsection (1) provides that compensation and health care benefits
shall be payable under the Act where the following conditions are satisfied:
a) The employee must have suffered an occupational disease;
b) The occupational disease suffered must have either caused the death of
the employee or disabled the employee from earning full remuneration at
the workplace;
c) The disease is shown to be due to the nature of any employment theemployee must have been engaged; and
d) The disease is listed in the First Schedule to the Act.
The concern here is that the Act does not make it clear whether the conditions
are to be satisfied or interpreted conjunctively (jointly) or disjunctively
(separately). In the absence of statutory provision on whether conjunctive or
disjunctive interpretation should be given, where the Board or the court elects to
adopt conjunctive interpretation, it means that an employee may not be
considered qualified for compensation and health benefits where a particular
disease is not listed in the First Schedule. (See also pages 45 and 46 for further
analysis on the First Schedule).
Section 9 (4) (b) of the Act is an example of provisions in the Act, which
seek to ensure that the Board avoids liability to pay compensation
under spurious technical grounds. The section provides that neither the
employee nor a dependant shall be entitled to compensation for a
disability or death unless the employee was free from the disease and
complicating disease before being first exposed to the agent causing
the disease in the workplace. It is contended that there is no basis for this
provision because under Ss. 8 and 28 of the Labour Act, the employer has47Smith v. Elder Dempster Lines Ltd. (1944) 17 NLR 145.
17 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
18/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
the duty to medically examine every worker, before commencement of work or
as soon as possible thereafter, and at the expense of the employer. It is
therefore advocated that the labour movement should agitate for the deletion of
S. 9 (4) (b) of the Act.
ABOLITION OF EMPLOYERS STRICT LIABILITY IN PAYMENT OF
EMPLOYEES COMPENSATION FOR INJURIES
Strict liability, in the context of Employees Compensation Act, is a concept that
refers to the employers responsibility to pay compensation to the employee who
sustains injury, no matter the cause of the injury. The guilt or lack of guilt of
either the employer or employee notwithstanding, once the employee sustains
injury or gets ill or dies in the course of employment, the employer is bound or
liable to pay compensation. The actual or physical occurrence of the injury,
disease or death (the actus reus) is all that matters in grounding liability;whether the incidence was intended by the employer or employee (mens rea) is
not required to be proved before the employer is found liable to pay
compensation.
S.11 of the Act shows that there is no strict liability on the employer in the event
of occurrence of an injury. Under the Act, employers liability is conditioned on
the injury occurring at the normal workplace of the employee and in the course
of employment. Where an employee sustains an injury while working outside the
normal workplace, compensation shall be paid to the employee under the Actonly if
a) the nature of the business of the employer extends beyond the usual
workplace;
b) the nature of the employment is such that the employee is required to
work both in and out of the workplace; or
c) the employee has the authority or permission of the employer to work
outside normal workplace.
(S.11, Employees Compensation Act, 2010).
Section 11, and particularly S. 11 (c) of the Employees Compensation Act, 2010
should therefore be seen to be a retrogression, from the standpoint of
employees, when compared to S. 3 (3) of the Workmens Compensation Act, CAP
470 Laws of the Federation of Nigeria, 1990. Section 3 (3) of the 1990 Act
appeared to have established strict liability on the employer once an accident
resulting in death or serious and permanent incapacity occurred and it was
established that the employee was engaged in activities beneficial to the
employer, whether or not he was in the normal workplace and whether or not
he was authorised to do what he was doing when the injury occurred. For the
18 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
19/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
avoidance of any doubt, the provisions of S. 3 (3) of the 1990 Act are reproduced
below:
3(3) For the purpose of this Act, an accident resulting in the death or
serious and permanent incapacity of a workman shall be deemed to
arise out of and in the course of his employment, notwithstanding
that the workman was at the time when the accident happened
acting in contravention
(a)of any statutory or other regulation applicable to his employment;
or
(b)of any orders given by or on behalf of his employer; or
(c)that he was acting without instructions from his employer,
if such act was done by the workman for the purposes of and in
connection with his employers trade or business
The provision of S. 11 of the Employees Compensation Act, 2010 therefore runs
counter to the spirit of earlier statutory provisions, which tended to support strict
liability on the part of the employer. Lord Atkin for example had established that:
once you have found the work which he is seeking to do to be within his
employment, the question of negligence, great or small, on the part of the
employee is irrelevant.48
In the same way, inJohnson v. Marshall Sons & Co. Ltd (1906) AC 409, 412Lord James49 explains that the concept of workmens compensation is based on
the principle of strict liability of the employer, regardless of lack of guilt or
negligence of the employer as follows:
The main object was to entitle a workman who sustained injury
whilst engaged in certain employments to recover compensation
from the employer, although he (the employer) was guilty of no
fault. The intention was to make the business bear the burden of
the accidents that arose in course of employment, and relief from
this liability is not found even if the injured workman be guilty ofnegligence.
