IN THE HIGH COURT OF ZAMBIA 2008/HP/0212

AT THE PRINCIPAL REGISTRY

AT LUSAKA
(Civil Jurisdiction)

BETWEEN:

STEPHEN MAFUTA CHIYUKA (Suing as

Administrator of the estate of the late Alex Alube) PLAINTIFF

AND

ULTIMA ENGINEERING LIMITED 1ST DEFENDANT

MOPANI COPPER MINES PLC 2NDDEFENDANT

Before the Hon. Mrs. Justice A. M. Sitali on the 31 st day of December,

2013

For the Plaintiff : Mr. M. Mushemi - Messrs Nhari

Mushemi and Associates

For the 1st Defendant : Mr. G. Kalandanya - Messrs Douglas and

Partners

For the 2ndDefendant : Mr. M. Chiteba - Messrs Mulenga Mundashi

and Company

______________________________________________________________________________

J U D G M E N T
______________________________________________________________________________

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Cases referred to:
1. Faidani Daka v. Attorney General (1990/1992) Z.R. 132
2. Wilsons and Clyde Coal Co. Ltd v. English [1937] 3 All ER 628
3. Wilson v. Tyneside Window Cleaning Company [1958] 2 QB 110
4. Harris v. Brights Asphalt Contractors Limited [1953] 1 All ER 395
5. Wheat v. E Lacon Company Limited [1966] AC 552
6. Zambia State Insurance Corporation and Zambia Consolidated
Copper Mines v. Muchili (1988/1989) ZR 132
7. Konkola Copper Mines Plc and Another v. John Mubanga Kapaya
(2004) ZR 232

Legislation referred to:

1. The Fatal Accidents Acts 1846 to 1908
2. The Law Reform (Miscellaneous Provisions) Act 1934
3. The Occupier’s Liability Act, Chapter 70 of the Laws of Zambia

Other works referred to:

1. Bryan A. Garner, Black’s Law Dictionary, Eighth Edition, (St Paul,
Thomson West, 2004)
2. Halsbury’s Laws of England, Fourth ed. Volume 16, paragraphs 561,
562 and 563
3. Rodgers, W.V.H. Winfield and Jolowicz on Tort, (London, Sweet and
Maxwell, 2006)

On 29th February, 2008, the plaintiff issued out of the Principal Registry a writ
of summons and statement of claim against the first and second defendants
claiming for (1) general, exemplary and special damages under the Law Reform
(Miscellaneous Provisions) Act and the Fatal Accidents Acts arising out of a
fatal industrial accident on 2nd October, 2007 at Nkana Mine of Mopani Copper
Mines Plc, caused by the negligence of the Defendants and/or their agents or
servants; (2) further or other relief the court may deem fit; and (3) costs.

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According to the statement of claim, the plaintiff Stephen Mafuta Chiyuka, is
the administrator of the estate of the late Alex Alube (hereinafter referred to as
the deceased) who was an employee of the first defendant, Ultima Engineering
Limited until his death on 2 nd October, 2007. On 2nd October, 2007, the
deceased was assigned by his employer to work on a project at the second
defendant’s Nkana Mine of Mopani Copper Mines Plc and while working with
his co-workers as a servant of the first defendant at the second defendant’s
premises at 3360 feet level, 1600 north access to 3030 feet level, due to the
negligence of the Defendants and/or their servants or agents while removing a
steel ache sett which had been knocked out of its position by a diesel loader,
rocks dislodged from the side wall and struck him causing fatal injuries to the
deceased. The particulars of negligence as set out in paragraph 4 of the
statement of claim state as follows: (a) Failure by the defendants’ mine officials
and Mine Manager to comply with mining regulations Nos. 402 and 403 (a), (b)
and (d); (b) Failure by the mine management and mine officials particularly the
Shift Boss Joseph Chinyimba to follow laid down procedures before
commencement of the work (which) resulted in the death of the deceased; (c)
Failure by the defendants’ mine management to issue a risk assessment and
works order before commencement of the work carried out having regard to the
fact that the safety of workers was over-looked; (d) Failure by the defendant’s
mine officials to adequately support the working place hence a piece of rock
dislodged from the side wall; (e) Delegation by defendants’ mine officials of their
responsibilities to their subordinates without proper supervision. The plaintiff
claims that by reason of the alleged negligence the deceased had suffered the
damage alleged.

