James Pelekelo v Tongguan Mines Construction & Zambia Limited and Anor (2023/HP/2088) [2025] ZMHC 131 (29 December 2025)

Jl , ',._ l. \\i'J • ':" ~-► 2 9 Dec IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: JAMES PELEKELO AND TONGGUAN MINES CONSTRUCTION & ZAMBIA LIMITED NFC AFRICA MINING PLC I I t:?o ·Box--- ., .soon7, L.u5;-. M 2023/HP/2088 PLAINTIFF 1 ST DEFENDANT 2ND DEFENDANT BEFORE HON MRS JUSTICE S. KAUNDA NEWA THIS 29th DAY OF DECEMBER, 2025 \/Par the Plaintiff For ]st Defendant For 2 nd Defendant Mr. A. M Msoka, Messrs. Nhari Advocates Mr. G. Hakainsi, Messrs. LM Chambers Messrs A. Jmonda and Company JUDGMENT I CASES REFERRED TO: 1. Wilson v Tyneside Windows Cleaning Company 1958 2 Q. B 110 2. Wilsons and Clyde Coal Co. Ltd v English 1973 3 ALL ER 628 3. Khalid Mohammed v Attorney General 1982 ZR 49 4. Hajra Import & Export Limited v Zambia Revenue Authority Appeal No. 48 of 1998. 5. Michael Chilufya Sata v Zambia Bottlers Limited SCZ No 1 of 2003 6. Betty Kalunga (Suing as Administrator of the Estate of the Late Emmanuel Bwalya} v Konkola Copper Mine Plc 2004 ZR 40 7. Reuben Nkomanga v Dar Farms International Limited SCZ No 25 of 8. Mulendema v Zambia Breweries PLC Appeal No. 7 of 2016 LEGISLATION REFERRED TO: 1. The Law Reform (Miscellaneous Provisions} Act, Chapter 74 of the Laws of Zambia '!>:. 2. The Occupational Health artd Safety Act No 36 of 2010 3. The Mines and Minerals Devflopment Act No 36 of 2010 OTHER WORKS REFERRED TO: I J2 1. Black's Law Dictionary, 9th Edition by Bryan A. Garner, Thomas Reuters, 2009 2. Charlesworth and Percy on Negligence, 12th Edition, Sweet & Maxwell, London 2010 3. Halsbury's Laws of England, 4 th Edition Re-Issue, Volume 34 4. Labour Law in Zambia: An Introduction, by Chanda Chungu and Ernest Beele, 2 nd Edition, Juta and Company (Pty) Ltd, 2020 1. INTRODUCTION 1.1 James Pelekelo, the Plaintiff herein, commenced this matter on 22nd November 2023, by Writ Summons which was accompanied by a statement of claim and the other documents seeking: (i) General damages for negligence; (ii) Damagef5 under the Mines and Minerals Development Act No. 11 of 2015; (iii) Interest; ' (iv) Costs; and (v) Any other relief 2. STATEMENT OF CLAIM 2.1 In the statement of Claim, James Pelekelo averred that this action had been brdught in respect of personal injuries, loss, and damage which was suffered as a result of an industrial accident which occurred on 10th October 2021 , at the premises of NFC Africa Mining Plc, a company that has its' registered office in Chambishi, and carries on the business of mining as owner of the mine. 2.2 He stated that he was working there, as an employee of Tongguan Mine Construction & Zambia Limited, a company J3 that also has its' registered office in Chambishi, and carries on the business of mining and related dealings, which was contracted by NFC Africa Mining Plc. 2 .3 The claim is founded on negligence attributable to Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc, their servants, agents, or employees. 2.4 James Pelekelo stated that he was 39 years old, and was I employed by Tongguan Mine Construction & Zambia Limited as a Person in Charge, and he was earning a basic pay of Kl,821.00. 2. 5 It was his contention, that on 10th October, 2 021, in his capacity as Person in Charge, he was assigned by the supervisor, together with some workmates, to install support underground at 732-meter level. 2.6 James Pelekelo's averment was that while executing his duties, a rock dislodged from the top of the roof, and it hit him on the head an.d his right ankle. He stated that as a result, he sustained fractured injuries and suffered loss and damage. 2.7 It was also his assertion, that the accident was caused by the negligence and breach of statutory duty by Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc and/ or their agents, servants or employees. 2.8 The particulars of negligence and breach of statutory duty were stated as: PARTICULARS OF NEGLIGENCE & BREACH OF STATUTORY DUTY J4 (i) Failure [by Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc' mine manager±ient to maintain a safe working system by re-enforcing the existing ground support pattern with additional steel set support pattern to contain ground stability, regard being to the fact that workmen were put under great risk, particularly James Pelekelo; (ii) Failure thy Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc's mine's beotechnical personnel Officials to prevent or to be enhanced in order to overcome ground condition and support problems which may arise at the scene of accident through provision of necessary technical advice and ascertain I the safety before allowing the crew to work, considering that the scene of the accident was dangerous particularly to James Pelekelo; (iii) Failure by Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc's mine manager, section and shift superiors to ensure I and enhance concerned appointed personnel to safe installing support procedure and implement standard !procedures for accident precautionary safety measures, such as operation and risk assessment, regard being had to the fact that mining is a dangerous venture; JS (iv) Failure by Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc' mine management to acquire skilled personnel to carry out such duties instead of involving James Pelekelo, 1 who was a Mine Truck Operator but appointed as Person In Charge without official letter and without entitlement; (v) Delegation by the mine superiors of their responsibilities to their subordinates without I proper supervision; and (vi) Failure by the owner of the mine to close that part of the m 1ine area pending restoration of safe conditions. 2.9 It was stated that the owner of the mine, NFC Africa Mining Plc, is strictly liable for the damages that were suffered by James Pelekelo under the Mines and Mineral Development Act. No. 11 of 2015. 2.10 The particulars of damage were stated as: PARTICULARS OF DAMAGE (i) James Pelekelo sustained a fracture right ankle injury as a result of the breach of common duty of care of the occupiers and / or by the negligence I of Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc and their servants, agents or employees. 2.11 James Pelekelo alleged that he was admitted at Sino-Zam Friendship Hospital from 10th October 2021, to 19th October J6 2021 and that th~reafter, he attended reviews as an outpatient up to 22n[ September 2023. 2.12 It was stated that as the result of the injury, James Pelekelo has impaired movement and a swollen ankle with permanent disability which was assessed at 12 percent ( 12%) by the Medical Doctor at Sino-Zam Friendship Hospital. 2.13 He averred that he still attends reviews as an out-patient, and that he will have perpetual pain and suffering for the rest of his life time. James Pelekelo further stated that he may need further medical attention in the future. 2 .14 It was alleged that James Pelekelo was at the time of his accident in good health, a happy man aged 39 years and was in the said employment, earning a basic pay of Kl,821.00. 2.15 The assertion was that James Pelekelo will never be employed gainfully, as he has totally lost the ability to find a job of similar nature for the rest of the twenty-one (21) years of his useful working life. 2.16 Further, it was stated, that James Pelekelo had good prospects of future advancement and increased earnings in gainful en1ployment. However, he had lost future earnings as a result of the personal injuries that he sustained. 2 . 17 The particulars of damage were stated as: PARTICULARS OF DA...'\fAGES General Damages (i) Pain and future pain and suffering ZMW200,000 .00 J7 (ii) Loss of amenities of life ZMW160,000.00 (iii) Permanetit incapacitation zMw 1,4qo,ooo.oo (iv) Loss 9f prospective future earnings ZMW458, 1892.00 3. DEFENCE BY TONGGUAN MINES CONSTRUCTION & ZAMBIA LIMITED 3 . 1 Tongguan Mine Construction & Zambia Limited, in its' defence, denied any negligence on its part or its' servants, agents or employees. 3 .2 It was admitted that James Pelekelo was the Person 1n Charge of a crew of miners. 3.3 The defence was further that James Pelekelo being the person who was in charge of the crew, had a duty to ensure that the mine was safe before allowing the crew to go into the I mine. 3.4 It was also contended that James Pelekelo was supposed to go ahead of the crew, and check the place properly and shake the rocks using a pinch bar, to ensure that the rocks were not loose, or were likely to fall. Tongguan Mines Construction & Zambia Limited added that where James Pelekelo found that the rocks were loose, he was supposed to scale them I down using a pinch bar. 3.5 It was further Tonnguan Mines Construction & Zambia Limited's defence that it was only after the above exercise --,. J8 was done, that James Pelekelo was supposed to allow his crew to go to the area. I 3.6 The assertion was that James Pelekelo neglected his duty of ensuring that the area was safe, as he allowed his crew to go to the area without checking for loose rocks to ensure the safety of the persons who were to work in the area. 3.7 It was also stated that Tongguan Mine Construction & Zambia Limited, its' agents, servants or employees were not negligent in any way whatsoever, but that it was James Pelekelo who was negligent, being the person who was in charge at the time. 3.8 Tongguan Mine Construction & Zambia Limited denied the particulars of negligence as alleged in the Statement of Claim, with its' defence being that: (i) Tongguan Mi1 e Construction & Zambia Limited and NFC Africa Mining Plc' mine management put the mine safety measures to maintain the safety of the workmen in the mine. (ii) James Pelekelo being the Person in Charge of his crew of miners, technically understood his duty to ensure that the place bf work was safe before allowing his crew to go to the site. (iii) James Pelekelo was skilled in mine operations going by his long-time experience of having worked in the mine. Thus, he was appointed as Person in Charge of the crew of miners. J9 (iv) The accident ~ appened as a result of James Pelekelo's own recklessn6ss by not observing or ensuring all the safety measures and precautions before allowing his crew to go to the site. (v) The part of the area where the accident happened from did not need t1o be closed as it was safe had James Pelekelo carried out or observed the safety measures or precautions at the site. 3.9 The averment was that Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc could not be held liable for the negligence which was directly attributed to James Pelekelo himself. 3.10 Further in the defence, it was stated that James Pelekelo could still find another job and be employed since his disability is only at or about 12%. 3 . 11 Tongguan Mines Construction & Zambia Limited stated that there was no justificaition or basis for the imaginary figures or the amounts that were claimed by James Pelekelo as general damages. 4. DEFENCE BY NFC AFRICA MINING PLC 4. 1 NFC Africa Mining Plc denied the allegations of negligence or breach of statutory duty that had been made by James Pelekelo in the statement of clain1. 4.2 It stated that it conducted an inquiry into the incident leading to the accident, which revealed that on 10th October, 2021 , James Pelekelo in his capacity as Person In Charge, was assigned by the supervisor, together with his workmates JlO to install support u h derground at 732-meter level, and that whilst executing his duties, a rock dislodged from the top of the roof, and hit James Pelekelo on the head and his right ankle. I 4.3 It was also stated that the findings established that James Pelekelo sustained fractured injuries and suffered loss and damage. 