Kawinga v Satemwa Tea Estates Limited (Personal Injury Cause 118 of 2019) [2024] MWHC 27 (28 February 2024)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION PERSONAL INJURY CAUSE NUMBER 118 OF 2019 (Before Honourable Justice Muhome) BETWEEN: CHIMWEMWE KAWINGA CLAIMANT AND SATEMWA TEA ESTATES LIMITED DEFENDANT CORAM: HON. JUSTICE ALLAN HANS MUHOME Mr Stenala Chisale, of Counsel for the Claimant Mr Frank Zambezi, of Counsel for the Defendant Ms Fareeda Chida, Court Clerk JUDGMENT The Claimant was at all material times employed as a Machine Operator and he commenced these proceedings against the Defendant claiming damages for pain and suffering, loss of amenities of life, disfigurement and costs of this action. The claims are based on allegations that on or around 9" June, 2018 at around 8 am, the Claimant slipped and fell from a pile of logs. The accident, it is alleged, was caused by the negligence or Page | of 5 breach of a statutory duty on the part of the Defendant. The Defendant denied all the claims and alleged that the Claimant was himself negligent or contributed to the accident. The Claimant adopted his witness statement as evidence in chief together with exhibits CK 1 (Medical Report) and CK 2 (Contract of employment). He stated that he was employed as machine operator but on the fateful day his employer instructed him to assist in stacking wood logs. That since it was raining on that day, the wood was wet and caused him to slip from a height of about 7 meters sustaining various injuries. In cross examination, the Claimant insisted that loading logs is a skilled job, which required special training and it was his first day to do that kind of job. He confirmed that his shift manager instructed him and 4 others to pile the wood logs. He further agreed that the other 4 workers also came from his department and none of them was injured but himself. He conceded that the accident did not happen because he was a machine operator but that the wood was wet. He was inconsistent whether on the material day the workers used ladders to climb to the top. He maintained his testimony that it was raining on that day and he was not aware of any company policy that prohibits such kind of work on rainy days. He accepted that the Defendant had provided him with protective wear including gumboots, a helmet and working suit. He also affirmed that the 7-metrer height was his own estimation and so it could have been shorter. That he was treated as an out-patient and given pain-killers but disagreed that his injuries were minor as he spent 6 weeks at home. In re-examination, the Court did not find any evidence different from the above. The Defendant paraded two witnesses. Kelvin Kamwendo (DW 1) adopted his witness statement and essentially testified that the Claimant was under his supervision on the material day. That the stack of wood can go as high as 4 metres. The Claimant fell due to the slippery wood caused by residual dew and that it was not raining as alleged. That it was generally a safe day for such work to be performed. In cross examination, the witness stated that he was present at the scene when the accident happened. He mentioned that they use a ruler to measure the height of the stack. He confirmed that the wood was wet with dew and that protective wear that was given to the Claimant would not have ordinarily prevented an accidental slip. He stated that they normally commence work at 6 am, however on the material day, work started at 8 am to allow the wood to dry. These statements were repeated in re-examination. Page 2 of 5 DW 2 was Shefield Rauli who corroborated DW 1’s testimony. In cross examination, he confirmed that he was present at the scene; that staking of wood begun at about 9 am; that the height of a stack is in the range of 2 to 4 meters, depending on the earth’s surface. He confirmed that the use of gumboots would not have prevented the slip due to the dew on the wood. However, such accidents were rare. In re-examination he re-confirmed that it was not raining as the day was sunny. At the close of the case on 12'" December 2023, both parties agreed to concurrently file written submissions by 16" January 2024. Only the Defendant did and the Court proceeds with its Judgment. The standard of proof in civil matters is on a balance of probabilities and the burden of proof lies on he who asserts the affirmative per Miller v Minister of Pensions [1947] All ER 372. Negligence has been defined as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done: see Blyth v Birmingham Waterworks Company (1856) 11Ex Ch 781. The essential elements of actionable negligence are (a) a duty