On 22nd April, 2008, the second defendant filed the defence on pages 60 to 61
of the bundle of pleadings. They denied any liability for negligence and averred
that the deceased and the shift boss were employees of the first defendant and
that they were on the second defendant’s site due to a contract entered into
between the first defendant and the second defendant. The second defendant

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contends that it was an express term of the contract that the first defendant
would maintain qualified personnel, that the second defendant would not be
liable for any negligence of the first defendant and its employees, that the first
defendant would indemnify the second defendant against any claim arising
from such negligence and that the first defendant was required to maintain
insurance policies to indemnify the second defendant for any death or injury
caused to its employees. The defence further states that the second defendant
is not liable to pay any damages to the plaintiff for the reasons stated.

On 23rd October, 2009, the first defendant filed its defence which is on pages
28 to 29 of the plaintiff’s supplementary bundle of pleadings. The first
defendant admitted that the plaintiff was its employee but denied the
allegations of negligence made in the statement of claim. The first defendant
contended that it was not the first defendant’s duty to carry out an assessment
that the work place or site was safe.

At the trial, the plaintiff called two witnesses. The plaintiff Stephen Mafuta
Chiyuka was PW1. He testified that Alex Alube was an employee of the first
defendant, Ultima Engineering Limited, and that he died on 2 nd October, 2007
in a mine accident which occurred whilst he was working for the first
defendant at the Nkana Mine site of Mopani Copper Mines Plc in Kitwe. The
plaintiff further testified that the deceased was earning a salary of
K1,295,000.00 and that he is survived by his wife, Marjory Sachitungu, and
three children, namely Alex Alube aged 11 years old, Andrew Alube aged 9
years old and Memory Alube aged 3 years old.

In cross examination by Mr. Chiteba, PW1 testified that he was not aware that
the first defendant was contracted by the second defendant to carry out
underground support and rehabilitation works at the Nkana Mine site of
Mopani Copper Mines Plc. The plaintiff further testified that he did not know
what obligations the first defendant had under the said contract.

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PW2 was George Banda an Inspector of Mines in the Mine Safety Department
of the Ministry of Mines, Energy and Water Development. He holds a degree in
mining engineering and has worked for several years in the Department. He
confirmed that on 2nd October, 2007 there was an accident at the central shaft
of the Nkana Mine site of Mopani Copper Mines Plc in which the deceased Alex
Alube died and that he investigated the accident and compiled the report at
pages1 to 4 of the plaintiff’s bundle of documents. He also recorded the witness
statements at pages 5 to 11 of the same bundle. PW2 said prior to the accident
the area in which the accident occurred at 3360 feet level 1600 north position
at the central shaft of Mopani Copper Mine Plc was supported by steel arch
setts. On 30th September, 2007 a diesel loader driver hit into the steel setts
thereby dislodging them out of their position. A decision was made to
reposition them.

On the material date the deceased and his workmates were assigned by the
first defendant to reposition the steel setts. While they were in the process of
removing the caps from the steel arch sett which had been knocked out of
position, rocks dislodged from the side wall and struck the deceased thereby
inflicting serious head injuries on him from which he died. According to PW2,
the accident occurred due to the improper working procedure which was
employed in doing the work; the person in charge of the crew noticed a bad
hanging which he wanted to blast, but the shift boss changed the work plan in
the absence of the person in charge; the temporary support installed was
inadequate; no one barred down the working place at the start of the shift; and
no risk assessment was done before the work was started.

