Ranken and Kwambwiri v Lujeri Tea Estates Limited (Personal Injury 345 of 2021) [2022] MWHCCiv 27 (13 September 2022)

Jabsreuy KE IN THE HIGH COURT OF MALAWI CIVIL DIVISION PRINCIPAL REGISTRY PERSONAL INJURY CASE NUMBER 345 OF 2021 BETWEEN EVANCE RANKEN.......... 0. cccce cece ene ee eset neta eaten eres FIRST CLAIMANT AND DOROTHY KAMBWIRLI........ cece ee ceeteene ree eeen ees SECOND CLAIMANT AND LUJERI TEA ESTATES LIMITED.........0.ccccccceee eee eeneees DEFENDANT BEFORE Hon J. N'riva, JUDGE Mr J. Dziwani for the claimant Mr Kondowe for the defendant Mrs D. Nkangala, Court Clerk JUDGMENT The claimant commenced this action claiming pain and suffering, loss of amenities of life, disfigurement or deformity, damages for reduced earning capacity, e costs of future medical treatment, e costs of obtaining medical report and e costs of this action. The story is that the claimant working as a security guard for the defendants. On the 27" day of May, 2020, she and her fellow guards were told to go and ambush villagers who were illegally felling trees from the defendant’s field. The villagers injured her, The claimant alleged that the injuries took place due to negligence on the part of the defendant arguing that there were supposed to be more guards. The other argument was that she was involved in the raid when he was not trained on how to raid a gang. She said that they needed armed policeman. The defendant denied that the injuries to the claimant were as a result of breach of duty on their side. According to the claimant's pretrial check list, the issues that had to proceed to trial were e whether or not the defendant owed the claimant a duty of care e whether or not the defendant breached its duty ¢ whether or not the defendant is liable to compensate the claimant for the pain, injury, loss and damages doe suffering e whether or not the claimant is entitled to damages and costs of the action The defendant also outlined the same issues but added one more issue which is whether the claimants were not negligent, The second claimant gave evidence. She said that at the material time, she was working from Nchima Tea Estate one of the defendant’s the estates in Thyolo District. She said that, generally, her duties as a general security guard were to be visible and conduct patrols, check and monitor the presence of intruders on the defendant’s premises and to report the presence of such intruders to the estate management and when safe and possible to arrest such intruders. She said that she was employed as a member of the defendant’s security rapid response team. She said that in or around 2008 she attended an in-house security training which was organised by the defendant. She said she only attended the final week of the training as she was recruited after the training had already started. She said the training mainly centred on physical fitness. She said that on or around 27" March 2020, at around 9:00 o’clock AM while the guards were located close to the defendant’s club, she, together with other guards, were joined by some policemen and the defendant’s security officer Mr Khondiwa. She said that one of the police officers assembled them and asked all the guards to surrender phones and money to the office. She said that she and her colleagues were informed by the police and the security officer that there would be an operation whose objective was to ambush and raid on some villagers who had invaded the defendants Masikini Division where they were felling trees belonging to the defendant. She said that that was her first time to participate in an operation of that kind. She said that Masikini Division is located at a distance of about 12 kilometres from Nchima Tea Estate Head Office where she was based and the operation was to be conducted in an area close to villages of Mphalira, Musowa and Chilembwe. She said that it was a notorious fact that the villagers from the said village had formed an organised syndicate which had specialised in cutting down trees belonging to the defendant without the defendant's licence. The syndicate was violent towards the defendant’s guards and some guards had been previously stoned and injured by members of the syndicate after intercepting them. She said the team that was assembled to go to the operation to ambush the villagers was made-up of Nchima guards, the security officer and seven general duty police officers and their officer-in-charge. She said the police officers were armed with guns and some had tear gas canisters. She said some tear gas canisters were carried by some security guards. The other security guards including herself were only armed with plastic baton sticks, On that day she did not put on a helmet because the only available helmets were taken by the other guards. She said the number of helmets was fewer than the number of guards. She said that before departing, neither the police officers nor their security gave them a briefing as to e where exactly they are going e who was the commander of the operation e how the operation has to be carried out e what would be the role of each member of the team e what to do in event of being ambushed and what will be the escape routes, and e how to manoeuvre to ambush and raid the concerned villagers. She said that for the purposes of travelling to the place where the operation was to take place, they were split into groups two groups. She said that their group boarded a vehicle marked “Patrol 2” and the other group boarded motor vehicle Marked ‘Patrol 4’. She said that motor vehicle Patrol 2 was very old and worn out and had to be pushed in order to start its engine. It was fitted with a seat in its body, She said that to get into the body one had to first climb the tyre then jump into the body. When they got close to the place where the operation was to be carried