ZESCO Limited v Nambula and anor (APPEAL NO. 123/2021) [2023] ZMCA 232 (31 August 2023)

IN THE COURT OF APPEAL APPEAL NO. 123/2021 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ZESCO LIMITED APPELLANT AND WAMUNYIMA NAMBULA (Suing by his next friend Charles Munkayimbwa Simbotwe) st RESPONDENT THE ATTORNEY nd RESPONDENT CORAM: KONDOLO SC, NGULUBE, SHARPE-PHIRI, JJA On 24th August, 2023 and 31st August, 2023 For the Appellant: Not in Attendance For the 1st Respondent: Not in Attendance For the 2nd Respondent: Mr. C. Watopa & Ms. M. Katolo, Senior State Advocates, Chambers Attorney General's Assistant JUDGMENT KONDOLO SC JA delivered the Judgment of the Court. CASES REFERRED TO: 1. Bourhill v Young (1942) 2 All ER 409 J2 of 40 2. Buckland v Guilford Gas Light & Coke Company (1949) 1 KB 410, (1949) 2 All ER 1086 3. Attorney General v Marcus Achiume (1983) ZR 1 4. Attorney General v George Mwanza & Whiteson Mwanza SCZ/38/2017 5. Rabson Kamanga v Zambia Electricity Supply Corporation Ltd SCZ/ 109/2006 6. Rosemary Chibwe v Austin Chibwe SCZ/38/2000 7. British Celanese Ltd v A. H. Hunt (Capacitors) Ltd [1969] 2 and All ER 1252 8. Donoghue v Stevenson ( 1932) AC 562; 9. ZESCO Limited v Justine Chishimba SCZ/ 131/2013vc x 10. Ball & Another v London County Council [1949] 1 All ER 11. ZESCO v Laston Chipulu Appeal 147 /2013 12. Wilson Masauso Zulu v Avondale Housing Project Limited ( 1982) Z. R. 1 72 13. Vincent Hangandu, Mazhandu Family Bus services and Phoenix of Zambia Assuarance Company Limited v Lynda Mataka (suing as Administrator of the estate of the late Misozi Mataka and Lowani Mataka CAZ/ 144/2019 LEGISLATION AND OTHER PUBLICATIONS REFERRED TO 1. Electricity (Supply) Regulations 2. Occupiers Liability Act, Chapter 70 of the Laws of Zambia. 3. Halsbury's Laws of England, 4th Edition, Volume 16, paragraph 216, p. 129 4. ZESCO By-Laws J3 of 40 5. Winfield and Jolowicz, 19th Edition at page 51 1. INTRODUCTION 1.1. This is an appeal against the ruling of the High Court delivered by Mrs. E. P. Sunkutu J on 19th March, 2021 in which she allowed the Plaintiff's claim against the 1st Defendant for damages for personal injuries after being electrocuted. 1.2. The Respondent was the Plaintiff in the High Court in which he sued two parties; the Appellant who was the 1st Defendant and the 2nd Respondent who was the 2nd Defendant. 1.3. We shall refer to the parties as the Appellant, 1st Respondent and 2nd Respondent. 2. BACKGROUND 2.1. In the lower Court, the 1st Respondent commenced an action by originating summons against the Appellant and the 2nd Respondent seeking, inter alia, the following reliefs; 1. General Damages for personal injuries; 2. Consequential Loss; J4 of 40 3. Interest on the award, at short term deposit rate from 24th September, 2003 to date of Judgement; thereafter at bank lending rate up to date of satisfaction, 4. Costs. 2.2. The 1st Respondent's statement of claim averred that his child crawled into an unsecured electricity transformer allegedly belonging to the Appellant and was electrocuted resulting in injury to the chest, abdomen, and right foot. 2.3. He claimed to secure the that the Appellant negligently failed transformer or failed to do so in breach of its statutory duty. 2.4. In the alternative he placed reliance on the doctrine of res ipsa locquiter. 2.5. Defence 2.6. The Appellant filed a defence stating that it is a Private Limited Company and not a statutory body. 2.7. The Appellant admitted that it owned the substation through which it supplied electricity but its to the 2nd Respondent, responsibility ended at the point where it supplied electrical power to the transformer. JS of 40 2.8. That the transformer belonged to the 2nd Respondent, was located in its premises and was operated and managed by the 2nd Respondent" 2. 9. s own electrical personnel. 2 .10. The Appellant denied the claim for negligence and in the alternative claimed the defence of contributory negligence on the part of the 1st Respondent for failing to supervise a minor and, thereby, exposing him to danger. 2.11. The 2nd Respondent filed a defence denying the 1st Respondent's claims and denying that the 1st Respondent was entitled to any of the reliefs it sought. 3. High Court Proceedings 3.1. PW 1, on behalf of the 1st Respondent, told the Court that on 24th September, 2003, she was with her nephew, Charles Mumukayumbwa Simbotwe in her house located within Kalewa barracks, when she heard a bang followed by women screaming outside "that Wamuniyma had died". 3.2. PWl rushed outside and found Wamunyima Nambula (The 1st Respondent) lying on the transformer that board. She observed smoke was coming out of his mouth and he was taken to Arthur Davison Children's Hospital, Ndola for treatment. The Medical J6 of 40 Report issued by the hospital was admitted into evidence. 3.3. PWl told the Court that she didn't know how the 1st Respondent who was only 2 years old found himself outside at the transformer. She added that the transformer was not secured as it was not fenced. 3.4. PWl further stated that that after the incident, the Appellant secured the transformer by erecting a fence around it. 3.5. In cross-examination (XXN), PWl stated that there was a ZESCO substation situated outside the barracks whilst the transformer from which the 1st Respondent suffered burns, was located within the barracks. 