Mohamed Bah v The Managing Director Africell (CC 386/17)  SLHC 1261 (26 July 2018);
MOHAMED BAH PLAINT!fF
THE MANAGING: DIRECTOR. AFRICELL (SL) LTD
AFRICELL (SL) LTD 2'° DEFENDANT
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:
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".
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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
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
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
'- ,/' \,
Hon. Mr. Justice Scngu Koroma J.A.