The gravity of the hardship that can be experienced by an employee based on
the provision of S. 11 (c) of the Employees Compensation Act, 2010 can be
better appreciated by the decision of a High Court in a recent case 50, which is
based on the principle of being entitled to compensation only if the employee is
48 See Harris v. Associated Portland Cement Manufacturers Ltd (1939) AC 71,76, cited in E.E. Uvvieghara, (2001). Labour Law in Nigeria. Lagos: Malthouse,p.251.49 Cited in E. E. Uvvieghara. (2001). Labour Law in Nigeria. Lagos: Malthouse, p.250-251),50
Oyelade v. Inaolaji Enterprises (Nig.) Ltd. Suit No. I/660/2003. Judgement wasdelivered in the High Court of Justice of Oyo State on 9 June 2011 by the HonourableJustice M. O. Bolaji-Yusuff.
19 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
20/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
authorised to be in a particular place or to perform a given task resulting in an
injury. The facts of the case that are relevant to the claim of damages are as
follows:
The claimant was employed as an earthmoving equipment truck driver. An
accident occurred which resulted in the claimants injury he was directing one
of the Defendants operators who was lifting a caterpillar engine. The chain being
used to lift the engine suddenly broke and the engine fell and struck the left leg
of the claimant. He claimed damages, contending that the accident occurred due
to the negligence of the defendant. The Defendant pleaded that it was not liable
as the claimant had no authority to be where he was when the accident
occurred. The court found in favour of the Defendant, citing relevant judicial
authorities to support the decision that damage suffered must be connected with
the breach of duty and that in the instant case, the Defendant did not owe the
claimant any duty of care when he went outside the duty assigned to him.51
It is therefore advocated that the provisions of S.3 (3) of the repealed Act be
improved upon and re-instated in the Employees Compensation Act, 2010. The
improvement needed to be incorporated in S. 3(3) of the repealed Act should be
towards ensuring that claim should not only lie when death or permanent
incapacity results; any injury which requires more than first aid treatment should
give rise to claim, whether or not the employee is authorised to do what results
into the injury, provided the employees act is to benefit the employer.
THE CONCEPT OF ARISING OUT OF OR IN THE COURSE OF
EMPLOYMENT
The purpose of the Employees Compensation Act, 2010, as stated in the Long
Title of the Act is that the Act is to make provision for compensations for any
death, injury, disease or disability arising out of or in the course of employment
and for related matters. A key condition to be satisfied to qualify for
compensation under the Act therefore is that any death, injury, disease or
disability arises out of or in the course of employment.
The critical question then is what is meant by arising out of or in the course of
employment? Surprisingly, there is no statutory definition of the term in S. 73,the Interpretation Section of the Act. The only clarification contained in the Act is
that once an act in which the employee is engaged is work related and
authorised, the employee or the dependant, in the case of death, will be
entitled to claim compensation, whether or not the employee is at the normal
workplace52. As it has been argued earlier, the key shortcoming in the Act is the
requirement of employers authority or permission before an employees act,
which results in injury can be considered to fall within the course of
employment.
