Kimu v Nchima Tea Estates Ltd (Civil Cause 91 of 1992) [1993] MWHCCiv 33 (16 July 1993)

, FRANCE KIMU .. o ••••••• , ••• o • • • " •• · •.• " •• : •• ~ •• •j •• " • o •• PLAINTIFF .,, and -NCHIMA TEA ESTATES LIMITED .... oooooooao■••·········DEFENDANT CORAM: MTEGHA, J. Mwafulirwa, of Counsel, for the Plaintiff Chisanga, of Counsel, for the Defendant Tsoka (Mrs), Official Interpreter Maore, Court Reporter J U D G M E N T The plaintiff in this case is claiming damages arising out of an accident which occurred at the def end ant's tea factory, due to the negligence of the defendant. The defend~nt has denied liability, saying that the accident was caused through the plaintiff's negligence. The plaintiff in this case, France Kimu, was employed by the defendant in the defendant's tea f,actory when, on 14th April 1990, he met with an accident. By that time, he had worked in the factory for the defendant for four years, but he had worked on that particular machine for one year. According to the plaintiff, he was working on this machine on this day,· receiving tea on a conveyor belt from the cutting machine. The conveyor belt was being qriven by a chain. As he was working, some tea leaves had accumulated and it became necessary to remove the tea leaves. The machine was in motion, and as he removed the tea leaves, his fingers touched the machine and had a phalange on his little finger and two phalanges on the inde}: finger of his left hand were cut off by the chain. It was his evidence that, at that time, the chain was not guarded at all, i_o e. there was no guard to cover the chain. According to PW2, Kenneth Ephraim Luhanga, Senior Clinical Officer at Thyolo District Hospital, the plaintiff arrived at the hospital with his fingers already amputated; he cleaned the wounds and assessed the degree of incapacity, according to Government Chart, at 12%. It must be noted here that, at the request of the parties, the Court visited the· factory and the two defence witnesses gave evidence while in the factory and the Court had the opportunity to see how the machine operateso -2 -The evidence of Francis Chintali, DWl, Factory Manager, was that the machine in question, where the plaintiff was working, was installed in 1981 and since it was installed, there has never been an accident on that particular place. The plaintiff, according to this witness, when receiving tea on the platform delivered by a conveyor belt, must have put his fingers into contact with the chain which had ~ guard over it" This witness was not present when the accident occurred. It was this witness's evidence that, before employees commence work in the factory, they are instructed not to touch any machine while it is in motion ana that if there is any fault with the machine, the fault must be reported to him or the mechanic,, and the plaintiff was following these instructions, except on this day. The second witness for the defendant was Rodness Chimenya, a capitao, employed by the defendant since 1976. It was his evidence that he was present when the accident occurred. According to this witness, the accident occurred when the plaintiff was trying to remove tea leaves from the machine while it was in motion. After the accident he took the plaintiff to Thyolo District Hospitalc In cross examination, this witness told the Court that if the guard was extended, it would have completely covered the chain and it would move properly. What comes out clearly from this evidence is that the plaintiff was injured when he was removing tea leaves from the conveyor belt. This was so because his fingers got in touch with the chain which was driving the belt. According to the defendant's evidence, the chain was covered with a guard to prevent people from touching the chain. It is also quite clear from the eviaence that the plaintiff was the first person to be injured on that machine since the machine was installed. The question which the Court has to consider is this; Was the defendant, as master, in breach of its common law duty? The question of breach of statutory duty does not arise, since, as Mr Mwafulirwa has pointed out, he did not plead that duty. At common law, the duty