24 aug 2020
TRANSCRIPT
IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION)
,/ COURT O
JUDICtARY
APPEAL NO. 154/2016
zq
BETWEEN: 24 AUG 2020
E co G 5 - MOPANI COPPER MINES PL t. ,.
AND
NDUMO MIT! (Suing in his capacity as Administrator of the Estate of the late Geofrey Elliam Miti)
VICTOR NAMBOYA MIT! (suing in his own capacity and as Administrator of the estate of the late Beatrice Sakala Miti)
APPELLANT
1St RESPODENT
2nd RESPONDENT
THE ATTORNEY-GENERAL THIRD PARTY
CORAM: MAMBILIMA CJ, MALILA AND MUTUNA JJS; On 5th June, 2019 and 24th August, 2020
For the Appellant: Mr. J. Sangwa, SC, of Sim2za, Sangwa and Associates
For the istand 2nd Respondents: Mr. M.H. Haimbe, of Malambo and Company
For the Third Party: No Appearance
JUDGMENT
MAMBILIMA CJ delivered the Judgment of the Court.
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CASES REFERRED TO:
1. DONOGHUE V STEVENSON (1932) AC 562 2. CAPARO INDUSTRIES PLC V DICKMAN (1990) 2 AC 605 3. ALBERY & BUDDEN V. BP OIL LTD & SHELL UK LTD (1980)
J.P.L 4. GEDDIS V PROPRIETORS OF BANN RESERVOIR (1878) 3 A.C.
430, 453, 456 5. X AND OTHERS (MINORS) V BEDFORDSHIRE COUNTY
COUNCIL; M(a minor) AND ANOTHER V NEWHAM LONDON BOROUGH COUNCIL AND OTHERS; E (a minor) V DORSET COUNTY COUNCIL AND OTHER APPELLANTS (1995) 3 ALL ER 353 AT PAGE 362
6. MICHAEL CHLUFYA SATA MP V ZAMBIA BOTTLERS LIMITED SCZ JUDGMENT NO. 1 OF 2003
7. WILSON MASAUSO ZULU V AVONDALE HOUSING PROJECT LIMITED (1982) ZR 172
8. SITHOLE V THE STATE LOTTERIES BOARD (1975) Z.R. 106 9. BWANAUSI V THE PEOPLE (1976) Z.R. 103
10. THE ATTORNEY-GENERAL V MARCUS KAMPUMBA ACHIUME (1983) Z.R.1
11. STOTT V WEST YORKSHIRE CO. (1997) 3 ALL ER 534. 12. MANFRED KABANDA AND KAJEMA CONSTRUCTION V
JOSEPH KASANGA (1992) S.J. 15 13. HARRISON V ATTORNEY GENERAL SCZ NO. 15 OF 1993 14. FAINDANI DAKA (SUING AS ADMINISTRATOR OF THE
ESTATE OF THE LATE FACKSON DAKA DECEASED) V THE ATTORNEY GENERAL (199 1) ZR 131
15. COOPER V WILLIAMS (1963) 2 ALL ER 16. JOYCE V YEOMANS (1981) 1 W.L.R. 549 17. KHALID MOHAMED V ATTORNEY GENERAL (1975) ZR 106 18. PHILLIP MHANGO V DOROTHY NGULUBE (1983) ZR 61 19. DAVID CHIYENGELE AND 5 OTHERS V SCAW LIMITED, SCZ
NO. 2 OF 2017 20. ATTORNEY GENERAL V GEORGE MWANZA AND WHITESON
MWANZA 21. (1996) 3 SUPREME COURT CASES (212) (ALSO REFERRED TO
ON PAGE 396 OF THE UNEP/UNDP COMPENDIUM OF JUDICIAL DECISIONS ON MATTERS RELATED TO ENVIRONMENT: NATIONAL DECISIONS: VOLUME I (1998)
22. DESIGN PROGRESSION LTD V THURLOE PROPERTIES LTD(2005) 1WLR1
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LEGISLATION REFERRED TO:
1) THE ENVIRONMENTAL MANAGEMENT ACT NO. 12 OF 201 -11
2) THE ENVIRONMENTAL PROTECTION AND POLLUTION CONTROL, ACT CHAPTER 204 OF THE LAWS OF ZAMBIA (REPEALED)
3) THE AIR POLLUTION CONTROL (LICENSING AND EMISSION STANDARDS) REGULATIONS, STATUTORY INSTRUMENT NO. 141 OF 1996
4) THE INTERPRETATION AND GENERAL PROVISIONS ACT CHAPTER 2 OF THE LAWS OF ZAMBIA
5) THE FATAL ACCIDENTS ACTS 1846 TO 1908 6) THE LAW REFORM (MISCELLANEOUS PROVISIONS) ACT,
CHAPTER 74 OF THE LAWS OF ZAMBIA
WORK REFERRED TO:
i) MCGREGOR ON DAMAGES 15TH EDITION CHAPTER 8 ii) HALSBURY LAWS OF ENGLAND 3RD EDITION PARAGRAPH
394 iii) CLERK AND LINDSELL ON TORTS, 20TH EDITION
PARAGRAPH 2-158 PAGE 158 iv) BRIAN GARNER'S BLACKS LAW DICTIONARY 8TH EDITION
page 15 and 1191 v) HALSBURY'S LAWS OF ENGLAND 4TH EDITION PARAGRAPH
11 vi) MCGREGOR ON DAMAGES 15TH EDITION PARAGRAPH 11 -0 11
1. INTRODUCTION
1.1 This suit was instituted in 2014 by Geofrey Elliam Miti,
the widower of the late Beatrice Sakala Miti, against the
Appellant, seeking damages for negligence on the death
of his wife in his capacity as the Administrator of her
estate. After the hearing of the appeal, Mr. Geofrey
A
Elliam Miti demised and his estate is now represented
by Ndumo Miti. The estate of the late Beatrice Sakala
Miti is represented by Victor Nambonya Miti, the
administrator of her estate.
1.2 In this appeal, we shall refer to the late Geoffrey Elliam
Miti as the 1st Respondent and the Attorney-General as
the 2nd Respondent which is what they were at the
hearing of the appeal.
1.3 The appeal, is from a Judgment of Sichinga J, as he
then was, delivered on the 9th of June, 2016 in which
he found that the Appellant acted negligently when it
emitted high volumes of sulphur dioxide from its
smelter into the ambient air, exceeding the statutory
limit, resulting in the death of Mrs. Beatrice Sakala
Miti. This judgment thus discusses and brings to the
fore, the obligations and liabilities of entities and
persons who discharge or emit toxic substance into the
atmosphere.
1.4 After the hearing of the matter in the lower Court, the
learned trial Judge found that the late Mrs. Beatrice
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Sakala Miti died as a result of respiratory failure, after
inhaling sulphur dioxide fumes emitted by the
Appellant and, consequently, awarded the 1st
Respondent, who was her widower and the
administrator of her estate, a global sum of four
hundred thousand Kwacha (K400,000.00) general
damages with interest at ten percentum (10%) per
annum, from the date of the judgment up to the date of
settlement. He also awarded costs to the 1st
Respondent.
2. BACKGROUND
2.1 The material facts in this appeal are substantially not
in dispute. The Appellant is a mining company. It
conducts its mining activities in Mufulira District in the
Copperbelt Province. The 1st Respondent's late wife,
Beatrice Sakala Miti, was a District Commissioner for
Mufulira District. She died on 31st December, 2013.
The circumstances surrounding her death prompted
the 1st Respondent to commence this action against the
Appellant, claiming several heads of damages for
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negligence, including a declaration and order that the
deceased died after inhaling toxic fumes released by the
Appellant. In his writ of summons, he claimed that
the Appellant acted negligently when it released toxic
fumes into the atmosphere on 311;1 December, 2013
causing the deceased to suffer acute respiratory failure
due to the inhalation of the said fumes.