4.4 NFC Africa Mining Plc contended that the accident was wholly caused by the negligence of James Pelekelo, as he did not make the working area safe as required of him by law, since he was the Person In Charge at the material time. 4.5 NFC Africa Mining Plc further stated that it is a separate and independent legal entity from Tongguan Mine Construction & Zambia Limited. 4.6 Its' assertion was that it was not strictly liable for the loss or damage because James Pelekelo and or Tongguan Mine Construction & Zambia Limited directly contributed to the act or omission which caused the damage. 4 .7 It was alleged that NFC Africa Mining Plc, had no employment relationship with James Pelekelo. 4.8 NFC Africa Mining Plc contended that James Pelekelo having been employed by an independent contractor, Tongguan Mine Construction & Zambia Limited, which was duly registered with the Eri.gineering Institution of Zambia and the National Council I for Construction as a competent Contractor, NFC Africa Mining Plc was not answerable for I I t Jl 1 any acts or omissihns of Tongguan Mine Construction & Zambia Limited in the execution of the contract works. 5. EVIDENCE AT TRIAL 5.1 At trial, James Pelekelo testified, and he called two witnesses in support of his case. Tongguan Mine Construction & Zambia Limited called two witnesses, while NFC Africa Mining Plc called one witness in its' defence. PWl - JAMES PELEKELO 5 .2 In his testimony, James Pelekelo produced his witness statement as his evidence. 5.3 James Pelekelo in that witness statement, reiterated the assertions as were made in the statement of claim. 5.4 He further referred to his contract of employment, which was at pages 3 and 4 of his bundle of documents . Also referred to, was the Mine accident statement, as well as the Safety department report which were at pages 8 and 9 of his bundle of documents. 5.5 James Pelekelo also referred to the Medical discharge, which was at page 5 of his bundle of documents, as well as to his Employee pay statement, which was at page 2 of his bundle of documents . CROSS EXMAINATION OF JAMES PELEKELO BY COUNSEL FOR TONGGUAN MINE CONSTRUCTION ZAMBIA LIMITED 5.6 In cross examination, James Pelekelo testified that he was in charge at the time of the accident. His evidence was that Jl2 his duties included making sure that the ten ( 10) workers worked in a safe environment at the work site. 5.7 He told the Court that he had not read Tongguan Mine Construction & Zambia Limited's defence. Thus, he was not aware of its' defence as regards his obligations. 5.8 James Pelekelo agreed that he had to show why he had taken a person to Court ard prove his claims. 5.9 When referred to paragraph 7 of his witness statement, his evidence was that he had proof of the allegations that he had made in those paragraphs, in his bundle of documents. 5.10 It was also his testimony, when he was referred to his bundle of documents, that page 8 contained the proof, stating that it was a report that he authored about how the accident occurred. 5.11 He added that he ~uffered 12% disability as stated at the hospital, and than he was not aware that with such percentage of disability, he could still be able to do other jobs. James Pelekelo further testified that he was not aware that he had not rebutted the defence. CROSS EXAMINATION OF JAMES PELEKELO BY COUNSEL FOR NFC AFRICA MINING PLC 5.12 When cross· examined by Counsel for NFC Africa Mining Plc, James Pclekelo testified that he was employed as the Person I In Charge by Tongguan Mine Construction & Zambia Limited, and that he was responsible for making the work place safe. J13 5.13 When referred to aragraph 5 of the statement of claim, James Pelekelo s fated that he was assigned by his supervisor, the Shift Boss, Makoza Wilson, who was also employed by Tongguan Mine Construction & Zambia Limited, on 1 Qth f October 2021, to install support underground at 73'.:2-meter level. 5.14 James Pelekelo also testified that the Mine Captain, Kampamba Karinga, who was also employed by Tongguan Mine Construction[ & Zambia Limited, was not present because they were 1orking the night shift, and Kampamba Karinga was present during the day. 5.15 His evidence, whed he was referred to page 1 of Tongguan Mine Construction & Zambia Limited's bundle of documents, was tJat it was a report for Tongguan Mine Construction & ZaTbia Limited. 5 .16 James Pelekelo testified that the report showed that the supervisors that were present were the Shift Boss, Makoza Wilson, Kampamba Karinga and himself. 5.17 James Pelekelo stal ed that all his supervisors on that day were from Tongguan Mine Construction & Zambia Limited. RE-EXAMINATION OF JAMES PELEKELO 5.18 In re-examination, James Pelekelo clarified that at the time of the accident, Kampamba Karinga was not on duty. PW2 - MILISH AMAS 5.19 PW2 was Milish Amas, a Clinician, Surgical Department at Sinozarr1 Hospital. He was a subpoenaed witnes s by James Pelekelo. J14 5.20 He testified that they treated surgical conditions in the Surgical DepartmeJt, and that they treated James Pelekelo on 13th June 2021, and he was discharged on 19th June 2021. Milish Amas also stated that James Pelekelo suffered head injuries and an open fracture on his right ankle. 5.21 He explained that a h open fracture is where there is a wound and fracture. 5.22 It was further Milish Amas's evidence, that to treat the fracture, they had to do an operation called ORIF, in which implants were done, by placing plates and screws on the affected bones. He stated that there was an x-ray which he could produce. 5.23 Milish Amas testified that implants were foreign bodies and had to be removed at some stage. 5.24 He explained that when they removed the screws, James Pelekelo developed a swollen ankle, and he could not move properly. Therefore, he was no longer fit to continue performing his duties, and they recommended that he be discharged on medical grounds. 5.25 Milish Amas also testified that a final medical report was issued, and the hospital stopped treating James Pelekelo. With reference to page 5 of James Pelekelo's bundle of documents, Milish Amas's testimony was that it was the final medical report. J15 CROSS EXAMINATION OF MILISH AMAS BY COUNSEL FOR TONGGUAN MINE CONSTRUCTION & ZAMBIA LIMITED 5.26 In cross examination, Milish Amas testified that James Pelekelo suffered a 12% medical disability, and he could not work as a miner due to the injury. 5.27 He, however, stated that James Pelekelo could do any other I job that he was offered, and he felt that he could do. CROSS EXAMINATION OF MILISH AMAS BY COUNSEL FOR NFC AFRICA MINING PLC 5.28 There was no cross examination. RE-EXAMINATION 5.29 In re-examination, Milish Amas clarified that James Pelekelo as a miner, should have worn safety shoes, and that he could not work in a mine with slippers. He added that going by the injury that James Pelekelo sustained, being a swollen ankle, he could not wear safety shoes, which precipitated his condition. PW3 - GEORGE PtUL MUSUSU 5 .30 George Paul Mususu, a Senior Mines Inspector at the Ministry of Mines was also a subpoenaed witness, who testified that on 13th Octa ber 2021 , there was a mine accident at NFC Africa Mining Plc, and it was r eported to the Mines Safety Department a day after. Therefore, they got the report on 14t h October 2021. J16 5.31 His testimony was that they had a category of accidents, and that this accident ib volved rock fall, where a rock fell from the hanging wall or roof of the cave or the side. 5.32 George Paul Mususu also testified that at the scene of the accident, there was nothing to see, as the rock had fallen. He added that it was just a statement from the witness as to the rock having fallen. 5.33 His evidence was that he thereafter wrote a report which he identified and produced as 'Pl'. CROSS EXAMINATION OF GEORGE PAUL MUSUSU BY COUNSEL FOR ,toNGGUAN MINE CONSTRUCTION & ZAMBIA LIMITED 5.34 George Paul Mususu testified in cross examination, that James Pelekelo was in charge of his team, and that a Person In Charge in accor1ance with 'A Guide to Mining Regulations in 2.15' states that such a person has to ensure that the area of mining is safe before taking people to work there. 5 .35 His evidence was further that there was a wash down that was supposed to be done to see if there was a crack after a blast, as that was important. RE-EXAMINATION OF GEORGE PAUL MUSUSU 5 .36 In re-examination, George Paul Mususu clarified that besides a Person in Charge, there was a Shift Boss that James Pelekelo reported to. He stated that the Shift Boss could have more t~ an one crew. J17 5.37 It was further clarified that the Shift Boss checked that the area was prepared, I before James Pelekelo went there with the crew. 5.38 That marked the close of James Pelekelo's case. DWI - PATRICK BANDA 5.39 Patrick Banda, a Hf man Resource Manager at Tongguan Mine Construction & Zan1bia Limited, produced his witness statement as his testimony. 5.40 He testified that Tongguan Mine Construction & Zambia Limited is a Company that has its' registered office in Chambishi, and carried on the business of mining and related dealings in the Copperbelt Province of the Republic of Zambia. 5.41 It was also his evidence, that James Pelekelo was employed by Tongguan Mine Construction & Zambia Limited as Person In Charge at the mine, and that he was in charge of the safety of the other crew members. 5.42 Patrick Banda's testimony was further that James Pelekelo was a blasting personnel, who was licensed to conduct blasting operations for all mining operations. He identified the Blasting License for James Pelekelo which was at page 4 of Tongguan Mine Construction & Zambia Limited's Bundle of Documents. 5.43 Further in his testimony, Patrick Banda stated that on 13th October, 2024, James Pelekelo and his crew were assigned to go and work at the inine, and that before reaching the site, James Pelekelo as a Person in Charge, was supposed to go J18 ahead of the crew, . nd check the place properly, by shaking the rocks to ensut e safety. He added that where James Peleleko found thal the rocks were loose, he was supposed to scale them down using a pinch bar. 5.44 Still in his evidenc , Patrick Banda stated that it was only after conducting tJ at inspection, that James Pelekelo was supposed to allow tr e crew to go to the site. However, James I Pelekelo allowed his crew to go to the site before doing the routine checks, thereby neglecting his duty of ensuring that the area was safe for himself and the crew. 5.45 It was his testimony, that as James Pelekelo did not check or inspect the site t ~ check for loose rocks to ensure that the site was safe, a loose stone fell and hit him, causing injury to him. I 5.46 Patrick Banda further stated that an investigation that was conducted by Tohgguan Mine Construction & Zambia Limited revealed t , at the accident was as result of James Pelekelo's negligence. 5.47 It was his testimony, that James Pelekelo and his crew did not follow the laidjdown procedure of a blasted end at the time of the acciden . He testified that the accident report was at pages 1 to 3 of T~ngguan Mines Construction (Z) Limited's Bundle of Documents. 5.48 Further in his tes~in1ony, Patrick Banda stated that the medical report revealed that during the accident, James Pelekelo sustained injuries on his body. He told the Court that the injuries that James Pelekelo sustained were as a J19 result of the rock thht dislodged from the roof, and hit James Pelekelo on the left side of the head and landed on his right leg. 5.49 In that regard, he referred to the medical report, which was at page 5 of Tongguan Mine Construction & Zambia Limited's Bundle of Documents. 