3.6. The 1st Respondent who was now 17 years old was PW2 and he testified that he was electrocuted as a child in 2003. He stated that his recollection of events was as stated by PWl but that as a result of the injuries, he still experienced chest pains and could not participate in certain school activities such as sports or cutting metal in Woodwork classes, and his feet ached when he wore shoes for more than three hours. 3.7. In XXN, PW2 told the Court that he had no medical evidence J7 of 40 confirming that he continued to suffer from the after effects of his electrocution as a child. 3.8. 1 st Defendants Case 3.9. DWl, W esley Simwanza told the lower Court that PW2 was electrocuted and injured on 24th September, 2003, after coming into contact with the Zambia Army transformer at Kalewa Barracks. 3.10. He told the Court that after the incident, Zambia Army requested the Appellant to switch off power to the transformer, which it did, to enable the Zambia Army to investigate the incident, and make its own findings. 3.11. He stated that the Appellant could not be held liable for the 1st Respondent's injuries because the transformer belonged to the Zambia Army and the ZESCO conditions of Supply of2012 stipulated that their responsibility ended at the metering point. 3.12. He further testified that the Kalewa Transformer was supplied from the Appellant's sub-station but was managed by Zambia JS of 40 Army electrical personnel and only when they failed to resolve a fault would the Appellant's personnel get involved. 3.13. DWl explained that the Appellant's installations were secured with either diamond mesh wire fences or by walls. 3.14. In XXN DWl stated that after a client applied for supply of electricity, the Appellant would inspect the premises to ensure that the installation of the transformer met the requirements to enable it be connected. That after installation, inspections were done annually at the request of the client. 3.15. In Re-examination DWl stated that the Zambia Army had never requested the Appellant to inspect its installations. 4. HIGH COURT DECISION 4.1. The trial Judge found as facts that the transformer was situated within Kalewa Barracks which belongs to the Zambia Army. That the Appellant was the "supplier" of electricity to the Kalewa Barracks and Kalewa Barracks were a "consumer" as defined by the Electricity Supply Regulations. 4.2. According to the lower Court, Sections 11 and 12 of the Electricity Supply Regulations state that where the supplier has reasonable grounds to believe that the consumer's installation is being operated in such a way that it may cause J9 of 40 danger to human life, or property, then the supply of electricity can be discontinued. 4.3. In this regard, the learned trial Judge noted that PWl 's evidence showed that the Appellant's employee's only secured the transformer after the 1 ST Respondent got electrocuted. She found that, that particular evidence established that the Appellant did not comply with Sections and 11 (1) (a), c (iii) 12 (1) (c) of the Electricity Supply Regulations. 4.4. That if the Appellant had complied with the regulations, it would have established that the Zambia Army had failed to secure the transformer thus posing a danger to human life and would have compelled the army to secure the transformer or discontinue supply until it was secured. 4.5. That as the supplier of electric power to the Kalewa Barracks, the Appellant had the legal duty, if not directly then by extension to take reasonable care to avoid the occurrence of acts or omissions which, it could foresee, were likely to injure persons at the Kalewa Barracks. 4.6. The trial Judge dismissed the Appellant's submission that the duty of care was actually owed by the Zambia Army who owned JlO of 40 and operated the transformer, saying that the Electricity Supply Regulations place a legal obligation on the Appellant to switch off power supply to installations which posed danger to human life such as unsecured transformers. 4.7. Further, that nothing prevented the Appellant's employees from inspecting the transformer at the Kalewa Barracks from time to time to ensure that any works carried out by the Zambia Supply Army from time to time did not breach the Electricity Regulations. 4.8. The learned trial Judge cited Halsbury's Laws of England, 4th Edition, Volume 16, paragraph 216, p. 129 where it states that, "where an electricity board has placed on land something known to be dangerous such as high voltage overhead electric lines, it owes a duty to take reasonable care to avoid acts or omissions which it can for see would be likely to injure persons who are closely and directly affected by its acts or omissions that the board ought to have had them in contemplation." 4.9. The Judge further cited the case of Bourhill v Young 111 which reinforced the principal highlighted by Halsbury's and concluded that the Appellant could not deny owing the 1st Respondent a duty of care. 4.10. The trial Judge threw out the defence of contributory Jll of 40 negligence on the basis that no evidence had been led showing that the 1st Respondent's guardians were habitually careless people or were negligent in leaving him outside to play. That it had not been shown that they anticipated that he would crawl to the transformer which, if properly secured by the Appellant, would not have caused harm to the 1st Respondent. 