Automated Summary
Key Facts
Joseph Maso Kiilu, a manual worker employed by Kingsway Tyres & Auto Mart Ltd, sustained a fractured left forearm (radius and ulna) when a tractor tyre burst at the workplace on 13 October 1992. The injury resulted in malunion, infection, and multiple operations. Liability was apportioned 65% to the defendants for negligence and 35% to the plaintiff for failing to follow safety instructions. The court awarded Ksh.250,000 in general damages for pain and suffering, but no compensation for loss of future earnings as it was not properly pleaded.
Issues
- Who is to bear the costs and interests of this suit if any?
- What is the nature, amount, degree, and extent of damages payable by the defendant to the plaintiff if any?
Holdings
- The court awarded Ksh.250,000 for pain and suffering, and dismissed loss of earnings as it was not properly pleaded.
- The court determined that the defendants are 65% liable for negligence, and the plaintiff is 35% liable.
- Workman's Compensation, if paid, should be deducted from the awarded sum.
Remedies
- The court noted that any Workman's Compensation paid should be deducted from the awarded sum.
- Interest was awarded on the general damages from the date the suit was filed (10 August 1997).
- The court awarded the costs of the suit to the plaintiff.
- The court awarded Ksh.250,000 for pain, suffering, and loss of amenities. This amount was reduced by 35% (Ksh.75,000) to a total of Ksh.175,000 due to the plaintiff's contributory negligence.
Monetary Damages
175000.00
Legal Principles
- The court established that the employer owed the plaintiff a duty of care under the implied contract of employment, which was breached when the plaintiff sustained injuries due to unsafe working conditions.
- The court noted that medical legal reports should be submitted by consultants rather than practitioners, highlighting the importance of proper evidence standards in establishing injury claims.
- The court emphasized that claims for future loss of earnings must be specifically pleaded under Order 10 r11a CPR, and dismissed the plaintiff's unpleaded claim for future earnings, awarding only one month's loss up to the filing date.
- The judgment found the employer breached their duty of care by failing to ensure proper safety protocols were followed, leading to the plaintiff's injury during a tractor tyre inflation task.
Precedent Name
Dr. Wolfgang Farrugia V Hon. Attorney General & Another
Cited Statute
Civil Procedure Rules (CPR)
Judge Name
M.A. Ang'awa
Passage Text
- I would not make award under this head of damages as it has not been pleaded.
- I would compute and assess damages for pain suffering and loss of amenities at Ksh.250,000/-.
- The defendants is to bear 65% liability on negligence and the plaintiff to bear 35% liability.