20151218 TZHC Dar es Salaam

1

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 105 OF 2014 [Original from Morogoro RM Civil Case No. 10/2010] MASOUD MSABAHA t/a ...................... APPELLANT V GEORGE ASUKULYE LUTUMO ...... RESPONDENT

JUDGMENT Date of last Order 29/10/2015 Date of Judgment 18/12/2015 Shangwa, J. This appeal arises from the decision of the Court of the Resident Magistrate at Morogoro in RM Civil Case NO. 10 of 2010. In his decision, the trial Magistrate N. Nasari ordered the appellant Masoud Msabaha t/ a Morogoro vibrated Blocks to pay the Respondent George Asukulye Lutumo compensation 2 of Tshs 10,000,000/= for the injury he suffered to his left hand middle finger on 4 th January, 2009 when he - was greasing a cornet mixing machine belonging to the appellant and Tshs 500,000/= as costs for his treatment. The appellant raised three grounds of appeal against the trial court's decision namely:- 1. That the trial Magistrate erred in law when she awarded damages without taking into account relevant principles of law.

2. That the trial Magistrate erred in fact arid in law by awarding general damages which are inordinately high for no justifiable cause. 3 3. That the trial Magistrate erred in law in awarding the respondent Tshs 500,000= without proof. In his written submissions, counsel for the appellant Prof. Binamungu submitted that the assessment of damages by the trial magistrate was a pure guess work. That in assessing damages the trial Magistrate did not apply the principle of 'Restitutio in integrum' i.e restoration to the previous condition and did not take into consideration the factor of contributory negligence. That the Plaintiff's claim of specific damages of Tshs 500,000/= as costs for medical treatment was not proved. He contended that it is the requirement of the law that special damages 4 must be pleaded and strictly proved. He prayed the court to allow this appeal with costs. In his reply submissions, counsel for the Respondent Dr. Kagirwa contended that it would be quite unjust and unreasonable for this court to quash the reliefs which were granted to the respondent by the trial court. He said that the appeal is against the quantum of damages as well as the award of special damages but not against the trial court's finding that the appellant is liable for breach of his statutory duty as the respondent's employer. That the trial Magistrate exercised her discretion in reducing

his claim of general damages from Tshs. 44,000,000/= to Tshs 10,000,000/=. That the principle of 'restitution 5 1n integrum' cannot be applied in quantification of general damages in a case such as this one where a party is claiming compensation for loss of a human organ, to wit a finger. That Tshs, 10,000,000/= which were awarded to the respondent as compensation for loss of his finger cannot be described as inordinately high in the circumstances of the instant case. That the respondent's claim ofTshs 500,000/= which were awarded by the trial court was for loss of his capacity to earn income for 5 months consequent upon the accident and not as medical expenses as argued by counsel for the appellant. Dr. Kagirwa closed his submission on behalf of the respondent by praying the court to dismiss the appeal with costs. 6 After digesting the submissions and arguments made by the Advocates on both sides, let me now start to determine the grounds of appeal raised by the appellant in faulting the trial Magistrate's decision. On the first ground of appeal, the trial Magistrate is faulted for not taking into account the relevant principles of law when awarding general damages. It is common knowledge that in awarding general damages, the court has to apply the principle of 'restitutio in integrum'. That is restoration of the Plaintiff to the previous condition. However, as correctly

argued by counsel for the respondent, in certain cases, such as this one in which the respondent was claiming for compensation for loss of his finger, the trial Magistrate cannot be faulted for 7 failure to apply the principle of 'restitutio 1n integrum'. This is because no amount of money that the court may award that can bring back his finger which was amputated after being injured by the cornet mixing machine which belonged to the appellant. In this case, the trial Magistrate is also faulted by counsel for the appellant for not taking into consideration the principle of contributory negligence in awarding general damages to the respondent. In my view, as the Plaintiff's/Respondent's suit was not founded on tort of negligence by defendant/ appellant but was founded on a claim for 8 compensation from the Appellant as his workman after getting injury on his left hand middle finger when he was greasing the appellant's cornet mixing machine for production of blocks, the principle. of contributory negligence could not have been correctly applied by the trial Magistrate in this case. For these reasons, the 1 st ground of appeal fails. On the second ground of appeal, the trial Magistrate is faulted for awarding general damages of Tshs 10,000,000/= to the respondent on grounds that it is on the high side and without justifiable cause. In my opinion, I do not think that the said

sum of money awarded by the trial Magistrate to the respondent was so awarded out of guess work and 9 without justifiable cause as argued, by Prof. Binamungu for the appellant. In law, general damages are awarded in the discretion of the court. The exercise of the court's discretion cannot be described as guess work. In this case, before awarding general damages of Tshs 10,000,000/= to the respondent, the trial Magistrate took into consideration the severity of the injury which was sustained by him and the pain suffered by him when his left hand middle finger was crushed by the cornet mixing machine attended by him which made the Doctor to amputate it. Certainly, amputation of his finger following the accident left him with permanent disfigurement. Therefore, I do not think that Tshs. 10,000,000/= which the trial Magistrate awarded to '.. 10 the r~spondent is on the high side as argued by Prof. Binamungu. Thus, the 2 nd ground of appeal fails. On the third ground or appeal, the trial Magistrate is faulted for awarding Tshs 500,000/= to . the respondent without proof. On this ground, I think the trial Magistrate, just as I will soon show is faulted for nothing. To start with, let me quote paragraph 9 (a) of the respondent's plaint in the Court below:- "(9) That as a result of the said injury the Plaintiff suffered the following damages:- (a) He could not earn any income for the

months of January to May, 2009 and that the Defendant did not give any assistance save for medical 11 treatment; and as a result he lost income at Tshs 100,000/= per month x 5 months=- 500,000/=. As it can be seen from the above quoted paragraph, the respondent's claim of Tshs 500,000/= before the trial court was not with respect to costs for medical treatment or expenses. It was for lost income for 5 months which he could not earn for the said period due to the accident. In my view, therefore, the respondent was not required to offer strict proof in order to be granted his claim of Tshs 500,000/= as loss of earnings for five months when he could not attend to his job due to accident. Had it been that the Plaintiff/ respondent's claim of Tshs 500,000/= was .. 12 for medical expenses which was not, he would then have been required to prove the same strictly. I repeat to say therefore that the trial Magistrate was faulted for nothing on the 3 rd ground of appeal which fails. For these reasons, I dismiss this appeal with costs. this 18 th day of December, 2015 - A .Shangwa

JUDGE 18/12/2015