3. THE RESPONDENT'S CASE IN THE LOWER COURT
3.1 In support of his case, the 1st Respondent solicited
testimony from six (6) witnesses. According to their
combined testimony, on 31st December, 2013 the
deceased was invited, in her capacity as District
Commissioner for Mufulira, to be a guest of honour
and to officiate at a prayer meeting which was held at
Chawama Hall in Mufulira. This Hall is situated near
Clinic 3.
3.2 The deceased opened the service by delivering her
speech. Shortly thereafter, around 21.00 hours,
congregants observed what they described as 'visible
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smelly fumes entering the hail'. PW 1, Mirriam Mwale,
complained to the deceased about the emissions which
were emanating from the mining plant. Congregants
started screaming while others were coughing and
covering their mouths. Some congregants complained
to the deceased and urged her, as District
Commissioner, to engage the Appellant over the
emissions and she assured them that she would take
up the matter.
3.3 The deceased was also affected by the fumes. She
complained that her skin was itchy and asked for
water to drink. Thereafter, she requested to go out for
some air because she was finding it difficult to breath.
Witnesses observed that as she was going out, she was
wheezing and an attempt was made to administer an
inhaler but to no avail. As she reached her car, she
screamed and collapsed and became non responsive.
She was rushed to Mufulira Malcolm Hospital where it
was announced that she had died.
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3.4 According to the witnesses, the deceased appeared to
be in good health when she arrived for the prayer
meeting. They stated that her discomfort was triggered
by the fumes which came from the smelter of the
Appellant's mine. Other congregants also said that
they experienced discomfort. They coughed and
experienced itchy eyes.
3.5 In his testimony, the 1st Respondent confirmed that
his wife went out to attend an interdenominational
prayer service around 20:00 hours. That he later
received a call from his son, informing him that his
wife had been hospitalized after an asthmatic attack.
When he followed her to the hospital, he was informed
that she had passed away after suffering an asthmatic
attack and that the said attack was induced by
inhaling of sulphur dioxide fumes.
According to the 1st Respondent, the deceased was an
asthmatic patient who had previously been
hospitalized for three days after suffering a similar
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attack while attending an official event at Kankoyo in
October, 2013.
3.6 The 1st Respondent described the deceased as the
breadwinner of the family and that her contribution
was between 5% and 10%. That apart from her job as
a District Commissioner, the deceased also baked
cakes on a commercial scale and was involved in
charity work. He urged the Court to grant him the
remedies which he was seeking.
3.7 PW 5, Dr. Lwaba Mubikayi, was the pathologist who
examined the body of the deceased. He attributed her
death to acute respiratory failure due to inhalation of
toxic fumes. He told the lower Court that the
deceased's heart stopped beating due to broncho
spasm. He examined the deceased's lungs and heart
tissues. He later conducted a microscopic
examination after which he prepared a summary of
significant abnormal findings. He told the Court below
that the anomalies which he found were consistent
with those of an asthmatic patient. From the
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circumstances surrounding her collapse, he estimated
that the deceased must have died less than 5 minutes
after choking.
3.8 To fortify his case, the 1st Respondent also called PW6,
Cliff Ngwata, an environmental scientist from the
Zambia Environmental Management Agency (ZEMA).
This witness prefaced his evidence by stating that
ZEMA was created by an Act of Parliament to look into
various aspects of the environment, including water
and air pollution control. That when discharging its
functions, ZEMA was guided by Statutory Instruments
on pollution control. These laws set standards and
specify conditions to be included in licenses issued to
entities which emit substances into the air.
3.9 The further evidence of PW6 was that the Appellant
uses raw materials which contain sulphur and they
release sulphur dioxide when exposed to heat. He
stated that the Appellant Company was issued with a
licence in which some conditions were specified, and
among them was the requirement to carry out regular
ill
measurements of the discharge of pollutants released
into the air, such as sulphur dioxide and dust
particles. The Appellant was required to file returns
with ZEMA every six months, while ZEMA also issued
reports twice a year.
3.10 PW6 testified that the Appellant was not compliant.
That the emission table in the report issued by ZEMA
showed that the Appellant's emissions were above the
statutory limits, and as a result, ZEMA had engaged it
over the same but it was not prosecuted or fined.
According to PW6, the levels of emissions at Mufulira
had always been above the limits, resulting in
pollution being a problem in the area. That even as at
the time that he was giving evidence, the Appellant
was still not compliant with the statutory limits of
sulphur dioxide emissions in that it was releasing
more than the allowable limit. In cross examination,
he conceded that by failing to sanction the Appellant,
ZEMA had failed the people of Mufulira.
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4. THE EVIDENCE OF THE APPELLANT BEFORE THE COURT BELOW
4.1 The Appellant mounted a spirited defence to the
Respondent's claim through five witnesses. It placed
the medical history of the deceased on record and this
revealed that she was living with asthma and diabetes
for which she attended hospital.
4.2 Seemingly to counter the evidence of PW5, the
pathologist who conducted the post mortem and the
microscopic examination on the body of the deceased,
the Appellant called Victor Mudenda (DW1), a
consultant pathologist at the University Teaching
Hospital (UTH) in Lusaka. DW1 stated that he was
availed the post mortem report and the report of the
microscopic examination prepared by PW 5 and based
on the said reports, he formed an opinion as to the
cause of the death of the deceased.
4.3 He disputed the finding in the postmortem report
prepared by PW5 that the deceased died from acute
respiratory failure due to inhalation of toxic fumes.
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According to DW 1, this determination could not be
sustained because the report indicated that all organs
were normal. He also had a look at the report of the
microscopic examination and the organs of interest
were the lungs and the heart. He stated that the lungs
showed emphysema, which is the widening of air spaces
while the heart showed that part of its muscle had
died. It was damaged and non-functional.
4.4 DW1 concluded that there was no supportive evidence
of the diagnosis of an asthmatic attack. To use his own
words: "We don't expect, emphysema in asthma
because often asthma affects the upper areas of the
lungs and not air sacks. Asthma affects bronchi and
bronchios and small bronchi (tubes)." His opinion
was that the problem was with the heart. It was in a
poor state and hypoxia could have accelerated a cardiac
arrest. He also stated that the two reports in this case
were not telling the same story. That while the
postmortem report indicated that death occurred due to
inhalation of toxic fumes, the second report on
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microscopic findings referred to problems with the
heart. He found the findings of the second report to be
more probable.
4.5 In cross examination DW1 testified that where there
were heavy fumes, it is not possible for a pathologist to
provisionally conclude that death was as a result of
inhaling heavy fumes. Further investigations would
have to be carried out. He conceded, though, that a
person who has inhaled toxic fumes over a period of
time would present emphysema; and that there is a
possibility that death could occur from hypoxia where a
patient has extensive emphysema.
4.6 The Appellant also called Kennedy Chilundu (DW3, a
Metallurgical Engineer, who is a Superintendent
Technician at its smelter in Mufulira. He explained the
processes which they undertake to extract copper from
concentrates of ore. He stated that the Appellant's
mine was automated to reduce human interface. That
there is an information system in place which captures
and stores data every millisecond. That this system is
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also installed in all homes of supervisors and
management and it has an interlocking system which,
if it trips, the production of sulphur dioxide ceases.
4.7
It was DW3's evidence that the maximum limit imposed
by ZEMA of sulphur dioxide which would be released
into the atmosphere was 1000 parts per million of gas
at the starks. That in the ambient air, the limit
imposed was 500 parts per million. He explained that
sulphur dioxide released from the stark (a 70 metre
high chimney) would descend to the ground level and
be diluted. He stated, however, that a high
concentration of emission at the stark could still be
highly concentrated when it descended, resulting in the
ambient air to also have a high concentration of
sulphur dioxide.
