Ruida Investment Limited v Webby Kyayuwa (Appeal No 175/2023) [2025] ZMCA 178 (21 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No 175/2023 HOLDEN AT NDOLA (Civil J urisdiction) BETWEEN: -,, - - - - - - · I • u • 2 1 nvJ l l'J - ~ .. -- R[Gb'l hY ,! I ~ "'A RUIDA INVESTMENT LI X . ,OUb7- APPELLANT AND WEBBY KYAYUWA RESPONDENT CORAM: Chashi, Ngulube and Banda-Bobo, JJA On 12th, August, 2025 and 21 st August, 2025. For the Appellant: Mr. P. Chibundi of Messrs Mosha and Company For the Respondent: Mrs. H. C. Musa of Messrs Milner and Paul Legal Practitioners JUDGMENT Banda-Bobo, JA, delivered the Judgment of the Court. Cases referred to: 1. First Quantu m Mining Operations Limited v Solomon Siame CAZ Appeal No. 257 /2020. 2. O'Hill v Kayel Shipping (1980) PNGLR 361 3. CR Holdings Limited v Mary Musonda CAZ Appeal No. 27 of 2019 4. Reuben Nkomanga v Dar Farms International Limited SCZ Judgmen t No. 25 of 2005, 5. Zambia Publishing Company Limited v Pius Kakungu (1982) ZR 167 6. Kawimbe v Attorney General (1974) ZR 244, 7 . Zambia State Insurance Corporation and Another v Andrew Muchili (1988- 1989) ZR 149 SC 8 . Savenda Management Services v Stanbic Bank Zambia Limited (2018) ZMSC 11 9. Reba Industrial Corporation Limited v. Nicholas Mubonde CAZ Appeal No. 5 of 2017 10. Ruston v National Coal Board (1952) 1 QB 495 11. Roger Scott Miller v The Attorney-General ( 1983) Z. R. 66 (S. C.) 12. Attorney General v Mwansa and Another SCZ Appeal No. 203/ 2014 13. Smart Banda v Whales Siame (1988/89) ZR 81 14. Orman Corrigan (suing by his Next Friend) Albert John Corrigan v Tiger Limited and ABDI Jumale (1981) Z. R. 60 (S. C) 15. Stanbic Bank Zambia Limited v Avil- Kram Industries Supplies Limited CAZ Appeal No. 121 of 2020 Legislation and Other Works referred to: 1. The Workers Compensation Act No. 10 of 1999 1.0 INTRODUCTION 1.1 This is an appeal against the Judgment of Hon. Mrs. Justice G. C. Chawatama, delivered on 31 st March, 2023, in the High Court, at Lusaka. 2.0 BACKGROUND 2 .1 The Respondent, who was the Plaintiff in the lower Court, by way of writ of summons and statement of claim, dated 20th November, 2019, sought the following reliefs against the Appellant and Workers Investment Limited; ( 1) Damages for pain and suffering 1n the sum of K450,000.00; (2) Damages for loss of amenities of life 1n the sum of K400.000.00; (3)Damages for permanent disability at 30% to be assessed and or in the sum of K300,000 .00; J2 (4)Damages for traumatic stress 1n the sum of Kl00,000.00; (5)Damages for loss of expectation of life in the sum of K300 ,000.00; (6)Payment of loss of salaries and future earnings at the rate of his current salary of K2 ,436 .00; (7)Any other relief the court may deem fit; (8)Interest on the amounts to be found due ; (9)Costs. 2.2 In the amended statement of claim dated 20th November 2019, it was averred that whilst in the employ of the Appellant at the Appellants underground mine shaft, the Respondent was involved in an accident where he suffered fractures to the fourth and fifth fingers of the dominant left hand which fingers were amputated. He averred that the accident happened when the Respondent was asked to lift and push the Granby car /Trolley on to the rail lines and that the accident was caused by the Appellant's breach of statutory duty and negligence of the Appellant's servant or agent Mr. Kuyama. 2 .3 The Appellant reacted to the writ of summons and statement of claim, by filing appearance and defence dated 25th November, 2019. It was averred that the Respondent recklessly and J3 without due regard to his safety and wellbeing, took up the task outside his prescribed duties by embarking on an ill-fated fellow employee favour seeking frolic of joining a team of general workers to push back onto the rails a Granby Car. That in the process, he mis-stepped, leading to the accident that caused him injury. It was further averred that there was no breach of s tatutory duty by lifting up the Granby Car onto the rail and that its employee, Mr. Kuyama was not at all negligent. 3.0 DECISION OF THE LOWER COURT 3.1 In rendering her Judgment, dated 11 th March 2023, the learned Judge, upheld the Respondents claims for damages for pain and suffering, damages for loss of amenities of life, damages for permanent disability at 30% to be assessed. 3.2 The Court however did not uphold the claim for damages for loss of expectation of life and damages for traumatic stress. 3.3 The Court's reason for not awarding damages for traumatic stress was that whatever compensation the Respondent might have been seeking under this h ead had been taken care of under the claim for damages for pain and suffering. She was also of the view on the Respondent's loss of expectation of life, J4 that the context in which such a claim would be allowed, is where the injured person has no expectation of life due to the injury. Further, that the Respondent's case is different, in that although he had sustained a 30% permanent disability, there was no evidence that his life was shortened as a result thereof. 