51 Ibid. P. 19.52 S. 11, Employees Compensation Act, 2010.
20 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
21/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
Though no statutory definition of the term, arising out of or in the course of
employment, is provided in the Interpretation section, it has been judicially
defined over time.
Bukkley LJ53 has asserted that out of and in the course of employment are
conjunctive, not disjunctive.
The concept, out of has to do with establishing a relationship between an
incidence or injury and the employment. In other words, there must be a causal
relation between the act giving rise to the injury and what was being done. This
suggests that what was being done and at the time it was being done
when the injury occurred must be held to be within the job for which the
employee was employed. Therefore, an injury that occurs out of may also
necessarily be within the course of employment.
The term, employment, has been defined by Lord Shaw54 to include not only the
actual work for which the workman was employed but also the risks, conditions,
obligations, incidents, accidents, and so on, associated with the nature of the
work or which arise out of or in the course of the nature of the actual work.Thus,
the risks of robbery and murder have been held to be incidental to the
employment of a cashier55. An attack on a teacher by school students is an
incidence arising out of the work of a teacher56. A workman who is in charge of
an office has a duty to maintain order and prevent fighting within the premises
and whatever injury sustained in preventing a fight arises out of or in the course
of employment.57A workman who is struck by a falling tree on his way home
after business experiences an accident arising out of employment 58.A workman
who is killed by a lorry belonging to a third party while working by the roadside
loses his life in an accident that occurs out of employment.59
Although Employees Compensation Act, 2010 does not appear to distinguish
between out of employment and in the course of employment, the two
concepts have been judicially held to be distinguishable60. Lord Denning61
describes in the course of employment as a very sensible rule that even
though a person is not obliged to be in a particular place, but goes there for
something incidental to his employment, such as for a meal to a canteen, he is
acting in the course of his employment62. Other examples that have been givenjudicial recognition as belonging to the category of in the course of employment
include accidents or incidences of injuries or disabilities that may occur in the
course of going to assume post within the company premises, using toilet
53 In Fitzgerald v. W. G. Clarke & Son (1908) 2 KB, 796 at 799.54 In Simpson v. Sinclair (1917) AC 127 at 142.55 Nisbet v. Batne & Burn (1910) 2 KB 689.56 Trim Joint District School Board of Management v. Kelly.57 UAC v. Joseph Orekyen (1961) LLR 144.58 Lawrence v. George Matthews (1929) 1 KB 1.59 Tako Maikujeri v. Provincial Engineer (1981) 2 PLR 587.60
Per Lord Wright in Dover Navigation Co. V. Craig (1939) 4 All ER 558 at 563.61 In R. V. Industrial Injuries Commissioner (1966) 2 QB 31.62 (Cited in E.E. Uvieghara, 2001: 261, op. Cit.
21 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
22/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
facilities, resting in between shifts, standing by, waiting for the next job, and so
on. As Lord Wrenbury puts it, ...all these, and such as these, are not the
employment but are incidental to the employment. The man who is in the
course of his employment is engaged in his employment in all such cases
63
.
The rationale for the broad definition given to in the course of employment has
been provided by Matthew LJ64, as follows:
I wish to say that I do not think that the protection given by the
Act can be confined to the time during which a workman is
actually engaged in manual labour, and that he would not be
protected during the intervals of leisure which may occur in the
course of his daily employment. A workman is not a machine and
must be treated as likely to act as workmen ordinarily would
during such intervals...
In the light of the foregoing, it is reiterated that the provisions of S.3 (3) of the
repealed Act be improved upon and reinstated in the Employees Compensation
Act. The improvement needed to be incorporated into S.3 (3) of the repealed Act
is to ensure that claim should not only lie when death or permanent incapacity
results from accidents; any injury which requires more than first aid treatment
should give rise to claims, whether or not the employee is authorised to do what
results into the injury, provided the employees act was to benefit the employer.