4.11. The trial Judge opined that even if it were any other person who was electrocuted the Appellant would still be liable at law, for failing to secure the transformer through which it supplied electricity to the said barrack. 4.12. The trial Judge further noted that after the incident, the Appellant fenced off the transformer and on that basis found that the only logical conclusion was that the Appellant had always been responsible for securing it. 4.13. The trial Judge bolstered her position by citing the case of Buckland v Guilford Gas Light & Coke Company 121 in which the Defendant who trimmed the branches of a tree and passed its power lines over the tree was found liable for negligence after a child climbed The Court the tree and got electrocuted. held that the Defendant was negligent because it ought to have foreseen that someone might climb the tree. J12 of 40 4.14. The trial Judge further threw out the Appellant's reliance on Section 16 of the ZESCO By-Laws and Section 2 of the Occupiers Liability Act, Chapter 70 of the Laws of Zambia. She held that Section 16 only applies in instances where the installations have to be tested for functionality and found that the Kalewa Barracks transformer well and was functioning had power supply. That the only issue was that of the transformer not being properly secured. 4.15. The lower Court held that Section 2 of the Occupiers Liability Act was inapplicable because despite the transformer being located in Kalewa Barracks, the Zambia Army could not be held responsible for the 1st Respondent's injuries because the duty of care was owed by the Appellant who should have secured the transformer. 4.16. With regard to the defence that the 1st Respondent had not proved that he had continued to suffer the effects of the electrocution that he suffered approximately 15 years earlier at the age of 2, the learned trial Judge stated that the Appellant had not adduced any evidence to dispute or counter the 1st Respondent's claims. The Court held that in the J13 of 40 absence of evidence to disprove the 1st Respondent'sclaim, the benefit of doubt must be resolved in his favour. 4.17. The learned trial Judge held that the 1st Respondent had proved negligence against the Appellant and awarded him damages for personal injuries and damages for consequential loss, to be assessed by the Registrar of the High Court at Ndola. The trial Judge also awarded interest on the adJudged amounts from the date of writ to the date of payment and costs. 5. APPEAL 5.1. Dissatisfied with the Judgement the Appellant promptly appeal fronting 6 grounds as follows; 1. The learned trial Judge erred in law and fact when she held that ZESCO had breached its statutory duty in the absence of evidence. 2. The learned trial Judge erred in law and fact when she found that the Appellant liable in negligence on grounds that it had breached its statutory duty under the Electricity (supply) Regulations. 3. The learned trial Judge ignored the unchallenged evidence that was deployed before her and her J14 of 40 own conclusions on paragraph 51 and 57 of the Judgement when she held that the Appellant was responsible for securing/ fencing the transformer inside Kalewa Barracks. 4. The learned trial Judge was unbalanced in her evaluation of evidence as she neglected and/ or failed to consider the 2nd Respondent liability despite the evidence on record and her own findings in paragraphs 51, 57 and 58 of the Judgement. 5. The learned trial Judge misdirected herself both in law and fact by holding that the Appellant was liable for negligence against the weight of evidence. 6. The learned trial Judge erred in law and fact when she held that the 1st Respondent had succeeded on the claim for loss arising from the after effects of the 1st Respondent's injuries when there was no JlS of 40 such relief prayed for in the Writ of Summons and the claim had not been strictly proved. 5.2. Appellants Arguments 5.3. In ground one the Appellant argued that there was no evidence before the trial Court that the Appellant its had breached statutory duty under the Electricity (Supply) Regulations. 5.4. It was pointed out that the said Regulations provide that the undertaker must be "reasonably satisfied" or have "reasonable grounds for supposing" that the consumer's installations are being operated in a way that endangers the public before disconnecting the consumer. 5.5. It was submitted that no witness testified that the Appellant was aware of the state of the transformer in the barracks or that there were circumstances under which it could reasonably have suspected that the army's installations were a danger to the public. 5.6. That to the contrary, the Appellants witness that the testified Appellant's responsibility ended at the substation outside the barrack and that the army had its own personnel who operated the electricity installation within the barrack where the transformer was located. J16 of 40 5.7. It was submitted that the trial Court's finding that the Appellant had breached its statutory duty was perverse as it was not supported by any evidence indicating that the Appellant should have been reasonably satisfied so as to disconnect supply to the transformer at the barracks. We were urged to apply the principle in the case of Attorney General v Marcus Achiume 131 and reverse the trial Court's finding of fact on this point. 