cc 386/17

 

 

MOHAMED BAH PLAINT!fF

 

AND

 

 

 

 

THE MANAGING: DIRECTOR. AFRICELL (SL) LTD

 

 

1" DEFENDANT

 

 

 

 

AFRICELL (SL) LTD 2'° DEFENDANT

 

 

 

REPRESENTATION:

 

 

E.S. ABDULA! ESQ.

 

A. SHOWERS ESQ.

 

COUNSEL FOR THE PLAINTIFF COUNSEL FOR THE DEFENDANTS

 

 

BEFORE THE HON. MR. JUSTICE SENGU KOROMA JA. JUDGMENT  DELIVERED ON 26TH JULY, 2018

 

 

 

 

------------------

 

•

• 1. The  Plaintiff hereain filed a \Vrit of Summons dated the 9th dav of December, 2017 against the Defendant Company and its  l\Ianaging  Director  (hereinafter  referred  to as "the Defendants") claiming the following:

1) Damages for breach of duty;

2) Recovery of the  sum  of Le 1,094,151,776.00; and

3) An order that the Plaintiff be flown to India for his second medical treatment at the expense of the  2ml  Defendant

4) Any order or orders that this honourable court may deem fit and just.

2. The  Defendants  entered  appearanuc  to this  action  on  the  8th  of .January,

2018 andfiled a defence on the 18th .January,  2018.

3. I have not referred to the particulars of claim herein because there is an application for Summary Judgment before me to determine; the affida\it in support of which will deals with all issues relating thereto.

4. On the 26th i\lav, 2018, Counsel for the Defendants, A.  Showers  Esq.  informs the court tl'iat his clients :.ire considering settling the matter out of court. He proposes the pa>111cnt of Le 51 million as compensation \,ith regards to the injuries sustained by the Plaintiff and Le 59 million as end of service benefits.

5. The proposal is unacceptable to the Plaintiff and his Counsel, Emmanuel S. Abclulai Esq. who informs the court that they want compensation  for:

1. Disability;

11. Training;

111. Unutilizccl  period  of employment;

1v. Long term medical treatment;  and

v. Solicitor's costs.

6. In view of the failure of the parties to agree on a settlement, I ordered that the Plaintiffs Counsel move his application on the next adjourned   elate.

7. On the 30th May, 2018, Mr. Abclulai moves the application in which the Plaintiff prays for the followin)', Orders:-

 

•

1. That this Honourable Court do order the Plaintiff/Applicant to enter Summary .Judgment  against the 1'1  and 2nd Defendant/Respondents

on the reliefs claimed  in the \\Trit  of Summons dated  9h1    December,

2017 pursuant  to Order 16 (1) of the  High Court Rules   2007

2. Special damages  in  the sum  of Le1,094,151,776.oo

3. Damages for breach of duty of   care.

4. Interest rate at 35% per annum.

5. An order that the Plaintiff be flown to Indian for his second medical treatment at the expense of the 21HI Defendant.

6. That the cost of this application be borne by the Defendant/ Respondents

8. The applic,1tion is supported by the affidavit of Alpha Salieu Ndolleh sworn to on the 25th day of April, 2018 together \1•ith the exhibits attached thereto. In the said affidavit, the deponent avers that there is an employer/employee relationship between the parties-Exhibits •'ASN1"

9. In paragraph 3, tlie deponent avers that in the course of his employment, the Plaintiff was attacked by bees and fell down from the pole of the Defendants.

10. The deponent further avers as follows:

1. Paragraph  5-That  on  the 28th  dav  of ,June,  2016 Dr. \\Tilliams prognosed that the Plaintiffs right knee b,1d dislocated and recommended certain actions including flying him overseas for treatment.

11. Paragraph  6-Tlwt the  medical  treatment  was  initially  done by a Doctor in India, who only did part of it. The medical report is exhibited and m,1rked "ASN 2".

