In Lonwabo Hobongwana (the plaintiff) v Benteler South Africa (Pty) Ltd (the defendant), Eastern Cape High Court Gqeberha (494/2019), the plaintiff sustained a lower back injury on the morning of 16 March 2016 at the defendant’s automotive manufacturing plant.
The incident took place whilst the plaintiff was operating the rear axle assembly line, referred to as the SSB line, to which the plaintiff had been moved from the Fagor Press shortly before the incident occurred. That the plaintiff sustained an injury is not in dispute. It was the cause thereof on which the parties were not aligned.
This judgement must serve as a reminder for all employers to identify risks and hazards in the workplace, to properly train employees, and to have effective procedures in place for dealing with injuries sustained whilst on duty.
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The plaintiff was employed by Ulrica and Associates (“Ulrica”), which provided labour brokering services to the automotive industry, inclusive of the defendant, at whose plant the plaintiff was assigned.
In terms of clause 2.5 of the plaintiff’s employment contract with Ulrica, the plaintiff was obliged to “execute the instructions of” his “Manager/Client conscientiously. Insubordination and hesitation will not be accepted. Failure to do this could lead to disciplinary action being taken against” the plaintiff.
The equipment used in the plant carried inherent risks of harm to which all users of such machinery were exposed, should the machinery be utilised improperly due to inexperience or lack of training. For this reason, all persons, in accordance with the defendant’s Safety Standards Handbook, are prohibited from operating the machinery and equipment in the plant unless they have received prior training, alternatively, unless they have received proper instruction.
The plaintiff contended that the defendant, and/or the defendant’s employees, acting in the course and scope of their employment with the defendant, breached their legal duty towards the plaintiff in one or more of the following ways:
- they issued an instruction to the plaintiff to operate machinery and equipment, without ensuring that the plaintiff received proper training and/or instruction on how to use the machinery;
- they failed to adequately supervise the use of the machinery and equipment while the plaintiff was operating the machinery;
- they failed to ensure that the plaintiff operated the machinery in a controlled and safe environment;
- they failed to observe and carry out the code of conduct as prescribed in the defendant’s Safety Standards Handbook; and
- they insisted that the plaintiff perform work that required him to do heavy lifting despite receiving medical evidence that due to the plaintiff (sic) medical condition, he should not be required to perform work that required repetitive bending and heavy lifting of parts that weigh more than 5 kilograms.
The plaintiff contended that such conduct was negligent in that:
- at all relevant times they knew or ought to have known that the use of the machinery and equipment carried inherent risk to the safety of the users of the equipment should the machinery be used improperly through lack of experience and lack of training;
- they failed to heed the protestations by the plaintiff that he is unable to use the machinery and equipment, had not received the proper training in using the equipment, and that it is, accordingly, unsafe for him to operate the machinery and equipment;
- they failed to take reasonable steps to prevent the injury to the plaintiff and to avoid any aggravation of the injury of the plaintiff in circumstances where they could and should have taken reasonable steps to prevent such harm;
- they failed to take any or adequate and/or reasonable steps to preserve and protect the bodily integrity and physical well-being of the plaintiff; and
- they failed to prevent the aforementioned injury when by the exercise of reasonable care, they could and should have done so.
Whilst the defendant admitted its legal duty as pleaded by the plaintiff, it sought to disavow liability on the basis that:
(i) whilst the machinery and equipment in the plant carried the inherent risk of harm referred to, all operators engaged to render services to the defendant, including the plaintiff, were fully trained and interchangeable across all lines of production, as is necessary in a production environment;
(ii) the defendant’s employees at all times provided adequate supervision, having regard to the fact that the plaintiff had been trained to be interchangeable across the defendant’s production lines;
(iii) the defendant’s Safety Standards Handbook was complied with at all relevant times; and (iv) upon being advised of the plaintiff's injury, the defendant took all possible steps to accommodate and assist the plaintiff, including allowing the plaintiff to work in the wash bay for a period of time.
The defendant denied that its conduct or that of its employees amounted to negligence. Prior to the commencement of an operator’s duties at the defendant’s plant, induction training is provided, which covers topics such as work safety, fire prevention, health protection and environmental protection. The information and instructions are of a general nature and include a pre-recorded, 32-minute slide show presentation and a tour of the defendant’s plant. Whilst no pre-recorded slide show was available at the time of the plaintiff’s induction, the presentation was done utilising the same slides, alternatively, materially the same slides as those contained in the 32-minute presentation and which were presented into evidence.
