Nkagula v Terrazo and Building Ltd (Civil Cause 186 of 1994) [1996] MWHCCiv 4 (22 March 1996)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 186 OF 1994 BETWEEN: ASIMA NKl\GULA PLAINTIFF TERRAZO AND BUILDING Ltd. DEFENDANT - and - CORAM: CHIM/.\5.pt. A PHIRI, J Mrs Kanyuka, of Counsel for the Plaintiff Nkhono, of Counsel for the Defendant Nguluwe/Mikanda, Official Interpreters Mrs Khan, Recording Officer J U D G M E N T Th e plaintiff's claim is for damages in respect of personal injuries he sustained on 17th March 1993 whilst employed by the It is alleged that defendant as an operator of a concrete mixer. the accident was oc c asioned by reason of negligence on the part The defendant is a of the defendant, its servants or agent. building const r uction time was engaged in the construction of Misesa Primary School in the City of Blantyre. company and at the material In giving his evidence th e plaintiff stated that on the material day he reported for work and because the concre te mixer was out of order, the foreman ad vise d the plaintiff to be mixing concrete with hands. Later the foreman ordered the plainti ff and his friends to start the faulty concrete mixer because the bosses wanted the job done quickly. The plaintiff alleges that since the mixer was faulty the foreman asked the plaintiff and other workers to push the mortar whilst the foreman himself tried to pull the drive belt. The foreman failed to pull the belt and Loudon Lenard also tried but failed too. Finally the plaintiff tried to pull the belt and it was at that time that the mortar the plaintiff's left hand fingers got started The plain tiff's last trappe d between the belt and th e mortar. The two fingers got amputated and the middle finger stiffened. plaintiff the mixer. The plaintiff was taken to Limbe Clinic and eventually Q E c H where he was admitted for J.l days. He states that he felt acute pain and the moment he is unable t o do manual work and his incapacity has been assessed to be 60 %. He is a man of little education who only did somebody eventually switched off tim e he was unconscious. to rotate and screamed and there was a At MIGH COURT - 2 - the the conc1:ete mixer again. up to standard 3. He went back to work after 2½ months but could not work on They made him push a wheelbarrow but he failed, He was then discharged from service. At time he was discharged his wages were K48.00 per fortnight. He says he is 25 years old. He was offered K3,207.60 under the workmen's compensation Act but he turned it down. The gist of his evidence is that he is now no longer employable due to the injury. He contended in the main that the defendant was negligent in failing the safety of the concrete mixer. Further that the defendant was negligent in causing or permitting the plaintiff to use the said concrete mixer when the defendant knew or ought to have known that it was in a dangerous state of repair. the defendant was negligent in requiring the plaintiff to pull the belt of the concrete mixer with bare hands when the defendant knew or ought to have known that it was dangerous to do so. The plaintiff denied that he was negligent or contributory negligent himself. the plaintiff while he was engaged on to take any adequate precautions for Furthermore, He said on The second witness for the plaintiff was Loudon Lenard who previously worked for the defendant during the time the plaintiff was also there. He said he too was an operator of fhe concrete mixer. He recalled that in March 1993 the mixer had a worn out drive belt and crank. He almost repeated what the plaintiff had the material day th ey were stated in his evidence. instructed to stop making concrete using hands and resort to the mixer for quick finish of the assignment. He said that the motor was on but the drive belt was not moving hence no rotat ion of the He said the foreman tried to pull the belt but failed mortar. and next to try was himself who also failed. The third and last one was the plaintiff. In the process, with the pushing of the mortar the plaintiff was pulled to the crank and his left hand This witness alleges that he got pinned down switched off the machine and the plaintiff got a chance to free his trapped hand. The plaintiff was injured as stated above. He was taken to Limbe Clinic by the witness on a bicycle. From Limbe the plaintiff was driven in a vehicle Clinic, the plaintiff was belonging to the defendant. In cross-examination admitted and the witness visited him once. he stated how he left the employ of the defendant company. The case for the plaintiff closed on that note. to Q E C H At Q E C H, the mixer. to The defendant called James Wingolo as its only witness. He works for Terrastone but was previously with Terrazo and Building Limited as a dumper driver. On the date when the plaintiff got injured, Wingolo was present. He explained and demonstrated how the this particular concrete mixer operates. He stated that foreman had directed the the plaintiff to mix concrete using He facial 1 y recognised both the plaintiff and concrete mixer. He said the plaintif f was an his witness though not by name. the plaintiff's witness was an assistant on a operator while just lorry. co ming back from where he had gone ~ - off load concrete mix. He hear d sound of motor but the morta r:; was'n ot rotating. He checked the accident happened when he was He said that - 3 - the plaintiff switc hed off the engine. He the mortar and discovered that there was little water only. said the plaintiff pulled the drive belt under the ma chine to aid movement of the mortar. When the witness heard the plaintiff's loud cry, this witness rushed back to tell the foreman. A friend of that The witness further stated that person is given as Simenti. the concrete mixer had been serviced prior together with that it was not possible to make the inortar rotate by pulli ng the drive belt if there is no water inside the mo rtar tank. He said that on the day of the accident he did no t see anyo n e pulling the drive belt. He said he advised the plaintiff against putting hands on the drive belt. He says the plaintiff was taken on a caterpillar to the hospital. He was adamant this accident The name of the dumper. to From the employ of the evidence from both parties there are some facts which are not in dispute . Thes e facts are that the plaintiff was in the defendant Company as a concrete mixer That on 17t h March, 1993 an accident happened at operator. Misesa resulting in amputation of two fingers on the left hand of The the plaintiff and stiffe ning of the middle finger as well. plaintiff is no The the defendant. central issue jn dispute is