4.8 DW3 was on duty on 31st December, 2013 when the
deceased met her fate. He told the Court that the
emissions released at the starks on that day were
14,290.8 parts per million; that is 14.3 times higher
than the limit permitted by ZEMA.
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4.9 Following the death of the deceased, the Appellant
tasked Victor, Sichamba (DW4), its Environmental
Engineer, to check the monitoring stations for sulphur
dioxide. There were seven stations spread over
different townships in Mufulira to monitor and
measure sulphur dioxide in the air to ensure that the
limits set by ZEMA were not exceeded. He produced a
report on the emissions which were released on the
night of 31st December, 2013. His findings were that
there was nothing unusual about the emissions
because the amount emitted was in accordance with
the Appellant's agreement with ZEMA. He stated that
the sulphur capture was at 53% whilst the average for
the month was 50%. Of this, 47% of the Sulphur
dioxide was released. He gave the statutory limit with
regard to ambient air as follows:-
"Stark emissions -1000 miligrams per normal cubic metre; Ambient air 24 hours = 125 miligrams per normal cubic metre; 10 minutes = 5000 miligrams per normal cubic metre"
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He told the Court that these limits were set to protect
the environment and but that once they were exceeded,
harm could occur even to human beings.
4.10 The Appellant, in its defence, pleaded in the alternative,
that it is not liable to the 1st Respondent, in any case,
pursuant to an Environmental Liabilities Agreement
which it executed with the Government of the Republic
of Zambia on 30th March, 2000. According to the
Appellant, the Government undertook to indemnify it
as long as it operated within the approved
Environmental Management Plan, (EMP). This EMP
was approved in 2004. The evidence of Alexie Mpishi
(DW5), an Environmental Superintendant at the
Appellant's mine, was that under the EMP, the
Appellant was required to develop a programme to
reduce sulphur dioxide emissions. That pursuant to
this obligation, the Appellant developed a smelter
upgrade project which put in place a road map for
sulphur dioxide reduction. According to this witness,
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Government continuously monitored the
implementation of the EMP.
5 EVALUATION OF THE EVIDENCE AND DECISION OF THE LOWER COURT
5.1 The record shows the Court below concluded the hearing
of this matter on 3rd February, 2016 and the Judge
directed Counsel to file written submissions. In his
judgment, however, the Judge only alluded to the
submissions filed on behalf of the Respondents. He
indicated that the Appellant had not filed 'any
submissions as directed.' The record of appeal does
show, on page 416, that submissions were filed on
behalf of the Appellant on 19th May, 2016 well before the
delivery of the judgment on 9th June 2016. This means
that the Appellant's submissions were not taken into
account when the Judge was considering the decision in
this case. However, submissions are what they are;
arguments in support of a litigant's case. They do not
constitute evidence. While it is desirable that a Court
considers the submissions of the parties, lack of
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consideration thereof is not fatal and cannot invalidate
the decision of a Court.
5.2 The lower Court considered the evidence which was
before it and the submissions of the Respondents and
formed the view that in order for the 1st Respondent to
succeed in his action for negligence, he needed to prove
that the Appellant was negligent towards the life of the
deceased; or that it failed to perform a lawful act which
resulted in harm to her. That the question which the
Court needed to determine was whether the Appellant
breached its duty of care to the deceased to entitle the
1st Respondent to the damages which he was seeking;
more so because, the 1st Respondent's claim was
premised on the notion that the Appellant's operations
polluted the atmosphere in Mufulira, rendering it
difficult for residents, including the deceased, to breathe.
5.3 The Judge referred to a passage in the cerebrated case of
DONOGUE V STEVENSON' in which Lord Alkin stated:
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law is my neighbor? The answer seems to be - persons who are so
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closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."
Arising from this passage, the Judge stated that in order
to establish the tort of negligence, a Plaintiff must prove
that the defendant owes him/her a duty of care; which
duty of care the defendant has breached; resulting in
harm being caused to the Plaintiff; and that the harm
was foreseeable.
5.4 The Judge agreed with the 1st Respondent that the
Appellant owed a duty of care to the community in
which it operated and in particular to the deceased.
Relying on the evidence of DW3 and DW4, the Judge
found as a fact, that the Appellant emitted high volumes
of sulphur dioxide from its smelter in excess of the limits
imposed by ZEMA. In his view, the Appellant had
recognized that its smelter operations would affect air
quality owing to sulphur dioxide emissions, and
consequently, placed various monitoring stations in the
community to monitor the levels of its emissions and
report them to ZEMA. He opined that the significance of
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these measures was to ensure that safe levels of sulphur
dioxide emissions were maintained. He was also
satisfied that the Appellant owed a duty of care to the
community and it was, therefore, estopped from denying
that the effects of its activities on the deceased were
foreseeable.
5.5 On the measure or standard of care required, the
learned trial Judge appears to have accepted the
submission by Mr. Haimbe that the Court should adopt
the standard prescribed by statute. He stated:-
"The evidence on record was that the statutory limit for sulphur dioxide emissions was 1000mg/rn3. In my view, given the foreseeable harm effects of high emission levels, it would be fair to hold the Defendant to a standard that did not exceed 1000 gm/m3. By exceeding this limit, I hold the Defendant to have acted negligently. The uncontested evidence is that on the material day emissions of sulphur dioxide exceeded the statutory limit by 14.3times. In this context, I accept the submissions highlighted by the Plaintiff on this point."
5.6 The learned trial Judge also considered the Appellant's
third party claim against the 2nd Respondent, pursuant
to the 'Environmental Liabilities Agreement' which it
executed with the Government of the Republic of Zambia
on 31st March, 2000. The Appellant claimed that in that
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agreement, the Government of the Republic of Zambia
undertook to indemnify and hold it harmless, against
any and all environmental liabilities arising from the
operations of the assets which it had acquired from the
Government.
5.7 The trial Judge alluded to the evidence of DW5, Alexie
Mphishi, in cross-examination, that the Appellant was
exempt from complying with statutory limits. He rejected
this evidence stating that upon perusal of the
Agreement, he did not find any express provision
highlighting exemptions from statutory limits. He also
seems to have been persuaded by an opinion from the
Solicitor General which stated that ". . . Environmental
liabilities do not arise of a matter in respect of which the
company is not in compliance with the Environmental
Plan." He, thus, concluded that the Appellant was not
absolved from complying with limits imposed by statute
on account of the Environmental Liabilities Agreement.
5.8 The trial Judge further considered the contention by the
Appellant that the deceased could have succumbed to
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death due to other medical conditions such as asthma,
diabetes, or a poor heart condition. To resolve this issue,
the Judge alluded to the evidence of the two expert
witnesses, PW5 and DWI. While DW1 stated that the
first postmortem report and the subsequent microscopic
report did not tell the same story, the Judge found that
DWI had admitted, in cross examination, that it was
possible for a person who had inhaled toxic fumes, such
as sulphur dioxide, over a long period of time, to present
with emphysema. He observed that when DWI "was hard
pressed," he preferred to conclude that the deceased's
heart was in a poor state.
5.9 The Judge accepted the evidence of PW5, that the
deceased died as a result of emphysema which related to
respiratory failure. He noted firstly, that unlike PW5,
DWI did not examine the deceased's body and neither
did he conduct the microscopic examination; while PW 5
examined the deceased's body and carried out the initial
and the subsequent microscopic examinations. That
secondly, the evidence of PW 5 was corroborated by
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other testimony, in particular, that of PW 1, PW2 and
PW3, who all highlighted the circumstances under which
the deceased fell ill after inhalation of toxic fumes; and
thirdly, that PW5 was an independent witness with no
self interest to serve. The Judge observed that even
under rigorous cross-examination, PW5 stood firm to his
findings that the deceased died as a result of acute
respiratory failure caused by toxic fumes According to
the Judge, the only inference that could be made upon a
consideration of the evidence was that the deceased died
as a result of respiratory failure after inhalation of
sulphur dioxide emitted by the Appellant. He accepted
the Respondent's submission that even if the deceased
had other conditions, the 'egg-shell skull' rule meant
that the Appellant should take its victim as it found her.
