Mopani Copper Mines PLC v Miti (Suing in his capacity as Administrator of TheEstate of Thelate Geofrey Elliam Miti) & Others (Appeal 154 of 2016) [2020] ZMSC 79 (24 August 2020)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) ,/ (cid:9) COURT O JUDICtARY APPEAL NO. 154/2016 zq BETWEEN: 24 AUG 2020 MOPANI COPPER MINES PL t. ,. E co (cid:9) G 5 - APPELLANT AND NDUMO MIT! (Suing in his capacity as Administrator of the Estate of the late Geofrey Elliam Miti) 1St RESPODENT VICTOR NAMBOYA MIT! (suing in his own capacity and as Administrator of the estate of the late Beatrice Sakala Miti) 2nd RESPONDENT THE ATTORNEY-GENERAL (cid:9) THIRD PARTY CORAM: MAMBILIMA CJ, MALILA AND MUTUNA JJS; On 5th June, 2019 and 24th August, 2020 For the Appellant: (cid:9) For the istand 2nd Respondents: (cid:9) For the Third Party: (cid:9) Mr. J. Sangwa, SC, of Sim2za, Sangwa and Associates Mr. M. H. Haimbe, of Malambo and Company No Appearance JUDGMENT MAMBILIMA CJ delivered the Judgment of the Court. J2 CASES REFERRED TO: 1. DONOGHUE V STEVENSON (1932) AC 562 2. CAPARO INDUSTRIES PLC V DICKMAN (1990) 2 AC 605 3. ALBERY & BUDDEN V. BP OIL LTD & SHELL UK LTD (1980) J. P. L 4. GEDDIS V PROPRIETORS OF BANN RESERVOIR (1878) 3 A. C. 430, 453, 456 5. X AND OTHERS (MINORS) V BEDFORDSHIRE COUNTY COUNCIL; M(a minor) AND ANOTHER V NEWHAM LONDON BOROUGH COUNCIL AND OTHERS; E (a minor) V DORSET COUNTY COUNCIL AND OTHER APPELLANTS (1995) 3 ALL ER 353 AT PAGE 362 6. MICHAEL CHLUFYA SATA MP V ZAMBIA BOTTLERS LIMITED SCZ JUDGMENT NO. 1 OF 2003 7. WILSON MASAUSO ZULU V AVONDALE HOUSING PROJECT LIMITED (1982) ZR 172 8. SITHOLE V THE STATE LOTTERIES BOARD (1975) Z. R. 106 9. BWANAUSI V THE PEOPLE (1976) Z. R. 103 10. THE ATTORNEY-GENERAL V MARCUS KAMPUMBA ACHIUME (1983) Z. R.1 11. STOTT V WEST YORKSHIRE CO. (1997) 3 ALL ER 534. 12. MANFRED KABANDA AND KAJEMA CONSTRUCTION V JOSEPH KASANGA (1992) S. J. 15 13. HARRISON V ATTORNEY GENERAL SCZ NO. 15 OF 1993 14. FAINDANI DAKA (SUING AS ADMINISTRATOR OF THE OF THE LATE FACKSON DAKA DECEASED) V ESTATE (cid:9) THE ATTORNEY GENERAL (199 1) ZR 131 15. COOPER V WILLIAMS (1963) 2 ALL ER 16. JOYCE V YEOMANS (1981) 1 W. L. R. 549 17. KHALID MOHAMED V ATTORNEY GENERAL (1975) ZR 106 18. PHILLIP MHANGO V DOROTHY NGULUBE (1983) ZR 61 19. DAVID CHIYENGELE AND 5 OTHERS V SCAW LIMITED, SCZ NO. 2 OF 2017 20. ATTORNEY GENERAL V GEORGE MWANZA AND WHITESON MWANZA 21. (1996) 3 SUPREME COURT CASES (212) (ALSO REFERRED TO ON PAGE 396 OF THE UNEP/UNDP COMPENDIUM OF JUDICIAL DECISIONS ON MATTERS RELATED TO ENVIRONMENT: NATIONAL DECISIONS: VOLUME I (1998) 22. DESIGN PROGRESSION LTD V THURLOE PROPERTIES LTD(2005) 1WLR1 j3 LEGISLATION REFERRED TO: 1) THE ENVIRONMENTAL MANAGEMENT ACT NO. 12 OF 201 -11 2) THE ENVIRONMENTAL PROTECTION AND POLLUTION CONTROL, ACT CHAPTER 204 OF THE LAWS OF ZAMBIA (REPEALED) 3) THE AIR POLLUTION CONTROL (LICENSING AND EMISSION STANDARDS) REGULATIONS, STATUTORY INSTRUMENT NO. 141 OF 1996 4) THE INTERPRETATION AND GENERAL PROVISIONS ACT CHAPTER 2 OF THE LAWS OF ZAMBIA 5) THE FATAL ACCIDENTS ACTS 1846 TO 1908 6) THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT, CHAPTER 74 OF THE LAWS OF ZAMBIA WORK REFERRED TO: i) MCGREGOR ON DAMAGES 15TH EDITION CHAPTER 8 ii) HALSBURY LAWS OF ENGLAND 3RD EDITION PARAGRAPH iii) CLERK AND LINDSELL ON TORTS, 20TH EDITION PARAGRAPH 2-158 PAGE 158 iv) BRIAN GARNER'S BLACKS LAW DICTIONARY 8TH EDITION page 15 and 1191 v) HALSBURY'S LAWS OF ENGLAND 4TH EDITION PARAGRAPH vi) MCGREGOR ON DAMAGES 15TH EDITION PARAGRAPH 11 -0 11 1. INTRODUCTION 1.1 This suit was instituted in 2014 by Geofrey Elliam Miti, the widower of the late Beatrice Sakala Miti, against the Appellant, seeking damages for negligence on the death of his wife in his capacity as the Administrator of her estate. After the hearing of the appeal, Mr. Geofrey A Elliam Miti demised and his estate is now represented by Ndumo Miti. The estate of the late Beatrice Sakala Miti is represented by Victor Nambonya Miti, the administrator of her estate. 1.2 In this appeal, we shall refer to the late Geoffrey Elliam Miti as the 1st Respondent and the Attorney-General as the 2nd Respondent which is what they were at the hearing of the appeal. 1.3 The appeal, is from a Judgment of Sichinga J, as he then was, delivered on the 9th of June, 2016 in which he found that the Appellant acted negligently when it emitted high volumes of sulphur dioxide from its smelter into the ambient air, exceeding the statutory limit, resulting in the death of Mrs. Beatrice Sakala Miti. This judgment thus discusses and brings to the fore, the obligations and liabilities of entities and persons who discharge or emit toxic substance into the atmosphere. 1.4 After the hearing of the matter in the lower Court, the learned trial Judge found that the late Mrs. Beatrice J5 Sakala Miti died as a result of respiratory failure, after inhaling sulphur dioxide fumes emitted by the Appellant and, consequently, awarded the 1st Respondent, who was her widower and the administrator of her estate, a global sum of four hundred thousand Kwacha (K400,000.00) general damages with interest at ten percentum (10%) per annum, from the date of the judgment up to the date of settlement. (cid:9) He also awarded costs to the 1st Respondent. 2. BACKGROUND 2.1 The material facts in this appeal are substantially not in dispute. The Appellant is a mining company. It conducts its mining activities in Mufulira District in the Copperbelt Province. The 1st Respondent's late wife, Beatrice Sakala Miti, was a District Commissioner for Mufulira District. She died on 31st December, 2013. The circumstances surrounding her death prompted the 1st Respondent to commence this action against the Appellant, claiming several heads of damages for iG negligence, including a declaration and order that the deceased died after inhaling toxic fumes released by the Appellant. In his writ of summons, he claimed that the Appellant acted negligently when it released toxic fumes into the atmosphere on 311;1 December, 2013 causing the deceased to suffer acute respiratory failure due to the inhalation of the said fumes. 3. THE RESPONDENT'S CASE IN THE LOWER COURT 3.1 In support of his case, the 1st Respondent solicited testimony from six (6) witnesses. According to their combined testimony, on 31st December, 2013 the deceased was invited, in her capacity as District Commissioner for Mufulira, to be a guest of honour and to officiate at a prayer meeting which was held at Chawama Hall in Mufulira. This Hall is situated near Clinic 3. 3.2 (cid:9) The deceased opened the service by delivering her speech. (cid:9) Shortly thereafter, around 21.00 hours, congregants observed what they described as 'visible J7 smelly fumes entering the hail'. PW 1, Mirriam Mwale, complained to the deceased about the emissions which were emanating from the mining plant. Congregants started screaming while others were coughing and covering their mouths. Some congregants complained to the deceased and urged her, as District Commissioner, to engage the Appellant over the emissions and she assured them that she would take up the matter. 3.3 (cid:9) The deceased was also affected by the fumes. She complained that her skin was itchy and asked for water to drink. Thereafter, she requested to go out for some air because she was finding it difficult to breath. Witnesses observed that as she was going out, she was wheezing and an attempt was made to administer an inhaler but to no avail. As she reached her car, she screamed and collapsed and became non responsive. She was rushed to Mufulira Malcolm Hospital where it was announced that she had died. J8 3.4 (cid:9) According to the witnesses, the deceased appeared to be in good health when she arrived for the prayer meeting. They stated that her discomfort was triggered by the fumes which came from the smelter of the Appellant's mine. Other congregants also said that they experienced discomfort. They coughed and experienced itchy eyes. 3.5 (cid:9) In his testimony, the 1st Respondent confirmed that his wife went out to attend an interdenominational prayer service around 20:00 hours. That he later received a call from his son, informing him that his wife had been hospitalized after an asthmatic attack. When he followed her to the hospital, he was informed that she had passed away after suffering an asthmatic attack and that the said attack was induced by inhaling of sulphur dioxide fumes. According to the 1st Respondent, the deceased was an asthmatic patient who had previously been hospitalized for three days after suffering a similar (cid:9) (cid:9) J9 attack while attending an official event at Kankoyo in October, 2013. 3.6 (cid:9) The 1st Respondent described the deceased as the breadwinner of the family and that her contribution was between 5% and 10%. That apart from her job as a District Commissioner, the deceased also baked cakes on a commercial scale and was involved in charity work. He urged the Court to grant him the remedies which he was seeking. 3.7 (cid:9) PW 5, Dr. Lwaba Mubikayi, was the pathologist who examined the body of the deceased. He attributed her death to acute respiratory failure due to inhalation of toxic fumes. He told the lower Court that the deceased's heart stopped beating due to broncho spasm. He examined the deceased's lungs and heart tissues. (cid:9) He later conducted a microscopic examination after which he prepared a summary of significant abnormal findings. He told the Court below that the anomalies which he found were consistent with those of an asthmatic patient. From the (cid:9) (cid:9) J10 circumstances surrounding her collapse, he estimated that the deceased must have died less than 5 minutes after choking. 3.8 (cid:9) To fortify his case, the 1st Respondent also called PW6, Cliff Ngwata, an environmental scientist from the Zambia Environmental Management Agency (ZEMA). This witness prefaced his evidence by stating that ZEMA was created by an Act of Parliament to look into various aspects of the environment, including water and air pollution control. That when discharging its functions, ZEMA was guided by Statutory Instruments on pollution control. These laws set standards and specify conditions to be included in licenses issued to entities which emit substances into the air. 3.9 (cid:9) The further evidence of PW6 was that the Appellant uses raw materials which contain sulphur and they release sulphur dioxide when exposed to heat. He stated that the Appellant Company was issued with a licence in which some conditions were specified, and among them was the requirement to carry out regular (cid:9) (cid:9) ill measurements of the discharge of pollutants released into the air, such as sulphur dioxide and dust particles. The Appellant was required to file returns with ZEMA every six months, while ZEMA also issued reports twice a year. 3.10 PW6 testified that the Appellant was not compliant. That the emission table in the report issued by ZEMA showed that the Appellant's emissions were above the statutory limits, and as a result, ZEMA had engaged it over the same but it was not prosecuted or fined. According to PW6, the levels of emissions at Mufulira had always been above the limits, resulting in pollution being a problem in the area. That even as at the time that he was giving evidence, the Appellant was still not compliant with the statutory limits of sulphur dioxide emissions in that it was releasing more than the allowable limit. In cross examination, he conceded that by failing to sanction the Appellant, ZEMA had failed the people of Mufulira. J12 4. THE EVIDENCE OF THE APPELLANT BEFORE THE COURT BELOW 4.1 The Appellant mounted a spirited defence to the Respondent's claim through five witnesses. It placed the medical history of the deceased on record and this revealed that she was living with asthma and diabetes for which she attended hospital. 4.2 Seemingly to counter the evidence of PW5, the pathologist who conducted the post mortem and the microscopic examination on the body of the deceased, the Appellant called Victor Mudenda (DW1), a consultant pathologist at the University Teaching Hospital (UTH) in Lusaka. DW1 stated that he was availed the post mortem report and the report of the microscopic examination prepared by PW 5 and based on the said reports, he formed an opinion as to the cause of the death of the deceased. 4.3 He disputed the finding in the postmortem report prepared by PW5 that the deceased died from acute respiratory failure due to inhalation of toxic fumes. J13 According to DW 1, this determination could not be sustained because the report indicated that all organs were normal. He also had a look at the report of the microscopic examination and the organs of interest were the lungs and the heart. He stated that the lungs showed emphysema, which is the widening of air spaces while the heart showed that part of its muscle had died. It was damaged and non-functional. 4.4 DW1 concluded that there was no supportive evidence of the diagnosis of an asthmatic attack. To use his own words: "We don't expect, emphysema in asthma because often asthma affects the upper areas of the lungs and not air sacks. Asthma affects bronchi and bronchios and small bronchi (tubes)." His opinion was that the problem was with the heart. It was in a poor state and hypoxia could have accelerated a cardiac arrest. He also stated that the two reports in this case were not telling the same story. That while the postmortem report indicated that death occurred due to inhalation of toxic fumes, the second report on J14 microscopic findings referred to problems with the heart. He found the findings of the second report to be more probable. 4.5 In cross examination DW1 testified that where there were heavy fumes, it is not possible for a pathologist to provisionally conclude that death was as a result of inhaling heavy fumes. Further investigations would have to be carried out. He conceded, though, that a person who has inhaled toxic fumes over a period of time would present emphysema; and that there is a possibility that death could occur from hypoxia where a patient has extensive emphysema. 