Mambulu v Eastern Produce Ltd (Personal Injury 751 of 2016) [2018] MWHC 749 (9 May 2018)

legit_wiki[1] (Autosaved).docx IN THE HIGH COURT OF MALAWI CIVIL DIVISION PRINCIPAL REGISTRY PERSONAL INJURY CASE NUMBER 751 OF 2016 BETWEEN GEORGE MAMBULU ..................................................... CLAIMANT AND EASTERN PRODUCE LIMITED .......................................... DEFENDANT Coram Hon Jack N'riva, Judge Mr W Kazembe Counsel for the claimant Mr F Zambezi Counsel for the defendant Mrs Mtegha, court clerk and official interpreter JUDGMENT This is the determination of the court in this claim of negligence. The claimant, Mr George Mambulu, was working for the defendant Eastern Produce Malawi Limited as a tea-plucker at Minimini Estate. Mr Mambulu's job, in respect of this action, involved the use of an instrument, which I will describe in the course of this judgment, to cut the tea. One day, while cutting the tea bushes, the claimant cut his hand with the device. Consequently, the claimant commenced this case against the defendant claiming that the injury that he suffered was as a result of negligence on the part of the defendant. In short, the claimant alleged that the incident was as a result of the defendant's failure to provide him with protective wear. The claim is that the defendant allowed his workers to work without gloves. That failure to provide protective wear resulted into the injuries he suffered. The law Tort of negligence: The Law The law on negligence is premised on the prerequisite that one must owe another a duty of care, not to do acts or omissions that would harm the other. One commits the tort of negligence when the person breaches that duty and the breach results into an injury on the other. Negligence is said to consist of doing something which a reasonable man would not have done or omitting to do something which a reasonable man would not have omitted to do: Blyth v Birmingham Waterworks Co (1856) 11 Ex781. One must do acts or omit to do acts that would lead to the injury of another. For the claimant to establish his case, in this case, the defendant must have had a duty to provide protective wear to its employees. The defendant must have failed to provide the protective wear. That failure must lead to the injury suffered by the claimant. 1 The test for the existence of duty of care is that of foreseeability: the injury must be foreseeable to the person on whom the duty is imposed: Caparo Industrial v Dickman [1990] 1 All ER 668. Under the statute (Occupational Safety and Health Welfare Act), an employer owes an employee a duty of care to provide a safe working environment. The employer must not expose the employee to inherent danger to their lives and limbs and must provide suitable protective clothing. See sections 15 and 58 of the Occupational Safety, Health and Welfare Act. The employer is under further obligation to provide infonnation, instruction, supervision and training to ensure that the employees' safety and health are guaranteed- (Section 65 of the Act). Requirements of Evidence The law casts the duty on the claimant to prove the allegations against the defendant on the claims. In this matter, the claimant has to prove the elements of the tort. The claimant has to prove that the defendant had a duty to provide him with protection, as he alleges. Further, he has to prove that due to the non- 1 Donoghue v Stevenson [1932] AC 562 provision of the protection, he suffered injury on his hand. The claimant has to prove the allegations on a balance of probabilities. See Joseph Constantine Steamship Line Ltd v Imperial Smelting Corporation Ltd [1941] 2 All E R 165 and Miller v Minister of Pensions [1957] 2 All ER 372. In Miller v Minister of Pensions, Denning J said that if the scale tilts one way, the tribunal must decide in favour of that side; if not, the court must give the party a benefit of doubt. The evidence must reach some level of cogency and must be more probable than not. Evidence in the Court Only the claimant gave evidence. In his evidence the claimant said he was injured by the machine he was usmg. In cross-examination, the witness said he was trained on how to use the machine. He said no one was given gloves. He said he could neither tighten nor loosen the nuts with his hands. He also said he was the first one to use the gadget. He also said when he was pushing the tea to his bag, the gadget cut his hand because his left hand was weak. He said he did not disclose this fact, that he had a weak left hand, to his supervisors. He suggested that his supervisor, a Mr Mkwatawamba, was aware of this fact because they came from the same village. In re-examination, he reiterated that his left hand was not well enough, leading to the slipping of the gadget. In the very re-examination, the claimant said that the incident happened as an accident. Later, he said the cause of his injury was a loose nut. He seemed to blame the supervisors for not checking the machine. Finding Having recounted the evidence that the claimant gave in the Court, the question is whether the claimant's injury was as a result of the defendant's failure to provide him with gloves. In other words, the question is whether the defendant had a duty to provide the claimant with gloves. The claimant's job involving plucking tea and putting the leaves into a basket at his back. To cut the tea, he was using a gadget that ended up injuring him. The device the claimant was using was more than half an arm long. The users involve the handles to cut tea at one end. At the other end are the blades that cut tea. At the very end of the blades is a container or a cup into which the tea falls. The pruner then picks the tea into the basket that is on his back. The blades are at a considerable distance from the hands. To say the least, one can hardly foresee an instance of an employee cutting his hand. One can describe what happened in the matter, as the claimant put it, as a result of an anomaly on the part of the claimant. As the claimant himself said, he had a problem with one of his hands. Thereby, the tool he was using slipped from his hands and injured his hand. One can therefore hardly attribute the injury to any act or omission on the part of the defendant. The injury was caused not by the failure of the defendant to provide the claimant with gloves. On this aspect, I do not find that the injury was foreseeable as likely to happen. On the evidence before me, I do not agree that the defendant had to provide the claimant with gloves and that that failure, to provide gloves, was the cause of the claimant's injury. The injury cannot be based on the defendant's negligence. I dismiss the claim for negligence. The claimant had a right to appeal ag Delivered the 9th day of May, 2018 4