5.10 The Judge rejected the testimony of DW2, the Medical
Superintendant of Malcom Watson Hospital, on the
ground that he was often evasive when giving his
evidence and would, at times, not answer questions put
to him. He, consequently, found DW2's evidence to be
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unreliable and of no assistance and that if anything, it
was calculated to deceive the Court. At the end of the
day, the Court ruled in favour of the Appellant. To use
the Judge's own words he stated:-
"In conclusion, I find that the let Defendant owed a duty of care to the deceased, Beatrice Sakala Miti. By emitting sulphur dioxide into the environment exceeding statutory limitations, the 1t Defendant breached its duty of care owed to her and the community. The 1st Defendant's failure to uphold the standard of care thus entitled the Plaintiff to damages...."
5.11 Coming to the damages which the 1st Respondent was
claiming, the Judge was of the view that the claim for
expenses incurred during the funeral could not be
allowed. He took judicial notice of the fact that the
deceased was accorded a state funeral; which meant
that the Government of the Republic of Zambia met the
expenses associated with the funeral. The Judge also
took the view that damages for loss of income and
dependency were vague and unsubstantiated, on
account that the 1st Respondent had testified that he
was a businessman and on the material day, he had
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returned in the early hours of the morning, from a
business trip.
5.12 After noting that the deceased was 57 years old and was
in gainful employment, the Court was of the view that a
global sum was most appropriate to represent the
general damages which were being sought. He, therefore,
awarded the 1st Respondent a global sum of four
hundred thousand Kwacha (K400,000.00), with interest
at ten percentum (10%) per annum from the date of
judgment to the date settlement of the principal sum. He
also awarded costs to the 1st Respondent.
6 GROUNDS OF APPEAL
6.1 Aggrieved with the determination of the lower Court, the
Appellant has now appealed to this Court advancing six
grounds of appeal, formulated as follows:-
1. the learned trial Judge erred in law and in fact when he held that the Appellant emitted high volumes of sulphur dioxide from its smelter which exceeded the limit of 1000mg/m3 imposed by the Zambia Environmental Management Agency (ZEMA) without establishing the statute or statutory instrument where such limit was imposed or pursuant to which ZEMA could Impose such a limit;
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2. the learned trial Judge erred in law and in fact when he relied on the evidence and assertions of witnesses at trial to prove the existence of statutory duty and in his interpretation of what that statutory duty was;
3. the learned trial Judge erred in law and in fact when he held that there was uncontested evidence that on the material day, the emissions of sulphur dioxide exceeded the statutory limit by 14.3 times when there was no evidence adduced to support such a finding;
4. the learned trial Judge misdirected himself when he evaluated the medical evidence of the two expert witnesses as to the cause of death in an unbalanced manner;
5. the learned trial Judge misdirected himself when he failed to adjudicate on all matters in dispute between the Appellant and the 2nd Respondent which he was called upon to adjudicate and when he misapprehended the Appellant's claim against the 2nd Respondent; and
6. the award by the learned trial Judge of a global sum of four hundred thousand Kwacha (K400, 000.00) with interest at ten per centum (10% per annum from the date of judgment to the date of settlement of the principal sum to represent the general damages is wrong in principle and contrary to applicable legal formula in assessing damages in a case such as this one where the claim is based on the loss of life.
The parties have filed extensive written heads of
argument which Counsel augmented with oral
arguments at the hearing of the appeal. We commend
Counsel for their industry to assist the Court to resolve
the issues in contention in this appeal.
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7. APPELLANT'S SUBMISSIONS IN SUPPORT OF THE APPEAL
7.1 The learned Counsel for the Appellant, Mr. Sangwa, SC,
argued the grounds of appeal seriatim. In the first
ground of appeal, the Appellant has taken issue with the
finding of the trial Judge that:
"by emitting sulphur dioxide into the environment exceeding statutory limits the First Defendant breached its duty of care owed to her and the community. The first Defendant's failure to uphold the standard of care thus entitled the Plaintiff to damages."
Counsel argued that the Judge should have cited the law
which set the said statutory limits.
7.2 Counsel alluded to the common law principles developed
following the celebrated case of DONOGHUE V
STEVENSON', that manufacturers or producers of
goods have a duty to take reasonable care to avoid acts
or omissions which they can reasonably foresee as likely
to injure persons who are closely or directly affected by
their acts or operations. Counsel contended, however,
that when this duty is applied to mines, it does not
mean that mines should not be permitted to discharge
any emissions at all. That such an absolute duty on
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industry, not to emit any gases at all in the course of
their operations, would be unreasonable and could
render operations impossible, because it would be
virtually impossible to completely do away with
emissions of toxic fumes from industries, be it in this
country or elsewhere in the world.
7.3 He submitted that it was in this vein, that Parliament
enacted legislation which allows undertakings to emit
toxic fumes into the atmosphere in a prescribed and
regulated manner. That such legislation alters the strict
common law position on the matter. That in Zambia,
Parliament created ZEMA, whose duty is to regulate the
emission of toxic fumes and issue permits prescribing
conditions under which such toxic fumes can be safely
emitted.
7.4 Counsel submitted that in determining the question as
to whether the Appellant owed a duty of care to the
deceased and the nature of that duty, the Court should
have adopted the test which was laid down by Lord
Bridge, in the case of CAPARO INDUSTRIES PLC V
J30
DICKMAN3. According to this test, the claimant must
establish:-
(1) that harm was reasonably foreseeable; (ii) that there was a relationship of proximity; and (iii) that it is fair, just and reasonable to impose a duty
of care.
7.5 According to Counsel, under the CAPARO test, the Court
is required to take into account policy considerations.
That where Parliament enacts legislation to impose a
duty, a breach of that duty is not actionable under that
statute unless the statute discloses a different intention.
That whereas breach of standards of conduct imposed
by statute may constitute proof of common law
negligence, compliance with the statute is also evidence
that the common law duty was complied with. Counsel
contended that the only duty owed by the Appellant to
its neighbor in this case, is the requirement by the
Appellant to comply with its statutory obligations and
these are found in Section 32(1) and Section 33 of the
ENVIRONMENT MANAGEMENT ACT'. The provisions of
this legislation provide as follows:-
"Section 32(1)
J31
A person shall not, without a licence, discharge, cause or permit the discharge of, a contaminant or pollution into the environment if that discharge causes, or is likely to cause, an adverse effect."
"Section 33
The agency may issue an emission licence to a person to emit or discharge a pollutant or contaminant into the environment in such manner and under such conditions as may be prescribed."
7.6 Counsel submitted that the Appellant's duty to the
deceased was to comply with the pollution regulations as
set out by law, and to comply with all the conditions
imposed on it by the Regulator at the time of issuing it
with a permit or license to emit toxic fumes. He
submitted further, that ZEMA had passed regulations
which limited the amount of emissions which could be
released into the environment and the Appellant was
allowed to capture only 50% of the emissions from the
smelter as the intermediate emission limit and it
complied with the said limits.
7.7 Counsel referred us to several English cases, one of
which is the case of ALBERY & BUDDEN V. BP OIL LTD
& SHELL UK LTD in which the Court of Appeal found
J32
that a prima facie case of negligence had not been made
out against BP by a child who claimed injury by inhaling
petrol fumes. Our attention was drawn to the following
passage in the judgment of the Court:-
"..Parliament authorised the Secretary of State to impose requirements. The Secretary of State has imposed requirements. These requirements are that the lead content of petrol shall not exceed a certain amount, which is a "permitted" amount. The Appellants have not exceeded the permitted amount. Hence what they have done was expressly permitted by subordinate legislation authorised by statute it has to be assumed that the Secretary of State, in laying before parliament the 1976 regulations, had duly, fully and properly carried out the duty laid on him by Parliament by section 75(2) of the 1974 Act..."