5.8. In ground 2 it was submitted that based on the fact, as argued in ground 1, that the Appellant did not breach its statutory duty under the Electricity (Supply) Regulations, it follows that the Appellant could not be liable for negligence, as a key element of negligence i.e., breach of duty had not been proved. Amongst other cases, the case of Attorney General v George Mwanza & Whiteson Mwanza 141 was cited on the point that to succeed on a claim of negligence the Plain tiff must not only prove that he was owed a duty of care but must also prove that the duty was breached resulting in damage. 5.9. It was further argued that the import of the lower Court's reasoning was that an undertaker had the responsibility to constantly visit the premises of all its customers so as to J17 of40 establish that the installations on their premises continued to be operated safely or were properly secured long after installation. That such interpretation of the law would result in inconvenience and unfairness contrary to the letter and intention of Regulations 11 and 12 of the Electricity (Supply) Regulations. To bolster this point, the Appellant cited the case of Rabson Kamanga v Zambia Electricity Supply Corporation Ltd 151 in which the Supreme Court held as follows: "In the ordinary course of things, a supplier of electricity or even water cannot be expected to be going round every day for minor faults at their customer's premises. It is the duty of occupiers to report faults at their premises to the supplier of electricity in order to avoid not only damage to their own property but also to the respondent }s facility which supplies power.'' 5.10. The Appellant opined that this ground should succeed because the trial Judge's holding was based on a misapprehension of the Electricity (Supply) Regulations. 5.11. In relation to ground 3 the main argument was that the learned trial Judge completely ignored the evidence of DW 1 that the Appellant's responsibility ended at the substation J18 of 40 which was outside the barracks and that the transformer was under the responsibility of the Zambia Army. 5.12. That in paragraphs 51 and 57 of the of the Judgement at page 33 and 36 of the record of appeal (ROA), the trial Judge somewhat acknowledged that the Zambia Army was not compliant in securing the transformer that but she insisted the Appellant had a duty to inspect the transformer from time to time to ensure that it was secured and to disconnect supply of electricity if it was found to have not been secured. 5.13. That the trial Judge failed to abide by the principle enunciated in Rosemary Chibwe v Austin Chibwe'61 that Courts' conclusions must be based on facts stated on the record. 5.14. In ground 4 it was argued that the trial Judge proceeded as though there was only one Defendant and ignored all the evidence led against the 2nd Respondent despite in paragraphs 51 and 57 having found as a fact that the 2nd Respondent had neglected to secure the transformer thereby creating a hazardous situation. 5.15. That the trial Judge was unfair and unbalanced in her J19 of 40 evaluation of the evidence thus falling short of the guidance given by the Supreme Court in the Achiume Case (supra). 5.16. In ground 5 the Appellant noted that the particulars of negligence given by the Respondent were a breach of duty to secure the transformer. 5.17. It was submitted that the evidence on record showed that the transformer was located in the barracks under the control of and operated had no by the Zambia Army. That the Appellant duty to secure the transformer which belonged to the Zambia Army. 5.18. Secondly, it was pointed out that the alleged breach of duty to secure the electricity to the transformer was likewise not proved as no evidence was adduced to show that the Appellant was aware that the transformer was not secured, and it should have thus disconnected supply until the installation was secured. Further on this point, the Appellant pointed out that the evidence of DWl was to the effect that the Appellant had no access to the transformer except on request by the 2nd Respondent and there had been no such request prior to the incident 2003. of 24th September, 5.19. The Appellant submitted that despite the weight of evidence J20 of 40 that the Appellant did not at any point act unreasonably, the trial Court found the Appellant liable for negligence. That according to Winfield and Jolowicz, 19th Edition at page 51, the process of determining whether the defendant was negligent involves comparing the defendant's conduct with that of a reasonable person. 5.20. It was further submitted that the mere fact that the Appellant fenced off the transformer after the incident was not sufficient proof to draw the conclusion that the Appellant was responsible for securing the transformer. 5.21. The Appellant asks that we set aside the trial Court's finding that the Appellant was negligent because the finding is perverse, and one made against the weight of evidence on record. 5.22. Ground 6 was abandoned. 6. 1st RESPONDENTS ARGUMENTS 6.1. The 1st Respondent did not file any arguments in opposition. 7. 2ND RESPONDENTS ARGUMENTS J21 of 40 7 .1. The 2nd Respondent filed heads of argument on 24th September, 2021 in which it reproduced Regulations 11(1), 12 (1) and 20 ( 1) of the Electricity (Supply) Regulations. 