Kunda v Konkola Copper Mines (Appeal 48 of 2005) [2007] ZMSC 156 (23 February 2007)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN APPEAL NO. 48 OF 2005 JOHN KUNDA Appellant and KONKOLA COPPER MINES PLC Respondent Coram: Chirwa, Chibesakunda and Mushabati, JJS on 18,h July 2006 and 23rd February 2007. For the Appellant: Mr M J M Pikiti of Messrs Pikiti & Co. For the Respondent: Mr W Cornhill of Messrs Wilson & Cornhill JUDGMENT Chirwa, JS delivered the Judgment of the Court: Cases referred to: 1. 2. 3. Zulu V the People [1990-92] Z. R 62 Khalid Muhamed V Attorney General [1982] Z. R. 49 Zulu V Avondale Housing Project Ltd [19820] Z. R 172 This is an appeal by the appellant, JOHN KUNDA, against the dismissal of his claim against the Respondent, KONKOLA COPPER MINES PLC, his former employers for damages for personal injuries, loss of earnings and loss of a leg sustained in a mine accident that occurred at Chililabombwe Mine of the respondent on 15th October 2001. The appellant’s case was based on negligence. The particulars of the negligence were that the respondent carried out its mining activities in such a way that unnecessary pressure concentration bore on the drive J2 which would result in rock bursts. That the respondent with the full knowledge of these pressures instructed the appellant to work in such an area which was known to be dangerous and unsafe. The evidence of the appellant in the Court below was that he was employed by the mines and he had been working for the mines for 22 years. At the time of the accident, he was a Timber man. He told the Court that before they proceeded to any area under ground, the area is inspected by the Section Boss and when he declares it safe, workers go into that area. On that fateful day the Section Boss inspected the area and found it safe and workers were allowed to go into the area. He said that when he was working under Nchanga Consolidated Copper Mines (NCCM) and Zambia Consolidated Copper Mines (ZCCM) the rocks underground were supported by timber but when the respondents took over the mines, they changed the system to rock belts. The advantages of timber was that if the area was weak, the timber would break indicating that the rock was falling. Whereas under the respondent’s system, the rock belts break with the rock fall and this makes the working place unsafe. He therefore claimed K200 million as total damages for the injuries and loss of earnings. He told the Court that the only money he got after the accident was what was carried over when he was working for ZCCM. The Respondent has not paid him anything, neither has Workers Compensation Board. J3 For the defence, evidence was led from two witnesses. The first was Head of Geo-Technical Engineering who was a qualified Geology Engineer with over 25 years experience in underground mining geology which is a study of tunnels and rock-formation. He testified that previously, timber props were used to support rock roofs and sides but modern mining system has changed to iron supports which involves meshing the area to be protected and the mess is supported to the rocks by iron belts. The difference in the two systems is that, in the use of timber, it was difficult to cover all rock surfaces and the timber shrinks. Whereas with the use of wire mesh, large rock area is covered and is capable of carrying load in excess of 10 tons. The steal props system is now used world over and this system has been used in Zambia for many years. It is a very safe system. He however told the Court that before workers go into any area for mining operations, the area is inspected by the Shift Boss who uses a large iron bar called a pinch bar with which he taps the roof and the sides of the working area and if he hears a hollow sound, then he knows there are loose rocks and he cannot allow any worker to go there until the area is made safe by either knocking it down or barricading it. On the issue of how the area would show to be weak after the mesh has been bolted in place, the witness told the Court that rocks would fall on the mesh and it would bulge. The second sign of danger would be the dome on the place would begin to flatten. He gave an opinion that for this accident to have happened, no inspection would have been done. J4 The second defence witness was an Orthopedic Surgeon who worked on the appellant after the accident. He saw the appellant on arrival at the hospital and attended to him in the theatre. He testified that both legs of the appellants were damaged in the accident and were both put in cast. He was later discharged but came back before review date and it was discovered that the left leg wound had become septic. The wound was cleaned and the appellant was advised that it was necessary to amputate the leg just below the knee. After sometime he consented and the leg was