Drawing impetus from this passage, Counsel submitted
that once a licensed entity complies with the terms of its
license, it cannot be held liable for emitting toxic fumes
into the atmosphere, even in the event that such
emissions have caused damage to a third party. In
Counsel's view, liability would only visit the licensed
entity if it breached the conditions of the license and
operated in a manner that was negligent. To support his
submission, Counsel referred us to the case of GEDDIS
J33
V PROPRIETORS OF BANN RESERVOIR', where Lord
Blackburn stated that:-
"It is now thoroughly well established that no action will lie for doing that which the legislature has authorised, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorised, if it be done negligently."
He also referred to the case of X AND OTHERS
(MINORS) V BEDFORSHIRE COUNTY COUNCIL AND
ANOTHER; M (a minor) AND NEWHAM LONDON
BOROUGH COUNCIL AND OTHERS' in which it was
held, inter alia, that:-
"Where a statute authorizes that to be done which will necessarily cause injury to someone no action will lie if the act is performed with reasonable care If, on the other hand, the act is performed carelessly whereby unnecessary damage is caused, a common law action will lie. This is because the act would, but for the statute, be actionable at common law..."
7.8 According to Counsel, the mere fact that someone
suffers damage as a result of another's actions does not
give rise to a cause of action, unless it can be shown
that the act was done negligently. To buttress this
point, Counsel referred to the case of MICHAEL
J34
CHILUFYA SATA MP V ZAMBIA BOTTLERS LIMITED 6,
where we stated that: -
"Negligence alone does not give a cause of action, damage alone does not give a cause of action, the two must co-exist."
7.9 It was Counsel's submission that in the absence of
evidence that the Appellant acted without due care in
the emission of sulphur dioxide, or, that it exceeded the
statutory limit, the lower Court's finding of negligence
against the Appellant was a clear misdirection at law.
According to Counsel, there was no evidence adduced at
trial, to show that the Appellant acted negligently in
emitting the sulphur dioxide. In his view, this appeal
ought to succeed based on the first ground of appeal
alone.
7.10 The second ground of appeal is that the Judge erred to
rely on the evidence and assertions of witnesses at trial
to prove the existence of a statutory duty, and in his
interpretation of what that statutory duty was. Counsel
referred us to a portion of the lower court's judgment in
which the Judge stated as follows:-
S J35
"As regards the standard of care, Mr. Haimbe submitted that the Court was entitled to adopt the standards prescribed by statute.
In my view, given the foreseeable harm effects of high emission levels, it would be fair to hold the Defendant to a standard that did not exceed 1000mg/m3. By exceeding this limit I hold the Defendant to have acted negligently. The uncontested evidence is that on the material day emissions of sulphur dioxide exceeded that statutory limit by 14.3 times. In this context, I accept the submissions by the Plaintiff on this point."
7.11 Counsel submitted that the question as to whether the
Appellant owed the deceased a duty imposed by statute
was a matter of law which was to be decided by the
Court. That in arriving at its decision, the Court ought to
have cited the relevant piece of legislation which imposes
such a duty. He argued that although the 1st
Respondent did not plead breach of statutory duty in his
statement of claim as the basis for his action, he
nonetheless contended in his final submissions that the
Appellant discharged toxic fumes in excess of the
statutory limit, without citing any Statutory Instrument
or Regulation which purportedly imposed the limit of
1000 cubic meters per 24 hours.
7.12 According to Counsel, the lower court relied entirely on
the evidence of PW6, Cliff Ngwata, to prove the existence
J36
of a statutory duty imposed on the Appellant not to emit
sulphur dioxide exceeding 1000mg/m3 and that it also
relied on the same witness for the interpretation of a
statute. This, in his view, was a serious misdirection
because the existence of a statutory provision is not a
matter to be proved by a witness. He contended that
pieces of legislation must be judicially noticed in
accordance with section 6 (1) of the INTERPRETATION
AND GENERAL PROVISIONS ACT' and their
interpretation is not a matter for fact witnesses but a
matter of law to be decided upon by the Judge. That
relying on the testimony of a witness to prove the
existence of a statutory duty and its violation was a
grave error warranting the reversal of the lower Court's
decision.
7.13 Coming to the third ground of appeal, Counsel
submitted that the lower Court erred, when it held that
there was uncontested evidence to the effect that on the
material day, the emissions of sulphur dioxide exceeded
the statutory limit by 14.3 times. That a thorough
J37
review of the evidence on record will show that there was
no such evidence adduced at trial by any of the
witnesses to warrant such a finding of fact. According to
Counsel, the Court below misapprehended the evidence
of DW3, Kennedy Chitundu, in cross examination, when
he stated that 14.290.8 parts per million was released at
the stacks on 31st December 2013. He argued that the
witness was referring to the sulphur dioxide at the
stacks. These are chimneys where gas is vented out
from the smelter and not the concentration of sulphur
dioxide in the ambient air. Further, that this witness
made it clear that on the material day, the Appellant
captured 52% of the sulphur dioxide produced.
7.14 Counsel further submitted that there is no law or
regulation which provides for how much sulphur dioxide
should be released into the ambient air. That the only
available regulations are the Air Pollution Control
(Licensing and Emission Standards) Regulations but
these provide for limits of sulphur dioxide released at the
stacks and not in the ambient air.
J38
7.15 Counsel argued further that because of the
misapprehension of the evidence of DW3, the lower
Court formed one erroneous view, that the 14.295.8
parts per million released at the stacks was in the
ambient air, when in fact not. He urged us, in line with
our decision in the case of WILSON MASAUSO ZULU V
AVONDALE HOUSING PROJECT 7, to reverse the trial
courts finding of fact on this aspect.
7.16 In support of the fourth ground of appeal, it was
Counsel's contention that the learned trial Judge
misdirected himself when he evaluated the medical
evidence of the two expert witnesses as to the cause of
death of the deceased, in an unbalanced manner.
According to Counsel, after accepting that both PW5 and
DW 1 were highly respected scientists of international
repute, the Judge only considered the evidence of PW5
and not that of DW 1. He argued that the Court below
ought to have given equal consideration to the evidence
of both experts, and make an evaluation to determine
where the truth lay.
J39
7.17 Counsel submitted further that the trial Court should
not have disregarded the expert evidence of DWI merely
because it was PW5 who performed the initial
examination on the deceased's body and the subsequent
microscopic examination. He argued that DW1's
evidence was based on the interpretation of PW5's
findings in the two postmortem reports and his (DW 1 's)
interpretation of both reports did not support the
conclusions drawn by PW5. To buttress his contention,
Counsel referred to our decision in the case of SITHOLE
V THE STATE LOTTERIES BOARD', in which we stated
that: -
"where there is in fact documentary or pictorial evidence which formed the basis of the expert's opinion it is necessary for these documents to be properly proved and for the court to see for itself the various points on which the expert bases his conclusions. The court is entitled to accept an expert's interpretation of evidence where that interpretation is based on special training and skill, but it is not entitled to accept as factually existing something which the expert says he can see but which the court itself is unable to see. If the court were entitled in such cases blindly to accept what the expert says, obvious difficulties would arise where two experts differ; the court would then have no basis whatever on which to assess which of the experts Iiad given the more cogent evidence."
J40
7. 18 Counsel submitted that similarly, in this case, the expert
evidence which was before the lower Court was that of
PW5 and DW 1, and the trial Court was not bound to
accept as a fact, the assertions of what PW5 actually
saw, which the Court itself was unable to see. That in
accepting PW5's evidence on the basis that he examined
the body of the deceased, the Court ignored the long
standing practice that where expert evidence has been
tendered against a party, that party is entitled to seek
the opinion of another expert in order to establish the
true status of the matter; more so where the expert's
opinion does not make sense. In Counsel's view, the
findings in the postmortem report prepared by PW5 did
not support the conclusion drawn as to the deceased's
cause of death.
