The liability of employers for industrial injuries or disease caused to employees continues to be one of the most litigated areas of the tort of negligence. The Pension Reform Act, 2014 mandates employers of three and above to have in place employer’s liability, (group life) insurance for employees.
Employer’s liability insurance in Nigeria provides compensation for the family of employees, in case of untimely death, disappearance, or disability while in service. It is one of the six compulsory insurances in Nigeria.
One hastens to point out that the existing legislative framework in Nigeria is rather weak to cater for all the conceivable situations under employers’ liability especially as regards the ambit of protection as you have in other jurisdictions such as the UK.
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One would therefore expect that the scope of protection should only cover situations arising during the employee’s course of employment. Thus, the insurable risks must refer to risks ‘arising out of and in the course of the players’ employment.
This principle is in tandem with the common law principle on the point. For example, in Moore v Manchester Liners Ltd, Lord Loreburn defined the course of employment to mean ‘that the event, normally an accident, giving rise to the employee’s claim must arise when the employee is doing what a man so employed might reasonably do during which he was employed and at a place where he may reasonably be during that time to do that thing”.
Three Nigerian Football clubs, in the last couple of months, experienced an unprecedented spate of accidents on their way to prosecute league matches for their respective teams. First was Adamawa United (kidnapping), Wikki Tourists FC, and Kwara United of Ilorin of Bauchi (accidents) have all experienced misfortunes on the road.
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Undoubtedly, this development raises a number of legal issues from an employment standpoint. Put differently, the work health and safety obligations of a professional football club.
This article is in two parts; first, we take a look at Employers’ liability insurance in general while the second part delves into insurance and risk management in sports and the ancillary issues of workplace health and safety.
As a general rule, an employee’s journey to and from his or her place of work is not ordinarily in the course of employment unless the journey is so closely connected with the employee’s work that the general principle ceases to apply.
In Smith v Stages, an employee, a peripatetic lagger had been instructed to work away from his usual place to undertake urgent work at Pembroke power station in Wales. As soon as the work was completed, the employee was driven back to his home in Staffordshire on a Bank Holiday Monday by a colleague so that he could resume work at his usual place of employment the next day.
During the journey, the car skidded off the road and crashed into a brick wall. Both men were seriously injured. The plaintiff was paid by his employers for the day he needed to travel back on the same basis as any normal working day. The House of Lords held that at the time of the accident, the plaintiff was acting in the course of his employment.
On the other hand, in Vandyke v Fender, V & F, who were both employed by the same company, were provided with a car by their employer so that F could drive himself and V to their place of work. They were involved in an accident caused by F’s negligence.
One of the issues before the court was whether the employers’ liability policy covered this risk or whether the claim should be directed to the relevant motor insurer. It was held that the employers’ liability insurer was not liable as the accident did not occur during the course of V and F’s employment. The court further held that driving to work is not the same as driving at work and, in any case, V was under no obligation to travel in the car.
Whether or not an employee was acting in the course of his employment is a question of facts which as shown by the foregoing cases, is amenable to a number of tests devised by the individual judges. The judge as arbiter is therefore under an enormous duty to take cognizance of the peculiar facts of each case in applying the law.