out from Patrol 2, she and one police officer remained close to where the vehicle was parked and the other members went to the place where the operation was to be carried out. From Patrol 4 the security officer, one lady security guard and the officer-in-charge remained whilst all others went down to the operation site. She said that whilst still at the said place, the security officer went down the path from the direction where their colleagues had gone. She said that she returned after walking for 20 metres. She walked very fast and boarded Patrol 4 and when they looked towards where he had come from, she saw people crawling in the nearby bushes. The driver of Patrol 2 asked her and the police woman to push the motor vehicle. When its engine started, the driver did not stop but instead accelerated away. While the police woman managed to board the vehicle, the witness did not manage to do so. Whilst the officer-in-charge and the policeman had guns they never shot the guns to scare off the assailant. She said the people threw numerous projectiles at her. She fell down and they started beating her and others started undressing her. They took her to the graveyard and continued beating her with sticks and panga knives until she lost consciousness. She said that she gained some consciousness after some time. She was told that she was evacuated from the graveyard by one Brian Byson Henry and some people who took her to the hospital. She said that the cause of the accident leading to her injuries was failure by the defendant to discharge its duty of care in that the defendant through its agents or servants failed to ensure her safety by leaving her behind during the said attack by the thugs. They never made any attempt to scare off the assailants. The security officer failed to call for additional guards to assist her during the attack. The defendant failed to hire enough police officers well-equipped with sufficient firearms and ammunition. The defendant should have hired specialised police officers who could deal with volatile situations like the one in the matter. The defendant failed to discharge its duty of care when it had eight police officers with baton sticks only in small quantity which finished within a short period of time. The defendant failed to train her and her fellow security guards on how to raid gangs known to be violent and organised. She said the defendant did not even give a briefing on how the operation has to be safely carried out. She said that they were not provided with sufficient protective wear such as helmets body shields and body armours. She said considering the dangerous and/or serious attacks the security guards got from the gang of thieves, the defendant hired few general duty police officer. The said raid required properly armed riot police officers and security dogs to beef up the security. She said that the defendant, through its agents or servants, failed or neglected to respond to her calls of distress and abandoned her or failed to timely send re- enforcement to rescue her when she was under the villagers’ massive attack. In cross-examination she said that he was answering the questions on her own behalf and not on behalf of the first claimant. She said that was she was trained in 2008 but said that she did not get much training. She said that she was not trained in 2010. She said that she did not have security training certificates. When she was shown a certificate containing her name, she said that she did not have that certificate. She said that she did not remember her employment number. She said there were eight police officers and that there were not two female police officers but one female police officer and seven male police officers. She said that there were two female officers. She said there were two patrol vehicles. Each vehicle had a female police officer. There were two female guards (herself and Ivy Mateketa). She said that before the operation, there was a briefing and that she was aware what they supposed to do. She said that the police did not tell them that they would be in the front. She said that the police told them to be in the car. She said she was not in the car. She said she followed what the police told him. She said the phones at the money were surrendered at the end of briefing. She said the police did not check if they had helmets. She said the company did not give them helmets. She was referred to page 14 of the defendant’s trial bundle where her name was marked as having received a helmet. She said that her signature was available. However, she said that she did not receive the helmet. She said that they could not blame the defendant for not giving them their helmets. She was further referred to paragraph 9 of her witness statement and she said that the police did not tell them where to go. She said that in paragraph 11, she explained where they went to work. She said that the Court should believe her paragraph 11. She said that the operation was led by the police, She said that she was not supposed to be in the car. She said that their training consisted of parade it and how to apprehend thieves. She said that she was not trained in the martial arts, taekwondo, escorts as well as VIP and VVIP protection. She said that the vehicle was not in good condition. She said that she had evidence. She said that the vehicle did not have a ladder. She said that they were not told to use the motor tyre when climbing the vehicle. She said that she had no capacity to criticise the capacity of the police. She said that the police officer did not train them. She said that she was not the author of the documents filed in her evidence . She said that they were supposed to deal with the people who were cutting trees and not the entire village. In re-examination, concerning briefing, she said that