4.6 The Appellant also called Kennedy Chilundu (DW3, a Metallurgical Engineer, who is a Superintendent Technician at its smelter in Mufulira. He explained the processes which they undertake to extract copper from concentrates of ore. He stated that the Appellant's mine was automated to reduce human interface. That there is an information system in place which captures and stores data every millisecond. That this system is J15 also installed in all homes of supervisors and management and it has an interlocking system which, if it trips, the production of sulphur dioxide ceases. 4.7 It was DW3's evidence that the maximum limit imposed by ZEMA of sulphur dioxide which would be released into the atmosphere was 1000 parts per million of gas at the starks. That in the ambient air, the limit imposed was 500 parts per million. He explained that sulphur dioxide released from the stark (a 70 metre high chimney) would descend to the ground level and be diluted. He stated, however, that a high concentration of emission at the stark could still be highly concentrated when it descended, resulting in the ambient air to also have a high concentration of sulphur dioxide. 4.8 DW3 was on duty on 31st December, 2013 when the deceased met her fate. He told the Court that the emissions released at the starks on that day were 14,290.8 parts per million; that is 14.3 times higher than the limit permitted by ZEMA. (cid:9) (cid:9) J16 4.9 Following the death of the deceased, the Appellant tasked Victor, Sichamba (DW4), its Environmental Engineer, to check the monitoring stations for sulphur dioxide. (cid:9) There were seven stations spread over different townships in Mufulira to monitor and measure sulphur dioxide in the air to ensure that the limits set by ZEMA were not exceeded. He produced a report on the emissions which were released on the night of 31st December, 2013. His findings were that there was nothing unusual about the emissions because the amount emitted was in accordance with the Appellant's agreement with ZEMA. He stated that the sulphur capture was at 53% whilst the average for the month was 50%. Of this, 47% of the Sulphur dioxide was released. He gave the statutory limit with regard to ambient air as follows:- "Stark emissions -1000 miligrams per normal cubic metre; Ambient air 24 hours = 125 miligrams per normal cubic metre; 10 minutes = 5000 miligrams per normal cubic metre" J17 He told the Court that these limits were set to protect the environment and but that once they were exceeded, harm could occur even to human beings. 4.10 The Appellant, in its defence, pleaded in the alternative, that it is not liable to the 1st Respondent, in any case, pursuant to an Environmental Liabilities Agreement which it executed with the Government of the Republic of Zambia on 30th March, 2000. According to the Appellant, the Government undertook to indemnify it as long as it operated within the approved Environmental Management Plan, (EMP). This EMP was approved in 2004. The evidence of Alexie Mpishi (DW5), an Environmental Superintendant at the Appellant's mine, was that under the EMP, the Appellant was required to develop a programme to reduce sulphur dioxide emissions. That pursuant to this obligation, the Appellant developed a smelter upgrade project which put in place a road map for sulphur dioxide reduction. According to this witness, J18 Government (cid:9) continuously (cid:9) monitored (cid:9) the implementation of the EMP. 5 EVALUATION OF THE EVIDENCE AND DECISION OF THE LOWER COURT 5.1 The record shows the Court below concluded the hearing of this matter on 3rd February, 2016 and the Judge directed Counsel to file written submissions. In his judgment, however, the Judge only alluded to the submissions filed on behalf of the Respondents. He indicated that the Appellant had not filed 'any submissions as directed.' The record of appeal does show, on page 416, that submissions were filed on behalf of the Appellant on 19th May, 2016 well before the delivery of the judgment on 9th June 2016. This means that the Appellant's submissions were not taken into account when the Judge was considering the decision in this case. However, submissions are what they are; arguments in support of a litigant's case. They do not constitute evidence. While it is desirable that a Court considers the submissions of the parties, lack of Jig consideration thereof is not fatal and cannot invalidate the decision of a Court. 5.2 The lower Court considered the evidence which was before it and the submissions of the Respondents and formed the view that in order for the 1st Respondent to succeed in his action for negligence, he needed to prove that the Appellant was negligent towards the life of the deceased; or that it failed to perform a lawful act which resulted in harm to her. That the question which the Court needed to determine was whether the Appellant breached its duty of care to the deceased to entitle the 1st Respondent to the damages which he was seeking; more so because, the 1st Respondent's claim was premised on the notion that the Appellant's operations polluted the atmosphere in Mufulira, rendering it difficult for residents, including the deceased, to breathe. 5.3 The Judge referred to a passage in the cerebrated case of DONOGUE V STEVENSON' in which Lord Alkin stated: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law is my neighbor? The answer seems to be - persons who are so J20 closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question." Arising from this passage, the Judge stated that in order to establish the tort of negligence, a Plaintiff must prove that the defendant owes him/her a duty of care; which duty of care the defendant has breached; resulting in harm being caused to the Plaintiff; and that the harm was foreseeable. 5.4 The Judge agreed with the 1st Respondent that the Appellant owed a duty of care to the community in which it operated and in particular to the deceased. Relying on the evidence of DW3 and DW4, the Judge found as a fact, that the Appellant emitted high volumes of sulphur dioxide from its smelter in excess of the limits imposed by ZEMA. In his view, the Appellant had recognized that its smelter operations would affect air quality owing to sulphur dioxide emissions, and consequently, placed various monitoring stations in the community to monitor the levels of its emissions and report them to ZEMA. He opined that the significance of J21 these measures was to ensure that safe levels of sulphur dioxide emissions were maintained. He was also satisfied that the Appellant owed a duty of care to the community and it was, therefore, estopped from denying that the effects of its activities on the deceased were foreseeable. 5.5 On the measure or standard of care required, the learned trial Judge appears to have accepted the submission by Mr. Haimbe that the Court should adopt the standard prescribed by statute. He stated:- "The evidence on record was that the statutory limit for sulphur dioxide emissions was 1000mg/rn3. In my view, given the foreseeable harm effects of high emission levels, it would be fair to hold the Defendant to a standard that did not exceed 1000 gm/m3. By exceeding this limit, I hold the Defendant to have acted negligently. The uncontested evidence is that on the material day emissions of sulphur dioxide exceeded the statutory limit by 14.3times. In this context, I accept the submissions highlighted by the Plaintiff on this point." 5.6 The learned trial Judge also considered the Appellant's third party claim against the 2nd Respondent, pursuant to the 'Environmental Liabilities Agreement' which it executed with the Government of the Republic of Zambia on 31st March, 2000. The Appellant claimed that in that J22 agreement, the Government of the Republic of Zambia undertook to indemnify and hold it harmless, against any and all environmental liabilities arising from the operations of the assets which it had acquired from the Government. 5.7 The trial Judge alluded to the evidence of DW5, Alexie Mphishi, in cross-examination, that the Appellant was exempt from complying with statutory limits. He rejected this evidence stating that upon perusal of the Agreement, he did not find any express provision highlighting exemptions from statutory limits. He also seems to have been persuaded by an opinion from the Solicitor General which stated that ". . . Environmental liabilities do not arise of a matter in respect of which the company is not in compliance with the Environmental Plan." He, thus, concluded that the Appellant was not absolved from complying with limits imposed by statute on account of the Environmental Liabilities Agreement. 5.8 The trial Judge further considered the contention by the Appellant that the deceased could have succumbed to J23 death due to other medical conditions such as asthma, diabetes, or a poor heart condition. To resolve this issue, the Judge alluded to the evidence of the two expert witnesses, PW5 and DWI. While DW1 stated that the first postmortem report and the subsequent microscopic report did not tell the same story, the Judge found that DWI had admitted, in cross examination, that it was possible for a person who had inhaled toxic fumes, such as sulphur dioxide, over a long period of time, to present with emphysema. He observed that when DWI "was hard pressed," he preferred to conclude that the deceased's heart was in a poor state. 5.9 The Judge accepted the evidence of PW5, that the deceased died as a result of emphysema which related to respiratory failure. He noted firstly, that unlike PW5, DWI did not examine the deceased's body and neither did he conduct the microscopic examination; while PW 5 examined the deceased's body and carried out the initial and the subsequent microscopic examinations. That secondly, the evidence of PW 5 was corroborated by J24 other testimony, in particular, that of PW 1, PW2 and PW3, who all highlighted the circumstances under which the deceased fell ill after inhalation of toxic fumes; and thirdly, that PW5 was an independent witness with no self interest to serve. The Judge observed that even under rigorous cross-examination, PW5 stood firm to his findings that the deceased died as a result of acute respiratory failure caused by toxic fumes According to the Judge, the only inference that could be made upon a consideration of the evidence was that the deceased died as a result of respiratory failure after inhalation of sulphur dioxide emitted by the Appellant. He accepted the Respondent's submission that even if the deceased had other conditions, the 'egg-shell skull' rule meant that the Appellant should take its victim as it found her. 5.10 The Judge rejected the testimony of DW2, the Medical Superintendant of Malcom Watson Hospital, on the ground that he was often evasive when giving his evidence and would, at times, not answer questions put to him. He, consequently, found DW2's evidence to be J25 unreliable and of no assistance and that if anything, it was calculated to deceive the Court. At the end of the day, the Court ruled in favour of the Appellant. To use the Judge's own words he stated:- "In conclusion, I find that the let Defendant owed a duty of care to the deceased, Beatrice Sakala Miti. By emitting sulphur dioxide into the environment exceeding statutory limitations, the 1t Defendant breached its duty of care owed to her and the community. The 1st Defendant's failure to uphold the standard of care thus entitled the Plaintiff to damages...." 5.11 Coming to the damages which the 1st Respondent was claiming, the Judge was of the view that the claim for expenses incurred during the funeral could not be allowed. He took judicial notice of the fact that the deceased was accorded a state funeral; which meant that the Government of the Republic of Zambia met the expenses associated with the funeral. The Judge also took the view that damages for loss of income and dependency were vague and unsubstantiated, on account that the 1st Respondent had testified that he was a businessman and on the material day, he had J26 returned in the early hours of the morning, from a business trip. 5.12 After noting that the deceased was 57 years old and was in gainful employment, the Court was of the view that a global sum was most appropriate to represent the general damages which were being sought. He, therefore, awarded the 1st Respondent a global sum of four hundred thousand Kwacha (K400,000.00), with interest at ten percentum (10%) per annum from the date of judgment to the date settlement of the principal sum. He also awarded costs to the 1st Respondent. 6 GROUNDS OF APPEAL 6.1 Aggrieved with the determination of the lower Court, the Appellant has now appealed to this Court advancing six grounds of appeal, formulated as follows:- 1. (cid:9) the learned trial Judge erred in law and in fact when he held that the Appellant emitted high volumes of sulphur dioxide from its smelter which exceeded the limit of 1000mg/m3 imposed by the Zambia Environmental Management Agency (ZEMA) without establishing the statute or statutory instrument where such limit was imposed or pursuant to which ZEMA could Impose such a limit; J27 2. 3. 4. 5. 