amputated. After the healing process, he was finally assessed at 90% for damages for guidance for compensation under the Workers Compensation Board. From the evidence the learned Trial Judge found as a fact that the appellant was employed by the respondent and that on 15th October 2001 he was injured in a mine accident that occurred at Chililabombwe. On question of liability both under negligence and statutory breach, the learned trial judge found that from the practice as given by both the appellant and the 1st Respondent's witness, the area to be worked on was inspected by two seniors to the appellant and it was found safe. There was no evidence adduced to show that the inspections were done negligently. He therefore found no negligence. On statutory breach of duty care, here too, he found no evidence and as such he found the appellant only entitled to compensation under the Workers Compensation Act and dismissed the appellant's action. J5 The appellant being disappointed with this verdict, has appealed to us. There are six (6) grounds of appeal according to the amended Memorandum of Appeal and these are:- 1. The Hon Court below erred in law and fact for dismissing the appellant’s claim for adequate compensation following very serious injuries he sustained while on duty in the respondent's employment. 2. The Hon Court below erred in law and fact for ruling that the underground mine accident was not caused by any negligence of the respondent. 3. The Hon Court below erred in law and fact in failing to make a ruling on the sequence and frequency of the underground mine accidents in the respondent's mine. 4. The Hon Court below erred in law and fact in holding that for all claims of appellant to be sustained negligence had initially to be proved without calling for evidence as to character of the accident in issue. 5. The Hon Court below erred in law and fact for failing to establish that the barest negligence can cause the gravest injury and therefore the respondent had a duty of care and cannot be absorbed blame and responsibility. J6 6. The Hon Court below erred in low and fact for not allowing the appellant to call his 2 witnesses he intended to call and testify in Court and for not showing in the record of proceedings that the appellant was refused to call witnesses in the Hon Court below. These grounds of appeal were argued in detailed heads of arguments filed in Court on which Counsel relied upon. Counsel for the respondent also filed detailed heads of arguments after we heard the appeal. We would like to consider ground number six (6) first. This ground is based on a letter written by the appellant to his Counsel. It is not part of the record. It raised very serious issues which Counsel should have taken seriously. One cannot impeach a court record by a mere letter. The complaints raised therein are serious and we do not see how Counsel could certify the record as true copy of the proceedings when it does not contain the alleged desire of the appellant to call witnesses and if the said desire was communicated to the Court in open court during the proceedings. We are a Court of Appeal and we depend for our decisions, on evidence on record. No where in the Certified True Copy record of the proceedings do we see anywhere where the appellant indicated that he wished to call witnesses. The record shows that the appellant gave evidence on 19th January 2004 in the absence of Counsel for the respondent and the matter was adjourned to 3rd February 2004 to enable the appellant to introduce medical report. On 3rd February 2004 the Court resumed sitting in the J7 absence of Counsel for the Appellant. In the course of cross-examination, counsel for the appellant joined the proceedings. At the close of cross­ examination and re-examination at page 75, counsel for the appellant closed the case. No where did he indicate that he wanted to adduce further evidence. It seems he even forgot about the medical evidence for which the case had been adjourned. It seems, if it had not been for his wish then to call for medical evidence, the appellant's case would have closed on 19th January 2004. It will be noted from the record that although the appellant did not adduce the medical evidence, he did not suffer any prejudice as the medical evidence was adduced by the respondent through DW 2. From this, we can only conclude that Counsel made a very serious and baseless allegation that the record was defective. We take very great exception for Counsel, as an officer of the Court, to mislead the Court on baseless allegations from a client. Counsel are reminded of the decision in the case of ZULU V THE PEOPLE (1) on the dangers of Counsel acting on flimsy allegations by their clients. On the whole, we see no merit in this ground of appeal and it is dismissed. We will now consider the other grounds of appeal