7.19 On the question of two conflicting reports, Counsel
referred us to the case of BWANAUSI VS THE PEOPLE.
In that case, the High Court was seized with a matter in
which there were conflicting expert medical opinions.
J41
The trial Court unduly disregarded the evidence of one
expert in favour of the other. We held:-
"Where a conclusion is based purely on inference that inference may be drawn only if it is the only reasonable inference on the evidence; an examination of alternatives and a consideration of whether they or any of them may be said to be reasonably possible cannot be condemned as speculation...."
7.20 Counsel's argument in this case is that PW5 drew
inferences as to the cause of death from the people who
told him about the condition of the environment where
the deceased collapsed, and from the examination of the
deceased's body. He contended that PW5's inference
was not the only inference which could have been drawn
from the evidence; hence the trial court had to look for
corroboration of the inferences it drew from the evidence
of PW 1, PW2 and PW3. That the trial Court needed to
examine the alternatives offered by DWI. and decide
whether the inferences drawn by PW5 could be said to
be reasonably possible. That by failing to do so, the trial
Court misdirected itself and evaluated the evidence of
the two experts in an unbalanced manner.
J42
7.21 Counsel also attacked the finding of the lower Court that
PW5 was an independent witness. He argued that this
witness's report was discredited by another expert
witness and that he (PW5) in fact admitted that mistakes
were made by his office in that the second report was
backdated to bear the same date as the first report and
that his initial report was done before he carried out any
examination on the body of the deceased. According to
Counsel, it was DW1 who was an independent witness
since he had no intent which would be said to be self-
serving. He urged us not to lend any credence to the
evidence of PW5 since in his view, it was fashioned to
confirm the story which he had been told. He opined
that it was more probable that PW5 produced the second
report after the first report had been called into question
by DW 1. Counsel also urged us to draw our own
inferences from the expert evidence since we have all the
reports in this case together with the testimony of DW 1
and PW5. To support his submission, he again relied on
J43
the case of SITHOLE V THE STATE LOTTERJES
BOARD', and in particular, our holding that:-
"Where an appellate court is in as good a position as a trial court to draw inferences it is at liberty to substitute its own opinion for any opinion which the trial court might have expressed"
Counsel also referred us to the case of THE ATTORNEY-
GENERAL V MARCUS KAMPUMBA ACHIUME", where
we held that:-
"An unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered, is a misdirection which no trial court should reasonably make, and entitles the appeal court to interfere."
On the authority of this case, Counsel invited us to
interfere with the finding by the lower Court that PW5
was an independent witness since there was, in his view,
an unbalanced evaluation of the evidence on this point.
7.22 Counsel argued the fifth ground of appeal in the
alternative, should this Court not be persuaded by his
arguments advanced in support of the first, second,
third, fourth and sixth grounds of appeal. His contention
in support of this ground, is that the lower Court
misapprehended the Appellant's case against the
J44
Attorney General, and instead dealt with matters which
were not pleaded or argued by the Appellant.
7.23 According to Counsel, the Appellant's case as outlined in
the Third Party Notice against the 2nd Respondent was
not considered by the Court as pleaded or at all. In the
said Notice, the Appellant sought to be indemnified
against the 1st Respondent's claim, pursuant to an
agreement called the 'Environmental Liabilities
Agreement' executed on 31st March, 2000 between the
Government of the Republic of Zambia and the
Appellant. The Appellant claimed that under this
agreement, the Government of the Republic of Zambia
undertook to indemnify and hold it harmless against any
environmental liabilities arising from the operations of
the assets acquired from the Government. The third
Party denied the claim, stating that the Appellant was
solely directly responsible for the current emissions
from its operations in Mufulira and that the Defendant's
liability is not related to the Environment Liabilties
Agreement..."
J45
7.24 Counsel submitted that the judgment of the trial Court
did not address the question as to whether the Appellant
was entitled to claim indemnity from the Government in
an event that the Appellant was found liable arising from
its operation of the assets which it acquired from the
Government. That the Court below did not address any
of the issues raised either in the third party notice or 2nd
Respondent's defence. That instead, the Court dealt with
an issue which was not pleaded or argued by any of the
parties; which is, whether the Environmental Liabilities
Agreement exempted the Appellant from complying with
statutory limits. According to Counsel, there was
nowhere, in the pleadings, evidence or submissions,
where the Appellant claimed to be exempt from
complying with statutory limits by virtue of the
Environmental Liabilities Agreement, but rather, that it's
claim was for indemnity pursuant to the terms of the
Environmental Liabilities Agreement.
7.25 Counsel submitted further that the lower Court's
approach to the Third Party proceedings was cavalier in
J46
that it glossed over the issues in contention between the
parties. In this respect he referred us to the case of
WILSON MASAUSO ZULU V AVONDALE HOUSING
PROJECT LIMITED 7, in which we held that:
"The trial court has a duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality."
7.26 Counsel also raised issue with the recording of evidence
from DW4 and DW5, who testified with regard to the
Environmental Liabilities Agreement. According to
Counsel, the recording of their evidence was selective
and too abbreviated to be helpful to this Court. It was
his submission that this aspect of the matter should be
referred back to the High Court for rehearing so that the
issues in controversy between the Appellant and 2nd
Respondent may be adjudicated upon with finality; more
so that third party proceedings are separate and
independent from the main action.
7.27 In support of the sixth and last ground of appeal, the
learned Counsel for the Appellant submitted that the
lower Court erred in its application of the principles on
J47
assessment of damages when it awarded the 1st
Respondent a global sum of K400,000.00 (four hundred
thousand Kwacha) with interest at 10% per annum as
damages. According to Counsel, the Court should have
apportioned the damages and stated under which heads
the awarded damages fell because not all the damages
which the 1st Respondent claimed were awardable. That
while the Court did disallow some of the claims, it did
not comment on the rest of the claims. To support his
submission, Counsel referred us to our decision in the
case of MANFRED KABANDA AND KAJEMA
CONSTRUCTION V JOSEPH KASANGA'2 where, with
regard to the global award of damages in that case, we
said:-
"Mr. Akalutu on behalf of the second appellant argued a number of grounds of appeal. The first was that the damages should not have been awarded as a global figure but should have been apportioned between the Law Reform (Miscellaneous Provisions) Act and the Fatal Accidents Acts, and further that, that having been done, the damages awarded under the law Reform (Miscellaneous Provisions) Act should be subtracted from the damages awarded under the Fatal Accidents Acts. Mr. Mukuka on behalf of the respondent did not contest these grounds of appeal and we also agree that it is improper in such cases to award a global figure damages. It is better for the benefit of the parties, and,
J48
indeed, of this court, to allocate the damages between the Acts which we have mentioned."
7.28 Counsel submitted that in the case in casu, there were
no damages recoverable under the FATAL ACCIDENTS
ACTS 1846 TO 1908, because under these Acts,
damages are intended to compensate the dependants of
the deceased for the loss of pecuniary benefits deriving
from the relationship which subsisted between them.
That having found that there was no dependency by the
1st Respondent on the deceased, and there being no
evidence called to prove that there were other
dependants other than PW4, no damages were
recoverable under the FATAL ACCIDENT ACTS, 1846
TO 1908 for loss of dependency.
7.29 Counsel also referred us to Section 2(1) and (2) of the
LAW REFORM (MISCELLANEOUS PROVISIONS) ACT6 .
Section 2(2) of this Act provides that:-
"(2) Where a cause of action survives as aforesaid, for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not include any exemplary damages."
J49
He submitted that where exemplary damages are payable, a
claim for such damage ought to be specifically pleaded in the
body of the statement of claim and repeated in the prayer,
together with the facts relied upon to support such a claim.
It was his position that the claim for exemplary damages was
not specifically pleaded in this case. He argued further that
even assuming that such a claim was payable, no award
would have been claimable due to lack of a proper pleading.