6. the learned trial Judge erred in law and in fact when he relied on the evidence and assertions of witnesses at trial to prove the existence of statutory duty and in his interpretation of what that statutory duty was; the learned trial Judge erred in law and in fact when he held that there was uncontested evidence that on the material day, the emissions of sulphur dioxide exceeded the statutory limit by 14.3 times when there was no evidence adduced to support such a finding; the learned trial Judge misdirected himself when he evaluated the medical evidence of the two expert witnesses as to the cause of death in an unbalanced manner; the learned trial Judge misdirected himself when he failed to adjudicate on all matters in dispute between the Appellant and the 2nd Respondent which he was called upon to adjudicate and when he misapprehended the Appellant's claim against the 2nd Respondent; and the award by the learned trial Judge of a global sum of four hundred thousand Kwacha (K400, 000.00) with interest at ten per centum (10% per annum from the date of judgment to the date of settlement of the principal sum to represent the general damages is wrong in principle and contrary to applicable legal formula in assessing damages in a case such as this one where the claim is based on the loss of life. The parties have filed extensive written heads of argument which Counsel augmented with oral arguments at the hearing of the appeal. We commend Counsel for their industry to assist the Court to resolve the issues in contention in this appeal. J28 7. (cid:9) APPELLANT'S SUBMISSIONS IN SUPPORT OF THE APPEAL 7.1 The learned Counsel for the Appellant, Mr. Sangwa, SC, argued the grounds of appeal seriatim. In the first ground of appeal, the Appellant has taken issue with the finding of the trial Judge that: "by emitting sulphur dioxide into the environment exceeding statutory limits the First Defendant breached its duty of care owed to her and the community. The first Defendant's failure to uphold the standard of care thus entitled the Plaintiff to damages." Counsel argued that the Judge should have cited the law which set the said statutory limits. 7.2 Counsel alluded to the common law principles developed following the celebrated case of DONOGHUE V STEVENSON', that manufacturers or producers of goods have a duty to take reasonable care to avoid acts or omissions which they can reasonably foresee as likely to injure persons who are closely or directly affected by their acts or operations. Counsel contended, however, that when this duty is applied to mines, it does not mean that mines should not be permitted to discharge any emissions at all. That such an absolute duty on J29 industry, not to emit any gases at all in the course of their operations, would be unreasonable and could render operations impossible, because it would be virtually impossible to completely do away with emissions of toxic fumes from industries, be it in this country or elsewhere in the world. 7.3 He submitted that it was in this vein, that Parliament enacted legislation which allows undertakings to emit toxic fumes into the atmosphere in a prescribed and regulated manner. That such legislation alters the strict common law position on the matter. That in Zambia, Parliament created ZEMA, whose duty is to regulate the emission of toxic fumes and issue permits prescribing conditions under which such toxic fumes can be safely emitted. 7.4 Counsel submitted that in determining the question as to whether the Appellant owed a duty of care to the deceased and the nature of that duty, the Court should have adopted the test which was laid down by Lord Bridge, in the case of CAPARO INDUSTRIES PLC V J30 DICKMAN3. According to this test, the claimant must establish:- (1) that harm was reasonably foreseeable; (ii) that there was a relationship of proximity; and (iii) that it is fair, just and reasonable to impose a duty of care. 7.5 According to Counsel, under the CAPARO test, the Court is required to take into account policy considerations. That where Parliament enacts legislation to impose a duty, a breach of that duty is not actionable under that statute unless the statute discloses a different intention. That whereas breach of standards of conduct imposed by statute may constitute proof of common law negligence, compliance with the statute is also evidence that the common law duty was complied with. Counsel contended that the only duty owed by the Appellant to its neighbor in this case, is the requirement by the Appellant to comply with its statutory obligations and these are found in Section 32(1) and Section 33 of the ENVIRONMENT MANAGEMENT ACT'. The provisions of this legislation provide as follows:- "Section 32(1) J31 A person shall not, without a licence, discharge, cause or permit the discharge of, a contaminant or pollution into the environment if that discharge causes, or is likely to cause, an adverse effect." "Section 33 The agency may issue an emission licence to a person to emit or discharge a pollutant or contaminant into the environment in such manner and under such conditions as may be prescribed." 7.6 Counsel submitted that the Appellant's duty to the deceased was to comply with the pollution regulations as set out by law, and to comply with all the conditions imposed on it by the Regulator at the time of issuing it with a permit or license to emit toxic fumes. He submitted further, that ZEMA had passed regulations which limited the amount of emissions which could be released into the environment and the Appellant was allowed to capture only 50% of the emissions from the smelter as the intermediate emission limit and it complied with the said limits. 7.7 Counsel referred us to several English cases, one of which is the case of ALBERY & BUDDEN V. BP OIL LTD & SHELL UK LTD in which the Court of Appeal found J32 that a prima facie case of negligence had not been made out against BP by a child who claimed injury by inhaling petrol fumes. Our attention was drawn to the following passage in the judgment of the Court:- ".. Parliament authorised the Secretary of State to impose requirements. The Secretary of State has imposed requirements. These requirements are that the lead content of petrol shall not exceed a certain amount, which is a "permitted" amount. The Appellants have not exceeded the permitted amount. Hence what they have done was expressly permitted by subordinate legislation authorised by statute it has to be assumed that the Secretary of State, in laying before parliament the 1976 regulations, had duly, fully and properly carried out the duty laid on him by Parliament by section 75(2) of the 1974 Act..." Drawing impetus from this passage, Counsel submitted that once a licensed entity complies with the terms of its license, it cannot be held liable for emitting toxic fumes into the atmosphere, even in the event that such emissions have caused damage to a third party. In Counsel's view, liability would only visit the licensed entity if it breached the conditions of the license and operated in a manner that was negligent. To support his submission, Counsel referred us to the case of GEDDIS J33 V PROPRIETORS OF BANN RESERVOIR', where Lord Blackburn stated that:- "It is now thoroughly well established that no action will lie for doing that which the legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorised, if it be done negligently." He also referred to the case of X AND OTHERS (MINORS) V BEDFORSHIRE COUNTY COUNCIL AND ANOTHER; M (a minor) AND NEWHAM LONDON BOROUGH COUNCIL AND OTHERS' in which it was held, inter alia, that:- "Where a statute authorizes that to be done which will necessarily cause injury to someone no action will lie if the act is performed with reasonable care If, on the other hand, the act is performed carelessly whereby unnecessary damage is caused, a common law action will lie. This is because the act would, but for the statute, be actionable at common law..." 7.8 According to Counsel, the mere fact that someone suffers damage as a result of another's actions does not give rise to a cause of action, unless it can be shown that the act was done negligently. To buttress this point, Counsel referred to the case of MICHAEL J34 CHILUFYA SATA MP V ZAMBIA BOTTLERS LIMITED 6, where we stated that: - "Negligence alone does not give a cause of action, damage alone does not give a cause of action, the two must co-exist." 7.9 It was Counsel's submission that in the absence of evidence that the Appellant acted without due care in the emission of sulphur dioxide, or, that it exceeded the statutory limit, the lower Court's finding of negligence against the Appellant was a clear misdirection at law. According to Counsel, there was no evidence adduced at trial, to show that the Appellant acted negligently in emitting the sulphur dioxide. In his view, this appeal ought to succeed based on the first ground of appeal alone. 7.10 The second ground of appeal is that the Judge erred to rely on the evidence and assertions of witnesses at trial to prove the existence of a statutory duty, and in his interpretation of what that statutory duty was. Counsel referred us to a portion of the lower court's judgment in which the Judge stated as follows:- S (cid:9) J35 "As regards the standard of care, Mr. Haimbe submitted that the Court was entitled to adopt the standards prescribed by statute. In my view, given the foreseeable harm effects of high emission levels, it would be fair to hold the Defendant to a standard that did not exceed 1000mg/m3. By exceeding this limit I hold the Defendant to have acted negligently. The uncontested evidence is that on the material day emissions of sulphur dioxide exceeded that statutory limit by 14.3 times. In this context, I accept the submissions by the Plaintiff on this point." 7.11 Counsel submitted that the question as to whether the Appellant owed the deceased a duty imposed by statute was a matter of law which was to be decided by the Court. That in arriving at its decision, the Court ought to have cited the relevant piece of legislation which imposes such a duty. He argued that although the 1st Respondent did not plead breach of statutory duty in his statement of claim as the basis for his action, he nonetheless contended in his final submissions that the Appellant discharged toxic fumes in excess of the statutory limit, without citing any Statutory Instrument or Regulation which purportedly imposed the limit of 1000 cubic meters per 24 hours. 7.12 According to Counsel, the lower court relied entirely on the evidence of PW6, Cliff Ngwata, to prove the existence J36 of a statutory duty imposed on the Appellant not to emit sulphur dioxide exceeding 1000mg/m3 and that it also relied on the same witness for the interpretation of a statute. This, in his view, was a serious misdirection because the existence of a statutory provision is not a matter to be proved by a witness. He contended that pieces of legislation must be judicially noticed in accordance with section 6 (1) of the INTERPRETATION AND GENERAL PROVISIONS ACT' and their interpretation is not a matter for fact witnesses but a matter of law to be decided upon by the Judge. That relying on the testimony of a witness to prove the existence of a statutory duty and its violation was a grave error warranting the reversal of the lower Court's decision. 7.13 Coming to the third ground of appeal, Counsel submitted that the lower Court erred, when it held that there was uncontested evidence to the effect that on the material day, the emissions of sulphur dioxide exceeded the statutory limit by 14.3 times. That a thorough J37 review of the evidence on record will show that there was no such evidence adduced at trial by any of the witnesses to warrant such a finding of fact. According to Counsel, the Court below misapprehended the evidence of DW3, Kennedy Chitundu, in cross examination, when he stated that 14.290.8 parts per million was released at the stacks on 31st December 2013. He argued that the witness was referring to the sulphur dioxide at the stacks. These are chimneys where gas is vented out from the smelter and not the concentration of sulphur dioxide in the ambient air. Further, that this witness made it clear that on the material day, the Appellant captured 52% of the sulphur dioxide produced. 7.14 Counsel further submitted that there is no law or regulation which provides for how much sulphur dioxide should be released into the ambient air. That the only available regulations are the Air Pollution Control (Licensing and Emission Standards) Regulations but these provide for limits of sulphur dioxide released at the stacks and not in the ambient air. J38 7.15 Counsel argued further that because of the misapprehension of the evidence of DW3, the lower Court formed one erroneous view, that the 14.295.8 parts per million released at the stacks was in the ambient air, when in fact not. He urged us, in line with our decision in the case of WILSON MASAUSO ZULU V AVONDALE HOUSING PROJECT 7, to reverse the trial courts finding of fact on this aspect. 7.16 In support of the fourth ground of appeal, it was Counsel's contention that the learned trial Judge misdirected himself when he evaluated the medical evidence of the two expert witnesses as to the cause of death of the deceased, in an unbalanced manner. According to Counsel, after accepting that both PW5 and DW 1 were highly respected scientists of international repute, the Judge only considered the evidence of PW5 and not that of DW 1. He argued that the Court below ought to have given equal consideration to the evidence of both experts, and make an evaluation to determine where the truth lay. J39 7.17 Counsel submitted further that the trial Court should not have disregarded the expert evidence of DWI merely because it was PW5 who performed the initial examination on the deceased's body and the subsequent microscopic examination. He argued that DW1's evidence was based on the interpretation of PW5's findings in the two postmortem reports and his (DW 1 's) interpretation of both reports did not support the conclusions drawn by PW5. To buttress his contention, Counsel referred to our decision in the case of SITHOLE V THE STATE LOTTERIES BOARD', in which we stated that: - "where there is in fact documentary or pictorial evidence which formed the basis of the expert's opinion it is necessary for these documents to be properly proved and for the court to see for itself the various points on which the expert bases his conclusions. The court is entitled to accept an expert's interpretation of evidence where that interpretation is based on special training and skill, but it is not entitled to accept as factually existing something which the expert says he can see but which the court itself is unable to see. If the court were entitled in such cases blindly to accept what the expert says, obvious difficulties would arise where two experts differ; the court would then have no basis whatever on which to assess which of the experts Iiad given the more cogent evidence." J40 7. 