Kaonga v Mopani Copper Mines (Appeal 30 of 2004) [2005] ZMSC 36 (11 November 2005)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 30/ 2004 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: CLEMENT KAONGA (Suing as Administrator APPELLANT of the estate of the late Luckwell Kaonga) AND MOPANI COPPER MINES PLC RESPONDENT CORAM: Chibesakunda, Mambilima and Chitengi, JJS on 6th April 2004 and 11th November 2005 For the Appellant: Mr. F. S. Kongwa of Messrs Kongwa & Co. For the Respondent: Mr. P. Siampwili, Legal Counsel JUDGMENT Chibesakunda, JS, delivered the judgment of the Court. Cases referred to: 1. Betty Kalunga (Suing as Administrator of the estate of the late Emmanuel Bwalya vs. Konkola Copper Mines Plc SCZ App. No. 5 of 2004 2. ZESCO vs. Redlines Company [1990 - 1992] ZR 170 3. 4. Zambia State Insurance Corporation and Zambia Consolidated Copper Mines vs. Andrew Muchili [1988 - 1989] ZR149 Kabanga and Kajema Consumer Company Limited vs. Kasanga [1990 -1992] ZR 145 5. Attorney General vs Jumbe [1995 - 1997] ZR105 6. 7. 8. Konkola Copper Minises Plc Zambia State Insurance Corporation vs John Mubanga Kapaya SCZ No. 26 of 2004 Namouf and Albasini [1971] Z. R. 1 Deutsch, Darling and Banda vs Zambia Engineering and Construction Company Limited [19697] ZR 161 Laws referred to; 9. Jowitt’s Dictionary of English Law 2nd Edition Volume 1 10. Osborne’ Concise Law Dictionary 7th Edition 11. Clark and Lindsell at page 796 In this appeal, the Appellant, who in the court below was the Plaintiff (suing in his capacity as the Administrator in the estate of Luckwell Kaonga, hereinafter referred to as the deceased), is now challenging the findings of the High Court that “the crashing to death of the deceased by the rock was not foreseeable. It was an accident and it is common that such rock falls usually occur in underground mining operations without the negligence on the part of the owners.99 He is thus challenging the learned trial Judge’s conclusion at page 11 that “the Plaintiff has failed to prove his case, and that the Respondents were not liable in negligence. ” Before the High Court the Appellant’s claim was for:- i) General, exemplary and special damages under the Law Reform (Miscellaneous Provision) Act and fatal accident arising out of a fatal industrial accident on 24th April, 2001 at Nkana Mine caused by the negligence of the Defendant and its servants or Agents. ii) Further or other relief the Court may deem fit. iii) Costs. The Appellant called three (3) witnesses. The Respondents called one (1) witness. Most of the facts were not in dispute. PW 1, the Administrator, testified that the deceased, Luckwell Kaonga, was employed by the Respondent as a machine operator and that he died when he was 45 years. He was married and was survived by a widow with two children - the first-born, Elestina Kaonga, being 14 years and the second born, Gift Kaonga, being 4 years. He had two dependants - Esther Kaonga and Masida Kaonga aged 10 years. He further testified that after the death of his brother the Respondent gave him K20,000,000.00 as benefits. The Respondents bore all the funeral expenses. PW 2, Chester Mwanakasale Hambula, Senior Inspector of Mines, employed by the Ministry of Mines, testified that he was assigned to inspect the mine accident in which the deceased met his death. The deceased died as he was working underground at SOB Shaft, Nkana Division. The deceased was a machine operator. According to him, applying the standard practices, on inspection, he found the rock support was weak and that it was below the standard practices. The roof bolts which were supposed to be at the grid of one metre square and supposed to be four (4) bolts, were not. The bolts, that are meant to support the pads, were spurred in larger grids and no pattern at all at distances in excess of the standard grid. Because of these deficiencies the area was accident-prone. According to his investigations this accident occurred because of the volatility of the area. He explained this conclusion by stating that just before this accident, the Respondent had suspended the mining operations in this area in accordance with the Mining Regulation 402. The Respondents were thus required as per regulations to seek the expert advice before carrying out further operations from this specialized body of the Mine - the Rock Mechanics Engineering Department. It is on record that this department had been approached. But this department had not responded up to 24th of April. Because of this lack of timely response from this department the Mining Captain and the Underground Manager then visited this area of operation and then directed that another method of mining should be employed. They directed that there should be some drilling to bring down the hanging rock. So they instructed the deceased and his workmate to drill the support holes. As per this instruction the two, the deceased and PW 3, started to drill the support holes. As they drilled they discovered that they could not continue drilling before bringing down a bad hanging rock, which threatened to fall on them. So in pursuit of that they started to drill holes around the bad rock to put in explosives to bring down the bad rock. As they did that the Section Boss came and agreed with them that that was the best way of handling that rock. The deceased and PW 3 tried to bring