Mjige v. E. A. Railways & Harbours & Others Civ. Case 4-T-68; 8/4/70; Platt J.

Mjige v. E. A. Railways & Harbours & Others Civ. Case 4-T-68; 8/4/70; Platt J.

In this case the dependants of a railway guard named Kilio, who died in a motor vehicle accident on the 30^th November 1966 sued four persons in damages under section 4 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Cap. 360. The dependants were his widowed mother, Mariam Mjige (1^st plaintiff) and his minor daughters Mandalwa and Rukiya (2^nd plaintiffs), who sued by their guardian Mariam. The first defendant was the General Manager of the E. A. R. & H. and the second defendant Abdallah Juma was a driver employed by the E. A. R. & H. Kilio died as a result of a collision which occurred between the Railways’ vehicle, a Peugeot saloon car and a lorry. The Lorry was owned by the third defendant Alli Chiliga and under the control of his driver Hassan Mohamed, the fourth defendant. The lorry was stationary at the time of the collision, facing towards Korogwe, and Abdallah Juma was driving the Railways’ vehicle from Tanga to Korogwe. The collision occurred at about 12.50 a.m. just after midnight between the 30^th Novembr and 1^st December 1966. Juma was conveying Kilio from Tanga to Korogwe in the course of his duties. Kilio had been instructed to board the train at Korogwe on which he was to act as a guard. Kilio, therefore, was also acting in the course of his employment…. The lorry was hired by third parties to convey their produce to Dar es Salaam and was returning from Dar es Salaam to Lushoto. It left Dar es Salaam at 5.00 p. m on the 30^th November and had joined the Tanga/Korogwe road. But as Hassan felt unable to continue driving at that late hour, he, with agreement of the hirers, decided to take a rest. Shortly after 12.30 a.m. Hassan was awakened by the noise of the collision, and saw the car overturning before it came to rest in front of him in the grass off the road on the left facing Korogwe. The police officer, who visited the scene of accident, discovered that the lorry abutted into the tarmac surface of the road about 2 ft. and thereby caused some obstruction. Therefore if the chevrons and reflectors had been somewhat dusty, as the police officer found, and the parking lights had not been switched o, the lorry stood to cause some obstruction for other users of the road traveling towards Korogwe. The plaintiffs had been paid by the first defendant Shs. 24,000/- under Workmen’s Compensation Ordinance and Shs. 8,990/- as a death gratuity, which was said to be discretionary.

            Held : (1) “It was Hassan’s duty to take proper precautions to see that the position of his vehicle was either clear of the road or could easily be noticed by other drivers using his side of the road. This is more especially the case if it was true that there was some mist which had gathered on this otherwise dark night ….. on the other hand, it was Abdallah’s duty to drive at a reasonable speed with his lights fully on and keeping a proper lookout ….. It seems clear that there was some fault on both sides. I would apportion the liability for the accident two – thirds on the side of Abdallah and one-third on the side of Hassan”. (2) “It was Ali Chiliga’s case (3^rd defendant) that he was not responsible for whatever his driver Hassan was under their direction ….. it was, no doubt, a case where Ali Chiliga was the general employer while  (hirers) had a contractual right to the use of Hassani’s services. On Ali Chiliga’s part he was responsible for the wages and food allowance of Hassani as well