18 Counsel submitted that similarly, in this case, the expert evidence which was before the lower Court was that of PW5 and DW 1, and the trial Court was not bound to accept as a fact, the assertions of what PW5 actually saw, which the Court itself was unable to see. That in accepting PW5's evidence on the basis that he examined the body of the deceased, the Court ignored the long standing practice that where expert evidence has been tendered against a party, that party is entitled to seek the opinion of another expert in order to establish the true status of the matter; more so where the expert's opinion does not make sense. In Counsel's view, the findings in the postmortem report prepared by PW5 did not support the conclusion drawn as to the deceased's cause of death. 7.19 On the question of two conflicting reports, Counsel referred us to the case of BWANAUSI VS THE PEOPLE. In that case, the High Court was seized with a matter in which there were conflicting expert medical opinions. J41 The trial Court unduly disregarded the evidence of one expert in favour of the other. We held:- "Where a conclusion is based purely on inference that inference may be drawn only if it is the only reasonable inference on the evidence; an examination of alternatives and a consideration of whether they or any of them may be said to be reasonably possible cannot be condemned as speculation...." 7.20 Counsel's argument in this case is that PW5 drew inferences as to the cause of death from the people who told him about the condition of the environment where the deceased collapsed, and from the examination of the deceased's body. He contended that PW5's inference was not the only inference which could have been drawn from the evidence; hence the trial court had to look for corroboration of the inferences it drew from the evidence of PW 1, PW2 and PW3. That the trial Court needed to examine the alternatives offered by DWI. and decide whether the inferences drawn by PW5 could be said to be reasonably possible. That by failing to do so, the trial Court misdirected itself and evaluated the evidence of the two experts in an unbalanced manner. J42 7.21 Counsel also attacked the finding of the lower Court that PW5 was an independent witness. He argued that this witness's report was discredited by another expert witness and that he (PW5) in fact admitted that mistakes were made by his office in that the second report was backdated to bear the same date as the first report and that his initial report was done before he carried out any examination on the body of the deceased. According to Counsel, it was DW1 who was an independent witness since he had no intent which would be said to be self- serving. He urged us not to lend any credence to the evidence of PW5 since in his view, it was fashioned to confirm the story which he had been told. He opined that it was more probable that PW5 produced the second report after the first report had been called into question by DW 1. Counsel also urged us to draw our own inferences from the expert evidence since we have all the reports in this case together with the testimony of DW 1 and PW5. To support his submission, he again relied on J43 the case of SITHOLE V THE STATE LOTTERJES BOARD', and in particular, our holding that:- "Where an appellate court is in as good a position as a trial court to draw inferences it is at liberty to substitute its own opinion for any opinion which the trial court might have expressed" Counsel also referred us to the case of THE ATTORNEY- GENERAL V MARCUS KAMPUMBA ACHIUME", where we held that:- "An unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered, is a misdirection which no trial court should reasonably make, and entitles the appeal court to interfere." On the authority of this case, Counsel invited us to interfere with the finding by the lower Court that PW5 was an independent witness since there was, in his view, an unbalanced evaluation of the evidence on this point. 7.22 Counsel argued the fifth ground of appeal in the alternative, should this Court not be persuaded by his arguments advanced in support of the first, second, third, fourth and sixth grounds of appeal. His contention in support of this ground, is that the lower Court misapprehended the Appellant's case against the J44 Attorney General, and instead dealt with matters which were not pleaded or argued by the Appellant. 7.23 According to Counsel, the Appellant's case as outlined in the Third Party Notice against the 2nd Respondent was not considered by the Court as pleaded or at all. In the said Notice, the Appellant sought to be indemnified against the 1st Respondent's claim, pursuant to an agreement called the 'Environmental Liabilities Agreement' executed on 31st March, 2000 between the Government of the Republic of Zambia and the Appellant. The Appellant claimed that under this agreement, the Government of the Republic of Zambia undertook to indemnify and hold it harmless against any environmental liabilities arising from the operations of the assets acquired from the Government. The third Party denied the claim, stating that the Appellant was solely directly responsible for the current emissions from its operations in Mufulira and that the Defendant's liability is not related to the Environment Liabilties Agreement..." J45 7.24 Counsel submitted that the judgment of the trial Court did not address the question as to whether the Appellant was entitled to claim indemnity from the Government in an event that the Appellant was found liable arising from its operation of the assets which it acquired from the Government. That the Court below did not address any of the issues raised either in the third party notice or 2nd Respondent's defence. That instead, the Court dealt with an issue which was not pleaded or argued by any of the parties; which is, whether the Environmental Liabilities Agreement exempted the Appellant from complying with statutory limits. According to Counsel, there was nowhere, in the pleadings, evidence or submissions, where the Appellant claimed to be exempt from complying with statutory limits by virtue of the Environmental Liabilities Agreement, but rather, that it's claim was for indemnity pursuant to the terms of the Environmental Liabilities Agreement. 7.25 Counsel submitted further that the lower Court's approach to the Third Party proceedings was cavalier in J46 that it glossed over the issues in contention between the parties. In this respect he referred us to the case of WILSON MASAUSO ZULU V AVONDALE HOUSING PROJECT LIMITED 7, in which we held that: "The trial court has a duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality." 7.26 Counsel also raised issue with the recording of evidence from DW4 and DW5, who testified with regard to the Environmental Liabilities Agreement. (cid:9) According to Counsel, the recording of their evidence was selective and too abbreviated to be helpful to this Court. It was his submission that this aspect of the matter should be referred back to the High Court for rehearing so that the issues in controversy between the Appellant and 2nd Respondent may be adjudicated upon with finality; more so that third party proceedings are separate and independent from the main action. 7.27 In support of the sixth and last ground of appeal, the learned Counsel for the Appellant submitted that the lower Court erred in its application of the principles on J47 assessment of damages when it awarded the 1st Respondent a global sum of K400,000.00 (four hundred thousand Kwacha) with interest at 10% per annum as damages. According to Counsel, the Court should have apportioned the damages and stated under which heads the awarded damages fell because not all the damages which the 1st Respondent claimed were awardable. That while the Court did disallow some of the claims, it did not comment on the rest of the claims. To support his submission, Counsel referred us to our decision in the case of MANFRED KABANDA AND KAJEMA CONSTRUCTION V JOSEPH KASANGA'2 where, with regard to the global award of damages in that case, we said:- "Mr. Akalutu on behalf of the second appellant argued a number of grounds of appeal. The first was that the damages should not have been awarded as a global figure but should have been apportioned between the Law Reform (Miscellaneous Provisions) Act and the Fatal Accidents Acts, and further that, that having been done, the damages awarded under the law Reform (Miscellaneous Provisions) Act should be subtracted from the damages awarded under the Fatal Accidents Acts. Mr. Mukuka on behalf of the respondent did not contest these grounds of appeal and we also agree that it is improper in such cases to award a global figure damages. It is better for the benefit of the parties, and, J48 indeed, of this court, to allocate the damages between the Acts which we have mentioned." 7.28 Counsel submitted that in the case in casu, there were no damages recoverable under the FATAL ACCIDENTS ACTS 1846 TO 1908, because under these Acts, damages are intended to compensate the dependants of the deceased for the loss of pecuniary benefits deriving from the relationship which subsisted between them. That having found that there was no dependency by the 1st Respondent on the deceased, and there being no evidence called to prove that there were other dependants other than PW4, no damages were recoverable under the FATAL ACCIDENT ACTS, 1846 TO 1908 for loss of dependency. 7.29 Counsel also referred us to Section 2(1) and (2) of the LAW REFORM (MISCELLANEOUS PROVISIONS) ACT6 . Section 2(2) of this Act provides that:- "(2) Where a cause of action survives as aforesaid, for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include any exemplary damages." J49 He submitted that where exemplary damages are payable, a claim for such damage ought to be specifically pleaded in the body of the statement of claim and repeated in the prayer, together with the facts relied upon to support such a claim. It was his position that the claim for exemplary damages was not specifically pleaded in this case. He argued further that even assuming that such a claim was payable, no award would have been claimable due to lack of a proper pleading. Counsel drew our attention to several cases decided by this Court and the High Court case of FAINDANI DAKA (SUING AS ADMINISTRATOR OF THE ESTATE OF THE LATE FACKSON DAKA DECEASED) V THE ATTORNEY GENERAL '4, where the Judge stated that: "With regard to exemplary damages I should point out that they are barred under section 2 (2) (a) of the Law reform (Miscellaneous Provisions) Act. It is needless for me to go further than that as the statute in question is very clear: an award cannot be made under that head." 7.30 Counsel however accepted that an award under the LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 6) is for the benefit of the estate of the deceased, and includes funeral expenses and damages for the loss of the iso deceased's expectation of life. He consequently supported the lower Court's decision that funeral expenses were not recoverable by the estate in this case because the Government of the Republic of Zambia took care of all funeral expenses. 7.31 On the claim for damages for mental anguish of the 1st Respondent, the children and dependants; and the claim for damages for loss of dependency and for bereavement, Counsel submitted that this claim was not pleaded in the statement of claim and further, that no evidence was led at trial, to support the claim. Counsel also referred us to Section 2(4) of the FATAL ACCIDENTS ACTS' which require a Plaintiff to furnish full particulars of those who will benefit from the action and of the nature of their claim. He stated that the requirement to furnish full particulars was underscored in the case of COOPER V WILLIAMS'5, in which an infant, suing by her mother and next friend, issued a writ for the death of one, Fredrick Leslie Watkins from injuries caused by the J51 negligence of the defendants. In his judgment, Danckwerts L. J, stated as follows: "....the action never proceeded as far as statement of claim. If it had proceeded as far as that, I think it is likely that perhaps somebody would have looked at the Fatal Accidents Act 1846 to 1959 and discovered that the form of the action was not that which is required by the statute in certain respects and would have seen that particulars had to be given in section 4 of the act of 1846." 7.32 Counsel submitted that where a plaintiff fails to give full particulars of the claim, including the persons who are entitled to benefit under the claims for loss of dependency and mental anguish; the Court cannot award any damages under these heads as there is no basis for such an award. He echoed his earlier submission that in this case, no evidence was led to support an award under these heads and it is, therefore, not clear what the composition of the global figure of K400,000.00 is because all the heads of claim, except the claim for general damages, were not claimable. He argued that the global award given by the lower Court cannot be sustained, more so that it flew in the teeth of this Court's decision in the case of MANFRED J52 KABANDA AND KAJEMA CONSTRUCTION V JOSEPH KASANGA'2. 7.33 In conclusion, Counsel urged us to allow this appeal. In the event that the appeal against the 1st Respondent is not successful, he prayed that the appeal against the Attorney General should be allowed as the Appellant's claims against him were not adjudicated upon, as argued in the fifth ground of appeal. He urged us to remit the 3rd Party claim back to the High Court for re- hearing and also prayed for costs both in this Court and in the Court below. 8. (cid:9) 1st AND 21 RESPONDENTS' SUBMISSIONS IN OPPOSITION OF THE APPEAL 8.1 The 1st and 2nd Respondents filed joint heads of argument which were augmented with oral submissions by Mr. Haimbe, the learned Counsel for the Respondents. 