In cross examination, PW2 stated that the first defendant was a contractor
engaged by the second defendant and that the area in which the accident
occurred was operated by the first defendant. PW2 reiterated that the accident
occurred due to the improper procedure employment by employees of the first

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defendant in doing the work. He went on to state that under the mining
regulations, the responsibility of running a mine is given to the mine manager
and that although in the present case employees of the first defendant were
doing the work, the second defendant, as mine manager, had the responsibility
to ensure that the correct procedure was followed as the second defendant was
the overall supervisor.

That was the plaintiff’s evidence.

When the matter came up for defence, I permitted the second defendant to
proceed with its defence as the first defendant was not ready to proceed. The
second defendant called two witnesses.

DW1 was Barnabas Bwalya, a diesel loader driver employed by the second
defendant. He testified that on 30 th September 2007 he was instructed to move
a diesel loader from 3030 feet level to 3360 feet level of the Nkana Mine site of
Mopani Copper Mines Plc. In the process he ran over some rocks which had
fallen and the diesel loader hit into the steel sets on the side of the tunnel,
thereby dislodging them out of their normal position. He said he reported the
incident to his section boss.

DW2 was Abraham Mulenga a Mine Captain based at the Central Shaft of
Mopani Copper Mines Plc. He testified that on 30 th September, 2007, whilst on
duty, he received a report from Barnabas Bwalya (DW1) that a diesel loader
had hit into the steel arch setts at 3360 level 1600 position. He went to 3360
feet level and found that the steel setts were dislodged at the top. DW2 said he
reported the matter to the underground manager and informed him that the
dislodged steel arch setts needed to be repositioned. He went on to say that on
1st October 2007 he requested Joseph Chinyimba, the first defendant’s site
manager to repair the damaged steel arch setts as the first defendant, Ultima
Engineering Limited, was contracted by the second defendant to carry out

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repair works on 3360 feet level of the Nkana Mine site. He said that he
explained to Joseph Chinyimba the procedure which the first defendant’s
workmen should follow in carrying out repairs and instructed him to ensure
that the loose debris around the disturbed steel arch was barred down to avoid
causing injury. DW2 went on to say that on 2 nd October, 2007 he was
informed that there had been an accident at 3360 feet level 1600 north position
of the central shaft of Nkana Mine site. He went to the site of the accident but
did not find anyone there. DW2 stated that a board of inquiry into the accident
was instituted by the Mine Manager and the report on page 23 of the second
defendant’s bundle of documents was compiled.

In cross examination, DW2 admitted that the second defendant was required to
do a risk assessment of the area where the steel arch setts were dislodged
before sending the first defendant as contractor to repair the damage and
reposition the steel arch setts. He confirmed that no risk assessment was done
by the second defendant.

That was the second defendant’s evidence.

The first defendant called only one witness Geoffrey Manda (DW3) a Human
Resources Officer in the first defendant company. DW3 testified that Alex
Alube the deceased was employed by the first defendant early in the year 2007
on a contract for the duration of one year. His salary scale was G5 at the rate
of three thousand kwacha per hour and that he was also entitled to a medical
allowance and a transport allowance. DW3 further testified that in a normal
month the deceased would earn a salary of about K900,000.00. DW3 testified
that the deceased worked for Ultima Engineering Limited for a period of about
six (6) months.

DW3 went on to testify that the first defendant Ultima Engineering Limited was
contracted by the second defendant Mopani Copper Mines Plc to carry out

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support and rehabilitation works at the second defendant’s Nkana Mine Site.
DW3 further testified that the first defendant had concluded its work under the
contract and had handed the site back to the second defendant prior to the
date of the accident. DW3 said that the second defendant instructed the first
defendant to repair a support pillar which was dislodged when a diesel loader
hit into it and that the accident in which Alex Alube was killed occurred as the
first defendant’s employees were in the process of undertaking repair works on
the dislodged pillar. He denied that the employees of the first defendant were
negligent in doing the work and said that although the second defendant was
responsible to provide the first defendant with the standards and procedures to
be followed in repairing the steel arch sett, that was not done and no risk
assessment of the area was done by the second defendant before the first
defendant’s employees proceeded to work.

