Automated Summary
Key Facts
Ephraim Kivihi, an employee of Kenya Engineering Industries Ltd, sued the company for negligence after his hearing deteriorated from 20% loss in 1979 to 30% in 1988 due to exposure to noisy work environments. The defendant initially denied negligence, argued the case was time-barred, and cited a 15% hearing loss assessment (Exhibit D2). The court found the 1987 transfer to a noisy section (pm/machinery) constituted negligence, as the plaintiff had a history of noise-induced hearing issues and was not provided hearing protection. The action was deemed not time-barred as the cause of action arose in 1987 when the transfer occurred, leading to the 1989 filing. The court awarded general damages of Shs 100,000, interest, and costs, citing permanent bilateral sensory neural deafness.
Issues
- Whether the defendant failed to provide hearing aids and negligently transferred the plaintiff to a noisy section, breaching statutory duties under the Factories Act.
- Whether the plaintiff suffered a 30% deterioration in hearing, as per the 1988 medical report, and if this was a result of the 1987 transfer to a noisy section.
- Determining the appropriate general damages for the plaintiff's hearing loss, considering the conflicting medical reports and inflationary trends.
- Who should bear the costs of the legal proceedings, based on the court's determination of liability and the outcome of the case.
- Whether the action was filed within the three-year limitation period under the Limitation of Actions Act, considering the cause of action arose in 1987 and the suit was filed in 1989.
- Whether the plaintiff's working environment was excessively noisy, as alleged, and if this contributed to his hearing issues.
- Whether the 1980 compensation payment was a full and final settlement of the plaintiff's claims, and if the current action is a continuation of the earlier claim.
Holdings
- General damages were awarded at Kshs 100,000/- to compensate for the plaintiff's injuries, considering similar past cases and adjusting for inflation. Special damages were denied due to lack of evidence.
- The court determined that the defendant failed to provide hearing protection to the plaintiff, violating Section 53 of the Factories Act, which mandates protective measures for employees exposed to injurious noise. This failure was classified as a breach of statutory duty.
- The court confirmed the plaintiff suffered a 30% hearing deterioration by 1988 due to exposure to noise after the 1987 transfer, supported by conflicting medical reports (30% in July 1988, 15% in October 1988). The injury was deemed permanent and irreversible.
- The court ruled that costs of the suit would follow the event, awarding them to the plaintiff as the successful party.
- The court found that the defendant's transfer of the plaintiff to a noisy section in 1987, despite his history of hearing impairment, constituted negligence. This was based on evidence that the plaintiff was moved from a less noisy tool section to the pm/machinery section, which increased his deafness.
- The action was ruled not time-barred because the cause of action arose in 1987 when the plaintiff was transferred to the noisy section, and the suit was filed in 1989 within the three-year limitation period.
- The 1980 workmen's compensation payment was not a full and final settlement, as the 1987 transfer constituted a new cause of action unrelated to the earlier 1979/1980 claim.
Remedies
- General damages to the tune of Shs 100,000/=-.
- Interest on general damages from the date of judgment.
- Cost of the suit awarded.
- No award on special damages as no evidence was adduced in Court.
Monetary Damages
100000.00
Legal Principles
- The court established causation between the 1987 transfer to a noisy section and the plaintiff's 1988 hearing deterioration, rejecting the defense's argument that the injury was not newly caused.
- The defendant was found to have breached their statutory duty by ignoring the doctor's recommendations to relocate the plaintiff to a non-noisy environment and by not supplying required hearing protection.
- The court applied the principle of duty of care under Section 53 of the Factories Act, finding the defendant breached their duty by failing to provide hearing protection and transferring the plaintiff to a noisy section despite prior medical recommendations.
Precedent Name
- Martin Thomas Kemple v Cyrus Ngure Ikamba
- Akwiri v Kilembe Mines
- Geoffrey Muturi Joseph v Oshan Enterprises Ltd and another
- Nsubuga v Attorney General
Cited Statute
- Law Reform Act (Cap 26)
- Limitation of Actions Act (Cap 21)
- Factories Act (Cap 514)
Judge Name
R.N Nambuye
Passage Text
- Bearing in mind the circumstance of this case... I would award a figure of Shs 100,000/- as being an adequate recompose for the injuries suffered.
- the cause of action arose from the time the plaintiff was exposed to a noisy environment... From 1987 and 1989 is 2 years... the action is not time barred.
- Having found that the plaintiff was transferred from the noisy section to a lesser noise section following the doctor's recommendation... his transfer to a noisy section amounts to negligence.