the police just came and found them at the club and told them that they were going to an operation. She said they were told to leave phones behind. She said that that was all that they were told that they were going to an operation. She was asked as to why she was not in the car. She responded by stating that they were not in the car because they were pushing the car. When referred to the document that was put to her in cross-examination, she said that the document delivered to her was written 2019, yet the incident took place in 2020. She said that she was not given a helmet and she was surprised to hear the defence claiming otherwise. She said that the police only told them that they were going to an operation and it was so fast and it not take more than 10 minutes if not 5 minutes. The second witness was Brian Henry Byson. He said that at the material time, he was working as a security guard at Nchima Tea Estate. He was at the time based at Masikini Division located about 12 kilometres from the Head Office. He said that some of his duties included assisting management in gathering intelligence and attending management meetings organised for purposes of dealing with security issues. He said that on 20" May 2020 he attended the meeting at Masikini Division which was called by the Security Officer. He said the crucial issue to be discussed at that meeting was the defendant's intention to raid and ambush people who were unlawfully cutting down trees belonging to the defendant. He said he alerted those in attendance that should the proposed operation take place, a large number of people from the surrounding villages would react angrily. He said that the villagers had a hidden agenda concerning the claim that the land on which the trees were planted belonged to them. When planning the operation, the defendant had to have in mind that they would encounter resistance not only from those who were cutting down the trees but a from villagers from the said village. He, therefore, advised them to send more guards. He also said that he told them that some people in attendance in the meeting would more likely inform those targeted by the operation. He said that the security officer directed that the operation would proceed secretly without the knowledge and involvement of guards from Masikini division. He stated that he advised the security officer on the danger of this operation since the cutting down of the trees did not only involve the thugs but also the villagers from surrounding villages. He said that he was not personally involved in the operation on 27th May 2020 but he said that when he knocked off the next morning, on his way to his home, he noted smoke and heard gunshots from direction where the defendant had planted trees on the border with Musowa, Mphalira and Chilembwe villages. He said that he returned and, on his way back, he saw some villagers cutting a big blue gum tree which they used to close the road which connects to Chilembwe Village and Thyolo Boma. He said that the villagers informed him that they had chased the defendants guards and police officers. They also informed him that they had caught and beat one of the lady guards who was involved in the operation. He said that upon noting that one of the defendant’s guards was detained by the thugs, he walked to a place where the villagers told him that they had kept her at Seventh-day church. He said that whilst on his way, he was picked by a minibus which plies along Thyolo Boma-Namileme Road and whiist on the same bus he was informed by the wife of Group Village Headman Chilembwe that the injured guard was dropped at her village’s graveyard. He said that in a bid to rescue the lady guard who, at that point, he did not know, he gathered courage and headed in the direction where the said guard was being kept by the villagers. He found that the said guard was the second claimant who was kept by the villagers close to the graveyard located at Namileme school within Chilembwe village. He said that whilst on the way to board the bus, the Group Village Headman's wife communicated with the villagers who took the said guard to anearby road. He said that at the material time, the second claimant was unconscious and was carried on a stretcher and she looked as if she was dead. The security officer, all guards and policemen who participated in the operation had run away and abandoned the second claimant. One of the defendant's motor vehicle which was used during the operation was abandoned in Khokholiwa Village. He said he and five other people took the second claimant to Masikini Division and later on to Nchima Head Office. He said he also led a team which went to Khokholiwa Village to collect the motorcycle which had been abandoned there. He said he proceeded with the second claimant to Nchima Head Office and from the head office they proceeded to Malamulo Hospital. In cross-examination, the witness stated that he not giving evidence on behalf of the first claimant. He said he was part of management of Lujeri. He said before he was working both as a security guard and in intelligence. At the he time of testifying he was working as a guard, He said he was employed for several tasks. He said he was employed as a guard, He said he was supposed to be the management due to his role in in intelligence He said that he had no qualification in intelligence. He said that Mr. Khondiwa came and told him that there was supposed to be some operation. He was not there during the operation but he was there when there was the meeting. He said that he did not go for the operation because it was to be done in secret. He said that he did not know what was discussed. He said that he could give evidence of what happened at the scene because he was there. He said that he could not recall the exact at time but it was