[2018] KEHC 4997 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 42 OF 2012

ALPHARAMA LIMITED...................APPELLANT

VERSUS

JOHN MURIGI WAIREGI.............RESPONDENT

(Appeal against the judgment and decree of Hon. S. M. Mungai (SRM) in Machakos CMCC No. 720 of 2009 delivered on 18th April, 2012)

JUDGEMENT

1. The respondent sued the appellant in Machakos CMCC No. 720 of 2009 seeking recovery of damages arising from an industrial accident that occurred on 29th November, 2006 while in the appellant’s employment. As a result of the said accident, the respondent claimed to have suffered a crush injury to his right forearm with comminuted fractures of the right radius and ulna, loss of skin and loss of flexor tenderness. The parties herein entered a consent on liability in the ratio of 25:75 in favour of the respondent. It follows therefore that the appeal herein is purely based on the issue of quantum of damages.

2. This being a first appeal, this court is duty bound to re-evaluate and reconsider the evidence afresh and to arrive at its own independent conclusion. It was the respondent’s evidence that he earned Kshs. 230/= daily. That as a result of the accident, his hand was seriously damaged. He was admitted for a period of 2 months that is from 29th November, 2006 to 8th January, 2007 where he was operated on. He produced a discharge summary to that effect. He attended Kenyatta National Hospital for physiotherapy and produced cards to that effect (P. Exhibit 4 a and b). He testified that the company paid him for a period of three (3) months after the accident but later stopped. That Dr. Okere examined him at a cost of KShs. 3,000/=.

3. Dr. Cypriano Okoth Okere confirmed having examined the respondent whom he found to have suffered crush injury to the right arm with comminuted fractures of right radius and ulna, crush muscle tissue of forearm, loss of extensors of digits and wrist, open dislocation of wrist joint, severe degloving injury and vascular injury to the right hand. He stated that the respondent underwent three operations to save the limb in order to enable him perform some functions. That the fractures still showed mul union and further operations may stimulate bone union. He stated that there were surgical scars on the right forearm. The distal radius and ulna were not united and mobile. There was a scar on wrist and it was not closed. That the respondent could not flex and extend fingers and he concluded that the respondent was going to lead a miserable life and could not be employed as a manual worker. He assessed the degree of incapacity at 45%. He stated that he charged KShs. 3,000/= for medical report and KShs. 7,000/= for court attendance. He referred to Dr. Hick’s (the appellant’s doctor) report and he stated that the said doctor was an orthopaedic surgeon and that his opinion was that the limb could not be further improved.

4. In his plaint, the respondent prayed for special damages being; medical report KShs. 3,000/=, Lost earnings from April, 2007 to May, 2009 at KShs. 6,900 per month KShs. 172,500/= and future earnings. The trial magistrate awarded the respondent KShs. 650,000/= as general damages after considering the authorities cited by both parties in relation to the respondent’s injuries, KShs. 576,000/= as loss of future earnings having worked with a minimum wage of KShs. 4,000/= and a multiplier of 12 years. Special damages of KShs. 3,000/= was awarded on the basis that it was the only special damage pleaded and proved.

5. Aggrieved by the said judgment, the appellant filed this appeal on grounds that:

i. The learned trial magistrate erred in law and in fact by awarding general damages for pain and suffering that are so manifestly excessive as to be erroneous.

ii. The learned trial magistrate erred in law and in fact by awarding damages for loss of future earnings when the same was not even pleaded in the respondent’s plaint.

iii. The learned trial magistrate erred in law and in fact by awarding damages for loss of future earnings when no evidence was adduced to support the same.

iv. The learned trial magistrate erred both in law and in fact by not properly considering the medical reports on record and hence arrived at a wrong assessment of damages that are so manifestly excessive as to be erroneous.

v. That the learned trial magistrate erred in law and in fact by failing to consider the appellant’s submissions and thus arrived at an erroneous finding on quantum.

6. This appeal was canvassed by way of written submissions. On general damages, it was the appellant’s submission that the injuries sustained by the respondent were not grave and ought to have been awarded KShs. 350,000/= as general damages. The appellant in advancing that argument cited Simon Taveta v. Mercy Mutitu Njeru (2014) eKLR where it was held that although award of general damages is discretional, the same should be guided by the principle of comparable award for comparable injuries. Further cited in this regard were Civil Appeal No. 759 of 2006, Shreej Enterprises (K) Ltd Kibet Sugut Kimtai v. Peter Ndirangu Kariuki and Kemfro Africa Limited t/a Mara Express Services Gathongo Kanini v. A.M.M. Lubia and Another (1982-88) 1KAR 777. The respondent on the other hand submitted that it was clear from both medical reports that he suffered very severe injuries which had an impact on his quality of life. He urged this court in view of his cross appeal to enhance the damages to KShs. 1. 3 Million and relied on Malindi HCCC No. 51 of 2015. , Umoja Rubber Products Limited v. Bobson Rimba Lewa and NBI HCCC No. 478 of 2007. , Sofia Yusuf Kanyare v. Ali Abdi Sabre & Another.

7. On loss of future earnings, the appellant submitted that the respondent was a casual worker aged 42 years at the time of the accident and could therefore not claim that he could have secured permanent employment with the appellant. It was further submitted that the respondent did not plead loss of future earnings and income in the plaint and that guided by Kisumu Civil Appeal No. 91 of 2003. , Mumias Sugar Company Limited v. Francis Wanalo, the same could not be awarded. That had the respondent pleaded loss of future earnings, a sum of KShs. 210,000/= could have adequately compensated the respondent using a multiplier of 5 years and basic minimum wage of KShs. 3,500/= applicable at the time. The respondent on the other hand submitted that it was an uncontroverted evidence that he was in the appellant’s employment earning KShs. 230/= per day with an exclusion of Sundays thus KShs. 5,980/= per month. That the doctors who examined him concurred that he sustained 40-45% permanent incapacity and in the premises will never work again as a casual worker. That were it not for the accident he could have worked up until the age of 65 years. He suggested loss of future earning of KShs. 1,650,480/= (5,980 × 12× 23).