EMPLOYEES OPTIONAL CHOICE TO BRING AN ACTION AT COMMON LAW
OR TO CLAIM COMPENSATION UNDER THE EMPLOYEES COMPENSATIONACT
It has been noted that two main approaches inform monetary compensation for
injury sustained at work:
the system of Negligent Liability (at common law), and
the system of workmens compensation.
It is argued in this section of the paper that though the system of
Negligent Liability has its shortcomings, it is better, from thestandpoint of the employee, to retain the optional right of the
employee to bring action or claim compensation, and in appropriate
cases, to claim under the two systems, particularly, when we consider
the weaknesses in the Employees Compensation Act.
However, section 12 of the Act appears to preserve the optional right of an
injured employee or dependant of deceased employee to elect to claim
compensation under the Act or to bring an action (at common law) only in one
situation: where the cause of death, injury or disability of an employee
63
See St. Helens Colliery Co. Ltd. V. Hewitson (1924) AC 59.64 In Benson v. Lancashire & Yorkshire Railway Company (1904) 1 KB 242 at251.
22 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
23/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
is such that an action lies against some person, other than an employer
or employee. It is only in that circumstance that the injured employee or
deceased employees dependant may elect to claim compensation or may bring
an action. Even in such a situation, the employee or the dependant shall makethe election within 6 months of the occurrence of the injury or death or any
longer period, as the Board may, from time to time, determine.... Indeed, an
election by the employee or dependant to bring an action in court shall be a bar
to claim compensation from the Fund in respect of such injury, disability or
death65.
In all other situations apart from where the cause of death, injury or disability
of an employee is such that an action lies against some person, other than an
employer or employee, Section 12 (1) appears to limit the injured employee or
the dependant of the deceaseds employee to only one course of action to
claim compensation under the Act, provided the condition in S. 12 (2) issatisfied - the action or conduct of the employer, the servant or agent of the
employer or the employee, which caused the breach of duty, arose out of and in
the course of employment within the scope of this Act. In other words, where
the cause of action is against an employer or an employee, who may or may not
be the injured employees employer or employee-colleague, then the injured
employee or the dependant of the deceaseds employee can only claim
compensation under the Act; there is no option of bringing an action at common
law.
For the avoidance of doubt, Section 12 (1) provides:
The provisions of this Act are in lieu of any right of action, statutory or
otherwise, founded on a breach of duty of care or any other cause of action,
whether that duty or cause of action is imposed by or arises by reason of law
or contract, express or implied, to which an employee, dependant or member
of the family of the employee is or may be entitled against the employer of
the employee, or against any employer within the scope of this Act, or against
any employee, in respect of any death, injury or disability arising out of and in
the course of employment and where no action in respect of it lies.
The Blacks Law Dictionary66defines in lieu of as instead of or in place of; inexchange or return for, and gives two examples of usage, which do not admit of
choice: . The phrase in lieu of used in S. 12 of the Act therefore
suggests that the injured employee or the dependant of the deceaseds
employee is deprived of bringing an action at law; the only course of action
available is claiming compensation under the Act, provided the cause of action
occurs out of or in the course of employment and is against an employer, an
employee or agent of the employer.
65
See S.12 (3) for all the quotations in this paragraph.66 B. A. Garner. (Ed.)(2004). Blacks Law Dictionary. (8th Ed.) St. Paul, U.S.: WestGroup.
23 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
24/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
In essence, whereas S. 12 of the current Act has substituted Workmen
Compensation Scheme for action at common law, Section 25 of the repealed Act
presented Workmens Compensation as an alternative to action at common
law.
It will not be difficult to come to the conclusion that the current Act has taken
away the optional right to either claim under the Act or bring an action at law if
we compare the provision of section 25 of the repealed Act with the provision of
S. 12 of the current Act. Section 25 of the repealed Act preserves the right to
either claim under the Act or bring an action at common law, independently of
claiming under the Act, provided such proceedings shall be a bar to claiming
compensation under the Act.
Section 25 (1) of the repealed Act provides in part as follows:
Where the injury was caused by the personal negligence or wilful act of the
employer or of some other person for whose act or default the employer is
responsible, nothing in this Act shall prevent proceedings to recover damages
being instituted against the employer in a civil court independently of this
Act.