5.50 Patrick Banda's evidence was that the rock dislodged from the top due to James Pelekelo's negligence or failure to follow the laid down procedure for safety measures. He reiterated that James Pelekelo negligently allowed the crew to go into the area without dding a routine check to ensure that there were no rocks which were loose. 5.51 It was further stated that James Pelekelo was not entitled to any of the reliefs sought on the writ against Tongguan Mine Construction & Zambia Limited, as the accident occurred purely as a result of James Pelekelo's own negligence. CROSS EXAMINATION OF PATRICK BANDA BY COUNSEL FOR NFC AFRICA MINING PLC 5.52 There was no cross examination. CROSS EXAMINATION OF PATRICK BANDA BY COUNSEL FOR JAMES PELEKELO 5.53 In cross examination by Counsel for James Pelekelo, Patrick Banda testified that James Pelekelo was at NFC Africa Mining Plc, as an employee of Tongguan Mine Construction & Zambia Limited. He stated that NFC Africa Mining Plc owned the mine where the accident occurred. J20 5 .54 His testimony was further that on the date of the accident, James Pelekelo was provided with Personal Protective Equipment, and Tongguan Mine Construction & Zambia Limited had a safety talk with the employees before they went for work. 5.55 Patrick Banda testified, that as the Person in Charge, James Pelekelo had supervisors who were the Shift Boss and the Mine Captain. He explained that the Shift Boss supervised the Person in Charge, who managed the work areas. 5.56 Further in cross examination, Patrick Banda's evidence was that safety was the responsibility of the Shift Boss, who was employed by Tongguan Mine Construction & Zambia I Limited. He explained that the Mine Captain was also employed by Tongguan Mine Construction & Zambia Limited. 5.57 It was stated that the Mine Captain supenrised, to ensure that all the sections are operating according to the standards, and that they ensured safety to prevent accidents happening at the mine. 5.58 Patrick Banda disagreed that the Shift Boss and the Mine Captain had to visit a scene to ensure that it was safe before the Person in Charge and the crew could go there, as the Shift Boss and the Person in Charge were competent. 5.59 His testimony was also that the Person in Charge exercised delegated powers from the Shift Boss and the Mine Captain. 5.60 Patrick Banda still in cr oss examination, agreed that on 21 s t October 2021, an accident involving James Pelekelo J21 happened, when he was an employee of Tongguan Mine Construction & zarAbia Lin1ited. 5.61 He told the Court that he could not recall James Pelekelo's basic salary at the time of the accident. 5.62 When he was referred to page 2 of James Pelekelo's bundle of documents, Patrif k Banda's testimony was that it was a pay statement for James Pelekelo, which was issued by Tongguan Mine Construction & Zambia Limited. His evidence was that James Pelekelo's basic salary was . ZMWl ,821 .00 and that his net pay was ZMW3,779.28. I 5.63 He stated that they trained in mine safety and he provided basic training as a human resource personnel. RE-EXAMINATION OF PATRICK BANDA 5.64 There was no re-examination. DW2 - WILSON MAKOZA 5.65 Wilson Makoza, the Shift Boss at Tongguan Mine Construction & Zambia Limited, produced his witness statement as his tes~imony. The evidence as contained in the said witness statement, was that James Pelekelo was employed by Tongguan Mine Construction & Zambia Limited as Person in Charge at the mine, and that he was in charge of the safety of other crew members. 5.66 He testified that Jarnes Pelekelo was a blasting personel, who was licensed to conduct blasting operations for all mining operations. It was stated that the Blasting License for James Pelekelo was at page 4 of Tongguan Mine Construction & Zambia Limited's bundle of documents. J22 5.67 Wilson Makoza furtb er testified that on 13th October 2024, James Pelekelo, the crew and himself were assigned to go and work at the mine. His evidence was that before reaching the site, James Pelekelo as a Person in Charge was supposed to go ahead of the crew and check the place properly by shaking the rocks t i ensure safety, and where he found loose rocks, he was supposed to scale them down using a pinch bar. 5.68 Wilson Makoza added that it was only after doing the inspection, that James Pelekelo was supposed to allow the I crew to go to the site. 5.69 He testified, that however, James Pelekelo allowed them, as his crew, to go the site before doing the routine checks, thereby neglecting his duty of ensuring that the area was safe for himself and the crew. 5. 70 The testimony that Wilson Makoza further gave, was that it was not clear as to why James Pelekelo did not inspect the site to scale down any loose stones, because as the Person In Charge of the crew, he knew what he was supposed to do so, in terms of safety measures. 5.71 It was also his evidence, that as James Pelekelo did not check or inspect t~ e site to check for loose rocks to ensure that the site was safe, a loose stone fell and hit him, injuring him. Wilson Makoza testified that he personally observed what happened, and he could confirm that the accident happened a s a result of James Pelekelo's own negligence which had actually exposed all of them as his crew to danger. J23 5.72 It was stated that an investigation was conducted by Tongguan Mine coJ struction & Zambia Limited, which also revealed that the accident was as a result of James Pelekelo's negligence. 5.73 Wilson Makoza testified that James Pelekelo as the Person In Charge, did not follow the laid down procedure of a blasted end at the time of the accident. He referred to the accident report which was I at pages 1 to 3 of Tongguan Mine Construction Zambia Limited's bundle of documents. 5. 7 4 The evidence that was further given, was that the medical report revealed that during the said accident, James Pelekelo sustained injuries on his body. Wilson Makoza stated that the injuries that James Pelekelo sustained were as a result of the rock that dislodged from the roof, and hit him on the left side of the head and landed on his right leg. I 5.75 Reference was made to the medical report, which was at page 5 ofTongguan Mine Construction & Zambia Limited's bundle of documents. 5. 76 In concluding his t estimony, Wilson Makoza testified that James Pelekelo was not entitled to any of the reliefs that he sought as endorsed in the Writ against Tongguan Mine Construction & Zambia Limited, as the accident occurred purely as a result of James Pelekelo's own negligence. CROSS EXAMINATION OF WILSON MAK. OZA BY COUNSEL FOR N~C AFRICA MINING PLC 5 . 77 There was no cross examination. J24 MAKOZA BY 5.78 In cross examination, by Counsel for James Pelekelo, Wilson Makoza stated that at the time of the accident, James Pelekelo worked for Tongguan Mine Construction & Zambia Limited mine at NFC Africa !\1ining Plc. 5. 79 Wilson Makoza testified that as a Shift Boss, he was responsible for ensuring that the work areas were safe, before the crew weAt in to work, and that he went to check. Wilson Makoza agreed that it was his role to ensure a safe working environment. 5.80 His evidence was that he supervised the Person in Charge, who was James Pelekelo, and that before he went to the work area, the Person in Charge had to go there. 5.81 Wilson Makoza's testimony was that a rock fell and injured James Pelekelo on 21 st Octa ber 2021, and he suffered senous 1nJury. 5.82 It was also his evidence, that persons at the office could answer whether James Pelekelo's employment was terminated. 5.83 Further in cross examination, Wilson Makoza testified that other than himself l there was no other supervisor, but that Harrison Gondwe was there. He stated that there was no Mine Captain, because the said Mine Captain only worked in the day shift, and that there was no supervisor from NFC Africa Mining Plc, as they supervised sections, and went there once in a week. J25 5.84 Further in cross exl mination, Wilson Makoza testified that James Pelekelo and his crew were given a safety talk before they went to work in the mine, and that James Pelekelo had all the protective clothing, being a light helmet and gum boots. Wilson Makoza added that he had ensured that James Pelekelo wore them, and that he was the only supervisor who was present on that date. RE-EXAMINATION OF WILSON MAKOZA 5.85 There was no re-examination. 5 .86 That marked the ~lose of the case for Tongguan Mines Construction & Zambia Limited. DW3 - KASAKULA CHIBWE 5.87 Kasakula Chibwe, a Safety Officer who was employed by NFC Africa Mining Plc, produced his witness statement as his testimony. 5.88 He testified that his duties included training and educating employees on issues of occupational health and safety, accident prevention measures and carrying out investigations to establish the cause of any accidents at NFC Africa Mining Plc. 5.89 His evidence was that in his duties of providing training and education services to independent contractors and their employees, he emphasized the fact that it was the duty of the employer to ensure the health, safety and welfare of the employees at a workplace. 5. 90 Kasakula Chibwe further testified that it was also the duty of an employee to take reasonable care for h is own health J26 and that of other I persons who may be affected by the employee's acts or omissions at the workplace. 5. 91 In still testifying, he stated that Tongguan Mine Construction & Zambia Limited 1as an independent contractor, that was engaged by NFC Africa Mining Plc at the South East Ore Body (SEOB) Chambishi, and it was registered with the National Council for Construction, as well as the Engineering Institution of Zambia for the type of work that it was involved in at the time. 5 .92 His evidence was a lso that James Pelekelo was employed by Tongguan Mine Construction & Zambia Limited, as the Person in Charge during the shift when the accident occurred. It was I{asakula Chibwe's evidence that James Pelekelo was working under the supervision, instruction or control of Tongguan Mine Construction & Zambia Limited at the time, that he suffered personal injuries. 5.93 He referred to the accident report which was at pages 1 to 3 of Tongguan Mine Construction & Zambia Limited's bundle of do cum en ts. 5.94 Further in his testimony, Kasakula Chibwe stated that in connection with the issue of reporting accidents to the Mine Safety Department (MSD) of the Ministry of Mines and Minerals Development, NFC Africa Mining Plc was guided by the provisions of Mining Regulation 1601(2) which states as follows; "The accidents of which notice is required to be given are those - J27 (a) Involving the death of any person; (b) In which any J erson becomes unconscious either from heart stroke, I heat exhaustion, electric shock, the inhalation of blasting or other poisonous fumes or the inhalation of J ny poisonous gas; (c) In which the ~njuries sustained by any person are so serious that it iis possible that they may prove fatal; CROSS EXAMIN~ION OF KASAKULA CHIBWE BY COUNSEL FOR T<!>NGGUAN MINES CONSTRUCTION & ZAMBIA LIMITED I 5.95 There was no cross examination. CROSS EXAMIN~rfION OF KASAKULA CHIBWE BY COUNSEL FOR JAMES PELEKELO 5. 96 In cross examinatior, Kasakula Chibwe testified that James Pelekelo was working for Tongguan Mine Construction & Zambia Limited mir e at NFC Africa Mining Pie when the accident happened. I 5. 97 He stated that NFO Africa Mining Plc owned the mine and engaged contractors, who did the mining. 