7 .2. In grounds 1 and 2 the 2nd Respondent pointed out that Regulation 20 is couched in mandatory terms as follows; 20 ( 1) The undertaker's works shall; a. Be designed, constructed, installed, protected where necessary and be of such quality to prevent danger 7 .3. It was submitted that the Appellant's argument that no evidence was presented to show that it was aware that the transformer was not fenced cannot stand because the requirement to secure the transformer was mandatory and the Appellant had breached that mandatory That the requirement. Appellant had a duty to avoid acts or omissions which it could reasonably foresee were likely to injure its neighbour. 7.4. That the Appellant was liable for failing to take the necessary precautions to secure the transformer to prevent injury to third parties. The 2nd Respondent cited several its cases to support argument including British Celanese Ltd v A. H. Hunt (Capacitors) Ltd l7l; Hay or Bourhill v Young (supra) Donoghue v Stevenson (Bl; ZESCO Limited v Justine J22 of 40 Chishimba (no citation provided); Ball & Another v London County Council OJ in which it was held that, (l "The duty being to take precautions it is no excuse to say that the accident would not have happened unless some other agency than that of the defendant had intermeddle d with the matter." 7 .5. With regard to who's responsibility it was to secure the transformer, the 2nd Respondent pointed out that PWl testified that after the incident, the Appellant secured the transformer by erecting a fence around it and power was switched off for two weeks. According to the 2nd Respondent, the only reason the Appellant took that kind of action was because the transformer was under its control and management which it otherwise would not have done. 7.6. Grounds 3, 4 and 5 were argued together and it was opined that the trial Judge did not lose sight of the 2nd Respondent and was on firm ground when, after considering the evidence before her, she held that the Appellant was responsible the for fencing transformer. The case of ZESCO v Laston Chipulu (lll was cited 1n which the Court held the undertaker liable after the J23 of 40 Respondents animals were electrocuted when they passed near or under the Appellant's overhead lines which had sagged from a visibly burnt pole. 7. 7. Reference was made to paragraph 58 of the Judgement and the 2nd Respondent opined that the learned trial Judge clearly confirmed the fact that it was the responsibility of the Appellant who was the supplier of power to rectify the problem that occurred at Kalewa barracks. That the lower Court went further to state that the responsibility was the basis, direct or implied, upon which the Appellant owed a duty of care to the residents of the barracks who in this case included the 1st Respondent 7 .8. The 2nd Respondent submitted that the appeal be dismissed because the 1st Respondent had, in the lower Court, proved its case on a balance of probabilities. 8. CONSIDERSATION AND DECISION 8.1. We have considered the record of appeal and the arguments advanced by the parties. 8.2. It is evident that this entire appeal turns on the single question of who was responsible for securing at the transformer located J24 of 40 Kalewa barracks. Grounds 1 to 5 all revolve around this single question, and we shall address the 5 grounds as one. Ground 6 was abandoned. 8.3. The learned trial Judge's conclusion that the Appellant was responsible for securing the transformer was informed by two sources; 1. Sections 11 and 12 of the Electricity (Supply) Regulations (the 2nd Respondent 20) added section of PWl 2. The evidence 8.4. The trial Judge at paragraph 43 made a finding that in relation to this matter and in terms of the Electricity Supply Regulations, Kalewa Barracks (Zambia Army) was a "Consumer" and the Appellant was the "Undertaker". The trial Judge did not describe the 1st Respondent (Plaintiff) nor his guardians in relation to either the Consumer or the Undertaker. 8.5. At paragraph 51 of the Judgement, page 33 ROA, the trial Judge said as follows; "Simply put, if the 1st Defendant, as the supplier of electric power, had adhered to the Electricity Supply Regulations, it would have discovered that the Zambia Army, which the 2nd Defendant represents in this matter, was not compliant; in as far as securing the transformer at the Kalewa Barrack was concerned. this Having made J25 of 40 discovery, the Defendant would have known that Zambia Army's failure posed a to secure the said transformer danger to human life. The attendant and expected action would have been for the 1st Defendant to compel the Zambia Army to secure the transformer, or to discontinue the supply of electricity to the Kalewa Barracks; until the transformer was secured." 8.6. Our understanding of this is that the trial Judge meant the following; 1. The 2nd Respondent (Zambia Army) was responsible for securing the transformer located within its premises. 2. However, the Electricity Supply Regulations required the Appellant to, at all times, ensure that the 2nd Respondent kept the transformer secured. 3. That the 2nd Respondent had failed to secure the transformer but the Appellant had failed to ensure that the 2nd Respondent kept the transformer secured J26 of 40 and the Appellant was therefore responsible for the injury suffered by the 1st Respondent. 8.7. In other words, according to the trial Judge, the 2nd Respondent's responsibility was a to secure the transformer without responsibility sanction or consequence and therefore, in our view, no responsibility at all. 8.8. The lower Court's conclusion that the Appellant was responsible for securing the transformer and thus owed a duty to the plaintiff flows from its understanding of Sections 11 (1) (a), C (iii) and 12 ( 1) (c) of the Electricity (Supply) Regulations. 