Provided that
(a) a judgement in such proceedings whether for or against the employer
shall be a bar to proceedings at the suit of any person by whom, or on
whose behalf, such proceedings were taken, in respect of the same injuryunder this Act
We may now offer an opinion on the desirability or otherwise of depriving the
injured employee or the dependant of the deceaseds employee the optional
right to claim under the Act or to bring an action for damages under the common
law on the negligence of the employer. Though the current Act has the positive
goal of establishing a no-fault compensation regime under which the injured
employee is entitled to guaranteed compensation, no matter who is at fault, the
employee or the dependant of the deceaseds employee stands to lose when the
freedom of the course of action that can be taken is largely limited to claiming
under the Act. Apart from the negative effect of restricting choice of right of
action, the Court67 has also had cause to allude, obiter, to the disadvantage of
not preserving the right of action for damages under the common law, as
follows:
In most cases, claims at common law raise higher damages than under
the Act. In other jurisdictions such as England, a workmans right at
common law is still preserved in a number of Acts, including Social
Security Act of 1975, Factory Act, 1937 and National Insurance (Industrial
Injuries) Act 1946....
67 Per Chukwuma-Eneh, JCA in Adetona v. Edet (2004) 16 NWLR 338 at 367, B-C.
24 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
25/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
Also, in A. C. C. & C. (Nig.) Ltd. v. Bamigboye68the Court of Appeal asserted
that substantial damages could be awarded in actions based on
negligence of duty of care at common law:
Where the plaintiff has adduced sufficient evidence of the defendants
negligence coupled with the fact that the defendant admitted that it is a
company, which is a going concern, there is enough basis to support
an award of substantial damages as opposed to excessive
damages to the plaintiff...
It is thus advocated that the Act be amended such that it retains the optional
right to claim damages for employers negligence, under common law, or to
claim compensation under the Act. In the event of a successful action by the
employee or dependant of deceased employee, the judgement sum may still be
sourced from the Compensation Fund to which all employers are required tocontribute. This may be an appropriate answer to the likely argument that it will
amount to double jeopardy for the employer, who contributes to the
Compensation Fund, to again bear the burden of judgment sum that may be
imposed by the court in a civil action.
However, while S. 12(1)(2) of the Act restricts right of choice of action to
claiming under Statute and S. 12(3) of the same Act limits the choice of
the employee or the dependant of deceased employee (where the cause of
death, injury or disability of an employee is such that an action lies
against some person, other than an employer or employee) to either a
claim of compensation or an action at common law on the ground of negligence
of the duty of care, S. 12 sub sections (6) and (7) allow the Board to decide
whether or not to maintain an action at common law for damages against the
party that is liable, in the name of the Board, if the employee or his dependant
has applied for compensation and/or has been paid compensation by the Board
under the Act. If the action for damages by the Board is successful, and more
money than has been paid to the employee as compensation is recovered, S. 12
sub section 6 provides in part that the amount of the excess, less costs and
administration charges shall be paid to the employee or dependant.
Section 12 sub section (7) of the Act goes further to prescribe that determiningwhether to maintain an action or compromise the right of action shall be within
the exclusive competence of the Board and the Boards decision shall be final.
The question this provision raises is: what is the rationale for putting this
decision within the exclusive competence of the Board when it is the employee-
victim rather than the Board that stands to benefit from the excess of damages
that may be recovered less costs and administration charges? This question is
pertinent particularly when it is borne in mind that the Employees Compensation
Act 2010 has done away with the provision ofS. 16 in the repealed Workmens
Compensation Act on the requirement of agreement between the employee
and the employer on the compensation payable in the event of an injury.68 Op. Cit., at p. 290, paras. E-F.