5.98 His testimony was +rther that NFC Africa Mining Pie as the owner of the mine, had to ensure that it was safe. He stated that the contractor had its' own supervisors and that was why it had a safety r epartment. . 5.99 Kasakula Chibwe's evidence was also that NFC Africa Mining Plc cared how the !contractors went about their business, and this extended fo ensuring that the contractor worked within the prescribed standards. J28 5.100 He stated that he was aware that NFC Africa Mining Plc as mine owner, was liable for accidents that happened in the mine, but that it did not extend to employees of contractors. 5.101 Kasakula Chibwe in further cross examination, testified that James Pelekelo was legally on the premises of NFC Africa Mining Plc on that day when the accident happened and that James Pelekelo sustained injuries. RE-EXAMINATIO~ OF KASAKULA CHIBWE 5.102 There was no re-examination. 6. DECISION OF THIS COURT 6.1 I have considered the evidence and the submissions which were filed by the parties. FACTS NOT IN DISPUTE 6.2 It is common cause that James Pelekelo was an employee of Tongguan Mine c1nstruction & Zambia Limited at the material time. 6.3 The facts which are further not in contention, are that on 10th October 2021, James Pelekelo was assigned as a Person In Charge to oversee the crew that was working at NFC Africa Mining Plc mine, to install underground support at 732- meter level. 6.4 It is common cause that in executing that duty, an accident occurred where a r l ck dislodged from the top of the roof and hit J an1es Pelekelo on his head and right ankle and he sustained injuries and a fracture. J29 6.5 The issues which a 1e further not in dispute, are that Wilson Makoza was the Shift Boss and was the supervisor to James j Pelekelo wI?-en the accident happened. 6.6 The facts which are further common cause, are that after James Pelekelo sustained the injury, he was found with 12 percent disability and he was discharged from his employment with Tongguan Mines Construction & Zambia Limited's on medical grounds. ISSUES IN DISPUTE 6.7 It is in contention whether the accident was caused by the negligence and or breach of statutory duty by Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc or by James Pelekelo's own negligence . 6.8 It is also in contention whether James Pelekelo is entitled to damages for personal injuries, and if so, in what quantum. ANALYSIS 6.9 James Pelekelo testified that while executing his duties at NFC Africa Mining Plc's mine as Person In Charge who was employed by Tonnguan Mines Construction & Zambia Limited, a rock dislodged from the top of the roof, and it hit hirn on his head and right ankle, causing him to sustain a fracture and injuries, as well as loss and damage. 6.10 He stated that the accident was as a result ofTongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc's negligence and breach of statutory duty. James Pelekelo pointed out one of the reasons for the said negligence and breach of statutory duty, as Tongguan Mine Construction & J30 Zambia Limited and NFC Africa Mining Plc's failure to maintain a safe wbrking system, by not reinforcing the existing ground support with additional steel sets, to ensure ground stability, thereby exposing the workers, especially James Pelekelo, to significant risk. 6.11 James Pelekelo added that as a result, he had suffered loss and dan1age, whic1 included impaired movement and a swollen ankle, with permanent disability which was assessed at 12% by a Medical Doctor at Sino-Zam Friendship Hospital. 6.12 Milish Amas, a Clinician at Sino-Zam Hospital, confirmed that James Pelekelo sustained a head injury and an open fracture of the right ankle, which required ORIF surgery and later removal of implants. 6.13 I n cross exam1nat11n, . . I M'l' h A 1 lS mas state d h t at t e h 12°1 1 0 disability rendered James Pelekelo unfit for mine-related work, as he could not wear safety shoes, but he was capable of engaging in other forms of employment. 6.14 George Paul Mususu, a Mines Inspector at the Ministry of Mines, who also testified on behalf of James Pelekelo as a subpoenaed witness, confirmed the occurrence of a rock-fall accident at NFC Africa Mining Plc's mine where James Pelekelo was working for Torigguan Mines Construction & Zambia Limited. He produced as 'Pl' the report from the Mine Safety Department. 6.15 In cross examinatio!f, George Paul Mususu stated that under the mining regulations, a Person In Charge had to ensure J31 that the work area was safe by conducting checks after a blast. I 6.16 This witness also te1stified that a wash down was supposed to be done, to see if there were cracks after a blast, as that was important. 6.17 In re-examination, George Paul Mususu clarified that James Pelekelo reported to a Shift Boss, and that the Shift Boss had supervisory responsibility over the Person In Charge. 6.18 On the other hand, the first witness for Tongguan Mines Construction & Zambia Limited, Patrick Banda an Assistant Human Resources Manager /Industrial Relations Manager, testified that James Pelekelo, as Person in Charge, was required to inspect the work area in advance, by checking and scaling down any loose rocks before allowing the crew to enter. 6 . 19 His testimony was that however, James Pelekelo failed to conduct the routine safety checks, and he allowed the crew on to the site, thereby neglecting his duty to ensure their safety. 6 .20 It was further Patrick Banda's evidence that James Pelekelo failed to inspect the site for loose rocks, and therefore a rock fell and injured him. Patrick Banda testified that Tongguan Mine Construction Zambia Limited's investigations concluded that the accident resulted from James Pelekelo's negligence , as himself and the crew did not follow the required blasted-end safety procedures. J32 6.21 His evidence was th9-t the rock fell because ,James Pelekelo failed to follow required safety procedures by allowing his crew into the area Jthout carrying out routine checks for loose rocks. 6 .22 In cross examination, Patrick Banda testified that James Pelekelo received proper protective equipment, and a safety briefing on the day of the accident. He also stated that James Pelekelo, as Person In Charge, worked under the supervision of the Shift Boss and the Mine Captain, both of whom were employed by Tongguan Mine Construction & Zambia Limited. 6.23 His evidence was that they were responsible for overall safety, and Patrick Banda testified that the Shift Boss and the Mine Captain were not required to inspect the site before the crew entered, because the Shift Boss and James Pelekelo were competent, and James Pelekelo exercised delegated safety responsibilities from them. 6.24 Wilson Makoza who was the other witness for Tongguan Mines Construction & Zambia Limited, testified that he was on duty with James Pelekelo that day, with Wilson Makoza stating that he was the Shift Boss. His evidence was further that as a Person In Charge, James Pelekelo was supposed to go ahead of the crew, and check the place properly by shaking the rocks to ensure safety, and where he found loose rocks, he was suppos~d to scale them down using a pinch bar. J33 6.25 Wilson Makoza stated that it was only after doing the inspection, that James Pelekelo was supposed to allow the crew to go to the site. 6.26 He testified, that however, James Pelekelo allowed them, as his crew, to go the site before doing the routine checks, thereby neglecting his duty of ensuring that the area was safe for himself and the crew. 6.27 The testimony that Wilson Makoza further gave, was that it was not clear as to why Jan1es Pelekelo did not inspect the site to scale down any loose stones, because as the Person In Charge of the crew, he knew that he was supposed to do so, in terms of safety measures . 6.28 It was a lso his evidence, that as James Pelekelo did not check or inspect the site to check for loose rocks to ensure that the site was safe, a loose rock fell and hit him, and it injured him. Wilson Makoza testified that he personally observed what happened, and he could confirm that the accident happened as a result of James Pelekelo's own negligence, which had actually exposed all of them as his crew to danger. 6.29 This witness further testified that investigations were conducted after the acc~dent, which established that James Pelekelo sustained injuries on his body. Wilson Makoza stated that the injuries that James Pelekelo sustained were as a result of the rock that dislodged from the roof, and hit hirn on the left side of the head and landed on his right leg, and that there was a report to that effect. J34 6.30 It was also Wilson Makoza's testimony that James Pelekelo was employed as the Person In Charge, and he was responsible for the crew's safety. He told the Court that James Pelekelo was IF licensed blasting personnel, who was required to inspect the site first, shake and scale any loose rocks, and only then allow the crew to proceed. However, James Pelekelo failed to conduct these safety checks and led the crew into the arek, neglecting his duty. 6.31 In cross examination, Wilson Makoza testified that he supervised James Pelekelo, who was the Person in Charge, and that before proceeding to the work area, James Pelekelo was required to go ahead. He further stated that James Pelekelo and his crew received a safety briefing before commencing work in the mine. 6.32 This witness told the Court that James Pelekelo was I equipped with all the required protective clothing, including a light helmet and gumboots, and Wilson Makoza ensured that he wore them. He also confirmed that h e was the only supervisor who was present on that date. 6 .33 Kasakula Chibwe, the witness for NFC Africa Mining Plc testified that in his role of providing training to independent contractors and their employees, he emphasized that employers were responsible for employee health and safety, while employees had tb take reasonable care for themselves and others. J35 6.34 He also stated thatl Tongguan Mine Construction & Zambia I Limited was a registered independent contractor, which was engaged by NFC Afoica Mining Plc at SEOB Chambishi. I 6.35 His evidence was further that at the time of the accident, I James Pelekelo was employed by Tongguan Mine Construction & Zambia Limited, as the Person in Charge of the shift, working under its' supervision, when he sustained personal injuries. 6.36 Chibwe Kasakula told the Court that regarding the reporting of accidents to the ' Mine Safety Department, NFC Africa Mining Plc followed Mining Regulation 1601(2), which requires reporting accidents that involve death, unconsciousness due to specific causes, or injuries that are potentially fatal. 6.37 His evidence was that 1~FC Africa Mining Plc owned the mine, and it hired contractprs to carry out the mining. Chibwe Kasakula stated that as mine owner, NFC Africa Mining Plc was responsible for ensuring safety, while contractors had their own supervisors and safety departments to ensure that the work met the prescribed standards. 6. 38 He acknowledged that NFC Africa Mining Plc was liable for I accidents that occurred on the mine site, but his position was that the liability did not extend to contractors' employees. 6.39 Kasakula Chibwe confirmed that James Pelekelo was legally I on the premises when h 1e sustained injuries. I J36 6.40 In his submissions, James Pelekelo submitted that Tongguan Mine Corstruction & Zambia Limited and NFC Africa Mining Plc were liable to him in negligence. 