8.9. The mainstay of the trial Court's reasoning is contained in paragraphs 52 to 55 of its Judgement at pages 33 to 35 ROA. The learned trial Judge's contention is that the Appellant is the supplier of High Voltage electricity to the 2nd Respondent and arising from the Electricity Supply Regulations has the legal duty if not directly, then by extension, to take reasonable care to avoid the occurrence of acts or omissions which, it could foresee, were likely to injure persons at the Kalewa Barracks; to which the Twaclicimfya sub-station supplied electric power. 8.10. The learned trial Judge placed much capital on the Electricity J27 of 40 (Supply) Regulations and specifically Sections 11 (1) (a), c (iii) and 12 ( 1) (c) which read as follows; 11. (.1) An undertaker may refuse to give or, subiect to the provisions of regulation 12, to continue to give a supply of electricity to a consumer's installation or part thereof unless the undertaker or a person authorised by him is reasonably satisfied that such installation or part thereof- (a} complies with the Wiring Regulations; or (b} in the case of an installation used for mining purposes, has been subjected to an insulation resistance test and the undertaker or a person authorised by him is satisfied with the result of such test; or (c} had been connected with the undertaker's lines and had been supplied with electricity before the 1st December, 1961, and (i} such installation had continued to function satisfactorily up to the present time; (ii} the installation is to be or is being continued in use only within the limits of the maximum power for which it was originally intended; (iii} there are no grounds for supposing that the installation will fail to continue to function J28 of 40 satisfactorily for a further reasonable period without risk of danger. 12. (1} Where an undertaker in giving a supply of electricity has reasonable grounds for supposing that a consumer's installation or part thereof- (a) does not comply with the provisions of sub-regulation ( 1) or (2) of regulation 1 O; or (b) does not comply with the provisions of paragraph (a), (b) or (c) of sub-regulation (1) of regulation 11; or (c) is being operated in such a way as to endanger any person or as to cause or as is likely to cause damage to property; or (d) is interfering with or is likely to interfere with the efficient supply of electricity to any other consumer; the provisions of this regulation shall apply. (2) Where the undertaker is satisfied that immediate action is ;ustifi.ed in the consumer's interests or in the public interest as a result of any of the circumstances (a}, set out in paragraphs (b}, (c} and (d} of sub-regulation (1 }, he may forthwith discontinue the supply of electricity without pnor notice. 8.11. To begin with, a reading of Section 11 (1) shows that the J29 of 40 application of its provisions are not mandatory because it employs the prefix "may'' and not "shall". It is therefore arguable that it does not impose an absolute duty on statutory the Appellant or on whoever it applies to. 8.12. Secondly, Section 11 ( 1) relates to compliance with the Wiring Regulations which are not relevant to the facts of this case. 8 .13. Thirdly, Section 11 ( 1) ( c) only applies to connections made before 1st December, 1961. There is no evidence on record that the Appellants supply of power to the Kalewa Barracks transformer commenced before 1st December, 1961 or that the substation and transformer were even in existence before the said date. 8.14. For all intents and purposes Section 11 of the Electricity (Supply) Regulations cannot be imposed on the Appellant in the manner envisaged by the learned trial Judge. 8.15. The learned trial Judge's application of Section 12 coincides with her reasoning in paragraph 57 of her Judgement where she stated as follows; "Consequently, there was nothing to stop the 1st Defendant (Appellant) from time to time, if nothing else but as a fallow up supervisory step to ensure that J30 of 40 whatever works had been carried out by the Zambia Army personnel did not breach the Electricity Supply Regulations." 8.16. Section 12 can only be imposed where the Appellant was aware that the 2nd Respondent was operating the transformer "in such a way as to endanger any person or as to cause or as is likely to cause damage to property'. 8.17. One way by which the Appellant would know that the transformer was being operated in such a manner was if someone reported to them but there was no evidence that such a report was made. The only other way was if the Appellant obtained the information itself by conducting the kind of supervisory inspections envisaged by the trial Judge 1n paragraph 57 of her Judgement, aforesaid. The problem with the approach adopted by the Judge is that the Electricity (Supply) Regulations do not impose such a supervisory responsibility on an Undertaker. 8.18. In any event, Undertakers cannot be expected to undertake, ';allow-up'' visits to inspect the installations at the premises of its thousands of customers. This was the position articulated J31 of 40 by the Supreme Court in the quote reproduced in the earlier, case of Rabson Kamanga v Zambia Electricity Supply Corporation Ltd, cited by the Appellant. 