3.4 The amount claimed by the Respondent in the statement of claim were adjusted as follows ; damages for pain and suffering K60,000.00, damages for loss of amenities of life Kl0 ,000 .00, Damages for permanent disability KS0,000 .00, payment of loss of salaries and future earnings K424 ,350.00. 4 .0 THIS APPEAL 4.1 Unhappy with the Judgment, the Appellant, the 1st defendant in the Court below, launched this appeal, by way of Notice of Appeal and Memorandum of Appeal filed on 11 th April, 2023 . Four grounds of appeal were fronted and couched thus - Ground One The learned Judge 1n the Court below erred in law by not apportioning any contributory n egligence to the Respondent even after finding that he contributed to the accident occurring; JS Ground Two The learned Judge in the Court below erred in law by awarding the Respondent K60 ,000.00 as damages for pain and suffering after finding that he had been in hospital for three weeks; Ground Three That the learned High Court Judge erred in law by awarding the Respondent Ten Thousand Kwacha (Kl0,000.00) for the loss of amenities of life for the loss of two fingers; Ground Four That the learned High Court Judge erred in law by awarding the Respondent the sum of Four Hundred Twenty-Four Thousand, Three Hundred and Fifty Kwacha (K424,350 .00) as damages for loss of salaries and future earnings without accounting for income being earned post the accident and for one third deductions for contingencies. 5.0 ARGUMENTS IN SUPPORT 5.1 The Appellant filed heads of argument and a list of authorities on 9 th June , 2023. 5 .2 In arguing ground one, the Appellant contended th at the J6 learned High Court Judge was presented with documentary evidence, including an accident report and the testimony of the Respondent, from which it was evident that the Respondent undertook a task not designated to him. It was further averred that the Respondent was aware that the operations were becoming increasingly dangerous but continued to engage in them. 5.3 The Appellant submitted, with reference to the case of First Quantum Mining Operations Limited v Solomon Siame1, that a court can make a finding of contributory negligence even where an employer is found to have breached its statutory duty of care. Reliance was also placed on O'Hill v Kayel Shipping2 , for the requirements to successfully plead the defence of contributory negligence. 5.4 It was further argued that although the Court found that the Appellant should have considered the risk of allowing the Plaintiff and others to carry out operations using their bare hands, tasks normally performed by machinery, the Court failed to properly consider the Respondent's conduct. That specifically, the Court did not address the finding in the J7 accident investigation report that the Respondent held on to the Granby car, thereby contributing to the accident. Moreover, it was contended that the failure to wear protective gear was not the cause of the accident. 5.5 Submitting on ground two, the Appellant argued that the trial Court placed undue reliance on the case of CR Holdings Limited v Mary Musonda3 when awarding damages for pain and suffering. It was submitted that the Court erred in law and fact in awarding the Respondent K60 ,000.00, especially considering that in the CR Holdings3 case, the victim (PW 1) had a 30% permanent disability, unlike the present case, and was not hospitalised. In contrast, the Respondent in the current matter was only hospitalized for three weeks. 5.6 It was argued, however, that in the CR Holdings3 case, although PWl had a 30% permanent disability, they were never hospitalised, and the amount awarded was a lump sum. In the present case, the Respondent was hospitalised for 36 days, and thus the circumstances are distinguishable. 5.7 It was further contended that the awards of Kl00,000.00 each to PW3 and PW9 in CR Holdings3 were based on significantly J8 higher disability rates of 80% and 68%, respectively, resulting from the loss of their arms. Each was hospitalised for one and a half months, which again differs from the instant case. 5 .8 The Appellant argued that the trial Court ought to have used the established formula in calculating damages for pain and suffering. It was contended that, based on a hospitalisation p eriod of 36 days, the weekly rate should have been pegged at K7,600.00 , in line with the CR Holdings3 case. It was further argued that the exchange rate of the Kwacha to the US dollar has remained the same since the delivery of judgment in the CR Holdings3 case. 5.9 The Appellant submitted that the trial Court's award of K60,000.00 for 36 days, equating to K12 ,000.00 per week, was outrageous and a significant departure from this Court's Judgment in the CR Holdings3 case. 5 .10 Reference was also made to the case of Reuben Nkomanga v Dar Farms International Limited4 where it was held that damages for pain and suffering must be calculated on a weekly basis. J9 5.11 Further reference was made to Zambia Publishing Company Limited v Pius Kakungu5 case, where it was held that an appellate court will interfere with the quantum of damages awarded by a trial Court if the latter applied a wrong principle or misapprehended the facts. 