down the bad hanging rock but failed. They then heard the falling of a rock. They both started running for safety. As they did so, PW 3 looked behind and saw the deceased being trapped by another rock not the one they were trying to bring down. The deceased died instantly because of injuries. PW 2’s evidence is that volatility of the area caused the accident. In cross-examination he testified that the deceased failed to apply the use of props, as he was the person in charge while working under bad hangings. He referred to Mining Regulation 402 and testified that as a prudent person the deceased was correct in trying to bring down the bad hanging rock. He also testified that the deceased violated Mining Regulation 403 (d) just as his supervisors did. PW 3, Albert Mwango, a workmate of the deceased, testified that, on the fateful day, he and the deceased were instructed to work on the support beams at the crosscut. According to him as they started drilling the support holes they noticed a bad hanging rock, which was cracking. They, using a pinch bar, tried to bring it down. They failed to do so. Even their Section Boss found them trying to bring it down. He then promised to bring them explosives to put in the grid holes. It was whilst they were carrying out this assignment that they heard a sound of a falling rock. PW 3 alerted the deceased. As they ran for safety, the deceased was hit by the falling rock. The Respondent’s witness, Evans Kabali Chansa, who was the Section Boss, on the day in question, repeated more or less what PW 3 said in court. According to him, he and the two workers, PW 3 and the deceased, had not noticed the rock that crushed the deceased. According to him, after drilling the support holes, the two should have waited for him to come back to put explosives in the drilling holes. They did not obey his instructions. As already indicated the learned trial Judge found in favour of the Respondents and hence the appeal before us. Before us, Mr. Kongwa, learned counsel, argued on behalf of the Appellant citing the cases of Betty Kalunga (suing as Administrator of the estate of the late Emmanuel Bwalya vs. Konkola Copper Mines Plc. (1) and ZESCO vs. Redlines Company (2), that the learned trial Judge misdirected himself in law and in fact in holding that the death of the deceased was due to an accident which was not foreseeable when there was evidence from both parties giving the causes of the accident which were reasonably foreseeable. In oral submission he relied mostly on his written submissions. He submitted that the learned trial Judge did not seriously consider the evidence of PW 2, the Senior Inspector of Mines. According to him, this witness’ evidence clearly established that the cause of the accident was the application of the wrong and substandard mining practices employed by the Respondents when they knew or ought to have known that the area was volatile and thus prone to accidents. He referred to the report of PW 2, in which he said, “In this case the area was mined more than fifteen metres without adequate support and also without rock mechanics recommendation despite the request on the drop by rock mechanics that consultations be made before operations resumed. It was the responsibility of the Respondent Company to ensure that the mine was operated safely.” He argued that according to PW 2’s evidence, the management knew that the area in question was potentially dangerous and because of that they had initially suspended mining operations and they had sought the intervention of the specialized department - The Rock Mechanics Engineering Department. He further submitted that after the under Ground Manager and the Captain visited the area they irrationally gave instructions to dig and to put in explosives too. These instructions were to restore operations even before seeking the intervention of the Specialized Department. Although the Respondents have argued that this was meant to make the place safe, according to Mr. Kongwa these instructions were given by these two top employees of the Respondents knowing veiy well that the area, as it was, was volatile and prone to accidents. He argued that when giving these directions to the deceased and PW 3 the Respondents should have made sure that as per their common law duty of care and statutory duty they maintained safety to their employees. He argued that by resorting to applying other methods they misjudged the degree of danger they were exposing the two employees to. Their failure to make a proper judgment amounted to negligence. He argued that it was a misdirection on the part of the learned trial Judge to conclude that the deceased was in breach of Regulation 403 as according to him when the Mine Captain and the Under Ground Manager visited the area in question and resorted to employing short cut method of mining, this in itself meant that they were in control and thus directly bore a duty to making the area safe enough for their employees to carrying out their instructions. He submitted that there was no evidence to support the learned trial Judge’s conclusion that the deceased caused this accident and brought about his own death. He contended that had the learned trial Judge properly evaluated the evidence of PW 2 he would not, in all probability, have held that “the accident was inevitable and not foreseeable ” On Ground 