Gor v East Africa Sugar Industries Ltd

High Court, at Nakuru September 14, 1994

Rimita J

Civil Suit No 375 of 1992

Civil Practice and Procedure – pleadings – whether failure to raise point of law precludes one from adducing and relying on such evidence – Civil Procedure Rules order VI rule 7.

Negligence – duty of care – where the employer is in breach of duty of care – whether he can be held liable when employee is injured in the course of duty.

Damages – general and special damages - assessment of – factors to be considered when assessing damages.

The plaintiff, an employee of the defendant, was travelling in defendant’s lorry when the lorry stalled on a hill, reversed and overturned injuring the plaintiff and others. The plaintiff alleged that the accident was not caused by negligence of the driver, but that of the employer for failing to maintain the lorry and making it safe for him and others to travel in. The driver was however charged with the traffic offence of using an unroadworthy motor vehicle and he was convicted. His lawyer however urged the Court to ignore conviction stating it had not been pleaded. The defendant on its part contended that it was not negligent and further that it had done all it could to make the motor vehicle roadworthy.

Held:

1. Failure to plead an important point of law in one’s pleadings does not preclude plaintiff from adducing and relying on such evidence.

2. A contract between an employer and the employed involves on the part of the employer the duty of taking reasonable care to provide proper appliances, to maintain them in proper condition, to carry on his operations as not to subject those employed by him to unnecessary risk.

3. The defendant was in breach of its duty to take reasonable care of the plaintiff by properly maintaining its motor vehicle.

4. Plaintiff awarded Shs 126,000 in damages.

Judgment for the plaintiff.

Cases

1. Wilsons & Clyde Coal Co Ltd v English [1938] AC 57; [1937] 3 All ER 628; (1937) 157 LT 406

2. Smith v Charles Baker & Sons [1891] AC 325; [1891] All ER 69

Statutes

1. Traffic Act (cap 403) section 55(1)

2. Evidence Act (cap 80) section 47

3. Civil Procedure Rules (cap 21 Sub Leg) order VI rules 3, 7

4. Factories Act (cap 514)

Advocates

M/s Kinyanjui & Company Advocates for the Plaintiff

M/s Wetangula and Company Advocates for the Defendant