Automated Summary
Key Facts
Joseph Maso Kiilu, a manual worker at Kingsway Tyres & Auto Mart Ltd., sustained a fractured left elbow and forearm (radius and ulna) when a tractor tyre burst during inflation on October 13, 1992. The injury led to multiple operations, infections, and fibrosis, resulting in limited hand functionality. The court found the defendants 65% liable for negligence, with the plaintiff bearing 35% responsibility for not following safety protocols. General damages for pain and suffering were awarded at Ksh.250,000/-, reduced to Ksh.175,000/- after accounting for the plaintiff's share of liability. Loss of future earnings was not awarded due to inadequate pleading.
Issues
- Determining the nature, amount, degree, and extent of damages payable by the defendant to the plaintiff if any.
- Determining who is to bear the costs and interests of this suit if any.
Holdings
- The court determined liability by consent, with the defendant bearing 65% responsibility for negligence and the plaintiff 35% due to failure to follow safety instructions. This allocation was based on the agreed issues of 3.6.96 and the parties' consent during trial.
- The plaintiff sustained a fracture of the left mid-shaft radius and ulna with malunion and infection, requiring multiple surgeries. Fibrosis and muscle wasting resulted from repeated operations and disuse, confirmed by medical reports from Dr. Mutuli (1996) and Dr. Patel (1998).
- The court awarded costs of the suit to the plaintiff and interest on general damages from the suit's filing date. It emphasized that future claims for loss of future earnings should be properly pleaded.
- General damages for pain, suffering, and loss of amenities were awarded at Ksh.250,000, reduced by 35% to Ksh.175,000. The court declined loss of earnings claims due to improper pleading, though noted potential future loss of Ksh.480,000 if pleaded. Workman's Compensation, if paid, must be deducted.
Remedies
- Costs of the suit are awarded to the plaintiff as relief.
- Interest on general damages is awarded from the date the suit was filed (10.8.97).
Monetary Damages
175000.00
Legal Principles
- The court applied the principle of duty of care in employment law, determining that the employer owed the plaintiff a duty of care and assessing whether this duty was breached.
- The court found a breach of the duty of care by the employer, leading to the plaintiff's injuries, and apportioned liability at 65% to the defendants and 35% to the plaintiff.
Precedent Name
Dr. Wolfgang Farrugia V Hon. Attorney General & Another
Cited Statute
- Workmen's Compensation Act
- Civil Procedure Rules
Judge Name
M.A. Ang'awa
Passage Text
- Total Ksh.175,000 (Ksh.250,000/- less 35% Ksh. 75,000).
- Namely, that the defendants is to bear 65% liability on negligence and the plaintiff to bear 35% liability.
- I would not make award under this head of damages as it has not been pleaded. Further it is described as loss of earning. The plaintiffs stated that he had been paid his salary by the employer up to and including May 1997. He was then informed that he was no longer required.