A social security perspective of employees’ compensation law in Nigeria
| Author | Anifalaje, K. |
| DOI | https://doi.org/10.47348/JCCL/V7/i2a3 |
| Published date | 09 November 2022 |
| Date | 09 November 2022 |
| Citation | (2021) 7(2) JCCL&P 45 |
| Pages | 45-82 |
https://doi.org/10.47348/JCCL/V7/i2a3
45
A SOCIAL SECURITY PERSPECTIVE
OF EMPLOYEES’ COMPENSATION
LAW IN NIGERIA
KEHINDE ANIFALAJE*
Lecturer, Faculty of Law, University of Ibadan
Abstract
The article examines the adequacy of the Employees’ Compensation
Act of 2010 of Nigeria in respect of coverage, financing, entitlement
to compensation and benefit structures through the prism of social
security and in light of the International Labour Organization’s
minimum standards as set out in the relevant Conventions on
social security, and comparative best practices. It is argued that
the Act marks an important milestone in the annals of work
injury compensation in Nigeria, especially given the conversion
of the erstwhile individual employer-liability scheme into a social
insurance scheme, the expansion of coverage and the extension of
the scope of entitlement to benefits that were previously unavailable
in the repealed Workmen’s Compensation Act of 1987. Drawing
lessons from some common-law jurisdictions, including the United
Kingdom, the article highlights some other pertinent issues which
need to be addressed to further improve the safety net currently
provided for victims of work-related injuries and their dependants,
especially the provision of a minimum level of benefits in the form of
income support for low-income earners. In conclusion, appropriate
reform proposals are suggested.
Keywords: social security regulation, work injury compensation
scheme, Nigeria, international law
I INTRODUCTION
The protection of workers against the inherent risk of work-related
accidents and diseases associated with the challenges of the industrial
age is not a new phenomenon at common law and in terms of
legislation. Under the common law, several duties related to safety
* LLB (Unilag) LLM (Ibadan) PhD (Ibadan).
(2021) 7(2) JCCL&P 45
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(2021) 7(2) JOURNAL OF CORPORATE AND COMMERCIAL LAW & PRACTICE
https://doi.org/10.47348/JCCL/V7/i2a3
measures in the workplace are imposed upon employers to minimise
the occurrence of these accidents and diseases.1 These duties include
the duty to take care of the safety of the individual employee,2 the
duty to provide a safe place of work, wherever an employee is doing
their work within the scope of their employment,3 and the duty to
provide a safe system of work.4
In Nigeria, for example, several statutes, including the Constitution
of the Federal Republic of Nigeria of 1999,5 the Factories Act of 1987,6
the Labour Act of 1974,7 and the Occupational Safety and Health Act
of 2009 impose certain duties on the employer which are intended to
enhance the safety and security of employees in the performance of
their duties. Nevertheless, it is not uncommon for accidents to occur,
because of a breach of the aforementioned common-law or statutory
duties by the employer, or because of the sheer negligence of the
employee, or for some other reason beyond the reasonable control
of the employer or the employee. In this event, therefore, both the
common law and the statutes provide several social safety nets for
1 ‘The duty of the employer is to act reasonably towards his men; to take care, in
the way that a prudent employer would, to see that his workmen are not exposed
to unnecessary risk; and that obligation extends to the building in which they
work, to the plant, and in some cases at least it covers the providing of a proper
2 In Wilsons & Clyde Coal Co Ltd v English (1938) AC 57 at 80 Lord Wright stated:
‘The whole course of authority consistently recognises a duty which rests on
the employer and which is personal to the employer to take reasonable care for
the safety of his workman, whether the employer is an individual, a firm, or a
company, and whether or not the employer takes any share in the conduct of
the operations.’ Similarly, in Paris v Stepney Borough Council (1951) AC 363, it
was held that the employer’s duty to take care is one owed individually to each
employee.
3 In Bryce v Swan Hunter Group plc (1967) 1 All ER 267, the employers were held
liable for the death of an employee when, through their negligence and breach
of statutory duty, they failed to take precautions against exposure to asbestos
dust.