25 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
26/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
For the avoidance of any doubt, section 16(1)(a) of the repealed Workmens
Compensation Act provides as follows:
16. (1) The employer and workman may after the injury in respect
of which a claim to compensation has arisen, agree in writing as
to the compensation to be paid by the employer and such
agreement shall be in triplicate, one of which shall be kept by the
employer, another copy by the workman and the third copy sent
to the nearest authorised labour officer; but-
(a) the compensation agreed upon shall not be less than the
amount payable under the provisions of this Act.
The current Employees Compensation Act, 2010 has completely left the
employee at the whims and caprices of the Board in terms of the amount of
compensation payable, without a requirement of an agreement. In interpreting
the value and significance ofS. 16 in earlier workmens compensation statutes,
the court has held that where compensation paid by the employer does not arise
from agreement between the affected employee and the employer, the
conclusion to draw is that the workman has not recovered compensation69.
Therefore, in the absence of a provision requiring agreement between the
employee and employer on the amount of compensation payable, the employee
should be statutorily allowed todetermine whether or not to bring an action at
common law for damages in addition to compensation paid by the Board,
provided that the amount of compensation collected from the Board
shall be refunded by the employee if his action is successful and he
recovers money in excess of the amount paid by the Board under the
Act.
Indeed, the legal framework governing employees compensation should permit
the employee to claim under the Act in addition to recovering damages by
instituting Personal Injury actions in the following circumstances, without
making a refund of excess over claims collected under the Act:
Product Liability actions where for example an injury results from
working with a defective or unreasonably dangerous equipmentaccompanied with deficient instructions or warnings in relation to the
operation of the equipment. The manufacturer, distributor or installer of
the equipment could be sued, apart from claiming compensation against
the employer under the Act.
Intentional torts committed by the employer or a third party
proven situations under which the employer or third party, whether co-
worker or not, actually acts with the intention to harm the employee. (This
category should be distinguished from situations under which employees
69 See Western Nigeria Trading Co. Ltd v. Ajao (1965) 2 ALL NLR, cited inUvieghara, 2001: 303.
26 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
27/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
work under unlawful and exceptional hazardous working environment).
The employer or any third party could be sued apart from claiming
compensation under the Act.
The call for preservation of the optional right to claim under the Act and bring
action at common law may also be justified by considering that under the Act,
qualification for compensation is conditioned on occupational diseases which
have disabled the employee from earning full remuneration (S. 9 (1) (a). Also, all
references to the Second Schedule show that entitlement is based on degree of
disability. Thus, whether an employee suffers an occupational disease or sustains
an injury, if it does not cause reduction in earning capacity, compensation will
not be available, under the Act, for the pain, suffering and psychological trauma.
In the contrary, under the Negligent Liability system, there are chances for the
award of general damages.
We therefore reiterate that both systems of compensation Negligent
Liability and Workmen Compensation should be statutorily allowed; at
least, Negligent Liability should not be prohibited. Personal Injury Claims
involving third parties who do not have any employment relationship with any
employer, such as Product Liability cases or incidences of intentional torts are
examples of situations in which Negligent Liability will be the only
suitable course of action. Legislation could be enacted to limit the rules of
common law, including defences available to the employer. Indeed, in a few
jurisdictions, the worker is allowed to opt out of the system of workmens
compensation, having the right to choose between pursuing a claim forguaranteed benefits under workmens compensation or to pursue a personal
injury action70.
EMPLOYMENT BY CONTRACTORS AND PAYMENT OF COMPENSATION
This subsection of the paper answers the question: who pays compensation for
injuries sustained by employees of an independent contractor engaged (as an
agent) by a (principal) employer. Section 12 subsection (8) covers situations
where an employer (Principal employer) engages a contractor to execute the
whole or part of any work for the purpose of his trade or business. The principal
shall be liable to pay any compensation payable under the Act to any employeeemployed by the contractor-employer in the execution of the work. However, the
principal-employer has the right to maintain an action, for example, third party
proceedings, for indemnity against the contractor-employer. Alternatively, as
provided in S. 12(9) of the Act, the Board could order that the compensation
payable be charged, in whole or in part, to the employer-contractor.