whether or not the accident happened due the negligence or contributory negligence of the plaintiff. The burden of proof is on a balance of It is not for the defendant to prove that it was probabilities. not negligent. by whomsoever introduced, is in, the party who has this burden has not discharged it, the decision must be made against that party. to prov e his allegation on to negligence of the defendant or if, wh en all the employ of the evidence, the plaintiff Therefore longer in The English case of Wilsons and Clyde Coal Co. - V - English (1937 ) 3 ALLER 628 ~t Page 641 Lord Wright quoted with approval the dictum of Lord Herschell in Smith - V - Baker and Sons (1891) AC 325 that involves on "it is quite clear that the contract between employer and employed the duty of to provide proper appliances, an d to maint ain t hem in a proper condition, and so to carry o n his operations as not to subject those employed by him to unnecessary risk." the part of the former reasonable care taki ng This position is the same in Malawi as examplified in H. Q - Malawi Entrepren eur Development Institute (MEDI) (Unreported) where Banda Chidule - Vs M. S . C. A Civil Appeal No. 12 of 1993 C. J . stated the duty as follows:- "It was appe1lant the duty of MEDI the to provide suff j, G,ient working conditions, the employer of as sound and safe equip ment a/a ,m~ .'. e:_i ,: ls." I have no prob1e ms therefore / to find · ,_t~·at the defendant, Terrazo and Building Limited as an em fi};__~ r a duty to - 4 - provide a safe working environment and materials so as not to subject risks. i.e. sound and safe equipment its employees to unnecessary There the same. the parties. finishing of even be misled the construction assignment. the concrete mixer into It follows therefore that I have to determine whether or not is the concrete mixer was a safe and sound equipment. The plaintiff and his conflicting evidence from witness state that the mixer was faulty and fell into disuse until on this fateful day when it was found necessary to use it for quick The defendant's witness says that the mixer had just been serviced a week prior to the accident a n d job cards were at the office. The issue turns to become o ne of credibility i.e. whose story should the court accept? The evidence of the plaintiff and his witness established that for some time the concrete mixer was not in use due to worn out drive belt and crank. According to these two witnesses they were actually working on the machine or at least the plaintiff was an aper a tor of The def end ant's It appears odd that he took much witness was a dumper driver. One more interest in would the I have problems to convince myself that Mr plaintiff's foreman. Wingolo was He contradicted himself on a In one breath he states that the crucial aspects of the case. mortar was not rotating. When he checked inside he saw little water only. Then the plaintiff caught the belt under the machine to aid movement of the mortar . He heard cry of the plaintiff. This was evidence at the scene where the mixer is kept. Later in Court, this witness in cross-examination stated that he was not there when the plaintiff touched the belt and that he would not know what exactly happened . Mr Wingolo stated that the foreman the was responsible for the determination as to whether or not It therefore follows that Mr concrete mixer required service. Wingolo may not the state of to state about the best person repair of the mixer. Counsel for the defendant urges the court to hold that the evidence of the plaintiff and his witness is contradictory on several points notably the number of tyres for the mixer. True there was contradiction on the number of tyres but the effect of the same does not become serious because the defendant's witness confirms that the plaintiff was the person who was operator of this machine. than anything else. trut.hf l 1.l witness. too was thinking that he the two parties which Another evidence between in conflict relates to the mode of travel from the site in Misesa to Limbe Clinic. The plaintiff's version is that he was carried on a bicycle by PW2 while the defendant says a caterpillar was used. This again turns to be decided on the question of demeanour. The evidence seems to suggest that the plaintiff sustained a serious If this is so , why did the caterpillar driver choose to injury. go to Limbe Clinic when he could have easily driven to Q EC H. The stopping at Limbe Clinic is compatible with the explanation of a person on a bicycle would prefer to stop at any nearest clinic in view of time, distance and the energy it takes to cycle. the plaintiff and his witness. Naturally, is .. - 5 - I find I would also wish the defend,=int's to sl: iJtc Lhat. witness evidence that he was well versed with the operations of this particular concrete mixer rather doubtful judging from his reaction when he heard the plaintiff screaming. Ordinarily he should have rushed to inform the foreman. He came back and found that the machine had He did not see Simenti switching it off. been switched off. There is possibility that it could have been somebody although Simenti might have been present. The machine could have been switched by the plaintiff's witness as claimed in his testimony. to who I would prefer switched off the engine. the version of PW2 to stop the motor. to that of DWl as instead rushed He In the Given light of Therefore, I only have this accident. j nstructions but himself I would respectfully these reservations reject the assertions made by the defendant's witness relating to the occurrence of to determine whether or not the evidence of the plaintiff and his witness establishes the defendant's negligence on a balance of probabilities. that the concrete mixer was faulty but nonetheless the foreman gave instructions that it be used and not only giving such in pulling the drive belt, how on earth would the plaintiff refuse a lawful order The too was d efendant's operating on superior orders. Furthermore, given the status of the plaintiff Visa Vis the defendant, there is no way he could have challenged the instruction without facing a dismissal or some disciplinary action. Therefore, the issue of the plaintiff being negligent or contributory negligent would not, in my view, arise. I am satisfied that the plaintiff has proved his claim. I order that damages be assessed by the Registrar. The defendant i s condemned in costs of this action. foreman was obviously negligent but he the course of his employment? taking the issued lead in PRONOUNCED Blantyre. in Open Court this 22nd day of March, 1996 at -'y ·. I: '" l" ' . /'\' ( G. M. Chimasula Phiri JUDGE