3 December 1971

     
 

Criminal Appeal No. 46 of 1971

 
     

Court of Appeal for East Africa

     
     

Kilembe Mines Limited

 

v.

David Bitegye

     
     
 

Judgment

 
     
 

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BEFORE:

VICE-PRESIDENT: Law
JUDGES OF APPEAL: Lutta and Mustafa

   

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Citation:

Kilembe Mines v. Bitegye, Judgment, File No. 46 of 1971 (CAEA, Dec. 03, 1971)

Represented By:

 

Editor's Note:

Appeal from a judgment of the High Court of Uganda at Kampala (Mead J.) dated the 22nd July, 1971. in Civil, Case, No. 342 of 1971

 
     
 
 
 

LUTTA, J.A.

[1] The appellant (to whom I shall refer hereinafter as the defendant) was sued by the respondent (to whom I shall refer as ”the plaintiff “)for damages, arising out of an accident in the defendant’s mine Kilembe on 20th August, 1970,as a result of which the plaintiff's left leg was amputated.

[2] The plaintiff was employed by the defendant as a machine operator. On 20th August, 1970 he was operating a drilling machine underground at the defendant's mine when stones fell on him, from the roof of the stope in which he was working, injuring his left leg. He was taken to Kilembe hospital where his leg was amputated, he spent three months at the said hospital.

[3] In his plaint, he alleged that the injuries were occasioned by reason of the defendant's breach of its statutory duties under the Mining (Safety) Regulations made under the Mining Act Cap. 248. He alleged, in the alternative, that the injuries Here caused by the defendant’s negligence or broach of duty or breach of contract of employment.

[4] The defendant did not, in its defence, admit liability and alleged that the accident was inevitable. The learned judge found that the plaintiff failed to prove the defendant's breach of the Mining (Safety) Regulations.

[5] However, he found that there was no roof bolting within ten feet of the rock face where the plaintiff worked and that the area had no protection against falling rock. He also found that the cause of the roof rock falling as vibration set up by the pneumatic drills operated by the plaintiff, and that the defendant had not provided a safe place of Dark for the plaintiff.

[6] He held that the accident was not the result of an inevitable accident and awarded the plaintiff Shs. 90,000 general damages. Against this the defendant has appealed to this Court on seven grounds; the main grounds can be summarised as follows :¬

(a) that the learned judge erred in holding that there was no roof bolting within ten feet of the rock face whore the plaintiff worked;
(b) that the learned judge erred in holding that the defendant did not provide a safe place or work for the plaintiff;
(c) that the learned judge erred in holding that the accident was not a result of an inevitable accident; and
(d) that the general damages awarded to the plaintiff are manifestly excessive and an entirely erroneous estimate to which the plaintiff is entitled.

[7] Mr. Gaffa, for the defendant, submitted that the learned judge misunderstood and failed to evaluate the evidence of Philip Kagoro, Secretary of the defendant. He argued that bolts are not as a matter of mining practice inserted within ten feet of the rock face, and that as the learned judge had found that all the safety checks had been made he should not have held the that defendant was negligent, as the checking amounts to taking reasonable care.

[8] Mr. Gaffa submitted that the defendant had discharged their duty of providing a safe system of work and had exercised the degree of care required of him. He also submitted that as the plaintiff himself had checked and was satisfied with the safety arrangements, there was no justification for the finding that the defendant had been negligent in this respect.

[9] Mr. Gaffa also argued that three inspections were carried out by employees of the defendant and that they did not reveal any danger of the rock being likely to fall, and this showed that the defendant took all reasonable care to ensure the safety of the plaintiff.

[10] He submitted that in these circumstances the learned judge should have held that the accident was the result of an inevitable accident.

[11] On the question of damages Mr. Gaffa submitted that the figure of Shs. 90,000 was excessive having regard to similar awards by the High Court, and that the learned judge applied wrong principles in the assessment of the damages.

[12] He referred to the Case of Senkoni .v. Mawokota Timber Co ( HCCCS No. 177 of 1968 and Ziwa .v. East Mengo District Administration (H.C.C.S. No. 185 of 1970 and submitted that the plaintiff’s earning capacity should not have been the only criterion to be taken into account when assessing the damages. He relied on the Case of Apollo Mpagi Masembe .v. Christopher Nanbale and the Uganda Electricity Board _(H.C.C. S .No; 249 of 1962). He submitted that on the authority of Mount Kenya Peugeot Service .v. Ramzani K. Rahemtulla - (C.A. 36 of 1966) this court should interfere with the assessment of damages as the learned judge did not sufficiently consider the nature of the injuries, the plaintiff's age and the loss of prospective earnings.

[13] Mr. Dalal, for the plaintiff, argued that Shs. 90,000 is not excessive taking into account age, pain and suffering of the plaintiff and, if compared with awards by the High Court in similar cases.