2, he submitted that the learned trial Judge erred in law in basing his judgment on a defence of inevitable accident. In his view, that defence was not even supported by any evidence. He pointed out that there was no evidence from the Appellant’s witnesses or from any other witness of the Respondents to support this defence of inevitable accident. He maintained that that defence had not been raised. He went on to state that even if that defence had been raised in the pleadings or let in by unchallenged evidence, according to him, the learned trial Judge still was obliged to look at the evidence before him, to be satisfied on the balance of probability, that this fact was established. He, citing the case of ZESCO vs. Redlines Company (2), argued that the burden of proof rested on the defendant (now the Respondents) to establish this defence of inevitable accident. On Ground 3, he submitted that the learned trial Judge misdirected himself in law in holding that payment of life insurance indemnified the employer against a claim under employer’s liability when the law specifically provides that life insurance benefits shall not be taken into account in assessing damages under the Law Reform (Miscellaneous Provisions) Act. He argued that there is no principle of law to support the learned trial Judge’s holding that the life assurance policy indemnifies employers against claims by employees for damages under the employer’s liability. He further submitted that this holding by the learned trial Judge on this point was at variance with the earlier holding that the employers are not liable for an employee’s insurance benefits and cannot be used to indemnify the employers from any liability which the employer has towards his employee. In addition Mr. Kongwa urged the court to further take into account the submissions he made in the court below appearing at page 58 of the record. In these submissions Mr. Kongwa had given detailed submission on the assessment of the Appellant’s damages and he submitted that the Appellant had claimed under the LAW REFORM (MISCELLANEOUS PROVISIONS) ACT for loss of expectation of life. He argued before the lower court that, the deceased being 45 years and applying the law as stated in the case of PERCY MUTALE, was entitled to KI0,000,000.00 as he had good prospects of a productive life ahead of him at the time of his death. On the claim of loss of dependency under FATAL ACCIDENT ACTS, Mr. Kongwa cited the case of Namouf and Albasini (7) and submitted, that in assessing the loss of support by dependents under this claim the, court has to take into account the guiding principles set out in the case cited. These principles are that under this claim each dependent depending on the degree has to be awarded a specific sum. Also in calculating this award certain factors have to be taken into account, bearing in mind that this is not a mathematical precision calculation. The factors to be taken are the possibility of the deceased, if he had not died in the accident, dying before the dependants or the dependants dying before the deceased. In the case of claims by widows, courts have to take into account the possibility of remarrying. Also in calculating this sum the court takes the multiplicand multiplied by 12 months and multiplied by the multiplier less other contingencies. Mr. Kongwa therefore calculated this claim totaling to K36,193,680.00 as damages. He also included a claim for future loss of increment of salary over the remaining years of employment and came to an amount of K10,858,104.00. Mr. Siampwili, in response, supported the findings of the learned trial Judge. He argued that it was wrong for Mr. Kongwa to rely on the evidence of PW 2 as most of PW 2’s evidence was his own opinion. According to Mr. Siampwili, this was testimony of a witness who did not visit the scene of the accident. He further argued that PW 2 did not prepare the report in question. On the accident, he submitted that the rock, which killed the deceased, was a different rock. He referred to the evidence of drilling of holes and stated that the effect of putting explosives around the loose rock was to bring down this loose rock and to make the operation area safe. He further submitted that the mining operations are dangerous operations perse and that in this particular case the Respondents did everything in their power to make the place safe by employing a different method. He therefore urged us to accept the lower court’s findings that the deceased breached the mining regulations 403. He did not address us on the quantum of damages. These were the arguments. We have looked at the record of appeal and the arguments of the two sides. We have also looked at the judgment of the learned trial Judge. On Ground (1), as already indicated there were few areas of controversy in the evidence before the learned trial Judge. It is common ground that the area where the two employees were directed to carry out the drilling operations, mining operations had been suspended. This comes out in the evidence of PW 2 and in the evidence of PW 3. It was also common ground as per regulation that the Respondent had sought the intervention of a specialized department - Mechanical Engineering Department. It was also common ground that before a response was received from this specialized department the Mine Captain and the Under­ ground Manager both visited the area in question and decided to direct the resumption of operations. Also it is sine qua non that the employment of these two workers, PW 3 and the deceased, to drill in this area was a directive from the Respondents’ top management for the two workers to work in a potentially dangerous area. Mr. Siampwili has argued that all mining activities are dangerous activities. Yes, we accept this as the case. But it is trite law that the duty of care of an employer to his employee must at all times match with the degree of danger of the assignment the employee is given to undertake. As there is evidence, which was not disputed that PW 3 and the deceased were directed to carry out the drilling activities in an area, which according to PW 2 was potentially dangerous and as it is also not disputed that as they carried out the drilling activities their immediate boss visited the scene and approved of the operations, in our view, with this constant supervision by the Respondents, the Respondents held themselves as having been in control of the situation. We are therefore satisfied that the Respondents had a common law and statutory duty of care to make sure that the area, the deceased and PW 3 were operating in was safe for them to carry out the assignment. Our conclusion on this point is even confirmed by of PW 2’s opinion at page 30 where he says, “In this case the area was mined more than fifteen metres without adequate support and also without rock mechanics recommendation despite the request on the drop by rock mechanics that consultations be made before operations resumed.” Therefore we agree with PW 2’ opinion that it was the responsibility of the Respondent to ensure that the safety to the employees was maintained. Mr. Siampwili has urged us not to give much weight to the evidence of PW 2. We are satisfied that the evidence of PW 2 was grounded on an opinion of an expert witness. This was a Senior Inspector of Mines employed by the Ministry of Mines. We are alive to the fact that in his description of his duties he does not state how long he had been an inspector of Mines. But we are satisfied that he was an expert witness. Therefore, although it is sine qua non that all mining activities are dangerous per se, in our view, the Respondents were nonetheless in breach of regulation 402. In concluding on this point we hold that the learned trial Judge seriously misdirected himself by holding that the accident was as a result of the decease’s own action. As we see it there is no evidence that there was contributory negligence by the deceased in causing the accident. This leads us to the other conclusion by the learned trial Judge that the accident was inevitable and not foreseeable. This conclusion begs the question as to whether or not the accident was inevitable and not foreseeable. In the case of ZESCO vs Redlines Company (2) this court, after visiting the definition of the word, “act of God”, as defined in Jo witt’s Dictionary of English Law (9) which says, “An event which happens independently of human action, such as death from natural causes, storm, earthquake etc which no human foresight or skill could reasonably be expected to anticipate", as well as the definition of the word, “inevitable accident”, as defined in Osborne’s Concise Law Dictionary (10) as, “An accident the consequences which were not intended and could not have been foreseen by exercise of reasonable care and skill." The court drew a distinction between these two terms. The court stated that whereas an “act of God” was an accident, which could not be avoided by any precaution whatsoever, the defence of “inevitable accident” could only succeed if it was shown that despite the fact that reasonable care and skill had been exercised to avoid the accident, the accident still happened. This court further stated that in the defence of an “act of God”, the human element of reasonable care and skill is not contemplated. This court went on to state that reliance on any of these two defences placed the burden of proof on the defendants and not on the plaintiff. In dealing with this possible defence the court further made references to the doctrine of ‘res ipsa loquitur’ and explained that in any situation where the plaintiff established that the accident happened and that it would not have probably happened if some precaution had been taken then the burden shifts to the other person to explain accident. The court quoted Magnus J, in the case of Deutsch, Darling and Banda v Zambia Engineering and Construction Company Limited (8), talking about when the onus shifts to rebut, he said: “If that makes it more probable than not that the accident was caused by the negligence of the defendant the doctrine res ipsa loquitur is said to apply and the plaintiff will be entitled to succeed unless the defendant by his evidence rebuts the probability.” This court also referred to page 796 of Clark and Lindsell (11), where the learned authors have explained the doctrines of ‘res ipsa loquitur’ as: “The doctrine applies (1) when the thing that inflicted the damage was under the sole management and control of the defendant, someone for whom he is responsible or whom he has a right to control; (2) the occurrence is such that it would not have happened without negligence. If these two conditions are satisfied it follows on a