as the running and the maintenance expenses of the vehicle. As such the manner in which Hassan was to drive the vehicle was, of course, to conform with the traffic regulations and Alli’s interests in preserving the vehicle in good condition, and as Alli says if Hassan committed any wrongful act, it was Alli’s right to dismiss him. Hassan was also to return within a specified time; it was not open to (hirers) to give Hassan instruction which would require the lorry to deviate from the route or delay its return. On the other hand, it was open to (hirers) to require the vegetable to be conveyed to markets in Dar es Salaam as they chose, and no doubt they could require reasonable assistance in preserving their produce. But in the final analysis it was Hassan who decided that he must stop and rest and it was up to him to se that the lorry was properly parked because by this time he was simply driving (hirers) back to Lushoto in an empty lorry. At this stage they were largely passengers. In my view, on the facts as presented by the evidence, there can be little doubt but that Alli was in control of the vehicle at the material time through his servant Hassan. In coming to this conclusion I have taken cognizance of MERSEY DOCKS AND HARBOUR BOARD v. COGGINS & GRIFFITHS (Liverpool) Ltd.  and MACFARLANE (1946) 2 ALL E. R. 345, the leading English case which received approval in CHURCHER v. THE LANDING & SHIPPING CO. OF EAST AFRICA LTD. (1957) E. A. 118; and I hope that I have sufficiently demonstrated that the proper test, being whether or not the hirer had authority to control the manner of the execution or the relevant acts of the driver, has been properly applied in the circumstances existing. I would therefore hold that as Hassan was somewhat at fault; both he and Alli Chiliga were responsible to that extent.” (3) Passing to the situation of Abdallah vis a vis his employer the General Manager of the East African Railways and Harbours: “It will not be disputed that Abdallay being the actual tortfeasor on the basis of his assumed responsibility or partial responsibility was directly liable, and in general circumstances his employer was vicariously liable. But Counsel for the East African Community took a preliminary point that although the suit might well be commenced within three years of the death of Kilio in pursuance of section 4(2) proviso (ii) of Cap. 360 nevertheless, this municipal law was ousted by legislation concerning the High Commission and the Treaty for East Africa Co-operation (Implementation) Act No. 42/67; where by section 93 of the East African Railways and Harbours Act supervened and cut down the period to one of 12 months but within the three year limit. Without going into details which are set out in the ruling on this subject, I held that the suit was time barred as against the General Manager of the Railways. I do not propose to add anything further to that ruling which will explain why the suit was dismissed with costs against the plaintiffs as far as the General Manager was concerned, and left Abdallah Juma standing by himself as second defendant.”

(4) (a) “Part of the difficulty which arose (with respect to Workmen’s Compensation Ordinance) in this trial was that Counsel for both sides were not sure whether the principal ordinance applied or whether the amending ordinance being No. 60 of 1966 had come into operation at the date of the accident or could be said to operate at the time when the suit was commenced. Further argument was called for when it was discovered that the amending Act was brought into operation as from the 1^st July 1967 by virtue of G. N. No. 159 of 1967. The amending Act therefore came into force after the accident but before the suit was commenced on the 20 the April 1968. There is nothing in the amending Act prescribing that it shall cover

Accidents which occurred before it came into force. I take it therefore that the amending Act affected the employer’s liability for the higher payment of workmen’s compensation as a result of injuries received in accident occurring after the 1^st July 1967. Hence although the compensation paid may have been paid out after the new Act came into force, the amount paid was properly computed according to the provisions of the old Ordinance and that the Railways were not liable to pay the additional sum provided by the new Act. But since the date of payment is not actually known I leave the point open.” The court however remarked that “……. When one turns to section 6(a) of the Workmen’s Compensation Ordinance, it will be seen that they received the highest award possible in the case resulting from personal injury by accident arising out of, and in the course of the workmen’s employment.” 4(b) “But then does it also follow that the more stringent provisions of section 23 of the old Ordinance also apply? Section 23 as far as it is applicable provides as follows:- ’23. Where the injury in respect of which compensation is payable under the provisions of this Ordinance was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof – (a) the workman may take proceedings both against that person to recover damages against any person liable to pay compensation under the provisions of this Ordinance for such compensation, but shall not be entitled to recover both damages and compensation:’ there is considerable learning on the history of the English Workmen’s Compensation Acts, but suffice it to say that section 23 just quoted  stem from the corresponding English act of 1908 which in its day was innovation granting the workman the right to sue for both workmen’s compensation and damages. A procedural bar was however instituted whereby he could not recover both. He could commence proceedings for both types of remedy but if he recovered workmen’s compensation then he could not pursue his right to damages. In this case as it is admitted that compensation was recovered, then that would be a bar to the suit for damages. The amendment does vary with this procedural bar, and recites as follows: - ’23. – (1) Where the injury in respect of which compensation is payable under the provisions of this Ordinance was caused under circumstance creating a legal liability in some person other than the employer to pay damages in respect thereof. The workman may take proceedings both against that person to recover such damages and against any person liable to pay compensation under the provisions of this Ordinance to recover such compensation; but shall not, save in the circumstances described in subsection (2), be entitled to recover both such damages and compensation. (2) Notwithstanding anything contained in subsection (1) – (a) …… (b) when a workman has recovered compensation under the provisions of this Ordinance in respect of an injury caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof and the amount of such compensation is less that the amount of damages so recoverable from such person the workman shall be entitled to recover from such person the difference between such two amounts ….’ By setting out the opposing legislation it will be clear that the new legislation merely affect a procedural change rather than one affecting the rights of the claimant. In these circumstances I hold that although the new Act amending the old Ordinance, did not come into effect until after this accident, it did come into effect before these proceedings were commenced. The general principle seems to be that alterations in procedure are retrospective unless there is some good reason against it. (Maxwell on STATUTES 11^th Ed. pp. 216-220). The plaintiffs