In cross examination by Mr. Mushemi, DW3 testified that the first defendant
worked out a package for the estate of the late Alex Alube but that the
administrator of the estate refused to collect the money. In further cross
examination by Mr. Chiteba, DW3 reiterated that the first defendant was
contracted by the second defendant to undertake underground support and
rehabilitation works at the central shaft of the Nkana Mine site of Mopani
Copper Mines Plc and that the agreement on page 1 of the first defendant’s
bundle of documents was signed between the first and second defendants to
that effect. DW3 contended that it was the duty of the second defendant to
ensure that the area was safe but conceded that under the contract, the first
defendant was required to employ qualified personnel.

That was the first defendant’s evidence.

I have carefully considered the evidence adduced by the plaintiff and the first
and second defendants. I have also considered the written submissions and
the authorities cited therein. From the evidence on record I find that the

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following facts are not disputed: that Alex Alube the deceased was employed by
the first defendant, Ultima Engineering Limited early in the year 2007 to the
time of his death on 2 nd October, 2007. The first defendant was contracted by
the second defendant Mopani Copper Mines Plc to carry out underground
support and rehabilitation works on, inter alia, 3030 feet level and 3360 feet
level at the central shaft of Nkana Mine site of Mopani Copper Mines Plc. On
30th September, 2007, a diesel loader driven by an employee of the second
defendant hit into the steel setts on 3360 feet level of the central shaft of
Nkana Mine site displacing them from their normal position. On 1 st October,
2007, the first defendant which had previously been contracted to support the
area with steel setts was requested to repair the damage done to the dislodged
steel setts.

On 2nd October, 2007, the first defendant mobilized its workmen at the site on
3360 feet level of the Nkana Mine to reposition the dislodged steel sett. Joseph
Chinyimba the shift boss instructed Anthony Mumba who was the person in
charge of the workmen who included Alex Alube (the deceased) to install
temporary support to prop a big rock on the side wall with timbers and to erect
a scaffold platform and remove the steel sett caps. The workmen removed a
clamp from one side of the steel cap but failed to remove the steel cap on the
other side because of a timber support which they decided to remove before
removing the steel cap. As the crew were in the process of removing the steel
caps a large rock dislodged from the side wall and struck Alex Alube who went
down with the platform and was trapped beneath the falling rocks. Alex Alube
sustained fatal head injuries from which he died. The plaintiff alleges that the
accident occurred due to the negligence of the first and second defendants who
deny any negligence on their part. Hence this action.

In order to succeed in an action based on the tort of negligence, a plaintiff must

establish three elements, namely (a) that the defendant owed him a duty of
care in the circumstances; (b) that the defendant or his servant or agent

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breached that duty by failing to conform to the required standard of conduct;
and (c) that the plaintiff had suffered damage as a consequence of that breach:
see Faindani Daka v. Attorney General (1). Black’s Law Dictionary defines
negligence as the failure to exercise the standard of care that a reasonably
prudent person would have exercised in a similar situation; or any conduct
that falls below the legal standard established to protect others against
unreasonable risk of harm, except for conduct that is intentionally, wantonly,
or willfully disregardful of others’ rights. A person has acted negligently if he
has departed from the conduct expected of a reasonably prudent person acting
under similar circumstances.

In the present case the plaintiff alleges that both the first and second
defendants were negligent as they overlooked the deceased’s safety and that it
was due to their negligence that the accident in which the deceased died
occurred. The first defendant denies any negligence on their part and asserts
that they were not responsible to conduct an assessment to ensure that the
working place or site was safe. According to the first defendant, it was the
responsibility of the second defendant to ensure that the site was safe. The
first defendant’s contention that it was not responsible to ensure that the site
was safe before sending its employees to work there suggests to me that the
first defendant is saying that as an employer it did not owe its employee Alex
Alube any duty of care in the circumstances.