8.2 Mr. Haimbe prefaced his submissions by pointing out that Mr. Eliam Miti, who was the 1st Respondent at the hearing of this appeal demised and he has, by order of J53 this Court, been substituted by Ndumo Miti, the administrator of his estate as 1st Respondent, while Victor Nambonya Miti, the Administrator of the estate of the late Beatrice Sakala Miti, is the 2nd Respondent. 8.3 The Respondents argued the first three grounds of appeal together. Counsel submitted that there was a seeming misconception contained in the Appellant's heads of argument as to the nature of the issues which were raised in the lower Court and which now fall for the determination of this Court, vis a vis the defence which was filed by the Appellants. According to Counsel, the misconception stems from the last sentence in the first paragraph of the preamble to the Appellant's heads of argument which states that:- "....the Appellant denied the claim for negligence stating that its operations were within the statutory limits." Counsel submitted that these words do not reflect the correct position because the Appellant never pleaded a statutory defence in the lower Court and neither did it, at any time during trial, assert that it was not liable for J54 negligence to the deceased on account of its operations being within the statutory limit. 8.4 Counsel pointed out that the defence which was put forward by the Appellant in response to the allegation of negligence against it, was that only trace elements of sulphur dioxide, generated in the secondary smelter and tertiary smelter, were being emitted into the atmosphere and consequently, 'there was no excessive emission of sulphur dioxide' to warrant the claim by the deceased. 8.5 According to the Respondents, in so far as the Appellants' heads of argument are anchored on the stated misconception, they are irrelevant to the determination of the question as to whether the Court below was on firm ground when it found the Appellam to have been liable in negligence to the deceased. They contend that when due regard is had to the pleadings which were before the lower Court, the question for determination was not whether the Appellant breached its statutory duty, but whether the Appellants released excessive, rather than trace mounts of sulphur dioxide J55 into the atmosphere, thereby causing the death of the deceased. According to the Respondents, there was overwhelming evidence in the lower Court which proved that the Appellant emitted excessive amounts of sulphur dioxide into the atmosphere on the material day and that these amounts could not be described as 'trace', as pleaded by the Appellant in its defence. 8.6 To buttress this argument, Counsel submitted that DW3, the Appellant's own witness, testified that on the material day of 31st December, 2013 the Appellant captured 52% of sulphur dioxide, resulting in 700,000 to 800,000 kg of sulphuric acid being produced. He argued that there is a co-relation between the amount of concentrate treated; the amount of sulphuric acid produced; and the amount of sulphur dioxide released into the atmosphere at converters. That the more concentrate treated, the more sulphuric acid and sulphur dioxide which will be produced. Counsel submitted, on the basis of this evidence, that it is only logical to conclude that the emissions of sulphur dioxide J56 by the Appellant on the fateful day could not be described as 'trace' because the evidence of DW3 showed that the operations of the Appellant on that day resulted in the production of a large quantity of sulphuric acid, resulting in a correspondingly by high emission of sulphur dioxide into the atmosphere. 8.7 Counsel further submitted that it is competent for a court to make inferences from the factual evidence before it. Relying on the case of KHALID MOHAMED V THE ATTORNEY GENERAL '7, he submitted that an appellate court is also entitled to draw its own opinions from facts which are not in dispute. On this premise, he invited us to infer, from the facts which are not in dispute, that the Appellant emitted an excessive amount of sulphur dioxide into the atmosphere on the day when the deceased died. On this premise, he argued that the lower Court cannot, therefore, be faulted for concluding that the Appellant acted negligently by discharging a large amount of sulphur dioxide into the air, given the Appellant's defence to the effect that 'only trace amounts J57 of sulphur dioxide' were emitted into the atmosphere on the material day when this turned out not to be true. 8.9 Counsel further submitted that the Appellant, in this case, is assailing the ultimate finding by the trial Judge, that the Appellant owed a duty of care to the deceased and it breached that duty when it emitted an excessive amount of sulphur dioxide into the air, beyond the limit imposed by ZEMA. According to Counsel, the Appellant is contesting this finding by the lower Court on three grounds; Firstly, that it was allowed 'to discharge air pollutants subject to intermediate emission limits and conditions' set out in a letter appearing on page 379 of the record of appeal. The said letter was written on 18th September 1979 by the Environmental Council of Zambia and it is referenced: - "REVISION OF SULPHUR DIOXIDE EMISSION CAPTURE IN MUFULIRA" In the second paragraph, the letter states: I wish therefore to inform you that based on the reasons advanced to us regarding sulphur dioxide emissions in J58 Mufulira, EGZ has reduced the sulphur dioxide emission capture to 50% instead of 55% to 59% capture as indicated as an environmental management commitment for the Smelter upgrade Project." Secondly, that the deceased's case was anchored on allegations of breach of statutory duty but that the said breach of duty was not pleaded, and; Thirdly, that there was no evidence that the emissions of sulphur dioxide had exceeded the statutory limit by 14.3 times and that surprisingly, the Appellant argued that there is no law which provides for the quantum of sulphur dioxide which should be released at the stacks of the smelter. 8.10 In challenging these grounds, Counsel argued that the judgment of the lower Court used clear and unambiguous language which shows that the learned trial Judge did not base his conclusion on the emissions of sulphur dioxide exceeding the statutory limit, but rather on exceeding the limits imposed by ZEMA, and on the evidence that the Appellant had placed various monitoring stations in the community to monitor the sulphur dioxide emissions. To drive this point home, Counsel highlighted a portion of the judgment of the Court below in which the trial Judge stated:- J59 "I thus find as a fact that the Defendant emitted high volumes of sulphur dioxide from its smelter and exceeded the limits imposed by ZEMA. I accept submissions on behalf of the Plaintiff that the Defendant cannot deny that it owed the community it operated in, and in particular the deceased a duty of care. I am satisfied from the evidence that the Defendant recognized that its smelter operations would affect air quality owing to sulphur dioxide emissions. The evidence clearly shows that the Defendant had various monitoring stations in the community to monitor the levels of its emissions and report the sme to ZEMA. Against this backdrop, Counsel argued that the 1st, 2nd and 3rd grounds of appeal are misconceived as they have been argued from a wrong premise when regard is had to the totality of the evidence and given the basis upon which the lower Court ultimately anchored its decision. 8.11 On the Appellant's assertions that it was issued with a permit which allowed it to discharge pollutants into the air subject to an intermediate limit of 50% capture of sulphur dioxide, Counsel submitted that save for the letter appearing on page 379 of the record of appeal, no evidence was led to prove the existence of such a permit and neither was the 50% capture allowed by ZEMA pleaded. That the issue of 'intermediary emission limit' only arose in the Appellant's submissions and this is J60 tantamount to giving evidence at the bar. According to Counsel, the Appellant appeared to have been laboring under a misconception that the '50% capture' which it was allowed amounted to an 'intermediate emission limit' when in fact it was not. He thus urged us to disregard the Appellant's assertions, stating that they are not grounded in or supported by the evidence on record; whether oral or documentary. 8.12 According to Counsel, the erroneous position taken by the Appellant ignores the cardinal fact that the emission limits imposed under the AIR POLLUTION CONTROL (LICENSING AND EMISSION STANDARDS) REGULATIONS' refer primarily to the concentration of sulphur dioxide emitted, rather than the percentage of the volume or quantity of gas produced. That this is evident in various reports appearing from page 146 to 204 of the record of appeal. They show that although there was 50% or more capture of sulphur dioxide on different days, the concentration of sulphur dioxide depended on the amount of concentrate processed. J61 8.13 Counsel submitted that it was entirely within the control of the Appellant, at all material times, to regulate the concentration of its emissions within the total volume of gas produced, of which 50% was to be captured so as to ensure that no injury was caused to its neighbours. That it was this concentration which was envisaged under the Regulations and not the volume of gas produced. (cid:9) He submitted that the failure by the Appellant to keep the concentration of its emissions within safe limits amounted to a breach of its common law duty to its neighbours rendering it to be liable in negligence for its actions. He argued further that the statutory limit provides a watershed between what is safe and what is harmful and is, therefore, a good benchmark for establishing liability. 8.14 Counsel submitted further, that contrary to the Appellant's assertion that the learned trial Judge found it to be liable on the ground that it breached its statutory duty, a proper reading of the judgment clearly shows that the learned Judge based his decision on the J62 common law duty imposed on the Appellani arid only used the statutory position as a guideline. That the Court found the Appellant wanting by reason of its breach of its common law duty not to cause injury to others and in doing so, made reference to the statutory limit as a mere guideline. In Counsel's view, it was immaterial as to whether or not the lower Court cited the regulations in its judgment; the fact of the matter being that the Appellant was bound by the regulations and was under an obligation to abide by them. 8.15 In this regard, Counsel invited us to consider the letter dated 3rd June 2004 from ECZ to the Appellant, appearing on page 373 of the record of appeal to which was attached a 'decision letter' from ECZ. In paragraph 14 of the said 'decision letter' appearing on page 377 of the record, it was made clear that despite the Appellant having been allowed to proceed with the Mufulira Mine, that approval would not exempt the Appellant 'from complying with other relevant legislations.' J64 day, the sulphur dioxide produced was 14.3 times higher than the allowable limit. 8.18 Counsel also referred us to the evidence of PW6, an environmental scientist from ZEMA, seemingly to show that even before 31s' December 2013, the Appellant's emissions of sulphur dioxide was above the allowable limits. This witness stated that the minimum level of sulphur dioxide produced by the Appellant in the first half of 2013 was 38 times above the statutory limit. That when the witness was referred to the document appearing on page 153 of the record of appeal, he testified that in 2010, the Appellant emitted sulphur dioxide whose concentration exceeded the limits set by ZEMA by as much as 70 times. The document on page 153 of the record of appeal contains comments and analysis of stark emissions at Mufulira Mine by ECZ. 8.19 Counsel argued that the Appellant was obliged to observe the AIR POLLUTION CONTROL REGULATIONS3 which provide guidelines with regard to the quality of ambient air, but it failed in its duty as J65 evidenced by the finding that the monitoring system at Clinic 3, near Chawama Hall, where this incident took place, recorded a higher concentration of sulphur dioxide in the ambient air than Clinic 6 which was further away. 8.20 Counsel contended that since there is undisputed evidence that the Appellant had the capacity to control the concentration levels of sulphur dioxide emitted into the ambient air on the material day, the only logical conclusion which the lower Court could have arrived at is that the Appellant acted negligently and breached its statutory duty by failing to ensure that the concentration of sulphur dioxide emitted into the air was within safe limits To support his contention, Counsel also referred us to the cases of GEDDIS V PROPRIETERS OF BANN RESERVOIR 5; ALLEN V GULF OIL REFINING and X AND OTHERS (MINORS) V BERDFORDSHIRE COUNTY COUNCIL5, earlier referred to us by Mr Sangwa, SC. He submitted that these cases have also laid down a principle that even J66 when doing that which is authorized by statute, care must be taken not to injure anyone because an authorized act done negligently attracts liability at common law. He cited a passage from the case of X AND OTHERS (MINOR)5 which states: "If, on the other hand, the authorized act is performed carelessly whereby unnecessary damage is caused, a common law action will lie. This is because the act would, but for the statute, be actionable at common law and the defence which the statute provides extends only to the careful performance of the act. The statute only authorizes invasion of the private rights to the extent that statutory powers are exercised with reasonable and proper regard for the holders of such rights. Thus careless performance of an authorized act, rather than amounting to breach of a new duty, simply ceases to be a defence to a common law right of action..." 8.21 Counsel submitted, consequently, that the first three grounds of appeal lack merit and should be dismissed because the learned trial Judge cannot be faulted for finding that the Appellant was liable in negligence to the deceased. 