111. Paragraph 7-That the Plaintiff  has been rendered  incapable  to do any work:-

• Can no longer walk without the help of clutches

• His left leg is overburdened by his weight

 

• • He is no longer able to carry on his   trade

JV. Paragraph 10-That the Doctor in India recommended that knee replacement be done on the Plaintiff six months after the initial treatment but the Defendants refused to finance the trip. The said recommendation is exhibited and marked "AS 3".

v. Paragraph 12-That it is clear from the defence filed that  the  Defendants have no defence on the merit.

11. In his oral submission, i\lr. Alxlulai argues that the Plaintiff is no longer able lo do the job be used to do. At the age of 34 :•,ears, the  Plaintiff is  26

:•,ears short of the retirement age and so in his claim, his future earning was computed up to the date of retirement.

12. He submits that the Defendants cannot rely on the \Vorkmen's Compensation Act, Cap 19 of the Laws of Sierra Leone, 1960. In his view, that Act is not applicable to matters commenced in the High Court as Section 23 thereof only gives this court an appellate jurisdiction.

13. Counsel for the  Plaintiff in addition relies on the following   cases:-

1. NATIONAL PARKS & \VILDLIFE SERVICES -V- STABLE PERISHERS  (1990)  NS\VLR

ll. l\IOSES .J. \VII,L -V-  CHINA RAIL\VAY 71 11  GROUP.

m. GIBRILLA  RA:'\JGURA -V-   HENAN CONSTRUCTION CO:\IPA1',TY LTD

14. i\Ir. Abdulai concludes by reminding the court of the  need  for equity and  good conscience to prevail as what the Defendants arc offering is grossly inadequate.

15. The application is opposed by the Defendants and their Counsel, Adewale Showers Esq. relies on an affidavit sworn to on the llth i\lay, 2018. In paragraph 4 of the said affidavit, the deponent avers that on the 26th June, 2015,   the   Plaintiff   herein   had   an   accident   whilst   working   for   the   211d Defendant: that he had to unhook the protective harness in order to release himself  and  flee from  the  attack of bees.  He exhibits "AF1 A"-Accident

 

• report  of  the  Engineer  in  charge  and  "AF1  B-Evidence  of  PPE (Personal

Protective Equipment) supplied to the Plaintiff

16. Andrew Fatorma the deponent also avers that:

1.  Paragraph  5-That  the  Plaintiff  \1•as   gi\•en   medical   attention   at   the Emergencv Hospital, Godrich, where he was admitted until  the  6th  October, 2015.

ii.           Paragraph   6-  That   at   the   request   of  the   Plaintiff,   he  \1•as  given   Le   4,

500,000/00 to  seek  medical  treatment  from  a  native   bone doctor/specialist. He exhibits the said letter of  request  dated  ih  October, 2015 and receipt of payment of medical bills of  the  native  doctor  as  Exhibits "AF 2 A& B

Ill. Paragraph 7- That after a period of 7 months-that is about :\lay- .July, 2016,

the  Plaintiff  approached  some officials  of  the  21d1     Defendant  regarding  his

condition. He was first sent to Dr. \Villiams and on the 1ih ,June, 2016,  he went to sec a bone specialist, Dr. Baimba  Bayoh at  the  King Herman  Road,   I lospital. The medical  report of Dr. Bayoh is exhibited and  marked "AF  3''.

1v. Paragraph 8-That the Plaintiff was later sent to Dr. M. Harding (an Orthopedic specialist) to seek a second opinion. The said opinion is exhibited and marked "AF 4".

v. Paragraph 8-That consequent on "AF 4",  the  Plaintiff  \1•as flown  to  India where   he   underwent    an   operation.   All    the    medical   expenses    were

undertaken   bv  the   21d1 Defendant   for  the   Plaintiff  and   his  brother  who

accompanied him to India ,111d also paid a stipend of S50.oo a day to cover personal and miscellaneous expenses-copies of receipt of  National passport, ticket and medical bills for medical expenses is now shown to me and marked "AF A-L".

v1. Paragraph 6- That contrary to paragraph of the affidavit  in  support,  the operation in India \1•as successful save that it is the opinion of Dr. Rakesh Rhansali and that of Dr. I-larding that  the knee  replacement  could  not  be done immediately but on the attainment of age 60. (A Photostat copy of the letter elated 10th February, 2018 is exhibited as "AF  6".