to take care owed to the Claimant by the Defendant, (b) a breach of that duty, and (c) damage suffered by the Claimant resulting from the breach of duty: see Kasawire v Ziligone and Another [1997] 2 MLR 139. The Court has taken time to appreciate the Defendant’s submissions and skeleton arguments from both Counsel, including the cases cited as well as the Occupational Safety, Health and Welfare Act Cap 55:07 of the Laws of Malawi (‘the Act’). In Innocent Mulogera v Malawi Cotton Company, Civil Cause No. 1595 of 2010 (High Court of Malawi) (Principal Registry) (Unreported), Potani J, as he then was, noted that: Both at common law and under statute, an employer owes a duty of care to his employee... In this country, the statutory duty of care an employer owes his employee is provided for in the Occupational Health, Safety and Welfare Act [Cap 55:07] of the Laws of Malawi. Section 13(1) of the Act imposes a general duty of care on the employer... Therefore, both at common law and statute, the defendant, as an Page 3 of 5 10. 11. employer, owed a duty of care to the plaintiff, its employee. It is pertinent to note that statute also places a reciprocal duty on an employee to take reasonable care for his own safety. This means that the duty of care owed by the employer to his employees is not absolute. The Claimant is obliged to prove negligence on the part of the Defendant either by direct evidence or with the aid of the maxim of res ipsa loquitor: see Winter v Cardiff R. D. C [1950] 1 All ER 819 and Latimer v A. E. C. Ltd [1952] 1 All ER 1302. Section 18 of the Act clearly mandates an employee to take reasonable care for the safety and health of himself and other person who may be affected by his acts or omissions: see Nchizi v The Registered Trustees of the Seventh Day Adventist Association of Malawi [1990] 13 MLR 303. The law on contributory negligence is governed by section 12 (1) of the Statute Law (Miscellaneous Provisions) Act. It provides as follows: Where any person suffers damage as a 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 thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.... In view of section 12 (7) of the Statute Law (Miscellaneous Provisions) Act, fault means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or which would, apart from this section, give rise to the defence of contributory negligence. To ascertain whether a claimant is guilty of contributory negligence, the Court asks itself whether he was acting as a responsible man and with reasonable care. The foregoing was emphasized by Lord Denning in the case of Davies v Swan Motor Co., Ltd [1949] 1 All E. R. 620 at 631, when he said: ‘The real question is not whether the plaintiff was neglecting some legal duty, but whether he was acting as a responsible man and with reasonable care.’ Page 4 of 5 12. 13. 14. This Court has made a finding that staking of wood does not require specialised skill as alleged by the Claimant. It was reasonable for the Defendant to instruct the Claimant and his other colleagues, from the Claimant’s department to pile wood logs. Through the evidence, it has been established that there were no rains on the material day, however, the wood was slippery due to morning dew. The Defendant acted with care by excusing work from 6 am to around 8 or 9am per the evidence of all the witnesses. The Claimant was duly provided with protective wear including gumboots, a helmet and working suit. Much as the same would not have prevented the slip, it is an indication of how careful the Defendant was in discharging its statutory duty under the Act. Thus, on a balance of probabilities, it is this Court’s verdict that the said injuries cannot be attributed to the negligence of the Defendant. The law is clear that an employer is not liable in the absence of negligence per the Nehizi Case (above). In addition, the Court found material inconsistencies in the evidence of the Claimant in relation to the use of the ladders to climb to the top of the stack. The witness was evasive on whether he was doing other piece works apart from his employment with the Defendant. He also insisted on a facture and that he visited the hospital for re-examination, which is not supported by the evidence on record. This has negatively affected the weight that this Court attached to his evidence. In conclusion we therefore find that the Claimant did not take reasonable care of himself as required by the law; he did not act as a reasonable man would have done. He was negligent himself. The claim is hereby dismissed with costs. Made in Open Court this 28" day of February, 2024. Pa we Allan Hans Muhome JUDGE Page 5 of 5