5.12 The Appellant also cited Kawimbe v Attorney General6 , where the Supreme Court held that an appellate court should not interfere with the trial Court's award of damages unless it is shown that the trial Court applied the wrong principle, misapprehended the facts, or awarded an amount so excessive or inadequate as to be wholly unreasonable. 5 .13 It was submitted further that the trial Court did not follow the principles set out in the Kawimbe6 case when awarding K60,000.00, making the award excessive. Reference was also made to Zambia State Insurance Corporation and Another v Andrew Muchili7, case where the Court substituted an award of Kl0,000.00 with Kl00.00, noting that awards for pain and suffering should relate to approximately K200. 00 to K300. 00 per week. JlO 5.14 It was argued that the trial Court failed to justify how it arrived at the award of K60 ,000.00. To buttress, the case of Savenda Management Services v Stanbic Bank Zambia Limited8 , was adverted to where the Supreme Court emphasised the importance of courts providing justification when awarding monetary compensation. 5.15 On ground three , it was argued that the award of Kl0,000 .00 for loss of amenities of life resulting from the loss of two fingers was excessive given the Respondent's 30% permanent disability. It was submitted that in Reba Industrial Corporation Limited v. Nicholas Mubonde 9 , the Court awarded KlS0,000.00 , because the Respondent suffered 100% permanent disability and was confined to a wheelchair. That in CR Holdings3, PW3 and PW9 were awarded K20 ,000.00 each for loss of amenities after suffering disabilities of 80% and 68% respectively. That however in the present case, the Respondent suffered only a 30% disability involving the amputation of two fingers, not an entire arm. 5 . 16 Reference was made to Ruston v National Coal Board10 , where Singleton W stated: Jll "I still think that it is a most useful thing to look at comparable cases to see what other minds have done and so to gather opinion as to the amount a man in a certain state of society ought to be awarded." 5.17 Under ground four, the Appellant submitted that 1n computing loss of future and prospective earnings, the trial Court failed to make deductions for contingencies and post accident income earned by the Respondent. It was argued that a one-third deduction for contingencies should have been made. 5.18 To augment, reference was made to the case of Roger Scott Miller v The Attorney-General11, where the Court held that: "In assessing loss of future earnings, the correct multiplicand is that which accommodates future prospects on the basis of the degree of disability and taking into account tax deductions." 5 .19 We were urged to uphold the grounds of appeal as they are meritorious. J12 6.0 ARGUMENTS IN OPPOSITION 6.1 The Respondent filed arguments in Opposition. In response to ground one, the Respondent contended that there was no contributory negligence on his part. He argued that he had been assigned to the workstation by his employer, a task outside his normal duties, and did not voluntarily expose himself to danger. 6.2 It was argued that the findings in the report at pages 146- 14 7 of the Record of Appeal, stating that the Respondent would not have been injured had he not held onto the mine car, were not supported by trial evidence. It was argued that the Appellant failed to call the authors of the report for cross examination, rendering the findings questionable. 6 .3 O'Hill v Kayel Shipping2 was cited also , to highlight that the burden lies on the employer to prove that the employee acted so unreasonably as to foreseeably cause the injury. 6.4 It was submitted that the signal bell, according to the report on page 145, indicated that the machine should move at low speed. However, the operator negligently moved the machine at high speed, not allowing the Respondent time to react. J13 6.5 The Respondent distinguished this case from First Quantum Mining v Solomon Siame1, stating that in that case, the investigation report could not conclusively determine which vehicle moved first, whereas in this case, clear evidence exists showing the operator's negligence. 