6.41 He referred to the learned authors Charlesworth and Percy on Negligence, 12th Edition, Sweet & Maxwell, London 2010, who define negligence as: "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or do something which a prudent and reasonable man would do." 6.42 Going by the above, the submission was that negligence is conduct that falls be~ow the standards of behavior which are established by law for the protection of others against unreasonable risk of harm. 6.43 Further submission was made, that in order for a claim of negligence to succeed, it had to be shown, that Tongguan Mines Construction & Zambia Limited and NFC Africa Mining Plc owed a duty of care to James Pelekelo, which they breached by failing to conform to the required standard of conduct, and which resulted in James Pelekelo suffering harm or damage. 6.44 As regards the duty of care which was owed to him, James Pelekelo relied on the case of Betty Kalunga (Suing as Administrator of the Estate of the Late Emmanuel J37 Bwalya) v Konkola Copper Mine Plc <6J where it was held that: "2. The duty of care by employers to their employees has developed to the extend that there is virtually ryo room for volenti non flt injuria to apply in c~ses of negligence, where there is common law or statutory duty of care by an employer to his employee except where such doctrine has been pleaded." 6.45 The case of Wilsons and Clyde Coal Co. Ltd v English <2J was further relied on, stating that it was held in that matter that: "It has long been established that the employment relationship I imposes a duty of care on the employer towards his employees. At common law, an employer ir under duty to take reasonable care for the safety of its' employees in all the circumstancef of the case in order not to expose them to unnecessary risk. In other words, an employer owes his employee a duty to take reasonable steps to ensure that the employee is not physically injured or otherwise harmed in working for him." 6.46 Furth er r eliance was placed on the case of Wilson v Tyneside Windows Cleaning Company <1J s tating that Par k er J in tha t m a t~er stated tha t: J38 "The master's duty is general, to take all reasonable steps to avoid a risk to his servants. For convenience, it is often split up into various categories such as safe tools, safe place of work, or safe system of work, but it always remains a general duty. When dealing with premises, the duty is often expressed as one to provide a place of work as reasonably safe as can be, but the reasonable care which the master must take to fulfil it vary according to the circumstances of the case." 6.47 James Pelekelo submitted that the evidence showed that at the material time, the relationship between himself and Tongguan Mines Construction & Zambia Limited was that of employer and employee. 6.48 Therefore, by law, Tongguan Mines Construction & Zambia Limited owed him a legal duty of care to provide a safe system of work and effective supervision at the place of work and by extension, James Pelekelo was working at NFC Africa Mining Plc's premises. 6.49 James Pelekelo further submitted that a personal and non delegatable duty of care was placed on Tongguan Mine Construction & Zambia Limited, as regards the safety of the I employees, who included Jan1es Pelekelo. 6.50 It was stated that Tongguan Mine Construction & Zambia Limited could delegate the performance of the duty to others, J39 whether employees ~r independent contractors, but not the responsibility for its' negligent performance. 6.51 It was further submitted that the negligent acts of Tongguan Mine Construction ~ Zambia Limited were clearly outlined in the analysis of the accident, which was given by Wilson Makoza who in his t estimony, established that there was no proper supervision of the scene of the accident by the mine superior of Tongguan Mine Construction & Zambia Limited, as none were available besides Wilson Makoza, who was not at the scene at the time of the accident. 6.52 James Peleko submitted that Tongguan Mines Construction & Zambia Limited and NFC Africa Mining Plc breached the legal duty of care that they owed him. In that regard, it was stated that NFC Africa Mining Plc as owner of the mine and Tongguan Mines Construction & Zambia Limited as James Pelekelo's employer, had a legal duty to ensure a safe working environment by maintaining ground stability in accordance with industry standards and statutory obligations under the Mines and Minerals Development Act. 6 .53 The contention was that the failure to reinforce existing ground support with additional steel set support despite clear risks and the heightened pressure on workers constituted the negligence. 6 .54 As evidence in support of that position, it was submitted that the testimony of Milish Amas and Wilson Makoza confirmed that the Person In Charge had to possess the requisite I J40 I I competence to install the support system effectively and safely. 6.55 It was stated that this duty was delegated to James Pelekelo whose only competepce was that of a mine truck operator. The submission was that Tongguan Mines Construction & Zambia Limited failed to provide the necessary training that was required upon delegation. Therefore, there was a breach of the duty of care. I 6.56 Assertion was also made, that NFC Africa Mining Plc failed to acquire skilled personnel to carry out specialist/technical duties which constituted a · clear violation of its' duty to maintain a safe working environment. 6.57 Further on the breach of the duty of care, the submission was that Wilson Maknza testified that the Mine Captain did not always have to be present where he had delegated his responsibilities to a 1competent person. It was added that Wilson Makoza told tqe Court that the Mine Captain was not present because he only worked during the day and inspected the site once or twice a week. 6.58 In still submitting, it was stated that Patrick Banda and I I Wilson Makoza also testified that Wilson Makoza who was the Shift Boss, was n 6t working in the Section where James Pelekelo was working at the material time. That this diminished the prospf cts of having a cornpetent person to oversee the installation of support, again breaching the duty of ensuring a safe wor~ing environment. J41 6 .59 In response, 1n its' submissions, Tongguan Mine Construction & Zambia Limited stated that James Pelekelo had clearly failed to prove the assertion of negligence on the part of Tongguan Mine Construction & Zambia Limited, because as clearly confirmed by James Pelekelo himself, he was the Person in Charge, whose primary duty was to ensure that his team was working in a safe environment. 6.60 It was stated that Jan1es Pelekelo neglected to do his duties and he allowed his crew to go to the site without ensuring that the site was safe from any loose stones which could possibly dislodge and injure the crew members. 6.61 The submission was that George Paul Mususu was a credible witness, as he was subpoenaed by the Court, and he produced an investigation report which revealed that James Pelekelo, as the Person in Charge, employed a wrong system of work, which was not approved by the company, according to the standard operating procedure. 6.62 Tongguan Mine Construction Zambia & Limited submitted that it was James Pelekelo's duty to prove his claims, and in support of this submission, it relied on the cases of Hajra Import & Export Limited v Zambia Revenue Authority f4J and Khalid Mohammed v Attorney General f3J. 6.63 NFC Africa Mining Plc in its' submissions, relying on the case of Michael Chilt,fya Sata v Zambia Bottlers Limited f5J subn1itted that n egligence alone does not give rise to a cause of action, and that damage alone further doe s not give rise to a cause of action, but that the two must co-exist. I J42 6.64 The submission was that James Pelekelo in paragraph 6 (vi) of the statement of claim, had alleged failure by the owner of the mine to close part of the mine pending restoration of safe conditions. However, it was stated that this was a misconception as Tongguan Mines Construction & Zambia Limited and NFC Africa Mining Plc are not natural persons but legal persons. 6 .65 That b eing legal persons they rely on natural persons to perform statutory and other duties. 6 .66 It was stated that Mi1 ing Regulation 215 of the Mines and Minerals Act No 11 of 2015 regulates safety in a mining work place. The submission was that said Regulation reads as follows: "215. (1) At every mine the following provisions shall apply: (a) every workman whilst at work shall be under the personal supervisor, of a competent person who for the purpose of these Regulations shall be referred to as the person in charge; (b) such persons in charge shall when employed in underground or open cast workings where rock drilling or blasting operations are being carried out or where the nature of the operation is such that danger may arise from the presence of explosives be the holder J43 of a z d mbian blasting licence valid for the operation for which he is responsible. I (2) The person in charge shall be the first person to enter each working place assigned to him and the immediate approaches thereto and he shall examine and make safe or cause to be made safe each such working place and immediate approaches thereto permitting any work to take place, and shall ensure that the provisions of these Regulations are observed by any person in such working places and the immediate approaches thereto whether such person is under his personal supervision or not. (3)A shift boss, competent person, shiftforeman or more senior official may in the execution of his duties enter any working place before the person in charge: Provided that ,_ (i) the shift boss or more senior official shall be the holder of a Zambian blasting license when he wishes to enter any working place where rock drilling or blasting operations have been carried out or where danger may arise from the presence of explosives; and (ii) when he observes anything that is unsafe he shall immediately take such precautions as may be r,ecessary to prevent any person J44 entering until such time as he has either made the place safe or informed the person I in charge of the unsafe condition. (4) Whilst making safe any working and the approaches thereto the person in charge shall be responsible for the safe disposition of his subordinates in suitable and safe places until he has made safe. (SJ Notwithstanding the provisions of sub regulation (4) the person in charge may be accompanied by one or more persons to assist him in making safe. (6) in his fXamination for making safe in accordance with subregulation (2) the person in charge shall - (a)satisfy himself that there is adequate ventilation; (b) ensure by physical examination that the roof, walls and face of any working place and approaches thereto are free from all loose rock; (c) ensure the adequacy of any support, barricade and platform within the working place and the approaches thereto; (d)take such other measures as may be necessary to ensure the safety and health . J45 of a'ry person who may work therein or pass I there through. (7) The person in charge having made safe in I accordance with sub-regulation (6) shall, during the time that any person is working in any working place under his charge, take all reasonable p ~ecautions for the safety of any such person present in such working place, and such precautions as he may take shall continue for as long as he allows any person to remain in the working place or until he is relieved or responsibility by another person in charge. (8) No person except the person in charge, shift boss or more senior official shall enter any working place until such person has received definite instructions or permission to do so from the person in charge or more senior offi.cialfor the time being responsible for the safety of such working place. (9) No person in charge shall take charge of more working places or persons than he can supervise efficiently or take charge of working places so scattered that he cannot examine them all within a period of one hour without undue exertion." 