8.19. It is abundantly clear that the 1st Respondent failed to prove that the Appellant had breached any statutory duty and obligation imposed by the Electricity (Supply) Regulations. 8.20. The alternative approach adopted by the 1st Respondent, supported by the 2nd Respondent and endorsed by the learned trial Judge was based on the evidence of PW 1, that after the 1st Respondent was electrocuted, the Appellant visited Kalewa Barracks, fenced the transformer and switched off supply for two weeks. 8.21. The lower Court held that the evidence was not challenged which meant it was true and according to her, the Appellant could only have fenced the transformer because it was responsible for securing it. 8. 22. In our view, that was not the only reasonable inference at all. The Appellant could have fenced the transformer for a number of reasons including preserving the scene for investigative purposes and power was most probably switched off because after the electrocution occurred, it obviously came to the Appellant's attention that the transformer was not properly J32 of40 secured and therefore dangerous. 8.23. It is notable that the lower Court did not allude to the cross examination of PWl (see page 133 to 135 ROA) where he stated that the Substation located outside Kalewa Barracks was painted in the Appellant's colours whilst the transformer which was located in the Barracks was not painted in the Appellant's colours and was not marked with the Appellant's name nor was there any placard or billboard depicting it as belonging to the Appellant. 8.24. It is further worth noting that at paragraph 13 of her Judgement (p. 15 ROA) the trial Judge erroneously cited PWl as, in XXN, describing the transformer as being painted in the Appellant's colours. The proceedings at p.134 ROA show that PWl only described the substation as being painted in the Appellant's colours when she said, "I am aware that there is Zesco substation outside Kalewa Barracks and it was painted in Zesco colours." 8.25. PWl 's only description of the transformer was as follows, "the transformer was not written Zesco on it; and neither was there any billboard or placard written Zesco." She made no mention that it was painted in the Appellant's colours. One might justifiably wonder whether this mistaken belief by the trial J33 of40 Judge reinforced her conclusion that the transformer belonged to the Appellant. 8.26. Further, PWl confirmed that private citizens, including the Appellant required a pass to enter the barracks. He further confirmed that the 2nd Respondent had qualified electricians and he had seen them working within the on the transformers barracks. (p135 ROA) 8.27. The Appellant's defence at paragraph 4, page 55 ROA stated that the installations and the substation in question were the property of Zambia Army and paragraph 5 averred that it was the 2nd Respondent's responsibility to maintain and secure the premises. 8.28. This was supported by the Appellant's witness DWI who gave clear and precise testimony that the transformer not only belonged to the Zambia Army but was actually operated by its electrical personnel. DW 1 further explained that the offtake point for power supplied to the Kalewa Barracks transformer was at the substation which is located outside the barracks J34 of40 and where the switches and meeting points are situated and that is where the Appellant's responsibility ends. 8.29. The 2nd Respondent bare filed a defence which contained denials against the claims set out in the 1st Respondent's statement of claim. 8.30. It did not challenge the Appellant's averment that the installation belonged to the 2nd Respondent who also managed and operated it. Further, the 2nd Respondent did not defend any of the allegations against it by presenting any witnesses. The allegations against the 2nd Respondent largely remain undefended. 8.31. We agree that the trial Judge did not evaluate the evidence advanced by the parties in a balanced manner because if she had, she would have noted that the clear unchallenged evidence was to the effect that the transformer not only belonged to the 2nd Respondent but it also had qualified electrical personnel who had even been observed by PWl carrying out works on the transformer. The mere fact that the Appellant fenced off the transformer after the incident was insufficient to override the evidence that pointed the towards 2nd Respondent being responsible for managing the • transformer, a fact which it did not defend during the trial. J35 of40 8.32. In the face of the conclusion that the 2nd Respondent was responsible for the transformer which it owned and operated, its submissions with regard to Section 20 of the Electricity (Supply) Regulations fall flat on their face because the section only applies to the undertakers works. There was no evidence that the transformer was designed, constructed and installed by the Appellant. · 8.33. We allow this appeal on the ground that the 1st Respondent did not prove that the Appellant had breached any statutory duty of care and had also not proved that the Appellant was responsible for the transformer on the 2nd which was located Respondent's premises and managed by the 2nd Respondent's electrical personnel. 8.34. It is clear from the evidence on record and our analysis, that liability for the 1st Respondent's electrocution lies with the 2nd Respondent to whom we find liable for negligently failing secure its transformer. 