The principle that the principal employer is liable to pay compensation to any
workman employed by the contractor-employer has been judicially upheld to be
applicable even where there are a principal, a contractor and a sub-contractor 71.
70 See A. Larson (2005), op. Cit.71 See Dittmar v. Owners of Ship V 593 (1909) 1 KB 389.
27 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
28/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
Collins, LJ72 has explained the rationale for the principle which imposes
immediate liability to pay compensation on the Principal employer as opposed to
the contractor-employer as follows:
...if a person substitutes another for himself to do that which is
his own business, he ought not to escape the liability which would
have been imposed upon him, if he had done it himself, towards
the workman employed in that business
PART IV: INCAPACITY TO EARN, SCALE OF COMPENSATION AND THE
SECOND SCHEDULE TO THE ACT
A basic condition for entitlement to compensation is that the employee has been
rendered incapable to earn a living, on a point of finality, as a result of death; ordisabled to earn, totally, partially, permanently or temporarily as a result of
injury or disease. It is therefore considered important to briefly explain the
different categories of incapacity to earn, within the framework of the Act and
particularly in the light of the Second Schedule to the Act.
The Employees Compensation Act, 2010, in its Part IV (sections 17 to 30)
recognises the following three broad categories or five specific categories of
incapacity:
1. Fatal cases death, resulting from injury or disease
2. Permanent Disability
a. Permanent total disability
b. Permanent partial disability or disfigurement
3. Temporary Disability
a. Temporary total disability
b. Temporary partial disability
The above various categories of disability are briefly discussed below.
DEATH
There are two basic categories of beneficiaries entitled to compensation in the
event of death of an employee. They are:
Children beneficiaries, and
beneficiaries other than children.
72 See Wrigley v. Bagley & Wright (1901) 1 QB780,783, cited in E. E. Uvieghara, 2001:27,(op. Cit.).
28 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
29/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
A basic condition is that the claimant must be a dependant of the deceased
employee. S. 73of the Act defines a dependant to include those members of
the family, including adoptive and foster family, of the deceased or disabled
employee who were wholly dependent upon his earnings at the time of hisdeath, or would, but for the disability due to the occupational accident or
diseases, have been so dependent. This definition, it must be noted, represents
retrogression when we compare it to the definition in the repealed Act, which
included persons wholly or partly dependent on the deceased or injured
employee, including the illegitimate children, their parents or grandparents73. S.
73 of the Act prescribes thata child means any person not more than 21 years
old and who is receiving full time education or any training and is not paid
wages; and includes any step-child and child adopted in a manner recognised as
lawful in Nigeria. S. 17(1)(c) of the Act complements S. 73 by providing that
monthly payments to eligible children under this Act shall be made to children
up to the age of 21 or until they complete undergraduate studies, whichever
comes first. However, in the case of disabled children, S. 17(1)(d) provides that
the Board is to determine for how long they would receive compensation after
attaining the age of 21 or after completing their undergraduate studies.
Where death occurs from an injury or occupational disease, the beneficiary is
entitled to monthly compensation based on calculated percentages of the
remuneration of the deceased employee for specified periods. The varied
percentages and length of period within which the beneficiary could collect are
reflected in the tabulation below (see pages 28 to 31).
It is important to point out that contrary to the provision of Article 2 of
Convention No 121 of 1964 concerning Benefits in the case of
Employment Injury, which provides for a funeral benefit ...at a prescribed
rate in addition to cash benefit to dependants, the Act does not make any
provision for funeral benefits.
PERMANENT DISABILITY: PERMANENT TOTAL DISABILITY AND
PERMANENT PARTIAL DISABILITY
Under the Act, apart from death, incapacity to earn could be either permanent
partial disability or permanent total disability. Unfortunately, unlike the
repealed Act, there are no statutory definitions offered to distinguish between
the two types of disability. The Employees Compensation Act, 2010 presents the
same definition reproduced below for the two types as if there is no difference
that it means the physical functions or conditions, mental capacity or
physiological health arising from and in the course of employment that cause a
deviation for more than 12 months from the condition typical for the respective
age which restricts participation in the life of society and includes
73 (See S. 41, Workmens Compensation Act, LFN, 2004)
29 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
30/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
disfigurement74. The lack of definitions which clearly distinguish between
permanent partial disability or permanent total disability may therefore create
equivocal interpretation in the event of disputed claims for compensation.