6.67 It was stated that To~ gguan Mines Construction & Zambia Limited had proved the allegation in its' defence that James Pelekelo was negligent in the execution of his statutory J46 duties under Regul . tion 215, regard being had to the report which was tendered into evidence by the Inspector of Mines George Paul Mususu. I 6.68 The contents of the report were cited and the provisions of Section 10 (1) lf the Law Reform (Miscellaneous Provisions) Act, Ctapter 74 of the Laws of Zambia were stated as being relf?vant. 6.69 Further reference was made to Section 17 (1) of the Occupational Health and Safety Act No 36 of 2010, stating that it requires an employee to take reasonable care for their own healt~ and safety, and that of others who may be affected by the dmployees acts or omissions at the work place. 6.70 The evidence on record, shows that James Pelekelo was an employee of Tongguan Mine Construction & Zambia Limited as can be seen from the contract of employment which is partly produced at page 3 of his bundle of documents. I say partly produced, as what is at page 3 starts with clause 11 entailing that there are other clauses before that page, which were not produced. I 6. 71 It is an agreed fact, that on 10th October, 2021, James Pelekelo in his capacity as Person In Charge, was assigned by the supervisor, t1gether with other workmates, to install support underground at 732-meter level. 6.72 It is not in contention, that whilst executing that duty, a rock dislodged from the Jop of the roof and hit James Pelekelo on the head and his right ankle, and he sustained injuries as J47 can be seen on the final medical report which is at page 5 of his bundle of docurnents. 6.73 That report states t f at James Pelekelo sustained a wound on the head and an open fracture on the right ankle, which resulted in him having disability at 12% , as he had impaired movement and a swollen right ankle. 6.74 The issues in dispute, however, are whether Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc were negligent and were in breach of statutory duty or whether James Pelekelo was at fault, thereby having caused injury and damage to himself. 6.75 Black's Law Dictionary, 9th Edition by Bryan A. Garner, Thomas Reuters, 2009, defines negligence as : "The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights; the doing of what a reasonable and prudent person would do under the particular circumstances, or failure to do what such a person would do under the circumstances." 6. 76 The ingredients of negligence as stated in Charlesworth and Percy on Negligence 12th Edition at page 17, are as follows ; J48 "1. The exis~ence of a duty to take care, which is owed by the frlefendant to the complainant; I 2. The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and 3. Damage, which is both casually connected with such breach and recognised by the law, has been suffered by the complainant." 6 .77 In the case of Mulendema v Zambia Breweries PLC f8J the Court of Appeal held that: "Negligence alone does not give rise to a cause of action; it must be accompanied by damage or injury suffered as a result of that negligence. ingredients necessary to prove negligence namely, a duty to care owed, breach of that duty and the consequential damage must be proved, and are not separate from each other. The breach or negligence must be shown to have caused the injury." 6.78 Further, Halsbury's ~ws of England, 4 th Edition Re issue, Volume 34 in paragraph in paragraph 1 at page 3 , states that negligence is a specific tort, and in any · given circumstances, it is th~ failure to exercise the care which the circumstances demand. The learned authors state that what amounts to negligence depends on the facts of each particular case. I J49 I 6 .79 Therefore, where there is no duty to exercise care, negligence in the popular sensJ has no legal consequences. However, where there is a duty to exercise care, reasonable care must be taken to avoid acts, or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. 6.80 It will also be seen, that the learned authors state in that paragraph, that the degree of care required in a particular case depends on the surrounding circumstances, and may vary according to the f1-mount of risk encountered, and to the magnitude of the prospective injury. 6.81 They further state that the duty of care is owed only to those who are in the area of foreseeable danger, and the fact that the defendant has violated his duty of care to a third person, does not enable the plaintiff who is also injured by the same act, unless he is also r71thin the area of foreseeable danger. 6.82 On the burden of proving negligence, Halsbury's Laws of England, 4th Edition Re-issue Volume 34 in paragraph 54 states that: "The burden of proof in an action for damages for negligence rests primarily on the Plaintiff, who to maintain an action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the pi-oof of some duty ·owed by the Defendant to the plaintiff, brieach of that duty and injury to the JSO Plaintiff bettpeen wltich and the breach of duty, a causal connJction must be established." 6.83 The definition and ingredients of negligence as stated in the cited authorities, show that it is a requirement to prove negligence, that it must be established that the defendant owed a duty of care to the plaintiff, and that they failed to exercise such duty, \vhich resulted in damage to the plaintiff. 6 .84 When it comes to employers, the learned authors, Chanda Chungu and Ernest Beele, in Labour Law in Zambia: An Introduction, 2 nd Edition, Juta and Company (Pty) Ltd, 2020, state at page 163, that the duty to provide a safe system of work is one of the implied terms of a contract of employment. Therefore, an employer has to ensure that employees are safe in carrying out their duties. 6 .85 It will further be seen that Section 16 of the Occupational Health and Safety Act No 36 of 2010 provides that: "16. ( 1) Notwithstanding any other written law, an employer shall- (a) ensure, so Jar as is reasonably practicable, the health, safety and welfare of the employees of the employer at a workplace; and. (b) ·place and maintain an employee in an occupational environnienta·l adapted to the I employee's physical, physiological and psychological ability. I JSl (2) Without prejudice I subsection ( 1),1 an employer shall- to the generality of (a)provide plant and systems of work that are, so far as is reasonably practicable, safe and without any risks to human health and maintain them in that condition; (b) ensure, so far as is reasonably practicable, that articles, devices, items and substances provided for the use of the employees at a workplace are used, handled, stored and transported in a manner that is safe and without and risk to the health and safety of the employees at the workplace; (c) provide such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety of the I employees at their workplace; (d) so far as is reasonably practicable, maintain a workplace under the employr r's control, in a condition that is safe and without any risk to the health I and safety of employees at their I workplace; · J52 I (e) so ftir as is reasonably practicable, provik e and maintain the means of access to, or existfrom a workplace that are safe and without any risk to the health and safety of the employees using it; lfJ provide and maintain a working environment for the employees that is, so far as is reasonably practicable, safe and without any risks to their health and safety, and which is adequate as regards facilities and arrangements for their welfare at the workplace; (g)inform and consult a health and safety representative- (i) where an authorized officer visits the workplace, and give the health and safety representative an opportunity to meet the authorized officer; (ii)on the circumstances and futu·re prevention of any injury or illness; · (iii)on the - circumstances of any I injury for which a claim has been submitted to the Workers' Compensation Fund Control Board; or J53 (iv)with a view to making and maintaining arrangements to enable the employer and the employees to cooperate effectively in promoting and developing measures to ensure the health and safety of the employees at the workplace, and checking the effectiveness of those measures; (h)provide for measures to deal with emergencies and accidents, including adequate first-aid arrangements; (i) provide at the employer's expense all appropriate I protective clothing or equip~ent to be used in the workplace by employees, who in the course of employment, are likely to be exposed to the risk of bodily injuries, and adequate instru~tions in the use of such protective clothing or equipment; and (I) do for, or provide to, the employees, free of charge, anything which by law is required to be provided to those employees by the employer. (3) A person who contravenes subsection (1) or (2) commits an offence and is liable, upon conviction, to a fine not exceeding five hundred thousand J54 penalty unit~ or to imprisonment for a period not exceeding five years, or to both." 6.86 In line with Section 16 (2) of the Occupational Health and Safety Act, Tongguan Mines Construction & Zambia Limited as the employer for James Pelekelo and other miners was obligated to provide and maintain a working environment for them that was, so far as was reasonably practicable, safe, and without any risks to their health and safety, and which was adequate as regards facilities and arrangements for their welfare at the workplace. 6.87 The facts which are common cause in this matter, are that James Pelekelo was working in a mine. 6.88 Section 87 (1) of the Mines and Minerals Development Act No of 2015 states that: "87. (1) A holder shall be strictly liable for any harm or damage caused by mining operations or mineral processing operations and shall compensate any person to whom the harm or damage is caused. (2) Liability shall attach to the person who directly contributes to the act or omission which results in the harm or dan:r,age. (3) Where there I is more than one person responsible for the harm or damage, the liability shall be joint and several. ,, I J55 6.89 In this matter, Jam~s Pelekelo alleges that Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc failed to maintain a safe working system, by not reinforcing the ground support in a hazardous area, and that their I geotechnical staff failed to provide the necessary technical advice to ensure safety before work began. 6.90 It is further alleged that mine managers and supervisors did not ensure proper sa!fety procedures, risk assessments, or support installation, and that they used unqualified personnel, by specifically appointing James Pelekelo, a truck operator, as Person in Charge without formal authority. 6.91 James Pelekelo stated that Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc improperly delegated responsibilities without supervision, and failed to close the unsafe area of the mine until conditions were restored. 6. 92 The record shows t~at Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc's witnesses on the other hand, maintained that James Pelekelo was appointed as the Person in Charge of the crew that was assigned to install support underground at 732-meter level, which led to his injury after a rock fell from the roof. 6. 