JSK/CK Page I 5

 

•

v11.    Paragraph  11-That  contrary  to  paragraph  8  of the  affidavit  in support,  the

Plaintiff suffered 35 percent disability which means he is not permanently disabled and he could do some other ,vork and indeed the Defendant made such an offer. Letters to the Plaintiff requesting him to resume work arc exhibited as "AF A-C''.

vu1. Paragraphs 12 and 13: Dr. R. R. Bhansali in his letter dated 10th February, 2018-Exhihit ''AF 6" stated that the Plaintiff need not travel all the way of India for follow-up treatment as nothing special needs to be done for vcrv many years to come."

1x. Paragraph 15: That the computed compensation for his permanent partial incapacity in the sum of Le 51,480.933 being 35 percent of hi;; monthly earnings 11•as communicated  to him  by exhibited "AF 8".

17. ;\Jr. Fatorma concludes by deposing that  the Defendant  do have a defence to the action.

18. In his oral submissions, :\fr. Showers argues that the defence filed discloses triable issues which 1wrnld warrant a trial.

19. :\Ir. Shm\•ers admits that the substance of the application centres  around  the issue of compensation. Ile submits that the Defendant is not averse  to pay compensation to the Plaintiff but the area of divergence is the legal framework to be used in determining same. To him, the legal frame\\'ork should be the \Vorkmen's Compcm;ation (Amendment) Act, 1969-Section 6 thereof.

20. On the submission of :\lr. Abdulai that Section 21 of Cap 219 deprives the High Court of jurisdiction to try this matter; l\lr. Showers argues that the  said section provides that all the powers and jurisdiction exercisable by the l\lagistrate Court shall apply mutantis   mutandis.

21. l\l r. Showers further submits that the Defendants were not negligent as the al'.cident was not foreseeable and that the Plaintiff w,ts given protective gear-Exhibit AF 1A.

22. In reply, A.S Ndollch Esq. deputing Mr. Abdulai submits that  the application  before  this  court  is  not  based  on  Cap  219. The computation

)SK/CK Page I 6

 

•

clone  by  the  Defendants  referencing  that  section  1s  grossly inadequate.

Instead they arc relying on the common law duty to act with equity and  good conscience. For this he cites the case of NORTHERN COLLIERY E'.\IPLOYEES FEDERATION -V- NORTHERN COLLIERY PROPRIETORS

ASSOC.  (1904). ;\Ir.  Ndolleh  concludes  on  this  point  by submitting that

\1•hcn the injuries suffered by the Plaintiff are taken into consideration, the compensation offered bv Cap 219 would be against equity and good conscience.

23. ;\Ir. Nclollch finally concludes by submitting that the affidavit in support should lie discountenanced as there arc no trialilc issues.

24. After reading the affidavits in supp<lrt and opposition, my first ccmclusion  is that the Defendants arc not disputing liability but are insisting  that Cap 219 and the amendment thereto should form the basis of anv compensation to be paid to the Plaintiff.

25. It should ho\1•en:•r be noted that compensation under Cap 219 do  not require negligence 0)1 the part of the Defendant. \Vhat is important is that there is an employer/employee relationship and the Plaintiff has suffered injury in the course of his employment.

26. The Plaintiff on the other hand is claiming that the Court acting in good conscience and equity should use the common law rules of negligence to determine the extent of compensation payable to the  Plaintiff.  On  this point, the Defendants arc saying that assuming that they arc negligent, the Plaintiff is contributorily responsible for his  injury.

ISSUES  FOR DETERl\IINATION

27. The first issue for determination is which legal framework  should  be used in computing the compensation to be paid to the Plaintiff. If it is Cap 219, the court will straight a\1•ay decide on the said compensation. If it on the other hand decides that it should be under the common law of negligence, then the Plaintiff must prove duty of care was owed by the  Defendants  to the Plaintiff and they \\'ere in breach of that case.