The induction training did not equip operators to operate all the machinery on the various production lines, nor did it cover the risks associated therewith. Accordingly, in addition to the induction training, operators are provided with line-specific training, inclusive of training on the inherent risks associated with the operators’ specific work areas by the operators’ team leader and/or more senior operators, to whom the task of training was delegated. Line-specific training takes place by way of on-the-job training whilst shadowing, demonstrating and operating under supervision. In other words, and by way of illustration, in the event of an operator being stationed at line “X”, he or she will receive line-specific training in respect of line “X” and not in respect of line “Y”. This was in stark contradiction to the defendant’s pleaded case that all operators were fully trained to operate all the machinery at the defendant’s plant and were, accordingly, interchangeable across the lines of production.
The Fagor Press is a cold-forming line, which utilises pressure to form some 114 different car parts from sheet metal as it travels along a conveyor belt. Operators working on the Fagor Press are required to move quickly, with approximately 24 small parts, alternatively, 12 large parts, being manufactured per minute. Put differently, new parts are inspected every 2.5 to 5 seconds.
The SSB line is manned by four operators and a team leader, and consists of 3 separate machines, the SSB1, SSB2 and SSB3 machines, the latter is known as the auto gauge. Only one part is machined on the line, this being a rear axle, which weighs approximately 20 kilograms. Two operators are stationed at, and work interchangeably between, the SSB1 and SSB2 machines; a third operator is stationed at the auto gauge; and a fourth operator is positioned at the final inspection table. The respective operators are required to manage the aforesaid sequence of machines, which require the manual loading and offloading of the part being machined. A part is taken from the stillage and loaded horizontally into the SSB1 machine by ensuring that two small datum holes at the back of the part, with a diameter of approximately 10 millimetres each, are placed over two taper pins. Once loaded, the operator exits the machine and presses the start button, whereafter the doors to the machine close. Clamps will engage to ensure that the part does not move whilst the SSB1 machine is in operation. Once the proxies have verified that everything is in place, the part is machined, with the cycle time being approximately 120 seconds. Upon completion of the cycle, the clamps release and the doors open. If the clamps do not release, the doors of the machine do not open. The operator removes the part from the SSB1 machine and loads it into the SSB2 machine, if the latter is available. If not, the part is placed on a stillage and another part is loaded into the SSB1 machine. When the SSB2 machine becomes available, a part is either taken out of the SSB1 machine and placed directly into the SSB2 machine or taken from the stillage. Once machined by the SSB2 machine, the part is loaded into the auto gauge. All three machines have cycle times of differing lengths, with the entire process taking approximately five minutes. Once machined, the part is taken to the final inspection table.
The plaintiff testified that on 16 March 2016, he was working the 06h00 to 14h00 shift at the defendant’s automotive plant in Kariega, having been assigned there some six months prior, through his employer, Ulrica. On 16 March 2016, the plaintiff reported for duty at his usual workstation at the Fagor Press. Shortly thereafter, he was instructed to move to the SSB line, to which he pointed out that he did not know how to operate the machines on that line. Despite this, he was advised that he was to proceed to the SSB line as there was a shortage of operators on the line and the parts were needed by the defendant’s client. The plaintiff explained that he understood clause 2.5 of his contract with Ulrica to mean that he must execute the reasonable instructions given to him by his manager or supervisor at the defendant’s plant, and in failing to do so, he would face disciplinary proceedings. He complied with the instruction.
On arriving at the SSB line, following a short demonstration which lasted five to six minutes and was described by the plaintiff as having been given in “a speedy fashion”, the plaintiff was requested to operate the SSB line. Once he had completed one round of the operation under supervision, the plaintiff was advised to continue operating the machines. He was reminded that the parts were required by the defendant’s client, whereafter he was left to work on the line, unsupervised.
The plaintiff’s description as to the demonstration given to him was undisputed. Instead, it was put to the plaintiff that what he had described constituted training and that such demonstration was all that was required on the SSB line due to the simplicity of its operation. The plaintiff responded by stating that the short demonstration, as described above, could not be referred to as training and that it was not comparable to the training that he had received on the Fagor Press, which took place over a period of two to three weeks from his team leader, Daniels, and included training on:
(i) the dangers of operating the press and working on the line;
(ii) specific safety measures;
(iii) the work station as a whole and how to effect tool changes for the various parts;
(iv) the respective parts machined by the Fagor Press; and
(v) assessment of the quality of the item and how to identify defects in respective parts.
He further testified that apart from a lengthy period of demonstration on the Fagor Press, operators were supervised until they were assessed as competent on the line.
Whilst working on the SSB line, the plaintiff attempted to remove a part from one of the machines when it suddenly became jammed. Given his impression that the operation of the machines was time sensitive, due to his understanding of how they worked, and the urgency pertaining to the needs of the client, the plaintiff testified that he had to rush to take the part out of the machine. He applied increased upward force to the part, which suddenly came loose and landed on his chest. His back immediately went into a spasm and he cried out for assistance. Two operators, working at other stations on the SSB line, came to the plaintiff’s assistance and took the part from him. The plaintiff was taken to the company clinic, where a spray was administered to his lower back. The plaintiff was advised that the necessary paperwork would be prepared and that an ambulance would be called. In the interim, he was instructed to return to the SSB line to assist at the inspection table, with the caveat that he was not to pick up any parts. The plaintiff, despite the pain that he was in, returned to the SSB line, at what he estimates to have been 09h00. Later during the plaintiff’s shift, and due to the unbearable pain that he was in, he requested assistance from another operator who called the shop steward. The shop steward was advised that the necessary paperwork was not ready and that certain information was awaited. The plaintiff enquired whether he could be released to be examined by his doctor, which request was denied on the basis that should he leave the workplace, the incident would not be classified as an injury on duty. He was told that he would need to continue with his shift, whereafter he would be free to leave. The plaintiff remained at the plant until the end of his shift, whereafter he immediately left and was attended to by his doctor. The following day, the plaintiff proceeded to his workplace and called upon the occupational nurse. The nurse noted swelling on the plaintiff’s back as a consequence of his injury and an ambulance was called.
An occupational therapist testified that the plaintiff presented with a form of lower back injury that significantly impacted his functional ability in everyday life as well as his vocational environment. Insofar as the occupational therapist’s key observations at the defendant’s plant is concerned, she noted as follows:
“… so when I was observing, the key thing that really stood out to me during the visit of the plant was that getting stuck… I observed how when the operator is lifting the part, it's a really complex precision placement part which required four precision placements of a 20 kilogram part. So the first two placements are at further back which just slots in and then there's two datum holes which basically just a little hole and then the location pin where the part needs to slot in to enable the part to be secure during the machining. So that is in addition to the clamps that move onto the part to ensure that the part is secure whilst the machining happens. And it was very evident to me that when the operators are lifting that part, the part needs to be lifted in a symmetrical, vertical and horizontal manner to allow that datum hole and the location pin to not present with an increased sheer force. So the moment the operators lifts that part with a slight angle, the part becomes stuck, becomes tight and then the more that you lift at that angle that sheer force significantly increases. So that was my observation. And what I observed was that operators that seemed to have worked at the station for longer would just tilt their hands, just tilt their hands to just reduce that sheer force and then lift the part up. But with an unexperienced operator what was observed was they would lift it and then that being stuck made sense to me. So his indication that something was stuck, that was my observation that could possibly have been the reason why the part did not initially come free or lift it smoothly and then the sudden force when it does then become free. When that sheer force that you're applying actually you know breaks through the sheer force of the two parts working on each other.”
The judge had regard to the principles set out in Stellenbosch Farmers’ Winery Group Ltd & Another v Martell & Cie SA & Others, and was satisfied on the balance of probabilities that the plaintiff was telling the truth and that his version was acceptable.
Given that the legal duty is admitted by the defendant, as in many other delict cases, causal negligence had to be determined. In other words, in the context of the present matter, it had to be determined whether the defendant took reasonable steps to guard against the dangers inherent in operating the SSB line. More particularly, whether the training provided to the plaintiff was sufficient to discharge the defendant’s legal duty. In answering these questions, having regard to the body of the evidence, the answer was an overwhelming no.
Judge Bands was satisfied that the defendant failed to provide the plaintiff with sufficient training and instruction on the SSB line, which is required by company policy, prior to issuing an instruction to him to operate the line. The judge was further satisfied:
- that the plaintiff was afforded insufficient supervision on the line;
- that the defendant failed to ensure that the plaintiff operated the machinery in a safe and controlled manner; and
- failed to take reasonable steps to preserve and protect the bodily integrity and physical well-being of the plaintiff.
The employer was held to have been negligent. The defendant was held liable for such damages as might be agreed upon or proved in consequence of the event on 16 March 2016. It was further held that the employer was to pay the costs of the hearing, including the qualifying fees of the occupational therapist.
This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.
Written by Jan du Toit, Labour Guide