Betty Kalunga (Administrator) v Konkola Copper Mines PLC (SCZ 5 of 2004) [2004] ZMSC 108 (9 February 2004)

SCZ NO. 5 OF 2004 IN THE SUPREME COURT FOR ZAMBIA APPEAL NO, 147/2002 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: BETTY KALUNGA (Suing as Administrator of the Estate of the late Emmanuel Bwalya) APPELLANT AND KONKOLA COPPER MINES PLC RESPONDENT Coram: SAKALA, CJ, CHIBESAKUNDA and CHITENGI, JJS on 3rd June 2003 and 9th February 2004 For the Appellants: For the Respondent: Mr. F S Kongwa of Kongwa and Company Mr. Machona Ndulo, Legal Counsel __________________ JUDGMENT_______________________ Chibesakunda, JS, delivered the Judgment of the Court Cases referred: 1. 2. 3. 4. 5. Laszcyk v National Coal Board [1954] IWLR p.1426 Manfred Kabanda and Kajeema Construction v Joseph Kasanga [990/1992] ZR 145 Zambia State Insurance Corporation v Andrew Mushili [1998/1999] ZR149 Darius Siwila (As Administrator of the estate of the late James Siwila) and another v Mopani Copper Mines Pic 2001/HP/1053 Eagle Charalambous Transport Company Limited v Phiri [1993/94] ZR 180 Authorities referred to: 6. Winfield on Tort 10th Edition p.15 Laws referred to 7. 8. Fatal Accidents Acts 1846 - 1908 S 10(1) of the Law Reform (Miscellaneous) Provisions Act Cap 74 The Appellant in this appeal, as administrator of the estate of Emmanuel Bwalya (herein referred to as the deceased), sued Konkola Copper Mines Pic, the former employers of the deceased, under the Law Reform - J2 - (Miscellaneous Provisions^ Act (8) and the Fatal Accidents Act (7) for the benefits of the deceased's estate. The facts before the High Court, which were not controverted, are that the deceased met his fatal accident at Konkola Mine on 15th July 2001. This fatal accident happened when the deceased in company of his fellow torry driver, Isaac Chisha, was walking on the 1850 metres level haulage to his section. On reaching the 1850 level loco shop cross cut position, he was suddenly caught unawares by a train going in the same direction as he was. He was thus forced to run ahead but by so doing his cap lamp got caught in the leading cart wings. He was then drugged and then run over by the first car, coupled to the pushing locomotive. The inspectors' report show that the deceased did not take a safe position along the haulage sideway where there was adequate clearance and lighting. According to this report, the deceased had attempted to pass by the stationery diesel locomotive prior to the immediate arrival of the passing train and ignored the warning from his colleagues not to cross into the tracks as the train was approaching. It was also part of the evidence for the Respondents that the workers were reminded by a Public Notice to give the right of way at all time to trains. Before the trial, the parties agreed by consent to an interlocutory judgment on liability for negligence, subject to the Appellant accepting contributory negligence. The court then ordered the parties to put in submission on damages. The judgment, which is subject of this appeal, is the judgment on damages. In the judgment on damages, the High Court held, basing on the principle last opportunity rule that the Appellant's contribution to the cause of accident was seventy-five per cent (75%) compared to the twenty-five per cent (25%) of - J3 - the Respondents' portion of the blame. Under the Law Reform Provisions claims, the court awarded a sum of K4 000 000 00 which the court ordered to be deducted from the K26 000 000 00 awarded under the Fatal Accidents Act (7). The court went into details on the apportioning of the blame and assessing the damages in that context. The court quoted Winfield and Jolowicz 63) under the sub heading "Apportionment of damages", which reads:- ”In a case of contributory negligence the damages recoverable by the plaintiff are to be reduced ”to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage." (Law Reform (Contributory Negligence) Act 1945, s.l(l). This may seem simple enough at first sight, though the problem may be complex when there are successive accidents which are causally connected with one another, and in the majority of cases the judges give little by way of reason for their assessments of the extent to which the plaintiff's damages should be reduced. The matter is commonly treated as one of fact, and appellate courts will only vary an assessment in extreme cases unless the trial judge can be said to have erred in principle or failed to take some relevant factor into account, (see The Macgregor (1943) A. C. 197. 201, per Lord Wright; Brown v. Thompson (1968) 1 W. L. R. 1003-1011, per Winn L. J)" In conclusion, the court held that the Respondents were in breach of statutory duty when the whistle man did not blow the whistle immediately to forewarn the deceased. It placed a percentage of the blameworthiness of the Respondents at 25%. The Appellants were placed at 75% as already indicated on the ground that the deceased ignored the wise counsel from his workmates. The learned trial Judge, therefore, awarded a quarter of K26 000 000 00, which came to K6 500 000 00. The interest was awarded on this amount at short term lending Bank of Zambia rate from the issuance of the writ up to the date of judgment and thereafter 6% to the date of payment. The Appellant being dissatisfied with this judgment has come to this court challenging this holding partially in favour of the Respondents. - J4 - In the memorandum of Appeal, there are two grounds of appeal 1. that the learned Judge erred in law by applying a wrong principle in exercising his discretion in the apportionment of the liability by holding that "there are also a host of case authorities which vindicate the Defendants where there is evidence that the Appellant had an opportunity to avoid or prevent injury to himself and this is summed up in the phrase 'the last opportunity rule'." 