That being the case, the questions that I have to determine at the outset are
whether the first defendant owed the deceased who was its employee any duty
of care in the circumstances and if so, whether the first defendant or its
servants breached the duty by failing to conform to the required standard of
conduct. It has long been established that the employment relationship
imposes a duty of care on the employer towards his employees. At common
law an employer is under a duty to take reasonable care for the safety of his
employees in all the circumstances of the case in order not to expose them to

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an unnecessary risk. In other words an employer owes his employee a duty to
take reasonable steps to ensure that the employee is not physically injured or
otherwise harmed in working for him – see Wilsons and Clyde Coal Co. Ltd v.
English (2).

The employer’s duty to his employees is personal and non-delegable. He can

delegate the performance of the duty to others, whether employees or
independent contractors, but not the responsibility for its negligent
performance. To that effect the learned authors of Halsbury’s Laws of England,
fourth edition, Volume 16, in paragraph 561 at page 359 state that:

“The duty to exercise reasonable care is, however, one which is personal to
the employer, and if he entrusts its performance to an employee, agent or,
it seems, an independent contractor, he is vicariously liable for any
negligence on the part of the person so appointed in performing the duty.”

The employer’s duty to take reasonable care to carry on his operations so as

not to subject his employees to unnecessary risk is a single duty, which applies
in all circumstances. This duty for convenience is said to be threefold in
character: an employer has an obligation at all times to provide competent
staff, adequate material, a proper system of work and effective supervision. In
Wilson v. Tyneside Window Cleaning Company (3) Parker L.J. stated that:

“The master’s duty is general, to take all reasonable steps to avoid risk to
his servants. For convenience it is often split up into different categories,
such as safe tools, safe place of work, or safe system of work, but it
always remains one general duty. When dealing with premises the duty
is often expressed as one to provide a place of work as reasonably safe as
can be made, but the reasonable care which the master must take to fulfill
it must vary according to the circumstances of each case.”

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Furthermore, an employer has a duty to carry on operations so as not to
subject his employees to unnecessary risk. In Harris v. Brights Asphalt
Contractors (4), Slade J stated that:

“In case there is any doubt about the meaning of “unnecessary” I would …
take the duty as the duty not to subject the employee to any risk which the
employer can reasonably foresee, or to put it slightly lower, not to subject
the employee to any risk which the employer can reasonably foresee and
which he can guard against by any measure, the convenience and
expense of which are not entirely disproportionate to the risk involved.”

The employer’s duty of care extends to the place of work. The duty remains
even where the place of work is not under the control of the employer. To that
effect the learned author of Winfield and Jolowicz on Tort (17th edition) at page
380 paragraph 8-13 observes that:

“At one time, however, it was thought that because an employer had no
control over premises in the occupation of a third party he could owe no
duty in respect of those premises, it is now clear that this is wrong. The
duty of care remains, but what is required for its performance may well be
different where the place of work is not under the employer’s control.”

The employer’s duty to his employees include provision of competent staff (he
must select competent staff and give them proper instruction in the use of
equipment, train them according to the requirements of their job and supervise
them if necessary); provision of a safe place of work (he must take reasonable
steps to ensure that the premises are safe); provision of proper plant and
equipment (failure to provide adequate equipment may result in liability for
negligence); and provision of a safe system of work. Regarding the duty to
select fit and competent fellow employees the learned authors of Halsbury’s
Laws of England fourth edition, in paragraph 563, at page 361 observe that:

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 “It is the employer’s duty to select reasonably fit and competent fellows
with whom his employee is required to work. The employer cannot escape
liability by delegating the performance of this duty to someone else, if it not
properly performed.”

