EMPLOYEE SAFETY: EMPLOYER WINS APPEAL AGAINST FACTORY WORKER

By Michael Murungi
October 2007

(This article was published in the Daily Nation newspaper on 8th October, 2007 pages 14-15)

Eveready Batteries (K) Ltd v Simon Kinyua [2007] eKLR (www.kenyalaw.org)
Court of Appeal at Nakuru
September 27, 2007

A former employee of renowned batteries manufacturer, Eveready Batteries (K.) Ltd, has lost a case in which he had been awarded over Kshs. 4 Million as damages for loss of earnings and cost of future medical expenses for injuries suffered in the course of duty. On 27th September 2007, the Court of Appeal found that Simon Kinyua had failed to prove his case against Eveready to the standard of proof required by law and that the High Court had erred in finding in his favour.

Simon had filed a claim in the High Court in 2004 alleging that Eveready had breached its statutory duty as an employer to provide a safe working environment. Under section 51 of the Factories Act (Chapter 514 of the Laws of Kenya), the person in charge of any factory in which dust, fumes or other impurities are given off is required to take “practicable measures…to protect the persons employed against inhalation of the….impurity and to prevent its accumulating in any workroom and where practicable, to provide and maintain exhaust appliances”. The Act further provides in section 53 that where any factory workers are employed in any process involving exposure to wet or to any injurious or offensive substance, suitable protective clothing and appliances such as gloves, footwear, goggles and head coverings shall be provided and maintained for the use of such workers.

According to the evidence which Simon presented to the High Court, he had worked at Eveready’s factory as a machine operator between 1st September 1989 and 4th February 2002. As a part of his duties, he was required to clean a paper liner machine, a cell tapping machine and a cell assembly machine using compressed air and kerosene. He would also sweep the room in which the paper liner machine was installed. He told the court that in the performance of these duties, Eveready had neglected its statutory duty to provide a safe working environment so that his health had declined due to the inhalation of harmful concentrations of depolarizing chemicals, fumes and dust.

He stated that he had been in and out of hospital since 1995 due to a number of medical conditions characterized as chest pains, upper respiratory sensitivity, coughing and difficulty in breathing, pulmonary emphysema, irritation of the bronchial tubes, loss of sight and pain in the left year. Ultimately, he was retired on medical grounds in 2002 at the age of 39 years.

Eveready filed a defence denying Simon’s claim and the suit went to a full hearing. In addition to his own testimony, Simon called three medical doctors as witnesses and an Occupational Health and Safety Officer from the Ministry of Labour. For its part, Eveready called six witnesses: two of its employees, a medical doctor, an employee of a company which had supplied it with safety equipment, a community nurse and a Consultant Industrial Hygienist. The substance of Eveready’s case was that it had provided safety training and a system of work that was not only safe for all its employees but also above the safety standards prescribed by the government.

After considering the evidence and the legal test to be applied in assessing the liability of an employer for breach of statutory duty, Lady Justice J. Lesiit found that Simon’s medical condition was due to his exposure to fumes and dust at his place of work and further, that Eveready had not taken practicable measures to protect him against the inhalation of those substances. Inevitably, therefore, Eveready was found liable to Simon in the sum of Kshs. 4,327,872.

Eveready filed an appeal against the decision in the Court of Appeal through its advocate, Mr. Musangi. Simon engaged two advocates to counter the appeal, Mr. Mindo and Mr. Ndolo. After the advocates had made their submissions, Appellate Judges Tunoi, O’Kubasu and Githinji retired to reflect on their decision, which, as they would later observe, they did with very careful consideration.

First, they noted that the issue of the liability of Eveready was most crucial and because Simon was the claimant, it was his duty to prove that Eveready had been negligent and breached its statutory duty. The Judges noted that indeed, practicable measures to protect employees against harmful inhalations included not only the provision of masks but also inducing the employees to wear them. They then subjected the evidence which had been given in the High Court to a fresh and exhaustive evaluation: There was evidence to show that Eveready had trained its employees on safety measures. Indeed, Simon himself had admitted that he had been supplied with masks, save that he did not consider them to be adequate or effective. On this point, the Court of Appeal found that the finding by the High Court that the masks were not readily available was not supported by the evidence.

On its own assessment of the rest of the evidence, the Court was satisfied that Simon, as well as other employees of Eveready, had been provided with the necessary masks and that Eveready had taken the necessary measures to ensure a safe and healthy environment in its factory. The Court therefore disagreed with the finding of the High Court that Eveready had breached any of its duties under the Factories Act. Simon had failed to prove his case on the balance of probability.

The judgment of the High Court and all the orders issued by it were set aside and Eveready was awarded the costs of the litigation both in the Court of Appeal and in the High Court.