8.22 Coming to the fourth ground of appeal, which is that the learned trial Judge misdirected himself when he evaluated the medical evidence of the two expert witnesses as to the cause of deceased's death in an J67 unbalanced manner, Counsel submitted that through this ground, the Appellant is attacking findings of fact made by the lower court. That it seeks to impugn the said findings by revisiting the evidence of the two expert witnesses given in the Court below thereby inviting this Court to substitute its own opinion in place of that of the lower Court. 8.23 Counsel submitted that the law as to when an appellate court can disturb findings of fact made by a trial court is well settled in this jurisdiction. That through our decisions in various cases, such as that of WILSON MASAUSO ZULU V AVONDALE HOUSING PROJECT we have guided that findings of fact arrived at by a trial Court can only be reversed on appeal if they are found to be 'perverse or made in the absence of any relevant evidence or upon a misapprehension of the facts or that they were findings which, on a proper view of the evidence, no trial Court acting correctly could reasonably make.' J68 8.24 According to Counsel, the finding of fact as to the cause of death of Mrs. Beatrice Sakala Miti, made by the lower Court, is not perverse in any way and does not warrant reversal. To buttress this submission, he referred us to a portion of the judgment of the lower Court at page 47 of the record of appeal in which the judge stated, irter alia:- "During trial, it was plain for me to see that DW1 md PW5 were both highly respected scientists of international repute. In my assertion, was called to show the deceased could have died from other caused other than respiratory failure caused by toxic fumes. However, he did not examine the deceased's body nor examine any microscopic evidence that PW1 did. I accept PW5's testimony because firstly, it was corroborated by other testimony, in particular that of PW1 PW2 and PW3 all who highlighted the circumstances and which the deceased fell ill after inhalation of toxic fumes. Secondly, PW5 examined the deceased's body. He performed the initial examination and the subsequent microscopic examination. Thirdly, I find that he was an independent witness with no interest that would be self serving. Even under vigor us cross- examination, PW 5 stood firm to his findings that the deceased died as a result of acute respiratory failure caused by toxic fumes. I accept PW5's testimony and find that the deceased died as a result of respiratory failure after inhalation of sulphur dioxide emitted by the 1st Defendant. This is the only inference I make upon a consideration of the evidence before me. I equally accept the Plaintiff's submissions that eve a if they had other conditions, the 'egg-shell skull' :-ule meant the Defendants must take its victim as it found her." (sic) J69 8.25 According to Counsel, it is clear from this portion of the judgment that contrary to the Appellant's assertion that the trial judge assessed the medical evidence in an unbalanced manner, the Judge objectively considered the evidence given by both expert witnesses and was persuaded to accept the evidence of PW5 over that of DW 1 because:- b) a) the testimony of PW5 was corroborated by the evidence of PW1, PW2 and PW3 that the deceased died shortly after inhaling toxic fumes rather than from a poor state of the heart as stated by DW 1; that PW5 conducted the physical examination of the deceased's body while DW1 only conducted a desk review of the documents given to him by the Appellant; and, the Judge noted that in cross examination, DW1 was 'hard pressed' while PW5, on the other hand, stood firm. c) 8.26 Counsel submitted further that the trial Judge had the benefit of assessing the witnesses first hand and he was, therefore, better placed to arrive at the conclusion which he did. That the Appellant has not proved that the manner in which the lower court assessed the evidence fell foul of the established principles, other than to supplant its own opinion as to how the Court below should have assessed the evidence before it. In J70 Counsel's view, the Appellant's submissions in support of this ground of appeal are not tenable, more so in the face of our guidance in the case of ATTOR?EY GENERAL V GEORGE MWANZA and WHITES ON MWANZA2° when we said:- "The purpose of expert evidence in establishing negligence in the realm of diagnosis and treatment is not necessarily to pit one professional against another, but to guide the Court. At the end of the day, the Court still has to make its own conclusion based on the evidence before it. When considering the evidence, the Court is entitled to draw inferences based on facts and circumstances surrounding the case." 8.27 Counsel submitted that in this case, the lower court drew its own inferences as to the cause of death of the deceased based on her sudden collapse and death within minutes of inhaling sulphur dioxide fumes emitted into the atmosphere by the Appellant. That the lower court cannot, therefore, be faulted for proceeding in the manner that it did. He urged us to dismiss the fourth ground of appeal. 8.28 The fifth ground of appeal is with regard to the Third Party proceedings against the Attorney-General. No heads of argument have been filed by the Attorney- J71 General in response to the submissions by the Appellant. 8.29 In the sixth ground of appeal, the Appellant has taken issue with the global award of K400,000.00 as damages with interest at 10% per annum from the date of judgment. Counsel pointed out that the lower Court declined to award some of the claimed heads of damages, namely; damages for expenses incurred during the funeral, damages for loss of income; and, damages for loss of dependency. (cid:9) This left general damages and damages for anguish and loss of expectation of life yet to be determined. According to Counsel, it is under these remaining heads that the deceased was awarded a global sum of K400,000 with interest at 10% per annum. 8.30 Counsel argued that the Judge was on firm ground when he awarded a global sum of K400,000.00 as general damages. According to Counsel, the said figure is not excessive, inordinate or unreasonably high, given that it encompasses all the remaining heads of claim, J72 some of which are non pecuniary in nature and are claimable under the LAW REFORM (MISCELLANEOUS PROVISIONS) ACT6. 8.31 To support his submissions, Counsel cited a passage from the learned authors of McGregor on DAMAGES' in which they state:- "...where it is clear that some substantial loss had been incurred, the fact that an assessment is diffitult because of the nature of the damage is no reason for awarding no damages or merely nominal damages. As Vaughan Williams L. J put it in CHAPLIN V KICKS, the leading case on the issue of certainity; 'The fact that damages cannot be assessed with certainity does not relieve the wrongdoer of paying damages.... In certain cases general damages may be awarded in the sense of damages 'such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. The damages are said to be at large." 8.32 (cid:9) Counsel also referred us to a passage in HALSBURY'S LAWS OF ENGLAND" in which it is stated:- "394 Ascertainment of damages difficult. The fact that damages are difficult to estimate and cannot be assessed with certainty or precision does not relieve the wrongdoer of the necessity of paying damages for his breach of duty, and is no ground for awarding only of nominal damages. A distinction must be drawn, however, between cases where the difficulties are due to uncertainty as to the causation of damage, where questions of remoteness arise, and cases where they are due to the fact that the assessment of damages cannot be made with any mathematical accuracy... Where it is established however, that damage has been incurred for a defendant should J73 be held liable the plaintiff may be accorded the benefit of every reasonable presumption as to the loss suffered. Thus the Court, or a jury, doing the best that can be done with insufficient material, may have to form conclusions on matters on which there is no evidence and to make allowance for contingencies even to the extent of making a pure guess;38" (emphasis by Counsel) 8.33 On the home front, Counsel referred to our decisions in the cases of PHILLIP MHANGO V DOROTHY NGULUBE'8 and DAVID CHIYENGELE AND 5 OTHERS V SCAW LIMITED" in which we accepted that judges are sometimes driven to making inspired and intelligent guesses when awarding damages since there has to be a redress for a legal wrong or injury that has been occasioned to a person. 8.34 It was the submission of Counsel that in keeping with these authorities, the learned trial Judge did the best he could when he was presented with claims for non percuniary losses and awarded the deceased a global sum of K400,000.00. That the said award cannot be regarded as unreasonable given the abrupt manner in which the deceased met her death. J74 8.35 Counsel contended, consequently, that the Court below was entitled to award a global sum to the deceased in order to redress the infraction to her legal rights. He pointed out that the Appellant has not raised any challenge to the quantum of the global damages but that its complaint is with regard to the principle and legal formula employed by the Judge when awarding the global sum. He urged us to dismiss the 6th ground of appeal and ultimately the entire appeal with costs. 9. CONSIDERATION OF THE APPEAL BY THIS COURT 9.1 We have considered the grounds of appeal, the eloquent and extensive submissions by the parties and the issues raised in this appeal. 9.2 It is trite that every civil case is shaped by the pleadings of the parties filed in court. A pleading is a formal document in which a party to a legal proceeding sets forth or responds to allegations21. According to the learned authors of HALSBURY LAWS OF ENGLAND: "Every pleading must contain, and contain only, a statement in a summary form, of the material facts on (cid:9) (cid:9) J75 -which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved." 9.3 (cid:9) In the Statement Of Claim filed by the 1st Respondent in the Court below, he set out the material facts on which he was relying and accused the Appellant of negligence and/or breach of duty by releasing toxic sulphur dioxide into the atmosphere which, upon being inhaled by his late- wife, allegedly caused her to suffer fatal acute respiratory failure. In denying the claim, the Appellant, in its defence, conceded that it released sulphur dioxide into the atmosphere but averred that the amount of the gas so released was not excessive. Its position was that 'only trace sulphur dioxide generated in the secondary tertiary smelter was being emitted into the atmosphere.' The Appellant further stated that the deceased was a well known asthmatic and diabetic patient, seemingly suggesting that these medical conditions could have led to her death. To this imputation, the leaned trial Judge stated that even if the deceased had other medical conditions, the 'egg-shell J77 Counsel ably submitted, citing relevant authorities on the tort of negligence. 9.6 The Appellant is a mining company. It is inevitable that when carrying out its operations, it will emit some toxic fumes into the atmosphere. We agree with Mr. Sangwa, SC, that there is no absolute duty on mines or other industry not to emit any gases at all. To mitigate the harmful effects of such gases, laws have been enacted to prescribe and regulate the emission of toxic fumes into the atmosphere. 9.7 In Zambia, ZEMA, was established under the Environmental Management Act No. 12 of 2011 as an autonomous environmental regulator. It is a coordinating agency which replaced the Environmental Council of Zambia. The stated objective of ZEMA was '....to continue the existence of the Environmental Council and rename it as the Zambia Environmental Management Agency...' 9.8 Section 4(1) of THE ENVIRONMENT MANAGEMENT ACT' stipulates that '...every person living in Zambia has J78 the right to a clean, safe and healthy environment'. ZEMA is thus enjoined, as the regulator to: "...do all such things as are necessary to ensure the sustainable management of natural resources and protection of the environment, and the prevention and control of pollution." (underlining ours) The Agency has power to, among others, carry out investigations into actual or suspected air pollution, and, to sanction or prosecute those who breach environmental standards and guidelines. 9.9 Both viva voce and documentary evidence before the lower Court established that ZEMA prescribed limits of the quantity of sulphur dioxide which the Appellant was allowed to emit into the atmosphere. The lower Court found that the Appellant owed a duty of care to the deceased and that it breached this duty when it emitted excessive amounts of sulphur dioxide into the ambient air, beyond the allowable limits. 9.10 In the first and third grounds of appeal, the Appellant has taken issue with the finding of the lower Court that on the day when the deceased met her fate, the Appellant had released high volumes of sulphur dioxide into the ambient (cid:9) (cid:9) A I J79 * air in excess of the statutory limit. According to the Appellant, there was no evidence to support such a finding. Mr. Sangwa, SC argued that the Court below did not even establish the statute or statutory instrument where such limit was imposed. The second ground of appeal faults the lower Court for relying on the evidence of witnesses at trial, to prove the existence of a statutory duty. The three grounds of appeal have raised issues which are inter-related and we will deal with them together. 