2. The learned Judge misdirected himself in holding that in the circumstances the Respondents were not guilty of negligence but only guilty of breach of statutory duty. In the elaborated written heads of argument augmented by his oral arguments, Mr. Kongwa argued that grounds (1) and (2) are inter-related in that they refer to the same points which are supported by the same evidence. His arguments are that the lower court when relying hundred per cent (100%) on the "principle of last opportunity" misdirected itself at law in that it ought to have exercised its discretion of apportioning liability between the Appellant and the Respondents. His arguments are that the learned trial Judge's heavy reliance on the "principle of last opportunity" in order to assess the damages was wrong. Although counsel conceded to the argument that there was contributory negligence on the part of the deceased in that he did not heed the warnings from his workmates, nonetheless the liability of an employer towards his employee, especially in dangerous occupations such as mining, even though not absolute, nevertheless, the standard of care imposed on the employer is high. Referring to Winfield and Jolowicz (3), he contended that in the case before the court the major causes of the accident were cataloged in the Inspector of Mine's Report at page 32, and these are: - J5 - a. Careless crew of GOC 36 Locomotive, namely Mr. Kabonko and Mr. Katongo. Messrs Chisha, Kakonkanya and Mulangwa, all agreed the locomotive was pushing the cars at higher speed than the usual. b. Careless crew of GOC 36: The crew - rather the whistle man - did not stop at the blind corner and get a clearance from the control point's man. This was attested to be Mr. F. Simukoko (witness No. 5) that he never received any request from the haulage after the trains had left the tip request box that day until after the accident had occurred. c. Careless crew of locomotive CL 46: for the locomotive driver left the diesel loco unattended to and with its engine running and the same time dangerous packed - leaving very little space between the rail tract in the haulage and the haulage's sidewall. According to him, had the learned trial Judge properly considered those causes, he would have not reached the conclusions, which he did. Also, in his view, the learned trial Judge rightly posed the question as to what caused the accident. But in trying to respond to that question he wrongly concentrated on who had the last opportunity to avoid the accident. He went on to submit that even taking that approach, according to the evidence on record, the deceased and his colleagues were under the supervision of the shift boss who undoubtedly was supervising them even at the time when the accident occurred. So the learned trial Judge should have held that that accident was caused by lack of supervision of the supervisors. On ground (2) he drew our attention to the fact that the lower court drew a distinction between liability because of negligence and liability because of a - J6 - breach of statutory duty. He submitted that this approach was fallacious as there was no distinction between the two terms. He argued that once the court found that the Respondents were in breach of statutory duty, it should have gone on to logically hold that they were negligent. Citing a passage of Winfield and Jolowicz (3) that:- "It has often been stated that statutes such as the Factories Acts exist to protect workmen from the consequences of their own carelessness and the courts will therefore be slow to hold a workman guilty of contributory negligence where the Defendant is in breach of his statutory duty. Furthermore, even if the workman's negligence involves him in breach of his own statutory duty his claim is not defeated by the maxim ex-turp cause non oritur action, and indeed his share of the blame may still be held to be small indeed." he argued that the learned trial Judge should not have apportioned the blame at 75% - 25% basis. According to him, even if for argument sake the deceased was in breach of statutory duty, using the maxim ex-turp cause non oritur action, that should not affect his claim, see Laszcvk v National Coal Board (1) which case, he argued, is more or less similar to the case before us. Mr. Ndulo also relied on his heads of argument in response. He briefly supported the learned trial Judge's holding. He argued that although the learned trial Judge quoted extensively from Winfield on Tort (3), the quotations were good law. He pointed out that counsel for the Appellant had spiritedly cited and relied on the Law Reform (contributory negligence) Act of 1947, which is an English Act. This Act does not apply to Zambia. The proper Zambian law is Cap 74, the Law Reform (Miscellaneous) Provision Act (4). He referred to Section 10(1) of Cap 74 which says:- "Where any person suffers damage as the result of partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the respect for the damage." So, in his view, the learned trial Judge was on firm ground. - J7 - We have looked at the arguments and the record before us. Mr. Kongwa challenged the lower court's decision of applying the "principle of last opportunity rule" in apportioning liability. The learned trial Judge in the court below properly referred to Winfield on Tort (3), which he quoted quite extensively, from page 15, probably in order to address his mind to the discretion which is vested in him. We particularly take note of the part of the portion quoted at page 14 of the record, which we states:- ”Where the defendant's liability is based upon breach of a strict common law or statutory duty he may have been guilty of no blameworthy behaviour at all, in which case if comparative blameworthiness were the sole criterion, even slight contributory negligence would prevent the plaintiff from recovering any damages." The courts have been conscience of the fact that the protection intended to be given to employees by the employers must not be emasculated by the said