were entitled to avail themselves of the new procedure. Accordingly the admitted recovery of compensation did not debar the further suit for damages.” (5) “The final question concerns the quantum of damages recoverable by the dependency.” ….. “The two girls were his daughters living in the deceased’s quarters provided by the Railways and the deceased’s mother was living with him and helping to look after the children. The deceased’s mother Mariam was a widow herself and had but a small shamba on which to take out an existence. It is clear that she looked to her son to help and support her ….. “The deceased spent about Shs. 500/- per month on his family. This covered their clothing and food and no doubt food for himself when he was at home”…… Deducting something for the deceased’s own keep, I find that the dependency figure is Shs. 400/- per month. The deduction would have been greater if the deceased were not away on duty as much as it appears that he was.” “I also hold ………. That the deceased must be taken to have been 46 years of age, his mother 60 years of age, and his elder daughter about 10 years and the younger about 4 years of age. As such the deceased had a working life of some further nine years until he was 55 years of age, the age of compulsory retirement. The deceased was reasonably efficient. He was at the top of his grade when he died and was paid Shs. 835/- per month. There was no very great chance of further advancement. It meant transferring to a more senior branch. There is no evidence that the deceased. Intended to do that. It may be that with his considerable overture payments averaging between Shs. 200/- to Shs. 300/-, he was content to stay where he was. I shall take his average monthly earning at Shs. 1,100/- to be constant. From this it will be seen that Mariam’s claim could easily be met, as well as keep up his payments to the Provident Fund and other accessory disbursements. After his retirement the deceased would still be able to support his family as the evidence concerning his Provident Fund show; but these would be some decrease in quantum. While therefore Mariam could expect to be supported during her lifetime, while the deceased would probably remain at work, the girls would look to their father after his retirement. The period left of working with the Railways can be considered as only a part of the period in which the deceased’s dependents would look o him. Therefore making some reduction for capitalizing the dependency I would award the sum of Shs. 36,000/- it is now necessary to consider the deduction By virtue of section 23 of the Workmen’s Compensation Ordinance Shs. 24,000/- has to be deducted. The question is whether the gratuity has to be deducted as well. As the evidence shows it is a discretionary payment, but I imagine that that discretion involved is not so much whether or no to pay, as to whether to withhold payment which is normally paid for some disciplinary reason. It is payable on death or termination of employment. As such I think it must be deducted. It was Shs. 8,990/-. After deductions the balance is Shs. 3,010/-. I apportion this as to Shs. 1,500/- to Mariam the deceased’s mother, and Shs. 755/- each to the deceased’s two daughters.”