Counsel drew our attention to several cases decided by this
Court and the High Court case of FAINDANI DAKA (SUING
AS ADMINISTRATOR OF THE ESTATE OF THE LATE
FACKSON DAKA DECEASED) V THE ATTORNEY
GENERAL '4, where the Judge stated that:
"With regard to exemplary damages I should point out that they are barred under section 2 (2) (a) of the Law reform (Miscellaneous Provisions) Act. It is needless for me to go further than that as the statute in question is very clear: an award cannot be made under that head."
7.30 Counsel however accepted that an award under the LAW
REFORM (MISCELLANEOUS PROVISIONS) ACT 6) is for
the benefit of the estate of the deceased, and includes
funeral expenses and damages for the loss of the
iso
deceased's expectation of life. He consequently
supported the lower Court's decision that funeral
expenses were not recoverable by the estate in this case
because the Government of the Republic of Zambia took
care of all funeral expenses.
7.31 On the claim for damages for mental anguish of the 1st
Respondent, the children and dependants; and the claim
for damages for loss of dependency and for bereavement,
Counsel submitted that this claim was not pleaded in
the statement of claim and further, that no evidence was
led at trial, to support the claim. Counsel also referred
us to Section 2(4) of the FATAL ACCIDENTS ACTS'
which require a Plaintiff to furnish full particulars of
those who will benefit from the action and of the nature
of their claim. He stated that the requirement to furnish
full particulars was underscored in the case of COOPER
V WILLIAMS'5, in which an infant, suing by her mother
and next friend, issued a writ for the death of one,
Fredrick Leslie Watkins from injuries caused by the
J51
negligence of the defendants. In his judgment,
Danckwerts L.J, stated as follows:
"....the action never proceeded as far as statement of claim. If it had proceeded as far as that, I think it is likely that perhaps somebody would have looked at the Fatal Accidents Act 1846 to 1959 and discovered that the form of the action was not that which is required by the statute in certain respects and would have seen that particulars had to be given in section 4 of the act of 1846."
7.32 Counsel submitted that where a plaintiff fails to give full
particulars of the claim, including the persons who are
entitled to benefit under the claims for loss of
dependency and mental anguish; the Court cannot
award any damages under these heads as there is no
basis for such an award. He echoed his earlier
submission that in this case, no evidence was led to
support an award under these heads and it is, therefore,
not clear what the composition of the global figure of
K400,000.00 is because all the heads of claim, except
the claim for general damages, were not claimable. He
argued that the global award given by the lower Court
cannot be sustained, more so that it flew in the teeth of
this Court's decision in the case of MANFRED
J52
KABANDA AND KAJEMA CONSTRUCTION V JOSEPH
KASANGA'2.
7.33 In conclusion, Counsel urged us to allow this appeal. In
the event that the appeal against the 1st Respondent is
not successful, he prayed that the appeal against the
Attorney General should be allowed as the Appellant's
claims against him were not adjudicated upon, as
argued in the fifth ground of appeal. He urged us to
remit the 3rd Party claim back to the High Court for re-
hearing and also prayed for costs both in this Court and
in the Court below.
8. 1st AND 21 RESPONDENTS' SUBMISSIONS IN OPPOSITION OF THE APPEAL
8.1 The 1st and 2nd Respondents filed joint heads of
argument which were augmented with oral submissions
by Mr. Haimbe, the learned Counsel for the
Respondents.
8.2 Mr. Haimbe prefaced his submissions by pointing out
that Mr. Eliam Miti, who was the 1st Respondent at the
hearing of this appeal demised and he has, by order of
J53
this Court, been substituted by Ndumo Miti, the
administrator of his estate as 1st Respondent, while
Victor Nambonya Miti, the Administrator of the estate of
the late Beatrice Sakala Miti, is the 2nd Respondent.
8.3 The Respondents argued the first three grounds of
appeal together. Counsel submitted that there was a
seeming misconception contained in the Appellant's
heads of argument as to the nature of the issues which
were raised in the lower Court and which now fall for the
determination of this Court, vis a vis the defence which
was filed by the Appellants. According to Counsel, the
misconception stems from the last sentence in the first
paragraph of the preamble to the Appellant's heads of
argument which states that:-
"....the Appellant denied the claim for negligence stating that its operations were within the statutory limits."
Counsel submitted that these words do not reflect the
correct position because the Appellant never pleaded a
statutory defence in the lower Court and neither did it,
at any time during trial, assert that it was not liable for
J54
negligence to the deceased on account of its operations
being within the statutory limit.
8.4 Counsel pointed out that the defence which was put
forward by the Appellant in response to the allegation of
negligence against it, was that only trace elements of
sulphur dioxide, generated in the secondary smelter and
tertiary smelter, were being emitted into the atmosphere
and consequently, 'there was no excessive emission of
sulphur dioxide' to warrant the claim by the deceased.
8.5 According to the Respondents, in so far as the
Appellants' heads of argument are anchored on the
stated misconception, they are irrelevant to the
determination of the question as to whether the Court
below was on firm ground when it found the Appellam to
have been liable in negligence to the deceased. They
contend that when due regard is had to the pleadings
which were before the lower Court, the question for
determination was not whether the Appellant breached
its statutory duty, but whether the Appellants released
excessive, rather than trace mounts of sulphur dioxide
J55
into the atmosphere, thereby causing the death of the
deceased. According to the Respondents, there was
overwhelming evidence in the lower Court which proved
that the Appellant emitted excessive amounts of sulphur
dioxide into the atmosphere on the material day and
that these amounts could not be described as 'trace', as
pleaded by the Appellant in its defence.
8.6 To buttress this argument, Counsel submitted that
DW3, the Appellant's own witness, testified that on the
material day of 31st December, 2013 the Appellant
captured 52% of sulphur dioxide, resulting in 700,000 to
800,000 kg of sulphuric acid being produced. He argued
that there is a co-relation between the amount of
concentrate treated; the amount of sulphuric acid
produced; and the amount of sulphur dioxide released
into the atmosphere at converters. That the more
concentrate treated, the more sulphuric acid and
sulphur dioxide which will be produced. Counsel
submitted, on the basis of this evidence, that it is only
logical to conclude that the emissions of sulphur dioxide
J56
by the Appellant on the fateful day could not be
described as 'trace' because the evidence of DW3 showed
that the operations of the Appellant on that day resulted
in the production of a large quantity of sulphuric acid,
resulting in a correspondingly by high emission of
sulphur dioxide into the atmosphere.
8.7 Counsel further submitted that it is competent for a
court to make inferences from the factual evidence
before it. Relying on the case of KHALID MOHAMED V
THE ATTORNEY GENERAL '7, he submitted that an
appellate court is also entitled to draw its own opinions
from facts which are not in dispute. On this premise, he
invited us to infer, from the facts which are not in
dispute, that the Appellant emitted an excessive amount
of sulphur dioxide into the atmosphere on the day when
the deceased died. On this premise, he argued that the
lower Court cannot, therefore, be faulted for concluding
that the Appellant acted negligently by discharging a
large amount of sulphur dioxide into the air, given the
Appellant's defence to the effect that 'only trace amounts
J57
of sulphur dioxide' were emitted into the atmosphere on
the material day when this turned out not to be true.
8.9 Counsel further submitted that the Appellant, in this
case, is assailing the ultimate finding by the trial Judge,
that the Appellant owed a duty of care to the deceased
and it breached that duty when it emitted an excessive
amount of sulphur dioxide into the air, beyond the limit
imposed by ZEMA. According to Counsel, the Appellant
is contesting this finding by the lower Court on three
grounds;
Firstly, that it was allowed 'to discharge air pollutants
subject to intermediate emission limits and conditions'
set out in a letter appearing on page 379 of the record of
appeal. The said letter was written on 18th September
1979 by the Environmental Council of Zambia and it is
referenced: -
"REVISION OF SULPHUR DIOXIDE EMISSION CAPTURE IN MUFULIRA"
In the second paragraph, the letter states:
I wish therefore to inform you that based on the reasons advanced to us regarding sulphur dioxide emissions in
J58
Mufulira, EGZ has reduced the sulphur dioxide emission capture to 50% instead of 55% to 59% capture as indicated as an environmental management commitment for the Smelter upgrade Project."