8.35. As indicated earlier, the 2nd Respondent did not even appear J36 of40 • before the lower Court to defend itself and we find it liable to pay the 1st Respondent general damages for personal injuries. 8.36. On the claim for consequential loss, the 1st Respondent claimed that as a consequence 15 years of his electrocution earlier, he still experienced chest pains, and could not participate in certain school activities such as sports or cutting metal in Woodwork classes, and his feet ached when he wore shoes for more than three hours. 8.37. We were somewhat surprised that the learned trial Judge allowed the 1st· Respondents claim on the basis that the Appellant had not adduced any evidence to dispute or counter the 1st Respondent's claims. 8.38. This was despite the 1st Respondent 'stating that he had no evidence to prove his claim but the learned trial Judge, without reason, departed from the general principal that he who alleges must prove. See the case of Wilson Masauso Zulu v Avondale Housing Project Limited 1121. 8.39. We find that the claim for consequential damage cannot succeed against the 2nd Respondent. 8.40. In the premises, the 2nd Respondent is only liable to pay the J37 of40 1st Respondent general damages. The medical report at page 90 of the record of appeal shows that the Appellant was admitted into hospital on. 24th S�ptember, 2003 and discharged on 26th September, 2003. 8.41. The medical report dated 08/12/2003 reads as follows; RE: Medical Report (Wamunyima Nambula Patient No. 13075/03) The above named patient was treated for bums during 24/ 09/ 03 to 26/ 09/ 03 and discharged with medications. The wounds on the chest, abdominal walls and right under the foot have healed with slight time. scars left which are supposed to last a life-long The is no body dysfunction detected. 8.42. According to the report the Appellant was admitted in hospital for three days, inclusive of the dates of admission and discharge. All the burns suffered had healed by the time he was discharged except for permanent scarring on the sole of his right foot. The report categorically stated that no body dysfunctions were detected. 8.43. Depending on the circumstances, damages for pain and J38 of40 suffering are calculated by taking into account the perceived intensity of pain together with the duration of hospitalisation, if any. The hospitalisation is generally calculated on a weekly or daily rate and where appropriate a lump sum may be awarded. 8.44. In the 2019 case of Vincent Hangandu, Mazhandu Family Bus services and Phoenix of Zambia Assuarance Company of the Limited v Lynda Mataka (suing as Administrator estate of the late Misozi Mataka and Lowani Mataka) 1131 we settled on a weekly rate of K7 ,600 (US$44 7) which translated into a daily rate of Kl,085.71 (US$63,8) This was based on an exchange rate of Kl 7 to US$1. As we deliver this Judgement the exchange rate has maintained an average of about Kl 9.5 per US$1. Applying this rate will translate into a weekly amount of KS,716.50 or Kl,245.20 per day. 8.45. In the case of Michael Banda and Doreen Chimimba v The Attorney General CAZ/207 /2021 the deceased was admitted to Chilenje Level 1 Hospital where she gave birth at 06:00 hrs and around 15:00 hrs her mother found her lying on a mattress on the floor bleeding profusely. She was transferred to the University Teaching Hospital around J39 of40 20:00hrs where she died about an hour later. Even though, in the cited case, death occurred the same day, the particulars of negligence were quite aggravating and we upheld the Deputy Registrars lump sum award of KS0,000 for negligence, pain and suffering. 8.46. It is indisputable that in casu the 1st Respondent experienced pain and suffering but the circumstances are quite different from the cited case in that the bums herein appeared to have been superficial, as they healed within three days. The only permanent damage was scarring on the sole of his right foot. 8.47. In the circumstances, we find it appropriate to calculate the damages on the basis of the period of hospitalisation at the rate of K1,245.20 per day for 3 days which gives us a total of K3,735.60. To this we add the sum of K2,500 to compensate the permanent scarring on the sole of his right foot. 8.48. The total sum due to the 1st Respondent from the 2nd Respondent for pain and suffering and permanent scarring is K6,235.60. 8.49. The awarded sum shall attract interest at the short-term deposit rate from date of writ to date of Judgment and thereafter at the current bank lending rates as determined by the Bank of Zambia until the date of full payment. J40 of40 8.50. On the question of costs, as between the Appellant and the two Respondents, costs of this appeal are awarded to the Appellant against the 1st and 2nd Respondents, and the costs in the High Court are awarded to the Appellant against the 1st Respondent. 8.51. Despite 1st Respondent having been successful the 2nd against Respondent, the 1 st Respondent did not defend this appeal and is therefore not entitled to costs. � ··················�··················· M. M. KONDOLO SC COURT OF APPEAL JUDGE • • •• ••• • •• • • LlL/l., •• � •• ::..-:-: •• -iw.,.,.� . ......... . .•••...... P. C. M. NGULUBE COURT OF APPEAL JUDGE •. ::-.• ::.:: .. :-: .. ::..� .• !=;-••••••••• ,.k;:;.....?..i:': .. :-: N . A. SHARPE-HIRI COURT OF APPEAL JUDGE