in their order. The first ground of appeal alleges that the Court below erred in not awarding adequate compensation following very serious injuries. We are at a loss with the ground of appeal. The question of adequacy or inadequacy of compensation does not arise until the question of liability has been determined. The action by the appellant was based on negligence. As J8 in all cases, it was for the appellant to prove that negligence. The Court found that no negligence was proved. This finding was based on the consideration of the appellant's evidence and that of the respondent's witness No. 1, who was accepted to be an expert. It was accepted that previous practice in underground mining operations, timber was used as props in supporting the roofs and sides of tunnels in mining operations. But this practice has now been replaced with one of the use of iron and mesh. This has been accepted as a safe practice. The appellant’s own evidence stated that before operations started in the area where the accident occurred, two independent senior miners inspected the area per the practice and the place was found safe for mining. The practice of inspection by two senior miners was also confirmed by RW 1 that, that was the practice in existence. There cannot therefore be said to have been any negligence on the part of the Respondent. It follows that as negligence was not proved, there was no basis for awarding any compensation arising from the accident apart from the normal award under the Workers Compensation Act. On the evidence before the learned Trial Judge, his findings that no negligence was proved and his refusal to award any damages cannot be faulted. This ground of appeal has no merit. It is dismissed. The second ground of appeal is against the non-finding of negligence. We have considered this aspect of the ground in ground one when we were considering the question of adequacy of compensation. No negligence was proved. This ground of appeal also fails. J9 The third ground of appeal blames the learned trial judge for his failure to make a ruling on the sequence and frequency of underground mine accidents at the respondent's mine. This is a novel ground of appeal. Novel in the sense that there was no claim or prayer for the Court to make a finding on the frequency of accidents at the respondent's mine. To us, this is irrelevant unless there was negligence proved and then that would have gone to aggravate the situation that the respondents had failed to remedy the situation. But here, the evidence is that the respondent had in use the accepted mining practice which does not prove negligence. This ground of appeal is also dismissed. The fourth ground of appeal alleges that the Court below erred n holding that all appellants claims failed because negligence had to be proved first. We feel this is going round an elementary principle of law. He who alleges must prove the allegations. This principle although so elementary this Court has on a number of occasions reminded litigants that it is their duty to prove their allegations and not for the defendat to prove his innocence or his case. This has been stated by this Court in cases like KHALID MUHAMED V ATTORNEY GENERAL (2) and ZULU V AVONDALE HOUSING PROJECT LTD (3):- "The plaintiff must prove his case and if he fails to do so the mere failure of the opponent’s defence does not entitle him to judgment. I would not accept a proposition that even if a plaintiff’s case has collapsed of its own inanition or for some reason or other, judgment should nevertheless be given to him on the ground that a defence set up by the opponent has J10 also collapsed. Quite clearly a defendant in such circumstances would not need a defence” per Ngulube DCJ (as he was then) in MOHAMED (2) case. This ground of appeal also fails. The fifth ground of appeal alleges that the lower Court erred for failing to establish that the barest negligence can cause the gravest injury. There can be no doubt about this philosophical statement but there has to be some negligence proved and then one takes his victim as he finds him. But here, there was not even atom of evidence of negligence that can be said to have led to sunnami damage. This ground of appeal also fails. All in all, all grounds of appeal fail. The appeal is dismissed. The appellant should just be helped to get compensation from the Workers Compensation Board under Cap. 271. Ordinarily, costs follow the events but we have looked at the weak position of the appellant and the trauma that he has gone through and continues to go through and how unhelpful Counsel have been both here JI 1 and in the Court below, we feel we can exercise our discretion on costs. Each party to bear its own costs. D K Chirwa JUDGE OF THE SUPREME COURT eL P Chibesakunda C S Mushabati JUDGE OF THE SUPREME COURT JUDGE OF THE SUPREME COURT