6.6 Responding to ground two, it was argued that the lower Court did, in fact, provide justification for the K60,000.00 award, by referencing the CR Holdings3 case on pages 49-50 of the record, which states that comparable injuries should attract comparable awards. 6 . 7 It was argued that the lower Court applied the principle from CR Holdings3 that each case should be assessed based on the injuries and hospitalisation period, and not strictly on the rate of disability. 6 .8 The Appellant's reliance on PWl 's 30% disability in CR Holdings3 was said to be misguided, as that case involved no hospitalisation. The current Respondent was hospitalised for 36 days . 6.9 It was submitted that appellate courts only interfere with damages if the trial Court applied incorrect legal principles J14 or the award is grossly excessive or inadequate. This was supported by Attorney General v Mwansa and Another12 and Savenda Management Services Limited v Stanbic Bank Zambia Limited8 cases. 6.10 On ground three, the Respondent argued that the Kl0,000.00 award was not excessive. That in CR Holdings3 , PWl0, with a 20% disability, was awarded KS,000.00; and PW7, with a 30% disability, received K8,000.00 . That in the present case, the Respondent suffered a 30% disability, was hospitalised for over a month, and lost two fingers, warranting Kl0,000 .00. 6 .12 Additionally, the Respondent argued that inflation and the devaluation of the Kwacha since CR Holdings3 justify a higher award. We were referred to the case of Smart Banda v Whales Siame 13 , where the Court held that damages must reflect cost-of-living increases . 6.13 Responding to ground four, it was submitted that the Appellant failed to provide legal authority requiring a one third deduction for contingencies. That moreover, the trial JlS Court did consider post-accident income, deducting pension earnings, as shown on page 64 of the Record. 6.14 The Respondent contended that he only earned a reduced salary of K991.00 until October 2019. That the trial Court therefore appropriately deducted only the pension, in line with the Workers Compensation Act No. 10 of 1999. 6.15 We were urged to dismiss the appeal for lack of merit. 7.0 HEARING 7.1 At the hearing of the matter, Mr. Chibundi, in submitting for the Appellant, relied on the Appellant's Heads of Argument filed on 9th July 2025 and the Record of Appeal. He admitted that, at page 7 of the Respondent's Heads of Argument, it is stated that the proximity between the wall and the Granby Car /trolley could not allow him to manoeuvre. He also acknowledged that contributory negligence was not pleaded. 7 .2 Arguing on ground four, he submitted that there is evidence that, after the accident, the Respondent was employed at a lower salary and that his disability was assessed at 30%. It was argued that the computation of 28 years is excessive as J16 it does not account for contingencies of life and service. Reference was made to the case of Orman Corrigan (suing by his Next Friend) Albert John Corrigan v Tiger Limited and Abdi Jumale 14 to buttress the above argument. 7.3 It was further argued that the award for pain and suffering is excessive as it is far above the Respondent's salary of Kl,050 per month. Counsel prayed that the lower Court's judgment be rescinded and that the quantum be subjected to a proper assessment. 7.4 In response, Mrs. Musa relied on the Heads of Argument in opposition filed into Court. She further submitted that, pursuant to the case of O'Hill2 , for a claim of contributory negligence to succeed, it must be pleaded, or alternatively, the employer has the onus of satisfying the court that the employee was negligent. 7 .5 As regards the Appellant's claim that the award of K60,000 .00 was excessive, it was argued that the lower Court, by referring to the CR Holdings3 case, justified how it arrived at the K60,000.00 figure . She submitted that the lower Court was at sea in calculating the award, whether J17 using a weekly rate or a lump sum. She also prayed that the appeal be dismissed with costs. 7.6 In reply, Mr. Chibundi submitted that there was no reason to depart from the CR Holdings3 case. 8 .0 DECISION OF THIS COURT 8.1 We have perused the record of appeal, the Judgment of the Court below, and the arguments filed by learned counsel for the Appellant and Respondent. 8.2 Under ground one the Appellant argued that the Respondent contributed to his injury by voluntarily engaging in a task not assigned to him and by continuing to hold on to the Granby car despite recognising the risk. 8 .3 However, and as was rightly submitted by the Respondent, the trial Court had the benefit of direct testimony and documentary evidence, which showed the Respondent was assigned the task by his superiors. The trial Court further found the accident resulted from the operator moving the machinery at a high speed contrary to the standard slow speed signal. The Appellant failed to call the authors of the J18 accident reports for cross-examination, making their probative valu e questionable (see O'Hill2) . 