It will be noted that the employer’s duty at common law is owed only to his
employees and is not owed to visitors or independent contractors who are
covered by occupiers’ liability. An occupier of premises will normally owe a
duty of care to his visitors by virtue of the fact that he is an occupier. The
Occupiers’ Liability Act, Chapter 70 of the Laws of Zambia provides for the law
regarding the liability of occupiers and others for injury or damage resulting to
persons or goods lawfully on any land or other property from dangers due to
the state of the property or to things done or omitted to be done on that land or
property.

The Zambian Occupier’s Liability Act is premised on the English Occupiers’

Liability Act 1957. Section 3 of the said Act provides that an occupier of
premises owes a duty of care to all his visitors and it is a duty to take such
care as in all the circumstances of the case is reasonable to see that the visitor
will be reasonably safe in using the premises for the purposes for which he is
invited or permitted by the occupier to be there. The term occupier denotes a
person who has sufficient control over premises and relates to one who has a
duty to those who lawfully come onto the premises. In Wheat v. E Lacon
Company Limited (5) Lord Denning suggested that “whenever a person has a
sufficient degree of control over premises that he ought to realise that any
failure on his part to use care may result in injury to a person coming lawfully
there, then he is an occupier”. An owner of premises who is in possession is
therefore an occupier. The question whether the occupier has fulfilled his duty
depends on the facts of each case.

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Applying the law to the present case, it is clear that the first defendant as Alex
Alube’s employer, owed him a duty to take reasonable steps to ensure that the
deceased was not physically injured or killed whilst working for the first
defendant. There is clear evidence on record adduced by PW2 that the accident
occurred because the first defendant’s employees used an improper procedure
to do the work, that the temporary support which the first defendant’s
employees installed was inadequate, that no one barred down the working
place to secure the work place or site before the start of the shift and that
although the person in charge of the crew noticed a rock hanging dangerously
which he intended to blast, the shift boss changed the work plan in the
absence of the person in charge. He instructed the workmen to remove the
steel sett caps which according to the witness statement on page 10 of the
plaintiff’s bundle of documents should not have been done. The first defendant
has not rebutted PW2’s evidence.

Since the person in charge of the workmen noticed a rock which was hanging
precariously which rock he wanted to blast, the workmen should not have been
instructed to remove the steel caps from the steel sett which was supporting
the rocks but should have been cautious not to disturb the rock that was
hanging precariously. It is evident that the accident occurred due to the first
defendant’s servants’ negligence as they were clearly incompetent to carry out
the job. It is trite that at common law an employer is liable if an accident is
due to his own act or default. The first defendant had a duty to provide
competent staff who were adequately trained according to the requirements of
the job and who ought to have supervised the workmen as they carried out the
work. As the first defendant failed to do so, the first defendant breached its
duty to the deceased Alex Alube as it did not conform to the required standard
of conduct. As a result of the first defendant’s breach of duty the deceased was
killed whilst carrying out an assignment which was given to him by the first
defendant. The first defendant owed the deceased a duty of care as their
employee and they cannot absolve themselves of that duty by stating that it

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was the responsibility of the second defendant to ensure that the site was safe.
I find on the evidence before me that the first defendant was negligent and is
liable to pay damages to the plaintiff as claimed.

Similarly, the second defendant is the owner of Nkana Mine Site of Mopani
Copper Mines Plc which are the premises on which the accident occurred. The
deceased had lawfully entered the premises as an employee of the first
defendant who was contracted to carry out repair works on the second
defendant’s premises. The second defendant therefore owed the deceased Alex
Alube a duty of care as occupier of the premises. The fact that there was a
relationship of owner and contractor between the second and first defendants
placed the second defendant in a position where it owed a duty of care to any
worker of the first defendant who was legitimately in such place.

