Automated Summary
Key Facts
Joseph Mwongela Nzyoka, a casual laborer employed by Lowsea International Agencies Limited, sustained serious crush injuries to his right hand on 16th December 2015 while erecting concrete electricity poles. The pole disengaged from the crane and fell on his hand, resulting in the loss of three fingers and deformation of the remaining two. The lower court awarded him Kshs. 1,000,000/= for pain and suffering and Kshs. 500,000/= for loss of earning capacity, finding the employer 100% liable. The appellate court partially allowed the appeal, apportioning liability at 60% to the employer and reducing general damages to Kshs. 600,000/= and loss of earning capacity damages to Kshs. 300,000/=. The accident occurred due to the respondent's failure to place a wooden safety block on the pole before lifting, according to the crane operator's testimony.
Issues
The primary issues for determination were: (1) Whether the lower court correctly held the employer (appellant) 100% liable for the employee's (respondent) injuries, given the respondent's alleged failure to follow safety protocols; and (2) Whether the awarded general damages of Kshs. 1,000,000 for pain and suffering and Kshs. 500,000 for loss of earning capacity were excessive or required adjustment based on the respondent's contributory negligence.
Holdings
- The lower court's judgment was set aside and substituted with the revised liability and damages apportionment outlined above.
- Loss of earning capacity award reduced by 40% to Kshs. 300,000/= after accounting for the respondent's partial responsibility for the accident.
- Appellant ordered to bear the costs of the lower court suit, while each party is to bear their own costs of the appeal.
- General damages for pain, suffering, and loss of amenities reduced by 40% to Kshs. 600,000/= to reflect the respondent's contributory negligence.
- Liability apportioned at 40% to the respondent and 60% to the appellant due to the respondent's failure to follow safety precautions (omission of the wooden block).
Remedies
- The costs of the lower court suit shall be borne by the appellant
- Each party shall bear their own costs of the appeal. It is so ordered
- The award for loss of earning capacity of Kshs. 500,000/= was reduced by 40% to Kshs. 300,000/=
- General damages for pain, suffering and loss of amenities were reduced by 40% to Kshs. 600,000/=
- Liability apportioned at 40:60 in favour of the respondent
Monetary Damages
902000.00
Legal Principles
- The appellate court will not interfere with damage awards unless they are inordinately high or low, indicating an erroneous estimate based on wrong principles or misapprehended evidence.
- The respondent was required to prove that the appellant's negligence or breach of statutory duty caused the injury. The court emphasized that not every injury implies negligence; a causal link must be established on a balance of probabilities.
- The employer's common law duty of care requires taking reasonable steps to ensure employee safety, though they are not obligated to baby-sit or constantly supervise employees.
- The court found that the respondent did not establish a causal link between the appellant's actions and the accident, as the wooden block's absence was a contributing factor.
- To establish a breach of statutory duty, the claimant must demonstrate that the damage was of the type the statute aimed to prevent and that the breach directly caused the loss.
Precedent Name
- Statpack Industries v James Mbithi Munyao
- H. West and Son Ltd v Shepherd
- Selle & Another vs. Associated Motor Boat Co. Ltd & Others
- Mbugu David & Another v Joyce Gathoni Wathena & Another
- Thermopack Limited v Joshua Bernard Awino
- Henry Hidaya Ilanga v Manyema Manyoka
- Mwanasokoni v Kenya Bus Services Ltd
- Sumaria Industries Limited v Stephen Muyumbu Mwaka
- Victor Mutua Kamolo v Joseph M. Mbugua
- Butt v Khan
- Isinya Rose Limited v Zakayo Nyongesa
Cited Statute
Occupational Safety and Health Act
Judge Name
Olga Sewe
Passage Text
- In the result, having found merit in the appellant's appeal with regard to liability, this appeal is hereby allowed and the judgment and decree of the lower court... is hereby set aside and substituted with judgment in favour of the respondent in the following terms: [a] Liability apportioned at 40:60 in favour of the respondent;
- the broad issues for determination, as can be distilled from the Grounds of Appeal, the evidence and judgment of the lower court, as well as the written submissions filed by Mr. Jengo, revolve around liability and quantum.
- The learned judge then proceeded to quote from several precedents and texts, including the following excerpt from Clerk and Lindsell on Torts 18th Edition pg 600 paragraph 4 on the essentials on an action for breach of statutory duty: