ZULEIKHA BINT AMOUR v CONSTRUCTION ENGINEERING & BUILDERS LTD 1984 TLR 289 (HC)

ZULEIKHA BINT AMOUR v CONSTRUCTION ENGINEERING & BUILDERS LTD 1984 TLR 289 (HC)

Court High Court of Tanzania - Zanzibar

Judge Ramadhani CJ

June 6, 1983

CIVIL CASE 25 OF 1982 B

Flynote

Workmen's Compensation Decree - Workmen's Compensation - "Arising out of and

in the course of the employment" - Meaning - Workmen's Compensation Decree, s.

6(1).

-Headnote

The plaintiff is the widow of one Issa Bakari Seif, deceased, who was an employee of

the defendant. She claimed C the deceased's salary for seven months while he was

hospitalized, a gratuity for the 19 months he was in the employment of the defendant

and compensation for the death of the deceased. The deceased had met an accident

D within the employment premises as he was climbing down some steps to go home

after the working hours. He was hospitalized for seven months then he died. The

most contentious issue before the court was whether or not the deceased had met the

accident and sustained injuries while he was in the course of employment. E

Held: The deceased who sustained injuries while he was leaving the employment

premises did sustain such injuries out of and in the course of employment.

Case Information

Judgment for the plaintiff. F

Cases referred to:

1. Hill v Butterley Co. Ltd. [1948] 1 All E.R. 233

2. Campbell v Proud's Engineering Co. Ltd. [1947] 2 All E.R. 97 G

3. Ali Mahdi v Abdulla Mohamed [ 1961] E.A. 83

4. James Patrick & Co. Proprietary, Ltd. v Sharpe [1954] 3 All E.R. 216.

5. Ogden Industries Pty. Ltd. v Lucas [1969] 1 All E.R. 121 H

[zJDz]Judgment

Ramadhani, C.J.: The plaintiff, Zuleikha Amour Hassan, is the widow of one Issa

Bakari Seif, deceased, who was an employee of the defendant. On the other hand the

defendant is the Construction Engineers & Builders Ltd. This is a construction

company contracted to build the new Post Office at Kijangwani, Zanzibar. I

1984 TLR p290

RAMADHANI CJ

The plaintiff has stated that the deceased was injured in the course of employment of

defendant on 20th A January, 1981. He was admitted at the V.I. Lenin Hospital and

ultimately died on 26th July, 1981. The plaintiff has claimed the salary of the

deceased for seven months at the rate of Shs. 900/= per month i.e. a total of Shs.

6,300/=. She has also claimed a gratuity for the 19 months he had been in the

employment of B the defendant and finally she claims compensation Shs. 24,000/=

for the death of the deceased.

The defendant objected that the deceased was not injured while in his employment. I

am fully satisfied that the deceased had the accident of falling down while he was

within the employer's premises. Jamnadas C Bhanji who is an employee of the

defendant and who in the course of this suit has thrice appeared together with other

officials on behalf of the defendant, told the court that the deceased fell down while

climbing down the steps within the premises at Kijangwani and that he (Jamnadas)

took the deceased in a D Company's vehicle to the V.I. Lenin Hospital where the

deceased was admitted. Apart from that the defendant after being summoned to

come to court wrote a letter CEB/EI/I.B/FRI/82 of 12th November, 1982. In that

letter he asked the court to defer entertaining the suit for three months and promised

that all lawful E claims would be met once the Directorate of the Community

Development presented the relevant claims papers. Thus by that letter the defendant

admitted the duty to pay compensation. Again on the 28th March, 1983, the

representative of the defendant, one Swinder Singh, when asked about the letter

reiterated to the court that they were awaiting the papers from the Directorate to

make payments. F

Therefore the deceased had the accident and got injured while he was within the

premises of the defendant.

On the other hand the plaintiff produced a letter from the defendant which claimed

that the deceased had G the accident after the working hours. However, Mr.

Sachdev, who came on behalf of the defendant, denounced the letter. He said that

the letter was not signed and so any body could have written it. Mr. Sachdev added

that the Company was ready to assist the plaintiff inspite of the letter. But the issue

here is not assistance but right. H

Though the letter, exhibit B, is not signed and therefore its admissibility is doubtful it

brings us to the vital issue in this suit. According to Mr. Jamnadas the deceased had

the accident within the employment premises as he was climbing down some steps to

go home after the working hours. Therefore the I deceased was not injured while

working as the plaintiff claims.

1984 TLR p291

RAMADHANI CJ

The relevant legislation here is the Workmen's Compensation Decree Cap. 65. Subsection

(1) of Section 6 A requires an employer to compensate an employee who

gets injured as a result of an accident "arising out of and in the course of the

employment". Is the accident in this case covered by that provision?

As I have already said the accident took place after the working hours and as the

deceased was going home but B while was still within the premises of employment.

In the case of Hill v Butterley Co. Ltd. [1948] 1 All E.R. 233 the plaintiff was an

employee of the defendant. As she was crossing the premises of the defendant to get

to the office so as to register her name before starting work she slipped on an icy slope

and was injured. The Court of C Appeal held that the accident "arose out of and in

the course of employment". I do not see any difference between an injury sustained

while one goes to work within the employer's premises and that sustained while one

goes from work within the employer's premises. D

In another case of Campbell v Proud's Engineering Co-Ltd. [1947] 2 All E.R. 97 a

workman was an employee of the defendant and was going for his pay in another

office of the defendant which was some distance away. On his way he jumped on the

near side of a passing lorry that was going in the same direction. An accident

happened and E the workman died. the Court of Appeal held that the workman

was going to the office for his pay and he was in the course of his employment. The

jumping on the lorry instead of proceeding on foot did not make his journey of a

different kind from what it would have been had he used a safer method. In the case

before me the deceased did G not even use any unsafe method. He was merely

leaving the employment premises which he had to leave. Therefore the injuries arose

out of and in the course of employment.