4 In Busari Ajao v Western Nigeria Trading Co Ltd (1965) NMLR 178, the court held
that an employer is under an obligation not only to provide safety devices, but
also to give strict instructions, followed by reasonable supervision. In Wilsons
& Clyde Coal Co Ltd v English supra note 2, it was held that an employer has
a duty of care to ensure a safe system of work and this duty cannot be fully
delegated to another employee. In Paris v Stepney Borough Council supra note 2,
the employer was held liable for failing to provide safety goggles to the injured
employee while working with dangerous equipment. See also Bradford v Robinson
Rentals (1967) 1 All ER 267.
5 Section 17(3) of the Constitution of the Federal Republic of Nigeria provides that
the state shall direct its policy towards ensuring, inter alia, that conditions of
work are just and humane and that there are adequate facilities for leisure, and
for social, religious and cultural life; that the health, safety and welfare of all
persons in employment are safeguarded and not endangered or abused and that
there are adequate medical and health facilities for all persons.
6 Cap F1 Laws of the Federation of Nigeria (LFN) 2004, ss 45–50.
7 Cap L1 LFN 2004, eg ss 8, 28, 29, 54, 55, 56, 59, 60 and 66.
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A SOCIAL SECURITY PERSPECTIVE OF EMPLOYEES’ COMPENSATION
LAW IN NIGERIA
https://doi.org/10.47348/JCCL/V7/i2a3
the employee against employment risks manifesting in the form of
death and disablement, in the loss of status, skills and earnings, and
the creation of a state of dependency.
Hitherto, at common law, an injured employee who successfully
initiated a common-law suit against their employer by proving
personal negligence on the part of the latter was entitled to damages
as compensation for their injuries.8 However, the possibility of a
successful legal action against the employer was almost non-existent
as the employers usually escaped liability by invoking any of the
three common-law defences to defeat the claims of the injured
worker. The defences included the doctrine of common employment,
otherwise known as ‘the fellow servant rule’, established in Priestley
v Fowler9 as an exception to the general rule of a master’s vicarious
liability, which absolved the employer from liability if the employee’s
injuries resulted in any part from the action or negligence of a fellow
employee who was in common employment with them; ‘consent or
assumption of risk by the employee’, otherwise known as volenti non
fit injuria, which absolved the employer from liability on the ground
that the employee knew of the inherent risks of his employment and
accepted them;10 and ‘contributory negligence’, which has the effect
of reducing the liability of the employer if the employee was in any
way responsible for their injury.11
The inadequacy of the common law in providing succour to
the injured employee in this regard thus necessitated statutory
interventions in several jurisdictions. In the United Kingdom (UK),
the first of such statutory interventions was the Employers’ Liability
Act of 1880, which rendered the defence of common employment
8 RM Titmuss Social Policy: An Introduction (1974) 79; Chagaury & Anor v Yakubu
(2006) 3 NWLR (Part 966) 138; Ngillari v Mothercat Ltd (1999) 13 NWLR (Part 636)
626. In Blyth v Birmingham Waterworks Co (1856) 11 Ex Ch 781 at 784, Alderson,
B defines ‘negligence’ as ‘the omission to do something which a reasonable
man, guided upon those considerations which ordinarily regulate the conduct
of human affairs, would do, or doing something which a prudent and reasonable
man would not do’.
9 Priestley v Fowler (1937) 150 ER 1130.
10 In Imperial Chemical Industries Ltd v Shatwell (1965) AC 656, it was held that an
employer can rely on volenti non fit injuria as a complete defence to vicarious
liability when the employee acts in deliberate neglect of the employer’s
instructions and in knowledge of the associated risks.
11 Stapley v Gypsum Mines Ltd (1953) AC 663; Carr v Mercantile Produce Co Ltd (1949)
L J stated: ‘Although contributory negligence does not depend on a duty of
care, it does depend on foreseeability. Just as actionable negligence requires
the foreseeability of harm to others, so contributory negligence requires the
foreseeability of harm to oneself. A person is guilty of contributory negligence
if he ought reasonably to have foreseen that, if he did not act as a reasonable,
prudent man, he might hurt himself: and in his reckonings he must consider the
possibility of others being careless.’
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