 

•28. The second  issue  \\•mild  be  to determine  the compensation  pa\•ablc  in  the

event that  negligence  is proved.

29. As \\•ith most la\\•s ,md legal principles in Sierra Leone, compensation for rn.iury m the workplace is greatlv influence bv the law and practice in England.

30. The principle is that an employee injured at work is able to claim  not  only

no fault compensation under the \Vorkmen's Compensation Act, but also damages from the cmplon'r if liability in tort can be established. Use of one system of compensation, to my mind, docs not lead to exclusion from the other; there is no employer privilege preventing an employee claiming from both \Vorkmcn's Compensation a•nd tort. Entitlement to compensation under each regime is grounded upon very different bases. In general, whereas Cap 219 requires only proof of a work related injury irrespel'.ti\•e of how it occurs, the tort claim is usually grounded upon proof of another's wrong doing.

31. Hm\-c\•cr,  when  comparing  the  benefits  offered,  the  differem:cs    become

-

more  npparent. The  \Vorkmen's  Compensation  providl'S  fllll compensation.

A major difference is that Cap 219 docs not compensate for financial losses such as loss earnings or the costs of care. llowevcr, it is only the tort system that aims to return the Plaintiff as far as possible to the position he was in before the inju1y and only tort is able to compensate for financial loss. In a\\•arding this full compensation, tort pays damages in the form of a lump sum.

32. Having said this, I turn to an issue raised by l\lr. Abdulai that the lligh Court lacks original jurisdiction in matters relating to Cap 219. This was contro\•erted by ;\Ir. Showers. In determining this issue, I ha\•e looked at the interpretation section (section 3) of cap 219. Section 3 (1) provides that "Court" means "::\Jagistratcs Court". Section 22 gives the High Court the power to decide on any question of law submitted to it by the Magistrate's Court and Section 23 (1) gi\•es the High Court an appellate jurisdiction. Based on  the foregoing  analysis,  I agree ,,ith  l\Jr. Abdulai that the   High

 

•

Court lacks original jurisdiction  to determine matters unclcr Cap 219  and  I

so rule. In the circumstances  this matter \,ill be determined under the tort  of negligence. Of course this ruling throws out critical aspects of the defence filed herein warranting this court to determine this matter under Order 16 ( t) of the High Court Rules, 2007.

33. I have taken into consideration that the Defendant 1s not a\'erse to compensating the  Plaintiff  but  merely  insisiting  that  the  legal  regime should be Cap 219. This contention has been disposed  of  \1•hcn  I held  that this Court lacks original Jurisdiction and so the matter  will  be determined under the tort of ne)!,ligcncc. In so doing, I shall examine the claims of the Plaintiff as follows

:\)  Damages for brcad1 of dutv.

34. It is not in dispute th,it at  all  material  times,  the  Plaintiff  was  an employee   of   the   Defendants    and    was   injured    in    the    course    of   his cm plo::,111en t.

:-is.         Before  procct;ding further  on  the  point,  it is important  to state the

general principles governing an employer's liability for the safety of his  scn•ant. The Court of Appeal of Sierra Leone in the case of 1\Ll.EGE:\IEINE l:L\U CNION (AB1J) \'- BAI 10\_;\IARA (CIV.APP 12/79)  (Unreportcd)Pcr

NAVO ,IA. (as then was) had this to say 'The Law has at all times imposed an obli)!,ation on the master to take proper and fitting care to ensure that servants ... clo not suffer anv injury, either in consequence of his personal negligence or through his failure to properly superintend and secure the undertaking in which he and they arc jointly engaged. A breach of this obligation or duh• has alwm•s given the servant a right of action for reparation".

36. The duty is  peculiar  to !\laster-Servant  relationship.  This duty according to CLERK A D   LI:NDSELI. ON TORTS, 181 II  EDITION, ,mcl paragraph 7-

217 includes a safe system of work. An employer docs not warrant that the equipment or process is unattended by danger, but he is under a duty to sec that a safe system of work and supervision are provided. This could be done

JSK/CK Page J 9

 

• by taking  reasonable sare, having  regard  to the dangers  inherent  m   the

operation.