[14] He referred to the case of Kulsum Jiwani and Others .v. S. Senteza (H.C.C.S. No. 633 of 1960) where an award of £7000 was made and Joseph Kayanja and Another .v. G.G.A. Holdges (H.C.C.S. No. 873 of 1969) where Shs. 70,000 was awarded.

[15] Mr. Dalal also submitted that there was prima facie evidence of negligence - that where a person is hit by a stone falling from a roof at his place of work the doctrine of res ipsa loquitar ought to, apply.

[16] He also submitted that it was accordingly necessary for the defendant to prove the cause of the accident, and that as the defendant had not given an explanation as to the cause of the accident, it had not discharged the burden of proof which was on it.

[17] He also submitted that the defendant had not shown that the accident could not have been prevented. He referred to the cases of Edwards V national Coal Board (1949) 1 E.R 743 and Zummezyk V Gothon Co. Ltd (1954) 1 All E.R 937 and submitted that where there is n duty to protect a worker, all necessary precautions should be taken, and that in this case the onus was on the defendant to discharge the burden of proving that the accident was the result of an inevitable accident.

[18] I shall deal first with the question as to whether the damages awarded to the plaintiff are manifestly excessive and an entirely erroneous estimate of the damages to which the plaintiff is entitled. The principles which guide this court on appeal of this nature are well known and suffice it to say that before it can disturb the finding of the Court of first instance as to the quantum of damages it must be satisfied that the learned judge in assessing the damages “applied a wrong principle of law (as by taking into account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages" - see Henry Hidaya Ilanga v Manyema Manyoka [1961] E.A. 705 at page 713 following Nance v British Colombia Electric Rly Co. Ltd (1951) A.C. 601. It has not been shown to me that the learned judge applied a wrong principle of law in assessing the dam2ges at Shs. 90,000 nor do I consider this amount to be so inordinately high as to be wholly erroneous estimate of the damages to which the plaintiff is entitled.

[19] Dealing with the question as to whether the defendant had provided a safe place of work for the plaintiff, the learned judge said:-¬

"From the evidence of the plaintiff, Samweri and the defendant’s witness Philip Kagoro I find there are several ways in which precaution may be taken against falls at rock. Of these only one was used by the defendant at the place the plaintiff and his witness were working, that method was by inserting bolts through the roof to prevent the rock falling. From the evidence of Mr. Kagoro, I find that there was no roof bolting within ton feet of the rock face where the plaintiff and Samweri worked. Mr. Kagoro gave no explanation why this area was left unbolted.”

[20] He went on to say:-¬

"No independent witness was called for the defendant to say whether or not it was a safe place for the plaintiff to be working, especially having regard to the fact that no precaution had been taken against the possibility of rock falling within ten feet of the rock face other than to leave it to the judgment of the plaintiff and Samweri whether or not the rock had become dangerous.”

[21] It seems to me that this is not a case where there are certain difficulties caused by various objects on the stope which the defendant can properly leave to a sensible or reasonable employee to deal with himself. The defendant was aware that pneumatic drills operated by the plaintiff set up vibration which might cause roof rock to fall, and there should therefore have been safety precautions taken which in this case were not taken. Thus the plaintiff, as he operated the pneumatic drills, was exposed to the falls of rock, unless the roof was bolted, or otherwise made safe. In my view the learned judge was right to hold, on the balance of probabilities, that there was no sufficient protection against falling rock at the place of work of the plaintiff.

[22] I agree with the learned judge that the defendant had not provided a safe place of work for the plaintiff.

[23] With regard to the question as to whether the accident was the result of an inevitable accident, Mr. Gaffa submitted that all the defendant has to show is that it took all necessary precautions to prevent the accident, and in this case the defendant has shown that it took all measures necessary to prevent the accident.

[24] For a defendant to avail himself of the defence of inevitable accident, he must show that "something happened over which he had no control and the effect of which could not have been avoided by the exercise of care and skill" - see The Albino (1892) P. 419, per Lord ESHER, M.R. In other words, the burden of proving inevitable accident is on the defendant, if he sets it up as a defence.

[25] In the instant case the learned judge found that the cause of the accident was the vibration set up by the pneumatic drills operated by the plaintiff, causing the roof rock to fall in the ten feet area which was not bolted or otherwise made safe.

[26] In my view the defendant must not only show or prove the cause of the accident but also show that the result of that cause was inevitable and that it could not have been avoided by the exercise of reasonable care and skill. In my opinion the de¬fendant failed to discharge the burden of proof of inevitable accident and I therefore agree that the accident was not the result of an inevitable accident.

[27] In those circumstances I would dismiss the appeal with costs.

LAW, AG. V-P

[28] I have read in draft the judgment prepared by Lutta J.A. I agree with it, and do not find it necessary to add anything. There will be an order in the terms proposed by him.

MUSTAFA, JA

[29] I also agree.

 
 

 

 
     

 

 

 

 

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