What counts as a workplace injury in personal injury claims?

 BY MICHAEL ‘LEKAN ODUNLAMI

In Nigeria, when we hear about “workplace accident or injury,” many of us think only of accidents in factories or construction sites or the likes of them. But under the Nigerian law, workplace injury is a much wider idea that covers more areas that are unknown to many. For example, it covers any damage, grievance, physical or psychiatric injury, disease, or harm that happens to a worker in the course of their job, provided there is a link between the job and the injury, meaning that the injury was sustained whilst the employee was on duty. However, the truth of the matter is that in Nigeria, when an employee gets injured at work, they automatically believe it is a mere “bad luck” or “Will of God”, and they simply move on. Well, that is a fallacy.

Moving forward, there are two ways workplace injuries are usually dealt with under the provisions of Nigerian law. The first is under the Employees’ Compensation Act 2010, where a worker can apply to the Nigeria Social Insurance Trust Fund (NSITF) for benefits when they sustain any work-related accidents. This scheme works like an insurance policy that pays compensation or benefits regardless of who is at fault, whether the employer or their employee.

The second route by which an injured employee can claim compensation is through a court action in a personal injury claim, which is the original focus of this episode and column. In this instance, the injured worker sues the employer directly in court, typically through a lawyer, arguing that the employer failed in their duty to care for their safety, and that this failure caused the injury they sustained.

This law basically means for example, in the case of an industrial welder, the employee welder, will tell the court that, his employer has failed in his duty to provide him with welding safety goggles, and that, his failure to do so has resulted in him losing one of his eyes, when the welding sparks or spatter from the welding work entered his eye. It can also be a failure to provide adequate training to an injured employee, like not providing the right or safe equipment to carry out a job or sending an employee out to work under dangerous conditions. Once the employer fails to fulfil any or similar duties, and an employee gets injured as a result, then the injured employee can argue in court that the employer has failed in their duty to demonstrate reasonable care and that the failure has caused their injury.

Unlike the Employees’ Compensation Act, which pays benefits to injured workers regardless of who is at fault, a negligence claim requires proof that the employer was at fault, and it usually allows a wider and higher compensation for loss of income, medical bills and other related expenses, including pain, suffering, and long-term losses, respectively.

In real-life experience, here are some examples of accidents that can count as a workplace injury for a claim in negligence for compensation to succeed in court. In a factory or Industrial setting, if a worker lost part of his finger or hand while operating a cutting machine that had no proper safety guard installed on it, or if the employer had failed to train the employee. The court would usually hold the employer responsible if the employee gets injured as a result, because the employer failed to provide safe equipment and adequate training to the employee. That is a clear workplace injury case, because the injury came directly from unsafe machine and lack of adequate training.

Another example is in a case involving electricity employees (like linesmen or NEPA employees, who climb poles to connect or disconnect electricity supply) or electric welders badly burned because their employers ignored safety rules, like providing welding goggles, safety hand gloves and earthing equipment. In such instances, the courts recognise that the employer breached the duty of care, and the injured worker can claim compensation against such an employer.

The third example may surprise some of our readers, but in any case, be informed that attacks and violence at work count as workplace injury for the purpose of claiming compensation. Not all injuries are caused by poorly maintained machines, failed equipment or inadequate staff training. Let us consider the case of a bank teller who sustains an injury or a gunshot wound during an armed robbery incident at the branch of the bank where she works. The injury is still a workplace injury because it happened while she was carrying out her duties as a bank teller.

Various related laws and the courts have held that employers must take reasonable steps to protect workers from foreseeable risks. This includes providing adequate security to protect all members of staff. It is indeed correct to ask a question as to how a bank may prevent armed robbery. The truth of the matter is that bank robbery is foreseeable in a banking environment; hence, a reasonable and prudent bank will ensure adequate security is provided. This explains why some bank branches have stationed police officers at their branches. Please note that a claim in negligence against a bank in a bank robbery incident may only succeed if the bank has failed to put measures in place to provide any form of security, like trained security personnel, armed police or metal detector doors.

Occupational injury is another type of workplace injury that is actionable in court in a personal injury claim. This type of workplace injury is common among employees working in certain sectors like construction, industries, production companies and healthcare and so on.

Recall that during the COVID-19 pandemic, nurses, doctors and other caregivers were exposed to daily infected patients, where quite a significant number of these healthcare workers contracted the deadly virus and lost their lives while caring for COVID-19-infected patients. If a hospital failed to provide hand gloves, nose masks, or protective gowns and other personal protective equipment (PPE), and a nurse or other member of staff got infected with the virus or died as a result, that is also a workplace injury. The employer or the hospital board can be sued for negligence in failing to provide a safe environment and adequate safety equipment (PPE) to the employees.

Another example is a company driver injured in a road traffic accident while on official assignment is also covered and counts as a workplace injury. The court would usually ask whether the driver was carrying out his contracted duties for the employer at the time of the accident.

If the answer is “yes”, then the accident is treated as a workplace injury. For example, a driver sent from Ibadan to Abuja, who gets into an accident somewhere in Kogi state on his way, is different from a driver injured while running a personal errand in Badagry, when he was supposed to be on his way to Abuja. As we may know, Badagry is way off between Ibadan and Abuja. The first incident counts as a workplace injury, while the second is not because the driver’s duty did not include a personal journey to Badagry.

Workplace injuries in Nigeria are not limited to factory accidents or their likes, as previously explained. They include robberies at banks, infections in hospitals, injuries from accidents to company drivers, and long-term illnesses caused by unsafe working environments. The takeaway of this piece is that, if your injury is tied to your work and caused by your employer’s failure to provide reasonable safety, training, safe equipment, or PPE, any of these qualify as a workplace injury under negligence law and are actionable in court for compensation.

It is safe, therefore, to state that employees must know their rights, and employers on their own part must be prudent to remember that the duty of care they owe their employees goes beyond paying salaries and health insurance, or accommodation and transport or clothing allowances; it includes keeping their staff safe at all times.

This article is only meant for general understanding only and not legal advice. If you believe you’ve suffered any harm or injury due to your employer’s fault, and you are concerned about the high cost of hiring a lawyer, you can reach out to an experienced personal injury lawyer who can handle your case on a “NO WIN, NO FEE” arrangement, which simply means you only pay if you win and get compensation.

Michael ‘Lekan Odunlami, Esq. is a Lagos-based personal injury lawyer at Claybrook Attorneys. He can be contacted via [email protected]