37. In the instant case, the Plaintiff w,1s employed bv the 2 1\l1 Defendant as a Technician  Rigger.  On  the  2 611i June, 2015  the Plaintiff  was attacked by

bees  \\•hilc  \\•orking  on  the  2 1d1      Defendant's  pole  which  caused  him  to  foll

dm\,1 causing serious injuries. According to the Ph1intiff, he was  not prO\•idcd with protecti\•e gear but this was contrm•crted by the Defendants: c\•idence \\•as provided to prm•e the Plaintiff was indeed supplied with Personal ProtectiYe Equipment. According to paragraph ,1 of the affichn•it in opposition, the ,1ccident occurred when the Plaintiff  unhooked  the  protccti\•c harness in order to release himself and flee from the  attack  of bees. This act according to the Defendants' Counsel rendered the Plaintiff contribu toriI.v nebalib"en t

38. 1\1\• understanding  of the  use  of  the  protective  harness is to prevent the

climber from falling. The question here is, was the Plaintiff provided with protection against  the  attack  of  bees  as  this  is  reasonably  foreseeable'?  Do the Defendants expect the Plaintiff to stay hooked to the  pole  in  the  face of attack by the bees•: The anS\\•er is, of course, no... The Plaintiff did \\•h,1t ,111\' reasonable person could lwve  done  in  the  circumstance  -  it  \\•as  ,111 instinctive   reaction  to  the  attack.

39. From  the foregoing, I hold that a duty of care exists between the   Plaintiff

and  the  Defendant  and  that  duty has  been  breached  by  the  2 1d1     Defendant.

The next question is whether injury was foreseeable. As I  have  already  stated, attacks from bees is mostlv likely in  trees,  poles etc. The  principle here is that it is not necessary to show that the Defendant should  ha\'e  foreseen precisely what happened. It is enough if the injury is of a type that could have been foreseen even if it came about in an unexpected way. I therefore  hold  that the injury was reasonably  foreseeable.

40. It is  my conclusion  that  based  on fact  and  law,  I find  the  2 1"1 Defendant liable  for  damages  for negligence.

 

• 41.The  question   now  is  the  quantum  of  damages  payable.  The   Plaintiff   has

elaimed damages for breach of duty (which I shall  treat  as  general damages) and special  cbmages.

42. I shall first deal \\ith general dam,1ges. The principles goYernmg the assessment of damages in a personal injury matter was clearly laid dmn1 by LIVERSEY -LUKE C..J in the case of IDRISS:\ COXTE!-I V- ABDUL .J. KA:\L-\RA (1980) S.C. C!VAl'P:2/79 (Unreported) which was applied by the Court of Appeal in :\L-\'.\'KA S. KANU -V- rl:\\VA FULL\H -CIV.API' 2/79 deli\•ercd on the 29th :\Ln•, 1980, per l\larcus-Colc JA. in the Idrissa Conteh case, LiYesev Luke C..J. had this to sav "the most  important  principle applicable is that gcneral  dam'.1ges  must  be  fair  and  reasonable compensation for cbmages suffered and that perfect compensation is  not possible or permissible. The  Judge  making  the  assessment  must  do  their  best to arri\'C at a fair and reasonable estimate  and  for  this  purpose  he  may use certain aids  by  considering  the  award  of damages  under  Yarious  heads of damages."

43. l-Iis Lordship continued "the accepted heads arc the injuries sust,iincd, the pain and suffering endured, past, present and future loss of amenities, loss  of expectation  of  life  and  present  and  future  financial  loss.  But the

.Judge is not obliged to state the amount ,\\\'arded  under  each  head.  I !is duty is to satisfy  himself  that  at  the end  of  the  day, the total  of  the sums

,n,•arcled unckr the Yarious heads is fair and reasonable".

,1,i. A similar view was expressed by Lord Denning l'vlR in FLETCHER  -V­ AUTO CAR & TRANSPORTATION LIMITED (1968) 2 \VLR 743,    CA. and

Marcus JA in the MANKA S. KANU case where he stated that "there is a considerable risk in just adding up the items. There will be the risk of overlapping".