9.11 We have considered the spirited arguments by the Appellant in support of the three grounds of appeal. The learned counsel for the Appellant submitted and we agree with him, that mines and industries are allowed to emit some gases into the atmosphere but that the law has prescribed and regulated the amounts of gases which can be emitted into the atmosphere. It goes without saying that such limits are designed to ensure safe levels of emissions for human, plant and animal health. Counsel pointed out that the statutory obligations of entities which J80 emit harmful substances into the atmosphere are found in the Environment Management Act No. 12 of 2011. We have reproduced the relevant provision of this law in paragraph 7.5 above. The actions of these entities are policed by ZEMA. Counsel argued that as long as an entity is operating within the limits imposed by law and regulations, it cannot be held to be liable for any consequences arising from such emissions. 9.12 We agree with this submission. Indeed, the various authorities cited support the position that a statute can provide a defence to an act which is otherwise actionable under common law. But there is a rider. As ably stated in the case of X AND OTHERS (MINOR)5:- "The statute only authorizes invasion of the private rights to the extent that statutory powers are exercised with reasonable and proper regard for the holders of such rights. (cid:9) Thus careless performance of an authorized act rather than amounting to breach of a new duty, simply ceases to be a defence to a common law right of action." 9.13 The 1st Respondent claimed damages for negligence and/or breach of duty alleging that the Appellant released toxic fumes into the atmosphere which induced acute J81 respiratory failure in the deceased. The issue to be resolved, therefore, is whether in releasing the said toxic fumes, the Appellant acted negligently. Several witnesses testified as to what actually transpired on that fateful day of 31st December, 2013. The deceased was attending a religious function at Chawama Hall in Mufulira. PW1, PW2 and PW3 were also attending the same function. They testified as to the events which led to the deceased collapsing and being conveyed to the hospital where she was pronounced dead. There was testimony from other witnesses, like PW6, an environmental scientist and DW3, a metallurgical engineer, two doctors, PW5 and DWI who are professionals in their respective fields and assisted the Court to resolve the issues before it. 9.14 Mr. Sangwa, SC, argued that the lower court misapprehended the evidence of DW 3 when he testified that the release of sulphur dioxide at the material time was 14.3 times above the limit. According to Counsel, DW 3 was referring to the sulphur dioxide released at the J82 starks and not the concentration of the gas in the ambient air. 9.15 It is not in dispute that in its operations, the Appellant does emit sulphur dioxide into the atmosphere. There was evidence from PW6 that the raw materials used by the Appellant release sulphur dioxide when exposed to heat. ZEMA has issued guidelines under which the said release of toxic fumes should be done. The evidence on record conclusively established that in September, 2009 the Environmental Council of Zambia (ECZ) revised the sulphur dioxide emission capture in Mufulira to 50% from 55-59%. This is contained in a letter to the Appellant dated 18th September, 2009. The letter, which appears at page 379 of the record of appeal, states in part as follows:- ollows:- "I "I wish therefore to inform you that based on the reasons advanced to us regarding sulphur dioxide emissions in Mufulira, ECZ has reduced the sulphur dioxide emission capture to 50% instead of 55% to 29% capture as indicated in an environmental management commitment for the Smelter Upgrade Project." 9.16 The evidence also conclusively established that the Appellant put in place a system to monitor the levels of J83 sulphur dioxide emissions in the community. It placed various monitoring stations within the community to monitor the levels of emissions of sulphur dioxide and report the same to ZEMA. According to DW 3, the system which was put in place was automated to reduce human interface and it captured and stored data every millisecond. He alluded to the limit of sulphur dioxide emissions imposed by ZEMA on the Appellant and stated that on 31st December, 2013, the emissions released at the starks were 14.3 higher than the limit imposed by ZEMA. 9.17 We have not been persuaded to accept the argument by Mr. Sangwa, SC that DW3 was referring to emissions at the starks and not the concentration of the gas in the ambient air. This is because DW3's evidence is supported by the documentary evidence on record. It is clear that the data which was being collected from the various stations in the community was being analysed by ZEMA. In January, 2014, ZEMA Inspectorate issued an Air Quality Monitoring Report in respect of sulphur dioxide J84 emissions at Mopani Copper Mines Pie in Mufulira. A copy of the said report appears from page 193 to 198 of the record of appeal. On page 198, it has tabulated the Findings and Data Analysis of sulphur dioxide emissions from 1st to 31s' December 2013. These are damning against the Appellant. 9.18 We have reproduced the findings in paragraph 8.16 above but just to recap, the report shows that throughout the month of December 2013, the sulphur dioxide emissions at Mufulira were 14.3 times higher than the allowable statutory limit. More importantly, the report states that 'the ambient air monitoring station at Clinic 3' which is near Chawama Hall, 'recorded a higher concentration in sulphur dioxide' from 2d to 31s' December, 2013 than Clinic 6, which was further away. Clearly, the argument by Counsel, that the evidence of DW3 should be understood to refer to sulphur dioxide emissions at the starks and not the concentration of sulphur dioxide in the ambient air is untenable. Further, the witnesses testified that the fumes of the gas were visible as they entered the iRs hail and they caused a lot of discomfort to the people gathered there. As such, whatever was released at the starks affected the ambient air. 9.19 As against the testimony of DW3 and the documents on record, it cannot seriously be argued that there was no evidence to support a finding of excessive emission of sulphur dioxide by the Judge. In fact, the evidence on record completely negatived the defence put forward by the Appellant in the Court below, that only trace elements of sulphur dioxide were released into the atmosphere. 9.20 It is also our finding, from the evidence on record, that the argument by Mr. Sangwa, SC, that the Appellant acted within the law, cannot be sustained. Firstly, ZEMA, which is a creature of statute with a specific mandate to prevent and control pollution, prescribed the limits of sulphur dioxide which the Appellant was allowed to emit into the ambient air. The evidence established that in December, 2013 the Appellant emitted more sulphur dioxide than it was allowed. Secondly, the authorities cited to us by Counsel are clear that if an action which is J86 allowed by law is performed carelessly, thereby resulting in damage, a common law action will lie. The Appellant had the capacity to control the quantity of gases which were being emitted. As alluded to above, in this case, ZEMA, pursuant to its statutory mandate, gave the Appellants the parameters with regard to the emissions of sulphur dioxide into the atmosphere. The analysis by ZEMA shows that the Appellant was not compliant and inexplicably, it was not visited by sanctions prescribed by law. To insist that the Judge should have established the statute or statutory instrument where the said limits were imposed is neither here nor there because the Environmental Management Act has designated ZEMA to impose limits and ensure compliance by entities. 9.21 As we have stated above, it is the Appellant who had the capacity to control the quantity of sulphur dioxide which could be emitted into the ambient air to ensure that it is within the authorized safe limit. The Supreme Court of India in the case of INDIAN COUNCIL FOR ENVIRO- J87 LEGAL ACTION AND OTHERS V UNION OF INDIA AND OTHERS" observed that: "....the enterprise (carrying on the hazardous inherently dangerous activity) alone has the resource to discover and guard against the hazards or dangers - and not the person affected..." The onus to ensure safe emissions of gases fell squarely on the Appellant and not the deceased or the community in Mufulira. By failing to do so, the Appellant failed in its duty to ensure a safe environment for the community in Mufulira. 9.22 Counsel also argued, in the second ground of appeal, that the lower Court was wrong to rely on the evidence of the witnesses to prove the existence of a statutory duty. In response, the learned Counsel for the Respondents pointed out that the Court below did not base its conclusion on limits imposed by the statute, but on the limits imposed by ZEMA. He cited a portion of the judgment in which the Judge said:- "I thus find as a fact that the Defendant emitted high volumes of sulphur dioxide from its smelter and exceeded the limits imposed by ZEMA." J88 9.23 The document on page 379 of the record which we have referred to above, and the Air Quality Monitoring Report appearing from page 193 to 198 of the record of appeal, both show that ZEMA, pursuant to its statutory mandate, had imposed limits on the Appellant as to the quantity of sulphur dioxide which it (the Appellant) was permitted to release into the atmosphere. Both PW6 and DW3 told the lower Court that the Appellant was not compliant in that it exceeded the limits imposed by ZEMA. The evidence of these witnesses was supported and augmented by the documents on record. These formed the basis of the findings by the Court. Apart from the analysis on page 198 of the record of appeal, which shows an average release of sulphur dioxide which was 14.3 times higher than the allowable limits for the month of December, 2013, there is also the 2010 Mopani Copper Mine Analysis of Returns on pages 152 and 153 of the record of appeal which, on Air Pollution which states that "All emissions were still above the statutory limits for licensed starks." On comments/ analysis, it states:- J89 "All parameters are above the ECZ limits, with sulphur dioxide emissions being the most highest above the ECZ limit, 70 times above from the Converter Slag Blow. In view of the above, Mopani should include, in the report, what could be the cause. With these results, it clearly shows that the environment is being polluted by Mopani Copper Mines." These documents and the evidence show that the Appellant was truant from as far back as 2009 and throughout 2013. All this evidence was before the lower Court. It is, therefore, not correct to state that the Judge only relied on the evidence and assertions of witnesses to prove the existence of a statutory duty. We, therefore, do not find any merit in the first three grounds of appeal. 9.24 In the fourth ground of appeal, the Appellant has accused the lower Court of having evaluated the evidence of PW5 and DWI in an unbalanced manner. PW5 conducted the postmortem on the body of the deceased. He also conducted the microscopic examination. He found that the deceased succumbed to death due to acute respiratory failure. DW 1, on the other hand, disagreed with PW5 as to the cause of the deceased's death. He reached his conclusion after a desk review of igo the postmortem report and the report of the microscopic examination prepared by PW5. The Appellant now argues that the trial Judge only considered the evidence of PW5 and not that of DW1. 9.25 The Respondents' response to this ground of appeal is that the Appellant is contending with findings of fact. That unless the said findings are found to be perverse and not supported by evidence on record, they cannot be set aside. He referred us to a portion of the lower Court's judgment on page 47 of the record of appeal. The Judge stated:- "I accept PW5's testimony because firstly, it was corroborated by other testimony, in particular that of PW1, PW2 and PW 3 all who highlighted the circumstances and which the deceased fell ill after inhalation of toxic fumes. Secondly, PW5 examined the deceased's body. He performed the initial examination and the subsequent microscopic examination. Thirdly, I find that he was an independent witness with no Interest that would be self serving. Even under vigorous cross-examination, PW5 stood firm to his findings that the deceased died as a result of acute respiratory failure caused by toxic fumes. I accept PW5's testimony and find that the deceased died as a result of respiratory failure after inhalation of sulphur dioxide emitted by the 1t Defendant. This is the only inference I make upon a consideration of the evidence before me. I equally accept the Plaintiff's submissions that even if they had other conditions, the 'egg-shell skull' rule meant the Defendants must take its victim as it found her." J91 On the basis of this passage, the Respondents argued that the learned trial Judge did consider the evidence of both expert witnesses. 9.26 We have carefully perused the portion of the judgment to which Counsel has referred us. It shows that the Judge alluded to and compared the evidence of the two witnesses. He accepted the evidence of PW5 and gave three reasons for doing so; firstly, that PW5's testimony was corroborated by the eye witnesses who narrated that the deceased fell ill after inhaling some toxic fumes; secondly, that PW5 conducted the initial and subsequent microscopic examinations on the body of the dceased; and, thirdly, that PW 5 was an independent witness who stood firm even under rigorous cross-examination. The Judge observed that even if the deceased could be said to have had other medical conditions, the 'egg shell skull' rule meant that the Appellant must take its victim as it found her. 9.27 It is not in dispute that the lower Court was faced with two conflicting opinions as to the cause of death of the J92 deceased. It is apparent to us that the evidence of DWI was solicited to challenge the findings of PW5 as to the deceased's cause of death. The Court below established that DWI did not examine the body of the deceased and neither did he carry out any examination relating to her body. That his (DW l's) conclusions were drawn from the reports of examinations carried out by PW5. 