early in the morning. He said that the second claimant was among the group. About the rescue, he said that it was at the end when the company asked him to rescue the vehicle because he stays in that village. Asked if he could comment that officers ran away, he said he could comment because from the beginning, he got the information. He said he asked the questions intelligently from the people from the village. He said that he was told about that. He said that he inquired as if he was not a member of the company. He said that he was already informed about the operation. He said that he worked through the night. He said that when he went to where he stays, he heard gunshots in the ground nuts field. The defence witness was Benson Khondiwa, Nchima Tea Estate Security Officer. He gave his witness statement which contained certificate of training belonging to the second claimant, course content and the document concerning the issuance of protective equipment for guards including the claimant. In the witness statement, he gave his outline of events on the material day. He said prior to the operation there was a briefing of 20 guards of the defendant. The Thyolo Police District Operations, Senior Superintendent Kachikuni together with Assistant Superintendent Khulang’ ona did the briefing at staff club grounds. According to the briefing, the police would lead the operation to confront the thieves. The guards, who were involved were advised to stay 20-50 feet behind the police officers and told to advance only when advised to do so and when safe. The guards’ role was only recovery and not confrontation. The female guards and female police officers were advised to remain in the vehicles used during the operation. After the briefing, he asked the guards if they felt not physically or psychologically prepared for the task. The two claimants stated that they were ready. The whole group went in three vehicles which were parked at a distance away from the scene of the operation. The police advanced towards the guards. He and the superintendents stayed in the vehicles with the women, The second claimant got out of the vehicle and stood on a rock quite a distance from the vehicle to watch what was happening. She was caught by some villagers who assaulted her. Assistant Superintendent Khulang’ ona fired some shots in the air to scare the villagers but they still advanced to the stationary motor vehicles. Since the villagers were throwing stones, Superintendent Khulang’ ona instructed the drivers to drive the vehicles away for the safety of the people who were in the vehicles. The second claimant did not manage to catch up the vehicles and she was left behind. Some of the villagers pursued the vehicles and communicated to the rest of the group to go and block the road so that the fleeing vehicles should not pass through. The first claimant, who was the corporal-in-charge of the Lujeri guards started to lead his group back towards Lujeri offices by foot. As they were walking, they came across some thieves who threw stones at them and one of the stones hit the first claimant. He managed to go back to the office and called for an ambulance. The second claimant was picked by some well-wishers from the village and helped her get a minibus back to the office. Both the claimants were taken in an ambulance to the estate clinic where they were referred to Malamulo Mission Hospital for treatment. He said both the claimants received training as security guards. They received certificates. The training included martial arts and general guard duties among other areas, The first claimant was himself a trainer and very well experienced. Both claimants were issued with equipment such as baton sticks and hard hats among others. They were trained to always carry their equipment when going for an operation. On the day, he inspected all the guards and made sure that they all had necessary equipment. He said Lujeri knew only of four suspect and the rest were villagers who joined once the operation was in operation. Therefore, the number of guards and policemen was sufficient. In cross-examination, he said he was recruited in 1984 as a police constable, He underwent several trainings. He left the police in 2000 as an inspector of police and officer-in-charge of Ndirande Police. He said the Police has several specialised divisions. He said he worked in Police Mobile Service (PMS), VIP and VVIP protection, CID and instructor at the police training school. He said the General Division has several duties including investigation of minor offences and others duties. The PMS is assigned law and order, combat and riots. He said the PMS is more suited for combat than general duties. The PMS is suited in terms of equipment than the general duties. He said the second claimant was trained from 20 June 2010 to 13 July 2010. He said that she was trained in less than a month. He said the training was from 9 o'clock to 9:30 with a 30-minute break. From then they train up to the lunch break from 12 to 13 30. Then from 1330 to 1600. Training for martial arts took four full days. He said an adult can train in martial arts in four days. He said the second claimant got the basics of the training. He said she did not receive a belt because it was an in house training. He said she wrote an examination of ten questions. He said that he did not have the copy of the examination. He said that the copy of the whole training was given to the human resources office and it could be available. He said that they record the workers’ attendance to the training. He said that he had not brought the copy of the daily attendance to the training. He said he had not brought a copy that she was absent. He said that there are several areas of martial arts. He said that the certificate does not show the area of martial arts in