window of apportionment although there is high authority for the view that both causation and blameworthiness must be taken into account. At the end of the day the court must send a signal to the employers to ensure safe working conditions to employees. We make these remarks against the background that there is no hard and fast rule which has been laid down. In such circumstances each case must be taken and looked at individually. Also we must mention that, the English courts' approach to the duty of care, by employers to their employees, has developed to the extent that there is virtually no room for volenti non-fit injuria to apply in cases of negligence where there is common law or statutory duty of care by an employer to his employees except where such doctrine has been pleaded. Eagle Charalambous Transport Company Limited v Phiri (5). This is much more so in dangerous operations such as mining activities. - J8 - Looking at the evidence before us, and in particular at page 32 which reflects the Inspector of Mines' Report, we are persuaded to agree with Mr. Kongwa that the learned trial Judge misdirected himself in concentrating in apportioning the blame between the Appellant and the Respondents on the "last opportunity rule". Indeed, we hold the view that there was interaction of factors in causing the accident, but looking at the respective responsibilities of the parties and what is just and equitable, our view is that the employers should have borne more responsibility for the accident than the deceased. Even taking into account the fact that the deceased showed disregard for his own safety, we hold that the accident happened in the course of the deceased's duties. As Devlin J. said in the Quintas v. National Smelting Company, and which we quoted with approval "The respective responsibilities of the parties, and what is just and equitable having regard thereto, can only properly be assessed when it has been found what the plaintiff in fact did and what the defendants failed in their duty to do. The nature and extent of the defendant's duty is, in my view, highly important in assessing the effect of the breach or failure of duty on the happening of the accident given rise to the plaintiff's claim and on the conduct of the plaintiff. There is an interaction of factors, acts and omissions to be considered." Looking at the chain of causation, the degree of blame should have been reversed to that of 75% to employer and 25% to the employee. We also agree with Mr. Kongwa that it was a question of semantics for the learned trial Judge to have drawn a distinction between liability because of negligence and liability because of breach of statutory duty. Our view is that once this is established that an employer is in breach of statutory duty of care or common law duty of care towards his employee that necessarily should mean that that employer is liable for negligence. We agree with Winfield and Jolowicz (3) that if an employee in the course of his duty is in breach of statutory duty, that should be vicariously held to be negligence of his own employers depending on the circumstances of - J9 - a given case. In this case, where there were instructions and supervision, the negligence of an employee, if he himself is in breach of a statutory duty or common law duty of care to himself, that is negligence of the employer. We therefore find merit on these two grounds. We hold that the lower court misdirected itself. Coming to the damages under both Fatal Accidents Acts (7) and the Law Reform (Miscellaneous Provisions Act (8) the lower court awarded lump sums. In the case of Zambia State Insurance Corporation and ZCCM v. Andrew Mushili (3), this court went into great length in explaining the principles involved in assessing damages under both Acts. One of these principles explained in that case is that damages awarded under the Fatal Accidents Acts (7) are not supposed to be awarded in one global sum. Each individual dependant is entitled to individual set of sums as damages; see Kemp and Kemp page 22003 Vol. 1 para 2026. In view of that conclusion, although we endorse the lower court's views on the calculation of the damages in the claim under the Fatal Accidents Acts (7), this calculation has to be re­ amended to reflect our conclusion that the apportionment of the blame should be 25% for the deceased. So we award a global sum of K20,000,000.00 to the dependants of the deceased as damages. This has to be reduced by 25% of this global sum to reflect the apportionment of the blame. At page 9 of the record, there is a list of dependants. According to the position at law, the name at (i) does not qualify to receive any benefits. The description of (dependant) is only confined to parent, spouse and children. A sister is not included. As there is no evidence to assist in assessing the degree of dependency by each of the children reflected at page 9, we direct that this matter be sent to the Deputy Registrar to assess the amount of damages to be awarded to each of the dependants. J10 Coming to the claim under the Law Reform (Miscellaneous) Provisions Act (8), again we endorse the views of the learned trial Judge in assessing the quantum of damages. However, using Darius Siwila (as Administrator of the estate of the late James Siwila) and another v Mopani Copper Mines Pic (4) as authority, and taking into account the rate of inflation we award K5 000 000 00 as damages for the benefit of the estate of the deceased. As there is no evidence on record that the dependants listed in the case record are the same beneficiaries as those who would be entitled under the Law Reform (Miscellaneous) Provisions Act (8), we will not order that this amount to be deducted from the award made under the Fatal Accidents Acts (7). In view of our conclusions, we order that the costs of this appeal be borne by the Respondents. E L Sakala CHIEF JUSTICE L P chibesakunda SUPREME COURT JUDGE SUPREME COURT JUDGE