of an employer to his servants is to take reasonable care for their safety. Lord Wright, in the cas~ of Wilsons and Clyde Coal Co. -v-English (1938) AC 57, at p54, described that duty as follows~ "I think the whole course of authority consistently recognises a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or a company, and whether or not the employer takes any share 1n the conduct of operations." -3 -The duty, therefore, of an em~loy~r towdrds his ~crvants is to take reasonable care for ·::heir :Jafety, regard being had to the circur.i.stances of the casEc, so as to carry on his operations as not to subject those emplcyed by him to unnec~ssary risk. It has been ;-=;aid. therefore-, th2.t one of ;:he duties owed by a ma.ster b: his s2rv2r;t, er employer to efii?loyee, is to proviac <1.<...11c:q:ua·:. -.: plio:nt 2nd a~.)pliances and to maintain them in a proper C'.)ndi ·c::Lon, 2.nd this cbligation ·.::o provide and maintan proper pL:.i.~1t 2., ... 0. appliances is a continuing obligatio:1, althous!1 thj_s o:,ligation is not abs.:)lute. It has, therefore, b2en ~eld that ~hen a servant, who was employed to J.t1bric0.te d2nger:)us i.l iChir.ery, was injured due to the f.:1ilu1-c of the c,:1ploy":r to r.iair. ::ain adequ2:.c·e fencing around the m2~.:hine:::·y, tL.~ employe::.: was held liab2.e -Clarke -v-Holr:.2s CU362} 7 H ;:;, N 937,, Similarly, in Jones -v Richards (1955) 1 ~LR 464, i~ wa~ held that an erplcyer was liable v:;1.ere r..::> fe!:::ing was p:_·ovic·i-.. d o~, a f2rm mc.:::::1inery. It has 2een .::·ubmii.ted .:y Mr Chi-i;,.nga, in·::?.~ instant case, th::1t th,;·.:-e in no :--:vid2,.:~2 c:·. negligenc-~ on ,_he part of the def0::1dant, bec;:.~use the m.::chirc.-on \·hich the plaintiff as working was prop-2:i:-ly c;uard,_d, ::.11 th2.t the c>ain which injured the p::'..aintiff ;Jas pr )pe,r l.y guarded, i,, e,, covered, and if that chain was not properly guarded, sev~ral people would h;:;.ve :02en injured, s i:',.ce t•,e mo.chine was 2rected in 1981: bat this was the first accident. At.; I have poi!! ted :·,ut :.-::arl :; __ :3r, the Court had opportun:i_ ty to visit 'd:·~ factory and the machin0:cy was put in motic~ for us to se~-I am also aw2re that the evidence of DWl Qnd DW2, to the effect that thG machinery was inspect,;:,d p\":~0::-:i.odir:'. ':'1.lly, is true. However, I ob:: ~rved that al though then=! w,.,.,-,, a quard covering t;1e ch;::,tin which pulled the conveyor belt, it did not fully cover -t:1e ch::iin o There was a gap bc'c:1een ·::he chain and ·'.:t·;e conveyor bel":, and this gap was wide enou;-:1 to allow te2 leaves to go L1side; and it became necessa£y to remove the leav3s which wcze stuck in there. The g~p wac wid0, so that a workman could insert his fingers to rcmovs the leaves. It is my view ':hat, that si tuatioa c1 :.,atec1 a. dc:,1ger to a:-: employee o The defendant, in my ·,,;j_ew, :.'.:ai.l,_d tc prov:'~de c:.'iequate fr:-.ncing to prevent the pl2:.nti:':::: fru;-:1 corili:1g i:-1 ::o c0ntact with a moTi_ng chain. The def~nda~~ was, the~efore, ne0ligent. f-:owever .. this i:; not the end of the m.:.:. ter. The defend2~~ ~~3 o:~aded contribvt0ry negligence, that the plaint:'.ff hac~ wo:-::~d 0:1 the machinery for a lor:,:r time, and that c~1 sev:,1:al c:::cas:;. ,ns e"~Y i;:c,ve issued ins ~:::-uctions to all th2ir employ0cs th~t they shGuld ~ot touch ~~ving parts of the machj_:.1es" I ~ave heard the evid~nce en thi3 aspect. It is quite clear i:bat thE:. plaL1 :iff kn•·-" th:; t b-1:'.! m;:,~:1inery was dangero'..1.s K:.2n it was 1.1oving C f·'.,; has been worki>·g in the --4 -factory for four years., There was certainly contributory negligence on his part, to the extent, I would say, of 25%0 This action, therefore, succeeds to the extent of 75%. I now turn to the question of damageso I have looked at the authorities cited to me by both Counsel" I would award a sum of K6,000o00 less 25%, which gives us a figure of K4,, 500" 00, I enter judgment for the plaintiff in that sumo The plaintiff has largely succeeded. aware him the costs of this action. I, therefore, PRONOUNCED in open Court this 16th day of July 1993, at Blantyre, VfA_/L~Cg Ii M Mtegha ,''j JUDGE / / (__,..,