8. For loss of earnings, the respondent submitted that he never went back to employment as a machine operator. That these are earnings that the respondent lost as he could not continue with his employment with the appellant given the extent of the injuries sustained and that since it falls under the realm of special damages, the same was specifically pleaded and proved.

9. The principles on which an appellate court will disturb an award of damages are well settled: That an appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court took into account irrelevant factors in assessing the damages as was enunciated in Butt v. Khan Civil Appeal No. 40 of 1997 thus:

“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect, and so arrive at a figure which was either inordinately high or low.”

And Kemfro Africa Ltd t/a Meru Express Services Gathogo Kanini v. A.M. Lubia C.A. 21 of 1984 (1882-1988)1 KAR 727where the said principles were also established.

10. In awarding damages, especially in accident cases where it is unlikely for plaintiffs to suffer similar injuries, a court exercises discretion looking at each case on its peculiar circumstances. Applying the test, Dr. Okere found the respondent to have suffered comminuted fractures of the right radius and ulna, crushed muscled tissue of the forearm, loss of extensors of the digits and wrist, open dislocation of the wrist joint, severe degloving injury and vascular injury to the right hand. Dr. Hicks on his assessment found him to have suffered comminuted fractures of the lower ends of his right radius and ulna, lacerated and damage to the muscles in his forearm with loss of extensor tendons to the wrist and fingers, open dislocation of his wrist joint with severe degloving injuries to the area and vascular impairment to his right hand. Dr. Okere formed the opinion that the respondent is going to lead a miserable life as he can no longer be employed as a manual worker and that the degree of permanent incapacity is about 45% and will need further medical attention. Dr. Hicks’ opinion was that the respondent endured severe pain and suffering both physically and psychologically due to the accident of 29th November, 2006. That he sustained injuries which have healed up well to some extent but left him with serious impairment. Looking at the two doctor’s opinions, it is clear that their opinions are more or less the same with regard to the injuries sustained and the effect thereof to the respondent. Both doctors agree that the respondent suffered serious impairment with which he is unable to do casual work.

11. I have considered the authorities cited by the respondent and the appellant in regard to general damages and I find that the authorities are distinguishable. The injuries suffered in Shreej Enterprises case (supra) although similar to those of the respondent herein, were not said to have occasioned permanent disability. On the other hand, the injuries suffered in the cases cited by the respondent in Umoja Rubber Products Limited and Sofia Yusuf Kanyare (supra) although both were assessed to have led to permanent incapacity assessed at 45% and 60% respectively, were in my view too severe having led to an amputation unlike in the instant case. It is noteworthy that the trial court considered the authorities cited in terms of the gravity of the injuries suffered, the age of the cases and the rate of inflation on the Kenyan shilling in arriving at his decision. In the circumstances, I am not convinced that the trial court’s decision was based on wrong principles or that he misapprehended the evidence in some material respect in arriving at the general damages awarded. I see no need to interfere with the said award.

12. On loss of future earnings/loss of earning capacity, I have taken the liberty to read the plaint and it is clear to me that the same was pleaded at paragraph 7 of the plaint. The court in Butler case (supra) while defining the term loss of earning was of the view that it is a different head of damages from loss of future earnings which can readily be proved at the time of trial. That compensation for loss of future earnings is awarded for real assessable loss proved by evidence. The Court in Cecilia Mwangi & another v. Ruth W. Mwangi., Civil Appeal No. 251 of 1996 (unreported) was of the view that loss of earnings/lost earnings is a special damage while loss of earning capacity/loss of future earnings can be classified as general damages but have also to be proved on a balance of probability. There was unrebutted evidence that the respondent was in a salaried employment with the appellant and that he was aged 42 years at the time of the accident. I find that he correctly claimed under the head of lost earnings and loss of future earnings. The respondent was constantly earning KShs. 230/= per day and it was an undisputed fact that his salary was ascertainable thus KShs.5,520/= per month. Factoring in the vicissitudes of life, I find 12 years applied by the trial court as multiplicand appropriate. The respondent’s loss of future earnings therefore works out as hereunder:

5,520 × 12×12 = 794,880/=.

13. On lost earnings, I find that the respondent is entitled to KShs. 126, 960/= bearing in mind that he used to earn KShs. 230/= per day. Working that by 23 months thus April, 2007 to May, 2009, his lost earnings work as 5,520 × 23 = 126,960/=.

14. The upshot is that this appeal fails. The award of general damages remains as awarded by the trial court while I set aside and substitute the award of loss of future earnings with KShs. 794,880/= and award lost earnings of KShs. 126, 960/=. Special damages of KShs. 3,000/= for medical examination is found to have been correctly awarded as pleaded and proved. The respondent’s damages are as hereunder:

General damages KShs. 650,000/=

Loss of future earnings/earning capacity KShs. 794,880/=

Lost earnings/Loss of earnings KShs. 126, 960/=

Special damages for medical report KShs. 3,000/=

Total KShs. 1,464,840/=

Less 25% contribution KShs. 366,210/=

Net General Damages ..................................... KShs. 1,098,630/=

The Respondent is awarded the costs of the appeal and costs of the suit in the lower court.

Dated and Delivered at MACHAKOS this 31st day of July, 2018.

D. K. KEMEI

JUDGE

In the presence of:

No appearance for Wangai Nyuthe for the Appellant

Mwangi for Wahito - for the Respondent

Josephine - Court Assistant