,15. I have taken into consideration the nature of the  injury suffered  by  the Plaintiff \,•hich caused 35 percent  disabilit:,,  the  foct  that  he  endured  pain and had to be  hospitalised  for  about  ,1 months,  his  inability  to continue  to do  the  work  he  Wi\S   trained  for  there  by  occasioning  loss  of  earnings. The

 

 

 

 

Plain tiff is now restricted to the use of clutches. I note that not\\ithstanding this  action,  the  Pbintill  may  still  be  entitled  to  compensation  under  the

\Vorkmen's Compensation Act, Cap  219.  :\lore  significantly,  I  ha\'e  taken into account the  expenses  already  undertaken  by  the  Defendants  on  behalf of the Plaintiff \,•hich I belie\•c \\•as done under the medical scheme of the 211d  Defendant.

In the circumstance talking all of the foregoing into consideration, I shall award general damages of  Le4oomillion.

,16. As reg,trds special damages,  these  are  easily  quantifiable  -loss  of earning, medical expenses, taxi fares and lost \\ages. These are expenses incurred as a result of the accident.' Special Dam,igcs must be an•1Ted and prO\'l'd, and, if pnl\'Cd \\ill be a\,•arded. In other words, special damages arc such as the law \,•ill not infer from the nature of the act. They do not follow in ordinary course. They arc exceptional in their character ancl, therefore, they must be claimed specifically and strictly proved -  my conclusion  on this  point  is  that  liability  depends  upon  the  existence  of special damage,

,tnd the action ,,ill fail if special damage is not  pleaded.

47.   I ha\'l' perused  the \Vrit  of Summons and  it  is my \'iew that  the Phtintiff   has   pleaded  special damages.

.18. This category  \\ill  involve,  as  I  ha\'l'  already  stated,  medical  expenses  (past and future); lost wages and loss of earning  capacity.  It  could  also  include end of service benefits  if the   Plaintiff  will no longer  work

49. I shall now proceed to examine the claim  for special damages

A. l\IEDICAL EXPE:\'SES.

50. The  Plaintiff  is claiming the sum of Le239, 065,022.00  under  this head. I note hm,•e\•cr that the entire claim is for the Plaintiff to travel to India for medical treatment. It \\ill be in the interest of the  Plaintiff if the third claim  in the statement of claim is granted for the Plaintiff to travel to India for second  medical treatment  instead  of awarding  this sum, unless otherwise.

 

•

B. FUTURE EARNING

51. This has been computed at Le853, 112,604. This cm-ers the monthh• earning of the Plaintiff at Le2, 451,473.00 for a period of 29  years.

52. I have note that the disability of the Plaintiff is measured at 35%. This means the Plaintiff can do some other work and therefore not entitled to the  entire sum.

!11 the cireumst,mce,  I \\•ill order  payment  of 35  percent  of the sum claimed

C. PENSION

53. This I will refer to as e11d of service benefits as the :-JASS IT Scheme takes care of pe11sion. This has been computed bv the Defendants at Le59rnillion  which  was  not  controverted  by the Plaintiff.

I \\ill accordingly allow it.

 

54. In consequence of the foregoing,  I \\ill order as follows:

The 2nd Defendant is liable to the Plaintiff in negligence and shall pay the Plaintiff as follcl\\"S: .

a) The sum ot• Le400 million as general damages

b) 35% of the  sum of  Le853, 112.60,1 as special  damages.

c) The sum  of  Le59l\Iillion  as end of service  benefits

d) That the 2'"1 Defc11dant takes immediate steps to fly the Plaintiff for his second medical treatment or alternati,•ely pays the Plaintiff the sum of Le239,065,022.oo  in  that behalf.

c)  Cost  of  Lc30,  000,000.00  to  be  borne  bv  the  .,,,,1 Defendant  to  the

Plaintiff.

 

-;

.

---/._••-  -

'- ,/'   \,

....................L.,-.-..-,....../'...........................

,.    ....

Hon. Mr. Justice Scngu Koroma J.A.