93 The testimony that Patrick Banda gave, was that James Pelekelo, as the Person in Charge, was required to inspect the mine site ahead of his crew, by checking for loose rocks I and scaling them down with a pinch bar before allowing anyone to proceed. J56 6.94 However, James Pe]ekelo failed to conduct this mandatory safety check, and I allowed the crew to enter the site prematurely. As a result of this omission, a loose rock fell and injured him. It was stated that an investigation that was conducted by Tongguan Mine Construction & Zambia Limited concluded that the accident was caused by James Pelekelo's own negligence, as himself and his crew did not follow the required procedures for entering a blasted area. 6. 95 Wilson Makoza who also testified on behalf of Tongguan Mines Construction & Zambia Limited told the Court that James Pelekelo was responsible for ensuring that the work area was safe before the crew entered. This witness, a Shift Boss who supervised James Pelekelo, who, was the Person in Charge, explained that James Pelekelo was required to go ahead to the work area before the rest of the team. 6.96 Wilson l'v1akoza stated that apart from himself, there was no other supervisor who was present at the time, as there was no Mine Captain on duty, and no supervisor from NFC Africa Mining Plc, who only visited the sections weekly. 6. 97 Wilson Makoza in his testimony also testified that James Pelekelo and his crew received a safety talk before they entered the mine, and that James Pelekelo was equipped with the required protective gear including gum boots. I 6.98 Kasakula Chibwe's testimony was that NFC Africa Mining Plc, as the mine owne:t1, was responsible for ensuring the overall safety of the mine, while contractors had their own J57 supervisors and safety departments to manage their operations in line with required standards. 6.99 He further stated that although the mine owner is generally liable for accidents that occurr in the mine, this liability does not extend to employees of contractors. 6.100 The evidence on record shows that James Pelekelo was assigned as the Person in Charge of the team that was assigned to install support underground at 732-meter level, I which saw a rock fall on his head and on his ankle, and he was injured. 6 . 101 James Pelekelo admitted this fact when he was cross examined, by stating that he was in charge at the time of the accident, and that his duties included making sure that the ten (10) workers worked in a safe environment at the work site. 6.102 George Paul Mususu, the Senior Mines Inspector, corroborated this evidence, and also added that James Pelekelo was in charge of his team. He stated that a Person in Charge in accordance with 'A Guide to Mining Regulations I in 2.15' is a person that has to ensure that the area of mining is safe before taking people to work there. 6.103 George Paul Mususu further testified that there was a wash down that was supposed to be done to see if there was a crack after a blast, as that was important. 6.104 Regulation 215 of the Mines and Minerals Act Regulations under Statutory Instrument No l 07 of 1971 and the Mining (Amendment) Regulations Statutory I J58 Instrument No 95 of 1973 provides that every workman shall be under the supervision of a competent person who under the Regulations, is referred to as a Person In Charge. 6.105 Regulation 215 (1) (b) requires that the Person In Charge shall be the holder of a Zambian Blasting Licence which is valid for the operation for which they are responsible. 6 . 106 It will further be observed that Regulation 215 (2) requires the Person in Charg½, to be the first person to enter each working place that is assigned to them, and the immediate approaches thereto, and they shall examine and make safe or cause to be made safe each such working place and immediate approaches thereto, permitting any work to take I place, and shall ensure that the provisions of the I Regulations are observed by any person in such working places, and the immediate approaches thereto, whether such person is under their personal supervision or not. 6.107 Then under Regulation 215 (3), a shift boss, competent person, shift foreman I or more senior official may in the execution of their duties, enter any working place before the person in charge: 6.108 That Regulation has a proviso which states that: "Provided that - (i) the shift boss or more senior official shall be the holder of a Zambian blasting license when he wishes to enter any working place where rock drilling or blasting operations I J59 have beJn carried out or where danger may arise from the presence of explosives; and (ii) when he observes anything that is unsafe he shall immediately take such precautions as may be necessary to prevent any person entering until such time as he has either made the place safe or informed the person in charge of the unsafe condition." 6.109 James Pelekelo as Person In Charge, under Regulation 215 (4) in making safe any working and the approaches thereto, was responsible for the safe disposition of his subordinates in suitable and safe places until he had made them safe. 6.110 At page 4 of Tongguan Mines Construction & Zambia Limited's bundle of documents is the Blasting Licence for James Pelekelo which was issued on 17th September, 2013. 6.111 In line with the Regulations, James Pelekelo was qualified as a Person In Charge, as he was the holder of a Blasting Licence at the time. This is contrary to his assertion that he was only a mine truck operator. 6 . 112 Jam.es Pelekelo was therefore qualified to be appointed as Person In Charge to supervise the crew that was under his leadership. 6.113 The contention by James Pelekelo was that there was no Shift Boss, or Mine Captain when he was assigned the duty as Person In Charge to lead the crew to install support underground at 732-meter level. Therefore, Tongguan Mines J60 Construction & Zam!bia Limited and NFC Africa Mining Plc were negligent. 6.114 Wilson Makoza in CiiOSS examination, explained that James Pelekelo was supervised by both the Shift Boss and the Mine Captain. The Shift Boss being Wilson Makoza, was employed by Tongguan Mine Construction & Zambia Limited. He was responsible for overseeing the Person in Charge, and ensuring safety in the work areas, while the Mine Captain, who also · employed by Tongguan Mine Construction & Zambia Limited, ensured that all sections operated according to the safety standards. 6.115 Wilson Makoza disagreed with the assertion that the Shift I Boss and the Mine Captain were required to inspect the site before the Person in Charge and the crew entered, noting that both the Shift Boss and the Person in Charge were com pet en t in managing safety. 6.116 It was Wilson Makoza's testimony that the Person in Charge exercised delegated authority from both the Shift Boss and the Mine Captain. 6 . 11 7 I have highlighted the provisions of Regulation 215 of the Mines and Minerals Development Act. That Regulation does not make it mandatory for a Shift Boss or a Mine Captain to go in first and inspect the work area to establish its' safety before a Person In Charge does. 6 . 118 The Regulation uses the word may, entailing that when a Person In Charge who is the holder of a Blasting Licence goes in to inspect the work area first, it is not mandatory for a J61 Shift Boss or a Mine Captain to do so, but there is nothing that stops a Shift Boss or a Mine Captain from doing so. 6.119 At page 8 of James Pelekelo's bundle of documents is James Pelekelo's Accident Report. A reading of that report, shows that it is a mere narration of the accident. James Pelekelo explained that he was working as the Person in Charge when the rock dislodged frpm the roof, and hit him on the head and right ankle. 6.120 In the Safety Department Report which is at page 9 of James Pelekelo's bundle of documents, Harrison Gondwe narrated that he went into the work area with James Pelekelo. Harrison Gondwe stated that he went directly to the machine to check its' condition, while James Pelekelo went to check or inspect the area, and he made it safe. He also stated as follows : "AFTER THE PIC INSPECTED THE AREA HE INSTRUCTED ME TO RA TIO ON THE ROOF DUE TO THE FACT THAT HIS PINCH BAR DIDN'T REACH ON TOP BEFORE I CAN START DRILUNG THE HOLES. WHEN I · FINISHED RATIORING, I STARTED DRILUNG THE HOLES ON THE LEFT SIDE WALL WHERE THE DAY SHIFT CREW LEFT AND THAT WAS AROUND 22:00 HRS. WE HAD TO START BY I I THE SIDE WALD. AT FIRST PIC (PELEKELO JAMES) FED THE SPUT SET TO THE BOOMER AND EVERYTHil•lG WENT WELL, WHEN WE WENT TO SECOND HOLE iIN THE PROCESS OF THE (P.1. C) J62 PELEKELO JAMES, FEEDING THE SPUT SET TO THE MACHI!vEi AFTER FEEDING ON HIS WAY BACK TO THE SAFE AREA A ROCK DISCLOGED FROM THE ROOF AND HI~ HIM DOWN AND THAT WAS AROUND 23:00 HRS, AND BY THEN AND I HE MECHANIC WERE ON THE MACHINE." 6 . 121 The Accident Incident Report which is at pages 1 to 3 of Tongguan Mine Construction & Zambia Limited's bundle of documents found that James Pelekelo and his crew did not follow support and barring down procedure of a blasted end at the time of the accident. The report further stated as follows: "They supported the area starting from the side wall/side walls going to the roof, they were supposed to support the roof going to side walls. Mr Pelekelo being the person in charge, he employed a wrong system of work which is not approved by the company according to company standard operating procedure of development ends. From the fact above the PIC stood in unsupported area because the rock dislodged from the edge of installed wire · mesh, the support system and pattern did not fail. The Person In Charge failed to identify hanging wall and loose rocks in the roof, he was supposed to observe and tap the ground to identify loose rocks before commencing support J63 work, knowin~ very well that, any blasted end has loose rocks and during support loose rocks can/all from the edge due to vibration of the drilling machine." 6.122 Then there is the Report which was authored by George Paul Mususu an Inspect@r of Mines, under the Mines Safety Department, which was produced as 'Pl'. 6 . 123 That report shows that James Pelekelo and his crew were I assigned to support a blasted end using Boomer Machine Fleet No 1, and in the process of inserting the split end into the machine, the rock dislodged from the roof and hit him on the left side of his head and landed on his right leg. 6. 124 The report further r eads that the rock dislodged from the edge of a welded wire mesh which had earlier been installed at a height of 4.5 metres, and that the rock was 1.3 metres in length and 0.80 metres in width. 6.125 George Paul Mususu's report also states that James Pelekelo and his crel did not follow support and barring down procedure of blasted end at the time of the accident. It states that they supported the area starting from the side wall/walls going to the roof instead of supporting from the roof going to the side walls. 6 . 126 The finding in the report was also that James Pelekelo being the Person in Charge employed a wrong system of work which was not appn)Ved by the company according to the company standard operating procedure of development ends . J64 6.127 Thus, James Pelelielo stood in an unsupported area because the rock diJ lodged from the edge of the installed wire mesh and therefore, the support system and pattern did not fail. 6. 128 The finding in the report was further that James Pelekelo as Person In Charge, fJ iled to identify the hanging wall and loose rocks in the roof. It was also stated that James Pelekelo was supposed to observe and tap the ground to identify loose rocks before comme! cing the support work, k..11.owing very well that any blastedl end, had loose rocks and that support rocks could fall from he edges due to vibration of the drilling machine. 