8. 4 Furthermore, in the case of Attorney General v Mwansa and Another12 , the Supreme Court emphasised that contributory negligence must be proven by the party alleging it. In the present matter, the evidence addu ced falls short of meeting th at threshold. We are further fortified by our decision 1n Stanbic Bank Zambia Limited v Avil-Kram Industries Supplies Limited15 where we h eld th at contributory n egligen ce must be specifically pleaded as a defence to a claim of negligence. 8.5 Further, during the h earing of this matter, Mr. Chibundi, in his submissions for the Appellant, conceded th at contributory negligence h ad not been pleaded in this case, thereby running contrary to the O'Hill2 principle. We find no misdirection on the part of the lower Court in rejecting the issu e of contributory negligence, as the Appellant failed to plead it and prove it. The adage he who alleges must prove is squarely applicable in this instance. We find no m erit in this ground. J19 8.6 We now turn to ground two. In ground two the Appellant contends that the sum of K60,000.00 for 36 days of hospitalisation was excessive and inconsistent with precedent, citing CR Holdings Limited v Mary Musonda, Reuben Nkomanga v Dar Farms International Ltd3, and Zambia State Insurance Corporation v Andrew Muchili7. 8. 7 The record shows that the lower Court, also relied on other comparable cases and made a reasoned assessment. It referenced CR Holdings3, emphasing the principle that similar injuries warrant comparable compensation. The Court appreciated that each case must be judged on its specific facts , including hospitalisation duration and the nature of the injury. 8.8 We agree with the Respondent that the Appellants argument ignores the nuance of the lower Court's findings. Moreover, as held in Kawimbe v Attorney General6 , an appellate court must not interfere with an award unless it is so inordinately high or low as to be unreasonable. The K60,000.00 awarded in the present case does not fall in any of the two categories. This ground fails. J20 8.9 In ground three the Appellant argued that Kl0,000.00 for loss of amenities due to two amputated fingers was excessive compared to awards made in CR Holdings3 and Reba Industrial Corporation9 cases. 8.10 However, we are of the view that the Respondent's injury, a 30% permanent disability with amputation and hospitalisation, justifies the award. PW7 in CR Holdings3 with a similar disability was awarded K8,000 .00 over three years ago. Courts are obliged to consider the devaluation of the Kwacha and inflation when adjusting awards. See Smart Banda v Whales Siame 13 • 8.11 We are not persuaded that the award of Kl0,000.00 is excessive. If anything, it reflects a fair and updated valuation consistent with the cost of living. It certainly is not true that the value of the kwacha to the US Dollar has remained the same since the CR Holdings3 case, up to this case. 8.12 Lastly, we tum to ground four. The Appellant alleged that the trial Court erred in failing to account for post-accident earnings and did not deduct a one-third contingency. J21 8.13 We find that the lower Court did deduct pension earnings, as shown on page 64 line 20 of the record of Appeal. The Respondent's testimony also showed a significant salary reduction post-accident to K99 l.00, supporting the finding that he suffered financial loss. 8.14 The Appellant did not provide compelling reasons justifying a one-third contingency deduction. In Roger Scott Miller v The Attorney General11, the Supreme Court held that future earnings should be assessed taking into account prospects, and not necessarily a rigid formula. 8.15 Further, in Savenda Management Services v Stanbic Bank Zambia Limited8 , the Supreme Court guided that awards must be explained and justified, which the trial Court did. The figure of K424 ,350.00 was well supported by the evidence and law, as seen at page 64, lines 10 - 23 of the record of appeal. We find no merit in this ground. 9.0 CONCLUSION 9 . 1 Having considered all the grounds of appeal and the arguments advanced, we find that the Appellant has failed J22 to demonstrate any misdirection or misapprehension of the law or fact by the lower Court. 9.2 The judgment of the High Court is sound and supported by established legal principles and we find no grounds on which to upset it. 9.3 Accordingly, this appeal fails and is dismissed in its entirety for lack of merit. Costs are awarded to the Respondent to be taxed in default of agreement. J. CHASHI COURT OF APPEAL JUDGE P. C. M. NGULUBE COURT OF APPEAL JUDGE A. M. BANDA-BOBO COURT OF APPEAL JUDGE J23