which she was trained, He was referred to his witness statement where he said that the workers were provided with equipment. He said that they were provided with plastic baton stick. He said the baton sticks could not produce electric shock. He said he could not agree that the baton sticks are not effective against throwing stones. He said that one can, however, shield himself from stones with a baton sticks. He was asked why the document showing 10 the second claimant’s name had different ink used and his answer was that they were using different writing materials and that it was not only for the second claimant. He said that that was not a problem and that there is no specific reason why different ink was used. Concerning the day of the operation, the witness said they had a meeting. He said Mr Byson was not an attendee. He said that they did not record the attendees because it was an emergency meeting. He said that it was a routine meeting. He said the roster for the day was available. He said the roster was not available in the Court and that it was not part of his evidence. He said they carried out the operation to apprehend people who were stealing trees, He said that their aim was to recover any stolen trees and to apprehend the perpetrators. He said that their mission was achieved but not fully. He said no logs were recovered but they recovered two planks. He said that it was not correct to say that the police and guards ran away. He said that there were two vehicles for the patrol. He said one was being used by himself. He said that it was not true that when people started stoning, he ran away. He said that on that day there was no person arrested but at night one person was arrested. He said that he remembered two guards, the claimants, having been injured during the operation. He said that he was not around when the second claimant was being rescued. He said he was on the other side. He said there were other officers present when the second claimant was being rescued. He mentioned Assistant Superintendent Asafandani. Then he said that the rescue was not by the police. He said no police was around. He said he was only told about three guards being around. He said he could not say whether it was Henry Byson. He said he could not say about the other police but for himself. He said at that time he had gone to police station to collect the PMS because they had no transport. He said that he would not agree that they underrated the people on the other side. He said there were only four suspects. He said that he could not tell how many came but he said probably more than four. He was referred to his paragraph 22 and he said he could not say how many but later he said there could be between 10 and 15 people. He said they were using stones. He refuted the suggestion that the police and the security guards were subdued. 11 He said they could not overpower the villagers because their aim was not to overpower them. He said the villagers did not overpower the police and security officers, He said that he knew that that was not an ordinary operation. He said that they have had such operations before. He said they were not routine operations. He said for four suspects they had to engage 12 police officers and 20 security guards because they were notorious criminals. He said that the instruction was that the second claimant and the other lady security officer had to be in the car. He said that he also remained in the car with another officer but later he came out. He said that some had to stand to provide cover to the others. He said he could not agree that no one stood to provide cover because others were at the station. He did not agree because there was what they call operation order and there are two police officers. He said he did not agree that the second claimant was not in the vehicle. He agreed that they were not in the vehicle. He said that the women were out of the vehicle in defiance of the instructions. He said he was not aware that one of the vehicles had to be recovered after the operation. He said he was not aware that Patrol 2 had to be pulled by a tractor. He said he could not confirm or deny that Patrol 4 had developed a mechanical fault. He said he could not tell when the other vehicle because each vehicle had its commander. He said he was not asked how close the vehicles were. He said they were 500 metres apart in macadamia and blue gum trees. He said the second claimant was with two corporals, a lady guard and the driver. He said two officers provided cover because they had guns and there in the middle. Asked whether that was stated in his statement he said that that was in paragraph 7 of this statement. When the statement was shown to him, he said that that statement was not there. He said that he was able to see what was happening because that is what police training entails. He said that no one covered the second claimant. He said that it was usual asking guards if they are ready for a task to avoid taking a sick person on board. He said that before going out the guards were asked to leave their cell phones. He said they had a Motorola radio that was with the team leader. He said they had the means of communication because the vehicle also had a movable radio. After the vehicle left her, she had the means of communication because there was a radio 400 metres away at the dispensary. He agreed that before the dispensary, she had no means of communication. 