FACTORY EMPLOYEE TO BE COMPENSATED FOR INDUSTRIAL ACCIDENT

Reported by Michael Murungi

Cosmo Plastics Ltd v Stephen Kiamba Nzuva [2007] eKLR (www.kenyalaw.org)
Court of Appeal at Nairobi
(Appeal Judges S.E.O. Bosire, E.M. Githinji & J.W. Onyango-Otieno)
December 7, 2007

A factory employee who was disabled in an industrial accident and was unable to find gainful employment thereafter will be compensated by his former employer for past and future medical expenses and for loss of earning capacity. Early in December of 2007, the Court of Appeal dismissed an appeal filed by Stephen Kiamba Nzuva’s former employer, Cosmo Plastics Ltd, against an award of over Kshs. 2 Million given to Nzuva by the High Court.

Nzuva had joined Cosmo Plastics in July 1995. The company was engaged in the printing business and Nzuva had been employed as a fitting machine operator at one of its factories in Nairobi. On September 2, 1999, Nzuva was assigned to work on a piece of equipment known in the industry as a six column machine. After working on it for two hours, his supervisor moved him to a four column machine on which he was required to fix a roller. It appeared that during its last servicing, the machine had not been restored to its proper condition - a pin that was usually attached inside two rotating shafts had been replaced with a protruding four-inch metal plate. While he was operating the machine, Nzuva’s overalls were caught by the protruding metal and the machine drew him into its belly. By the time his colleagues freed him, his right hand had been mangled at the shoulder and the elbow.

Nzuva was admitted at the Nairobi West Hospital where he underwent surgery and he was discharged after for 8 days. His employer later referred him to the Kenyatta National Hospital and while there, he underwent further surgery to remove gangrene that had developed on his hand. Though his discharge voucher from that hospital was signed on November 22, 1999, he was detained on account of an outstanding medical bill of Kshs. 213,000. He was released from the hospital a month later after a relative pledged his motor vehicle as security for the bill. Nzuva’s employment at Cosmo Plastics would later be terminated in December, 2001. He could not keep his next job because the accident had severely limited the use of his arm.

In July of 2000, Nzuva filed a suit in the High Court against Cosmo Plastics claiming damages for pain, suffering, loss of the amenities of life, past and future medical expenses, loss of earnings and loss of future earning capacity. He told the court that the accident and the losses that he had suffered had been caused by the negligence of Cosmo Plastics. He gave testimony on his own behalf and called two witnesses. For its part, the company denied the claim and argued that Nzuva’s injuries had been solely caused or substantially contributed to by his own negligence. The company did not call any witnesses though its advocate conducted a cross-examination of the testimony of Nzuva and his witnesses.

On September 23, 2002, the High Court delivered its verdict apportioning the liability for the accident at 70% against Cosmo Plastics and 30% against Nzuva. This meant that Nzuva had contributed to the accident by his own negligence or failure to observe caution and therefore any award made against the company was to be reduced by the extent of his contribution. The Court awarded Nzuva Kshs. 800,000 for pain and suffering; Kshs. 450,000 for future medical care; Kshs. 1,620,000 for loss of future earning capacity and Kshs. 217,500 for direct expenses (special damages). All of these reduced by 30% and by a further Kshs. 213,000 which was to be paid directly to Kenyatta National Hospital would leave Nzuva with Kshs. 1,945,450.

However, Cosmo Plastics was not satisfied with the decision of the High Court. It filed an appeal against it in the Court of Appeal challenging both its liability for Nzuva’s injuries and the manner in which the High Court had arrived at its awards of damages.

The Court of Appeal did not find any merit in the argument that the company was not liable for the factory accident. It was clear that Nzuva had been tasked to operate a machine without being sufficiently advised on a matter which was important for his safety – the fact that a replacement piece of metal had been left dangerously protruding from the machine. As an employer, therefore, the company had failed to observe a legal duty placed on it by the Factories Act (Chapter 514 of the Laws of Kenya). However, the Court of Appeal also agreed with the High Court on its finding that Nzuva also had the duty to exercise diligence and carry out his own inspection and inquiry to confirm the safety of operating the machine. The appellate court therefore found no reason to interfere with the decision of the High Court apportioning the liability for the accident to both Cosmo Plastics and Nzuva.

On the question of the monetary assessment of the injuries and losses suffered by Nzuva, the Court of Appeal observed that it was not in a good position to evaluate the decision of the High Court. Firstly, it had not had the advantage of seeing Nzuva in person and secondly, Cosmo Plastics had not annexed the medical reports prepared by two doctors who had examined Nzuva. “How can we conclusively and with any precision decide on the award for pain and suffering when we have no medical report to enable us see what injuries the doctors said the respondent suffered and compare the same with the conclusions made by the [High Court]… It would be an impossible task and no fairness can be claimed in regard to such a decision”, the Court of Appeal stated in its judgment. In the absence of the medical reports, the appellate court had no alternative but to accept the High Court’s awards for pain and suffering and for future medical care.

Finally, on the award for loss of future earning capacity, the Court of Appeal considered that since Nzuva was aged 39 years when he filed his suit and since he would normally have retired at the age of 55 years, the High Court could not be faulted for applying a multiplier of 15 years against his salary in order to arrive at its award.

Ultimately, the Court of Appeal found no merit in the entire appeal. It dismissed it and awarded the costs to Nzuva.