6.129 It is clear from the evidence that on the material day, James Pelekelo as Person in Charge, was responsible for ensuring his safety and that o:ff the crew that he was working with. 6 . 130 The evidence showsl that James Pelekelo is a holder of a Blasting License under Regulation 804 (6) of The Explosives (Amendment) Regulations, 2018. This entails that he was trained and licensed in blasting operations. 6 . 131 James Pelekelo was exercising delegated authority of the Shift Boss and the Mine Captain in ensuring his safety and that of the other employees, as an employee of Tongguan Mine Construction &[ Zainbia Limited. 6.132 The Accident Incidl nt Report shows that the Person in Charge, b eing Jan1es Pelekelo, failed to d etect loose or hanging rocks in the roof, despite being required to inspect and tap the ground for such hazards before starting the I J6s support work, esp~cially since blasted areas typically contain loose rocks tl at can fall during drilling vibrations. 6.133 James Pelekelo contended that Tongguan Mines Construction & Zad bia Limited had a duty to ensure that the work area for James Pelekelo and the other miners was safe. However, the allegations as made by James Pelekelo to prove that breach hal e not been established. 6.134 This is because James Pelekelo did not adduce any evidence to support the particulars of negligence that he alleged. He merely stated that Tongguan Mines Construction & Zambia Limited and NFC Africa Mine's failed in securing the area. 6.135 From the Accident! Report which is at page 9 of James Pelekelo's bundle of documents, it reveals that James Pelekelo inspected the area before the works were to be done. 6.136 It cannot therefore, on the face of it, be said that Tongguan Mine Construction & Zambia Limited breached the duty of care, as James Pelekelo was the person employed by Tongguan Mine Construction & Zambia Limited as Person In Charge, to ensure safety as a delegated duty. 6.137 What is however noteworthy, is that Safety Department Report which is at page 9 of James Pelek elo's bundle of documents, which was authored by Harrison Gondwe a Boomer Operator, shows that when James Pelekelo went to inspect the area, James Pelekelo had asked him to rato on the roof, due to the fact that the pinch bar did not reach the top before Harrison Gondwe could start drilling the holes. J66 6.138 The pinch bar was ~n instrument that James Pelekelo used in determining the safety of the mining area before any works were commenced, as he would use it to inspect the roof where previous blaJ ting had taken place, to determine if there were loose rocks, and he would scale them down. 6 . 139 An employer has a statutory duty to make sure that the work area is safe. That duty entails equipping employees with the correct equipment or tools for them to carry out their duties in a safe mru1.ner. 6.140 The report that was compiled by Harrison Gondwe shows that the pinch bar was not long enough to reach the roof so that James Pelekelo could properly carry out the inspection to ensure that area was safe from any loose rocks as a result of previous drilling. 6.141 By not providing James Pelekelo with a pinch bar that could reach the roof so that he could search for loose rocks was a breach by Tongguan Mine Construction & Zambia Limited of providing a safe work place, and was negligence as Tongguan Mine Construction & Zambia Limited owed James Pelekelo and other miners a duty of care. 6.142 However, by James Pelekelo asking Harrison Gondwe to instead rato on the roof, James Pelekelo failed to observe the safety measures to ensure that himself and other miners were safe in the work area. 6.143 James Pelekelo on /establishing that the pinch bar was not long enough to reach the roof, he should have informed Wilson Makoza the Shift Boss, of the deficiency in the pinch J67 bar in enabling him to detect whether there were any loose rocks that could fall. I 6.144 By not doing so, James Pelekelo was therefore contributorily negligent to injury that he sustained. The position would have 1 been otherwise, had James Pelekelo adduced evidence to show that Wilson Makoza his Shift Boss, had insisted that he continues the work despite the pinch bar not having been long enough to reach the roof. 6 .145 The provisions of Section 87 of the Mines and Minerals Development Act No 11 of 2015 state that a holder shall be strictly liable for any harm or damage caused by mining operations or mineral processing operations and shall . compensate any person to whom t e harm or damage 1s h I caused. 6 . 146 A holder is a person who holds the mining licence, in this case, NFC Africa Mining Plc, which fact has not been disputed in any way. 6.147 Kasakula Chibwe of NFC Africa Mining Plc, testified that it was his duty to provide training and education services to independent contractors and their employees. He emphasized the fact that it was the duty of the employer to ensure the health, safety and welfare of the employees at a workplace, and that it was also the duty of an employee to take reasonable care for his own health and that of other persons who may be I affected by the employee's acts or omissions at the workplace. I • J68 6 . 148 He testified that Tongguan Mine Construction & Zambia Limited was an indef endent contractor, which was engaged by NFC Africa Mining Pk at the South East Ore Body (SEOB) Chambishi, as it was registered with the National Council for Construction as well as the Engineering Institution of Zambia for the type of work it is involved in at the time. 6 . 149 This evidence was not challenged by James Pelekelo. 6 . 150 The law in Section 87 of the Mines and Minerals Development Act However establishes that there is strict liability that is placed on the holder of a mining licence when an accident occurs in a mine. Therefore, NFC Africa Mining plc being the holder of the mining licence, and it contracted Tongguan Mine Construction & Zambia Limited to mine, it is liable for the accident that caused injury to James Pelekelo, negligence having been attributed to Tongguan Mine Construction & Zambia Limited. 6.151 In the case of Betty Kalunga (Suing as Adntinistrator of The Estate of the late Emmanuel Bwalya) v Konkola Copper Mines Plc f6J the Supreme Court held that: "If an employee in the course 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 the case. In case of contributory negligence, the damages recoverable by the plaintiff are reduced to such an extent as the court thinks just and equitable J69 having regard to the claimant's share in the responsibility lfor the damage." 6.152 Consequently, Tonkguan Mine Construction & Zambia Limited as James Pelekelo's employer is equally liable for the injury that James Pelekelo sustained as he carried out his duties. I accordingly find that Tongguan Mine Construction & Zambia Limited and NFC Africa Mining Plc are therefore liable in negligence to James Pelekelo. I 6.153 The Accident Report and the Report from the Mine Safety Department show that James Pelekelo negligently contributed to the rock fall that cause him injury and his eventual discharge from employment on medical grounds. 6.154 I have found that the Safety Department Report which is at page 9 of James Pelekelo's bundle of documents shows that the pinch bar that James Pelekelo was using did not reach the roof. Thus, it did not enable him to scale down the area for loose rocks. Tongguan Mine Construction & Zambia Limited therefore fell short of its's statutory duty to ensure that the work area was safe for the employees. 6.155 The contents of this report were not discredited. in any way and they establish that James Pelekelo in fact did inspect the area for safety, bJ t the pinch bar was unable to reach the roof. However, James Pelekelo did not report the deficiency in the pinch bar to enable him to scale down the loose rocks in the roof to his supervisor Wilson Makoza. Thus , he was contributorily negligent. -170 6. 156 J an1es Pelekelo even though he has succeeded on his claims for negligence and breach of statutory duty against NFC Africa Mining lLimited as the holder of the Mining Licence and Tonggi.lan Mines Construction & Zambia Limited as his empl0yer, he negligently contributed to the a ccident. 6 . 157 Section 10 of 1the Law Reform (Miscellaneous Provisions) Act Chapter 74 of the Laws of Zambia states that: "10. (1) Where any person suffers damage as the result 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 in respect I thereof shall be reduced to such extent as the court thinks just anf equitable having regard to the claimant's share in the responsibility for the damage: Provided that- (i) this subsection shall not operate to defeat any defence arising under a contract; (ii) where any contract or enactment providing I for the limitation of liability is applicable to the clai,n, the amount of damages recoverable by the claimant by virtue of .. J71 this subsection shall not exceed the maxi,um limit so applicable. (2) Where damages are recoverable by any person by virtue of subsection (1), subject to such reduction as is therein mentioned, the court shall find and record the total damages which would have been recoverable if the claimant had not been at fault." 6.158 In the circumstances of the· case, I order that the damages due to James Pelekelo shall be reduced by fifteen percent, in view of his contribution to the accident. 6.159 NFC Africa Mining Plc as owner of the mine, shall pay twenty-five percent of the damages due to James Pelekelo while Tongguan Mines Construction & Zambia Limited as James Pelekelo's employer who was responsible for his safety shall pay sixty percent of the damages due to James Pelekelo . 6 . 160 In the case of Reuben Nkomanga v Dar Farms International Limited f7J, the Supreme Court categorized damages under personal injuries as damages for pain and suffering, loss of amenities, permanent disabilities and loss of future prospective earnings. 6.161 James Pelekelo pleaded those damages in the statement of clain1. As such, the damages shall be assessed by the Registrar in line with those heads, and shall be reduced by fifteen percent due to James Pelekelo's contribution to the accident. J72 6.162 The amounts found due shall carry interest at the average short-term deposit rate from the date of issue of the Writ of Summons until Judgment, and thereafter, at the Bank of Zambia lending rate i.intil payment. 7. CONCLUSION 7 .1 James Pelekelo has succeeded on his claims that Tongguan Mines Construction & Zambia Limited and NFC Africa Mining Limited were negligent and breached their statutory duty under the Mines and Minerals Development Act No 11 of 2015. He has been awarded general damages for negligence which shall be assessed by the Registrar. 7 .2 As James Pelekelo negligently contributed to the injuries, the amounts found due to him shall be · reduced by fifteen percent entailing that he be paid Eighty Five percent of what is due to him. Tongguan Mines Construction & Zambia Limited as James Pelekelo's employer shall pay Sixty percent of what shall be found due to James Pelekelo and NFC Africa Mining Plc shall pay James Pelekelo Twenty-Five percent of what shall be found due to him. 7 .3 The amounts found due shall carry interest at the average short-term deposit rate from the date of issue of the Writ of Summons until Judgment and thereafter, at the Bank of Zambia lending rate until payment. , .. J73 7.4 Having succeeded on the claims, James Pelekelo is awarded costs of the action, which shall be taxed in default of agreement. Leave to appeal is granted. DATED AT LUSAKA THE 29th DAY OF DECEMBER, 2025 S. KAUNDA NEWA HIGH COURT JUDGE