balance of probability that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition: (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is inappropriate for the question of the defendant’s negligence must be determined on that evidence.” Looking at the facts before us and applying the approach taken in the case of ZESCO vs Redlines Company (2) the answer, to the question which we have posed in our judgment on whether or not the accident was inevitable and foreseeable and therefore could not have been avoided, if some reasonable care and skill had been employed, is positive. We hold the view that had the Respondents exercised precaution the accident could have been avoided. In fact, the Respondents offered no explanation of the accident. The onus of explaining the accident had shifted to them. But looking at the approach taken by the learned trial Judge it would appear that he placed the responsibility of explaining the accident on the deceased. We do not agree with that approach. We hold that, in all probability, the Respondents were negligent. We hold this view because we are satisfied that a diligent employee, more often than not, enthusiastic to obey the instructions from his superiors takes on risks and as such cannot be said to foresee the circumstances leading to an accident. In the case before us, looking at the evidence of PW 3 and PW 2, we hold that the deceased did exercise reasonable care and cannot be blamed for his own death. In our view, he was not in breach of any regulation. The Respondents on the other hand were negligent and therefore liable in damages. The appeal therefore on liability has merit. Coming to the assessment of damages the Appellant claimed under the LAW REFORMS (MISCELLANEOUS PROVISIONS) ACT for loss of expectation of life. The guiding principles in assessing damages under this will have been set in Litana vs Chimba and Attorney General (8). In that case this court said:- “We feel it is our duty to give guidance to Courts dealing with awards after the 3rd October 1985. Without taking into account any future serious fluctuations in the value of the Kwacha after the date of this Judgment (a matter which will have to be considered in future decisions), we recommend that the proper award of damages for loss of expectation of live, regardless of the age of the deceased, should be K3,000” In line with this guidance, this court has been increasing this amount of award although conservatively. In a recent case, Betty Kalunga (1), we awarded K5,000,000.00. In line with this recent case we award K5,000,000.00. The Appellant also claimed for loss of dependency under the FATAL ACCIDENT ACTS. Under this claim it is trite principle, well established trite law, that each dependent depending on the degree of dependency has to be awarded a specific sum. In calculating this award certain factors have to be taken into account bearing in mind that this is not a mathematical precise calculation. Factors which have to be taken into account are the possibility of the deceased, if he had not died, denying the dependents dependency, the dependents dying before the deceased, the possibility of the widow remarrying, the ages of the dependents, etc. From this award there is to be deducted such sums that came into the estate as a result of death, such as insurance payments but not insurance or pension which the deceased took for his own future comfort. Also to be deducted are the awards which come to the estate under LAW REFORM (MISCELLANEOUS PROVISIONS) ACT see Zambia State Insurance Corporation and ZCCM vs Andrews Muchili (3). Further in calculating the award under this head, the calculation is based on the multiplicand, that is, the monthly salary multiplied by twelve months less income tax and what the deceased could have possibly spent on himself, multiplied by the multiplier, that is the estimated productive life expected to have been left of the deceased’s life before his death. Here again the possibility of an early death by the deceased should taken into account; the possibility of leaving employment should also be taken into account. These are some of the factors to be taken into account when calculating damages under this claim - FATAL ACCIDENT ACTS. In the case before us the learned trial Judge did not deal with these issues as he had dismissed the claim before him. Therefore applying this formula our calculations is K36,193,680 less K20,000,000.00 an amount which was paid by the Respondents to the Appellants ending with K13,193,683.00 as total dependency. This amount however has to be divided amongst the dependents. According to the evidence before us as on 24th April 2004 when the deceased died he had two children - Elestina Kaonga being 14 years and Gift Kaonga being 4 years. He had two dependents - Esther Kaonga and Masida Kaonga both aged 10 years, and the widow. We shall award to Elestina K3,000,000.00; Gift Kaonga K8,000,000.00; the two dependents KI,000,000.00 each and the widow K5,193,680.00. We award interest to these awards at the Bank of Zambia current deposit rate from the date of writ to the date of Judgment and thereafter at the Bank of Zambia current lending rate up to the date of payment. We award costs to the Appellant to be taxed in default by agreement. L P Chibesakunda SUPREME COURT JUDGE I C Mambilima SUPREME COURT JUDGE P Chitengi SUPREME COURT JUDGE