9.28 It is evident to us that the trial Judge did consider the conflicting evidence of the two expert witnesses and decided to believe PW5. As we guided in the case of ATTORNEY GENERAL V GEORGE MWANZA AND WHITESON MWANZA20 the purpose of expert evidence is to guide the Court. 'At the end of the day, the Court still has to make its own conclusion based on the evidence before it. When considering the evidence, the Court is entitled to draw inferences based on facts and circumstances surrounding the case' 9.29 In this case, the Judge accepted the evidence of PW 5 and gave his reasons for doing so. He drew inferences based on the facts and the circumstances surrounding J93 the case. We find the said findings and inferences not to be perverse. They are amply supported by the evidence on record. (cid:9) We, therefore, do not agree with the contention by the Appellant that there was an unbalanced consideration of the expert witnesses as to the cause of death. The fourth ground of appeal must also fail. 9.30 The fifth ground of appeal has been advanced in the alternative, should we not be persuaded to find in favour of the Appellant in the other five grounds of appeal. The Appellant filed a Third Party Notice seeking to be indemnified against the Respondents' claim pursuant to an Environmental Liabilities Agreement which it executed in March, 2000 with the Government of the Republic of Zambia. According to the Appellant, its case against the Attorney General was not considered at all. It was submitted that the lower Court's approach was cavalier as it glossed over the issues in contention. 9.31 In paragraph 10 of its defence the Appellant averred as follows:- J94 "10. The Defendant will aver, in the alternative to paragraph 9, that it is not liable to the Plaintiff in any case pursuant an agreement called 'Environmental Liabilities Agreement' made on 31st March, 2000 between the Government of the Republic of Zambia (GRZ) and the Defendant in which GRZ undertook to and covenanted with the Defendant to indemnify and hold the Defendant harmless against any and all environmental liabilities arising from the operation of the assets acquired from GRZ by the Defendant." (sic) 9.32 DW5, Alexie Mpishi, testified to this Environmental Liabilities Agreement. He stated that the Government of the Republic of Zambia undertook to indemnify the Appellant as long as it operated within the Environment Management Plan. In re-examination, he stated that regulations put in place by the Government were not applicable to-the Appellant as long as it complied with the approved management plan. 9.33 The learned trial Judge considered the evidence of DW5 who, according to the Judge, had stated that the Appellant was exempted from complying with statutory limits. The Judge did not accept this evidence. He stated that upon perusing the Agreement, he did not find any express provision 'highlighting exemptions from statutory limits'. To fortify his conclusion, he referred to the opinion of the J95 Solicitor General, the relevant portion of which we reproduce below. The Judge reached the conclusion that the Appellant was not absolved from complying with limits imposed by statute on account of the Environmental Liabilities Agreement. 9.34 In our view, it is not correct to state that the lower Court did not consider the Appellant's claim against the Attorney General. The judgment shows that the Judge considered the claim but did not agree that the Appellant could claim indemnity under the Environmental Liabilities Agreement in circumstances where the Appellant was not in compliance with the statutory limits. In arriving at this conclusion, the Judge alluded to the opinion of the Solicitor General who stated:- "If judgment could be entered against Mopani, and hence the statutory indemnity to Mopani by GRZ pursuant to the Mines and Minerals (amendment) Act 2000 for any and all environmental liabilities that may arise as a result of the operations with the Environmental Plan, such liabilities vest in GRZ. However Environmental Liabilities do not arise of a matter in respect of which the company is not in compliance with the Environmental Plan." It would appear that the State did not want to honour the Agreement on account that the Appellant did not comply J96 with the Environmental Plan. The Judge did adjudicate on the matter and reached a decision. We find no merit in the fifth ground of appeal. 9.35 Coming to the sixth and last ground of appeal, the Appellant is assailing the award by the Court below, of a global sum of K400,000.00 as general damages with interest at 10% from the date of judgment up to the date of settlement. 9.36 While conceding that the lower Court disallowed some of the heads of damages claimed, it was Counsel's position, in the main, that instead of awarding a global sum, the Court should have apportioned the damages and stated under which heads they fell. In response, the learned Counsel for the Respondents pointed out that after the Court declined to award damages for expenses incurred during the funeral and damages for loss of income and dependency, what remained to be determined were general damages and damages for mental anguish and loss of expectation of life. That it is in respect of these heads that the global sum was awarded. J97 9.37 We have considered the submissions by the parties in respect of the sixth ground of appeal. The writ of summons and the statement of claim enumerate the damages which the 1st Respondent was claiming. After removing the heads which the Court below declined to award, what remains are the following: - (a) General damages (b) Exemplary damages (c) Damages for bereavement (d) Damages for mental anguish of the deceased, and (e) damages for mental anguish of the Plaintiff, children and dependants of the deceased. The learned trial Judge awarded a global sum of K400,000.00 stating that this was to represent the gern;ral damages sought. 9.38 The learned Counsel for the Appellant referred us to several authorities including the case of MANFRED KABANDA AND KAJEMA CONSTRUCTION" in which we frowned upon a global award of damages where such damages had been claimed under the FATAL ACCIDENTS ACT' AND THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT'. We guided that in such cases, damages should be allocated between the said Acts. At the outset, it is J98 apparent that the case of MANFRED KABANDA'2 is distinguishable from the case in casu in that, in this case, there can be no claim for damages under the FATAL ACCIDENTS ACTS5 because the claim did not arise from a fatal accident. (cid:9) As the authors of BLACK'S LAW DICTIONARY" state, an accident is '...an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated." The 1st Respondent in the main, claimed general, exemplary and other specific damages arising from the negligent discharge of toxic fumes into the atmosphere. 9.39 Counsel for the Appellant also referred us to the provisions of Section 2(1) and (2) of the LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 6. He highlighted the provisions of section 2(2) of the Act which state that:- "where a cause of action survives aforesaid, for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not inclide exemplary damages." He drew our attention to the High Court case of FAINDANI DAKA'4 in which the learned High Court Judge decided J99 that Section 2(2) of the Act barred the award of exemplary damages. In that case, the Plaintiff had claimed damages arising from the negligent discharge of a fire arm by a police officer which culminated in the injury and death of his son. 9.40 In our view, Section 2 of the LAW REFORM (MISCELLANEOUS PROVISIONS) ACT must be understood in its proper context. One of the objectives of this Act is to provide for survival of actions after death. Section 2 of the Act is in Part II whose provisions are on the 'Effect of death on certain causes of action.' Section 2(1) states that '...on the death of any person. . . all causes of action subsisting or vested in him shall survive against or as the case may be, for the benefit of his estate.' The person referred to is, at the time of his/her death, aireacy a litigant or facing a suit in court. This provision of the Law provides for survival of such a cause of action after the death of the litigant. The action is not extinguished by the death of that party. Section 2(2)(a) of the Act then comes in to state that where the cause of action has survived for the J100 benefit of the estate of the deceased person, damages recoverable for the estate shall not include exemplary damages. This is very different from a person suing or commencing an action seeking damages on behalf of a deceased person on account of that person's wrongful death. It could very well be that a defendant acted so recklessly and maliciously that there could be need to award punitive damages to punish such conduct. In so far as the case of FAINDANI DAKA'4 purports to make a blanket and unqualified statement that exemplary damages are barred under Section 2(2)(a) of the LAW REFORM MISCELLANEOUS PROVISIONS ACT' without clarifying that it only applies to cases which have survived the death of a litigant, it was wrongly decided. 9.41 Mr. Sangwa has submitted that the claim for exemplary damages was not pleaded. On the contrary, we have found that exemplary damages were expressly pleaded in paragraph ii of the Writ of Summons and again in paragraph 12 ii of the Statement of Claim. Although instances when exemplary damages may be awarded have J101 been quite topical, it is now accepted that exemplary damages can be awarded in many torts. In the words of the learned authors of MCGREGOR ON DAMAGES": "Provided always that there is unacceptable behavior on the part of the defendant, behavior that displays features which merit punishment by way of malice, fraud, cruelty, insolence and the like, there is no tort where the writ of exemplary damages will not run. ... It follows that all torts or more precisely all torts which may contain a willful element, are now up for consideration in the exemplary stakes."vii They have referred to the case of DESIGN PROGRESSIONAL LTD V THURLOE PROPRTIES LTD 22 in which exemplary damages were awarded for breach of statutory duty. 9.42 As to whether, in the case in casu, evidence was adduced to prove unbecoming conduct on the part of the Appellant, we find that there is overwhelming evidence, both oral and documentary showing that for years, the Appellant flouted the limits of sulphur dioxide emissions imposed by ZEMA, thereby jeopardizing the right to life of an entire community. 9,43 The learned Counsel for the Respondents argued that the global figure awarded by the lower court was not excessive, J102 He stated that some of the heads of claim are non pecuniary and fall under the LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 6. He also referred to authorities which support the notion that even where damages are at large, that is, uncertain and difficult to assess, the wrongdoer is not relieved from the duty to iJay damages and neither should this be a ground for awarding nominal damages. Counsel also referred us to our decision in the case of PHILLIP MHANGO V DOROTHY NGULUBE23 in which we acknowledged that Judges are sometimes driven to make inspired and intelligent guesses when awarding damage; to redress wrongs. 9.44 It is evident that the remaining heads of damages claimed by the Respondents are non pecuniary. The Court has a duty, on the facts of each case, to award adequate damages to compensate for wrongful acts. In instances where damages are at large and difficult to ascertain, we would not frown upon an award of global damages by a trial Court. The general damages in this case encompassed non J103 pecuniary damages which were difficult to quantify. In the circumstances, we do not fault the trial Judge for having awarded a global figure. 9.45 The facts on which this litigation was founded are quite disturbing. As we have pointed out above, the evidence on record shows that for years, the Appellant had been emitting excess amounts of sulphur dioxide into the ambient air contrary to directives of lawful authorities. The Air Quality Monitoring Report at Mopani Copper Mine in Mufulira, prepared by ZEMA Inspectorate, in January 2014 and the 2010 analysis on pages 152 and 153 of the record of appeal show that the Appellant had been emitting higher levels of sulphur dioxide into the air than the allowable limits. What is shocking is that these repeated and persistent breaches which seriously undermined the residents' right to life, the regulator, ZEMA, did not invoke the provisions of the law to punish the Appellant. As a statutory body whose stated mandate is the prevention and control of pollution and protection of the environment, ZEMA failed the community in Mufulira. J104 9.46 Against this backdrop, the Respondents are entitled to enhanced damages. As was observed by the Court in the Indian case of INDIA COUNCIL FOR ENVIRO-LEGAL ACTION V UNION OF INDIA AND OTHERS2' referred to above, the measure of compensation in such cases 'mus: be collerated to the magnitude and capacity of the enterprise because such compensation must have a deterrent effect. 9.47 From the foregoing, we are of the view that the glcbal award of K400,000.00 was too modest in view of the aggravating circumstances in this case where the entire community was put at risk, more so that the pollution went on for a long time and it was within the capacity of the Appellant to control the amount of gases which were being emitted into the ambient air. We therefore set aside the global award of K400,000.00 damages to the estate of the deceased and in its place we award the estate an amount of One Million Kwacha (K1,000,000) with interest, at the rate of ten percent (10%) per annum from the date of the High Court judgment to the date of settlement. The sixth ground of appeal therefore fails. J105 10. CONCLUSION 10.1 All the grounds of appeal having failed, the entire appeal is dismissed. The Respondents will have their costs both in this court and in the court below. I. C. Mambiima CHIEF JUSTICE --Mi Malila SU1ME COURT JUDGE N. K Ut na SUPREM OUT JUDGE