Though repealed, the provisions of the Workmens Compensation Act may be
useful in differentiating between partial and total disability. In place of
disability, the repealed Act uses the word, incapacity. In this paper, the two
words are taken to be synonymous and can be used interchangeably. Section 41
(the interpretation section) of the repealed Act defines and distinguishes the two
concepts75. However, it will be odd for a party to rely on the definitions of a
repealed Act in making a case before the court.
From the definitions under S. 41 of the repealed Act, incapacity means either an
injury resulting in reduction of earnings or absolute inability to earn a living from
employment in which the workman was capable of being engaged. Partialincapacity means reduction in earnings in the particular employment the
workman was engaged at the time of the accident resulting in the incapacity, on
a temporary basis or reduction in earnings in every employment the
74 S. 73, Employees Compensation Act, 2010.
75 Partial incapacity means
(a) where the incapacity is of a temporary nature, such incapacity asreduces the earning capacity of a workman in any employment in which
he was engaged at the time of the accident resulting in the
incapacity; and
(b) where the incapacity is of a permanent nature, such incapacity as
reduces his earning capacity in every employment which he was
capable of undertaking at that time
The proviso to the definition goes further to clarify that but every injury in
the Second Schedule to this Act .... shall be deemed to result in permanent
partial incapacity except such injury or combination of injuries in respect ofwhich the percentage or aggregate percentage of the loss of earning capacity
as specified in that Schedule amounts to one hundred percent or more.
Total incapacity on the other hand is defined to mean such incapacity,
whether of a temporary or permanent nature, as incapacitates a workman for
any employment which he was capable of undertaking at the time of the
accident resulting in such incapacity, provided that permanent total
incapacity shall be deemed to result from an injury or from any combination
of injuries specified in the Second Schedule, which amounts to one hundred
per cent or more.
30 | P a g e
7/28/2019 Employee Compensation Act Progress or Retrogression
31/67
EMPLOYEES COMPENSATION ACT, 2010: PROGRESS ORRETROGRESSION? By Femi Aborisade. Paper Delivered at the 15th
Kolagbodi Annual Memorial Lecture
2011
workman was capable of undertaking, on a permanent basis. On the other
hand, total incapacity disables the workman from earning a living in any
employment he was capable of undertaking prior to the injury, either on a
temporary or permanent basis; it goes far beyond resulting in reduction inearnings.
However, an injury or a combination of injuries amounting to one hundred
percent or more estimated disability as specified in the Second Schedule shall be
deemed to be permanent total incapacityjust as any injury or combination of
injuries in respect of which the percentage or aggregate percentage of the
loss of earning capacity as specified in the Second Schedule amounting to one
hundred percent or more shall be deemed as permanent partial incapacity.
Though the current Act makes no distinction in defining permanent total
disability and permanent partial disability, compensation payable in the twoinstances varies. For Permanent Total Disability, the claimant is entitled to 90
per cent of the employees earnings, until he attains 55 years of age, or if he is
already 55 or more, then, for 2 years after the date of the injury 76 while for
permanent partial disability, the claimant is entitled to 90 per cent of an
estimate of the loss of remuneration, which results from the disability or
impairment,until the employee attains 55 years of age, or if he is already 55 or
more, then, for 2 years after the date of the injury77.
The critical concern is how to arrive at an estimate of the loss in earnings in
the case of injuries considered as Permanent Partial Disability. The Act makes it
dependent upon the whims and caprices of the Board, to make a determination
to pay either of the following depending on what the Board considers better
represents the loss in earnings -
a periodic payment that is equal to 90% of the difference between the
remuneration of the worker before the injury and what the employee