12 In re-examination, he said no police officer was available because they were trying to fire tear gas while the second claimant was being rescued. He said that the operation was not a day-to-day event because they do not get such incidences usually but they train the workers to deal with events of such magnitude, He said no log was recovered because they had already been processed into planks. He said he wanted to say where the second claimant was there was not much pelting of stones. He said much more stones were being pelted where the first claimant was. He said that the second claimant was only dragged ‘from point A to the graveyard’. He said plastic baton sticks are recommended by the security agents even in the police. He said that shock sticks may be lethal and they were not given authority to use them. On training, he said that he had evidence of a ticket that the claimant was being paid and present on duty during the training. He said that during the briefing, the briefing categorically said the women should be in the vehicle. He said he wanted to say, during cross-examination that the ones they took for training included the second claimant, and were compatible and that she was old enough and that she was one of the women who performed very well during the training. All the evidence in the matter related to the second claimant. I assume that the first claimant abandoned his claim. The rest of the judgment relates to the second claimant. The question is whether the claimant has made out the claim against the defendant. Specifically. e whether or not the defendant owed the claimant a duty of care e whether or not the defendant breached its duty e whether or not the defendant is liable to compensate the claimant for the pain, injury, loss and damages doe suffering e whether or not the claimant is entitled to damages and costs of the action e whether the claimants were not negligent. Under Statutory and common law, the defendant owed the claimant a duty of care to provide a safe working system. Simply put, that is the duty, among others, that a employer owes the employee. In Nchizi v Registered Trustees of the Seventh Day Adventist Association of Malawi [1990] 13 MLR 303, the Court said 13 “It is the duty of an employer or acting through his servant or agent to take reasonable care for the safety of his workmen and other employees in the course of their employment. This duty extends to safety of place of work, the plant and equipment and the method and conduct of work. Briefly, the duty of the employer towards his servant is to take reasonable care for his servants' safety in all circumstances of the case. Alternatively, the employer’s duty is that he must not expose his employee to unnecessary risk or unreasonable risk." Did the defendant provide the claimant a safe system of work? In this matter, I find that the defendant made the claimant to work in a quite dangerous scenario. A security guard is employed to deal with situations the claimant found herself in, It is s, however, more probable that the claimant was not well equipped and trained to handle the situation. In this my factual finding is that the defendant failed to provide the claimant with a safe system of work. The defendant miscalculated the task the guards and the police has ahead of them. I therefore find that the defendant owed the claimant a duty of care. In the circumstances, | further find that the defendant breached that duty of care. I find that the claimant’s injurers were as a result of the failure on the part of the defendant. I have narrated the evidence quite extensively. I need not analyse the evidence bit by bit. The evidence of the claimant is more convincing than that of the defendant. The claimant's witness's evidence was seemingly a little exaggerated, in my opinion. However, I find the witness's veracity to be impeccable. The defence questioned the witness's academic competency in intelligence matters. However, that did not impeach his evidence of observation in this matter. For the defence witness, in my judgment, he was in Court to defend the defendant by any means possible. To say the least, I was not impressed with his evidence. In any event the evidence was incoherent and inconsistent though it was given with vigour. The evidence did not negate the claimant's claim that they were ill-prepared and poorly equipped for the operation. Thereby the defendant failed in its duty s an employer. The defendant is, therefore, liable to compensate the claimant. As to the question whether the claimant was negligent. I find nothing to suggest that the claimant was negligent. Perhaps, the question or the assertion that arose was that the claimant defied the instruction to remain in the car. In evidence, the claimant alleged, and this was hardly disputed, that she got out of the vehicle in order to push it. Could one say that that was defiance? I doubt, Moreover, that is an additional 14 element of an unsafe system of work. To make matters worse, it was again alleged, and, again, undisputed, that the vehicle sped off. The situation might have been so volatile that the driver had to escape. That cements the suggestion that the defendant’s team fell short of containing the situation. The Court finds the defendant liable for negligence in the way it carried out the operation as well as its failure to provide a system to effectively respond to the claimant’s predicament. At common law the duty of the employer towards his servant is to take reasonable care for his servants’ safety in all circumstances of the case. Alternatively, the employer’s duty is that he must not expose his employee to unnecessary or unreasonabie dangers. In this matter my finding is that the defendant exposed the claimant to a dangerous situation. In all this, this Court finds that the claimant has, on a balance of probabilities, proved that the defendant was in breach of duty resulting in the injuries suffered by the claimant. The matter shall proceed before the Registrar to assess damages to award the claimant I grant the claimant award costs of the action. If not agreed, the costs shall be assessed by the Registrar. MADE the 13" day of September, 2022 JN’RIVA JUDGE 15