There is undisputed evidence that the second defendant’s employees were

aware that a dangerous situation had been created by the dislodging of the
steel setts from their usual position and that they were required to conduct a
risk assessment of the site before requesting the first defendant to carry out
repair works. The risk assessment was not done. By failing to conduct a risk
assessment of the site, the second defendant as occupier of the premises
breached its statutory duty to the deceased who was lawfully on its premises
as an employee of the first defendant. The second defendant was therefore
negligent and is liable to the plaintiff in damages as occupier of the premises
on which the accident occurred.

It is trite law that in order to succeed in an action for damages against his
employer, a workman must show that his injuries were caused by the
employer’s breach of duty, and the onus is on the employee to establish both
the breach of duty and the fact that the breach caused or materially
contributed to his injuries. The plaintiff having established the breach of duty
and proved that the deceased’s death was due to the first and second

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defendants’ breach is entitled to damages (See Halsbury’s Laws of England, 4 th
ed. Vol 16 para 561).

The plaintiff claims damages for the benefit of the dependants of the deceased
under the Fatal Accidents Act 1846 to 1908 and for the benefit of the estate
under the Law Reform (Miscellaneous Provisions) Act, Chapter 74 of the Laws
of Zambia. In assessing damages in the present case the awards will be made
under two heads, that is, (a) loss of expectation of life under the Law Reform
(Miscellaneous Provisions) Act Cap 74 and (b) loss of dependency under the
Fatal Accidents Act 1846 to 1908.

Loss of expectation of life.

To start with I will deal with the plaintiff’s claim for damages under the Law
Reform (Miscellaneous Provisions) Act Cap 74. Loss of expectation of life is a
head of damage which is claimed on behalf of the estate of the deceased. The
Supreme Court has guided in numerous cases including Zambia State
Insurance Corporation and Zambia Consolidated Copper Mines v. Muchili (6) and
Konkola Copper Mines Plc and Another v. John Mubanga Kapaya (7)) that an
award under this head is generally a small sum. Under this head the plaintiff
claims the sum of K10,000,000 old currency or K10,000.00 rebased. In line
with the authorities cited above and in agreement with the plaintiff’s claim, I
award a sum of K10,000.00 rebased for the loss of expectation of life.

Loss of dependency

In assessing damages under this head, I have adopted the formula used by the
Supreme Court in the case of Konkola Copper Mines Plc and Another v. Kapaya
(7). According to the documents filed by the plaintiff and the 1 st and 2nd
defendants and which are on record, at the time of his death the deceased Alex
Alube was 31 years old. He was married with three (3) children aged 8 years, 5
years and 2 years old, respectively. He was earning a basic salary of
K1,152,000.00 per month in old currency. From the sum of K1,152,000.00 I

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deduct one third which is a sum of K384,000.00 as personal expenses, income
tax and social security leaving a balance of K768,000.00.
Taking into account the fact that the deceased worked for the first defendant
Ultima Engineering Limited a contractor in the mining industry and that the
nature of his work exposed him to the hazards of the mining industry where
early death is a possibility, I would give him 20 years as the multiplicand.

Thus multiplier by multiplicand, that is K768,000.00 x 20 x 12 gives us

K184,320,000.00. From that sum deduct K10,000,000.00 awarded for loss of
expectation of life under the Law Reform (Miscellaneous Provisions) Act, Cap.
74. This leaves a sum of K174,320,000.00 as the total dependency award in
old currency which is K174,320.00 rebased.

The widow gets 10% of the said sum and 90% is awarded to the three children
to be shared equally. The award carries 10% interest per annum from the date
of the writ to the date of this judgment. Thereafter until payment interest at
bank lending rate as determined by the Bank of Zambia.

The plaintiff will recover 60% of the total sum of K174,320.00 rebased with
interest from the first defendant and 40% of the said amount from the second
defendant and the second defendant is entitled to be indemnified by the first
defendant. I award costs to the plaintiff to be agreed and taxed in default of
agreement. The costs are to be borne by both defendants in equal share.
Leave to appeal is granted.

Dated this 31st day of December, 2013.

……………………………….
A. M. SITALI
JUDGE

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