In a case of Tanzania (Mainland) of Ali Mahdi v Abdulla Mohammed [1961] E.A. 83

the respondent was in a lorry of the appellant. Some sand was thrown up by a passing

vehicle and entered his eye and caused him to lose it. The High Court of Tanganyika

(as it was then) upheld the decision of the District Court that the accident arose out of

and in the course of the respondent's employment. The phrase "out of employment"

has been given wider H meaning which I think will apply in this case.

Finally I should add that in other jurisdictions within the Commonwealth legislations

like this have provided expressly that an injury sustained by a workman while going

to or from work at the place of employment and residence is arising out of and in the

course of employment. The statute of Victoria, Australia is like I

1984 TLR p292

RAMADHANI CJ

that. That legislation agrees with the decision in Hill v Butterley Co. Ltd. above. I do

not think that it was A the intention of our legislation to exclude workmen who

sustain injuries on their way to or from work.

In the case of James Patrick & Co. Proprietary Ltd. v Sharpe [1954] 3 All E.R. 216 the

husband of the B respondent was employed by the appellant. As he was travelling

between his place of residence and his place of employment he suffered an auricular

fibrillation as a result he died. It was held that the injury arose out of and in the

course of employment. This case was governed by the law of Victoria that I have C

mentioned that being on the way to work is being at work. Nevertheless the fact is

that even such diseases as the one in that case has been taken into consideration. I

feel therefore that falling from some steps as one leaves the work premises is even a

stronger case.

I therefore find that the injuries sustained by the deceased are covered by the said

Sect. 6(1). D

There are certain conditions under this Decree. First, under Sect. 18 (1) the employer

is to be informed as soon as possible after the accident. I am satisfied that such notice

was given. Mr. Jamnadas said that soon after the accident he reported to the man in

charge, one Gurcham Singh, and asked for the keys to E take the deceased to the

hospital. The plaintiff also has said that they reported that the deceased was admitted

to hospital. Thirdly, the attendance and Pay Register of the defendant has shown that

the deceased from 20th January to 24th January was recorded as sick. Then that entry

was F cancelled and the deceased was not paid for those four days. This shows that

the defendant was aware of the illness of the deceased. It is possible later doubted the

information hence the cancellation. But there is abundant evidence from the V.I.

Lenin records (Exhibit A) that the deceased was admitted there from 20th G January

to 26th July. Hence I am satisfied that the defendant had this information. If he had

doubted it then there were no grounds for the doubt.

The Second condition under section 18(2) is that claims for compensation have to be

lodged within six H months from the date of the accident or death. Here death

occurred on 26 January, 1981. Hence the claims had to be presented before 26th

January, 1982. It is not clear exactly when the plaintiff started the claims. She stated

that when she wanted to see the defendant she was ignored and so decided to go to

JUWATA I and the Directorate of Community Development. A letter

3/ZNZ/Vol.11/1/79 of 19th June, 1982 from

1984 TLR p293

RAMADHANI CJ

A the Secretary of JUWATA of the Urban District to the Junior Minister of Health

making inquiries as to whether the death of the deceased was due to injuries sustained

out of and in the course of employment. Thus there is no proof whether the claims

were presented before 26th July, 1981 or not. However, there is B a proviso that

claims presented out of time will be maintained if the delay was due to mistake or

other reasonable cause. I am of the well considered opinion that even if the plaintiff

was late in presenting her claims, of which there is no evidence, then it was because

of some mistake on her part as I would not C expect her, a mere housewife, to know

the law.

Let me now turn to the claims themselves. The defendant has said that the deceased

had a bad leg to start with and that he was regularly attending treatment. Mr.

Jamnadas stated so. But it is equally true that the D deceased received some injuries

from the accident within the employment premises. It is possible, therefore, that the

accident aggravated the already existing illness. Nevertheless the defendant is obliged

to compensate. The case of Ogden Industries Pty Ltd v Lucas [1969] 1 All E.R. 121 is

relevant here.

I concede that the deceased must have had some other disease and that is why it took

him seven months E in the hospital without the wound healing. Medical records

show that he was not diabetic. The wound was discharging and the pus was taken for

culture and sensitivity. He was also anemic and they had to give him blood

transfusion. I consider all these in the question of the payment of his salary for the

seven F months. I have not been told of the terms of employment but they seem to

be that of daily paid. Pay was given every week but only for the days one had

worked. As there is no law in Zanzibar on these questions of terms of employment I

am prepared to take it that an employer in Zanzibar can afford to wait on an G

employee for a month. The defendant has shown that he normally pays his

employees even for the days they have been ill. Therefore I find that the plaintiff is

to get a month's salary of the deceased i.e. Shs. 900/=.

H Section 12 of the Workmen's Compensation Decree provides a compensation

equal to the salary of 36 months or to Shs. 24,000/= which ever is the lesser. I find

therefore that compensation is Shs. 24,000/=.

Again there is no law in Zanzibar regarding payment of gratuities or severance

allowances. But for a I service of 19 months there is a right of receiving some sort of

a gratuity. I am prepared to allot a quarter of the total emoluments of the 19 months

i.e. Shs. 4,275/=.

1984 TLR p294

I may just add that the Revolutionary Government of Zanzibar uses such formula in

the payment of A gratuities.

Judgment for the plaintiff.

1984 TLR p294

B