Secondly, that the deceased's case was anchored on allegations of breach of statutory duty but that the said breach of duty was not pleaded, and;
Thirdly, that there was no evidence that the emissions of sulphur dioxide had exceeded the statutory limit by 14.3 times and that surprisingly, the Appellant argued that there is no law which provides for the quantum of sulphur dioxide which should be released at the stacks of the smelter.
8.10 In challenging these grounds, Counsel argued that the
judgment of the lower Court used clear and
unambiguous language which shows that the learned
trial Judge did not base his conclusion on the emissions
of sulphur dioxide exceeding the statutory limit, but
rather on exceeding the limits imposed by ZEMA, and on
the evidence that the Appellant had placed various
monitoring stations in the community to monitor the
sulphur dioxide emissions. To drive this point home,
Counsel highlighted a portion of the judgment of the
Court below in which the trial Judge stated:-
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"I thus find as a fact that the Defendant emitted high volumes of sulphur dioxide from its smelter and exceeded the limits imposed by ZEMA. I accept submissions on behalf of the Plaintiff that the Defendant cannot deny that it owed the community it operated in, and in particular the deceased a duty of care. I am satisfied from the evidence that the Defendant recognized that its smelter operations would affect air quality owing to sulphur dioxide emissions. The evidence clearly shows that the Defendant had various monitoring stations in the community to monitor the levels of its emissions and report the sme to ZEMA.
Against this backdrop, Counsel argued that the 1st, 2nd
and 3rd grounds of appeal are misconceived as they have
been argued from a wrong premise when regard is had to
the totality of the evidence and given the basis upon
which the lower Court ultimately anchored its decision.
8.11 On the Appellant's assertions that it was issued with a
permit which allowed it to discharge pollutants into the
air subject to an intermediate limit of 50% capture of
sulphur dioxide, Counsel submitted that save for the
letter appearing on page 379 of the record of appeal, no
evidence was led to prove the existence of such a permit
and neither was the 50% capture allowed by ZEMA
pleaded. That the issue of 'intermediary emission limit'
only arose in the Appellant's submissions and this is
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tantamount to giving evidence at the bar. According to
Counsel, the Appellant appeared to have been laboring
under a misconception that the '50% capture' which it
was allowed amounted to an 'intermediate emission
limit' when in fact it was not. He thus urged us to
disregard the Appellant's assertions, stating that they
are not grounded in or supported by the evidence on
record; whether oral or documentary.
8.12 According to Counsel, the erroneous position taken by
the Appellant ignores the cardinal fact that the emission
limits imposed under the AIR POLLUTION CONTROL
(LICENSING AND EMISSION STANDARDS)
REGULATIONS' refer primarily to the concentration of
sulphur dioxide emitted, rather than the percentage of
the volume or quantity of gas produced. That this is
evident in various reports appearing from page 146 to
204 of the record of appeal. They show that although
there was 50% or more capture of sulphur dioxide on
different days, the concentration of sulphur dioxide
depended on the amount of concentrate processed.
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8.13 Counsel submitted that it was entirely within the control
of the Appellant, at all material times, to regulate the
concentration of its emissions within the total volume of
gas produced, of which 50% was to be captured so as to
ensure that no injury was caused to its neighbours.
That it was this concentration which was envisaged
under the Regulations and not the volume of gas
produced. He submitted that the failure by the
Appellant to keep the concentration of its emissions
within safe limits amounted to a breach of its common
law duty to its neighbours rendering it to be liable in
negligence for its actions. He argued further that the
statutory limit provides a watershed between what is
safe and what is harmful and is, therefore, a good
benchmark for establishing liability.
8.14 Counsel submitted further, that contrary to the
Appellant's assertion that the learned trial Judge found
it to be liable on the ground that it breached its
statutory duty, a proper reading of the judgment clearly
shows that the learned Judge based his decision on the
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common law duty imposed on the Appellani arid only
used the statutory position as a guideline. That the
Court found the Appellant wanting by reason of its
breach of its common law duty not to cause injury to
others and in doing so, made reference to the statutory
limit as a mere guideline. In Counsel's view, it was
immaterial as to whether or not the lower Court cited the
regulations in its judgment; the fact of the matter being
that the Appellant was bound by the regulations and
was under an obligation to abide by them.
8.15 In this regard, Counsel invited us to consider the letter
dated 3rd June 2004 from ECZ to the Appellant,
appearing on page 373 of the record of appeal to which
was attached a 'decision letter' from ECZ. In paragraph
14 of the said 'decision letter' appearing on page 377 of
the record, it was made clear that despite the Appellant
having been allowed to proceed with the Mufulira Mine,
that approval would not exempt the Appellant 'from
complying with other relevant legislations.'
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day, the sulphur dioxide produced was 14.3 times
higher than the allowable limit.
8.18 Counsel also referred us to the evidence of PW6, an
environmental scientist from ZEMA, seemingly to show
that even before 31s' December 2013, the Appellant's
emissions of sulphur dioxide was above the allowable
limits. This witness stated that the minimum level of
sulphur dioxide produced by the Appellant in the first
half of 2013 was 38 times above the statutory limit.
That when the witness was referred to the document
appearing on page 153 of the record of appeal, he
testified that in 2010, the Appellant emitted sulphur
dioxide whose concentration exceeded the limits set by
ZEMA by as much as 70 times. The document on page
153 of the record of appeal contains comments and
analysis of stark emissions at Mufulira Mine by ECZ.
8.19 Counsel argued that the Appellant was obliged to
observe the AIR POLLUTION CONTROL
REGULATIONS3 which provide guidelines with regard
to the quality of ambient air, but it failed in its duty as
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evidenced by the finding that the monitoring system at
Clinic 3, near Chawama Hall, where this incident took
place, recorded a higher concentration of sulphur
dioxide in the ambient air than Clinic 6 which was
further away.
8.20 Counsel contended that since there is undisputed
evidence that the Appellant had the capacity to control
the concentration levels of sulphur dioxide emitted into
the ambient air on the material day, the only logical
conclusion which the lower Court could have arrived at
is that the Appellant acted negligently and breached its
statutory duty by failing to ensure that the
concentration of sulphur dioxide emitted into the air
was within safe limits To support his contention,
Counsel also referred us to the cases of GEDDIS V
PROPRIETERS OF BANN RESERVOIR 5; ALLEN V
GULF OIL REFINING and X AND OTHERS (MINORS)
V BERDFORDSHIRE COUNTY COUNCIL5, earlier
referred to us by Mr Sangwa, SC. He submitted that
these cases have also laid down a principle that even
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when doing that which is authorized by statute, care
must be taken not to injure anyone because an
authorized act done negligently attracts liability at
common law. He cited a passage from the case of X
AND OTHERS (MINOR)5 which states:
"If, on the other hand, the authorized act is performed carelessly whereby unnecessary damage is caused, a common law action will lie. This is because the act would, but for the statute, be actionable at common law and the defence which the statute provides extends only to the careful performance of the act. The statute only authorizes invasion of the private rights to the extent that statutory powers are exercised with reasonable and proper regard for the holders of such rights. Thus careless performance of an authorized act, rather than amounting to breach of a new duty, simply ceases to be a defence to a common law right of action..."
8.21 Counsel submitted, consequently, that the first three
grounds of appeal lack merit and should be dismissed
because the learned trial Judge cannot be faulted for
finding that the Appellant was liable in negligence to the
deceased.
8.22 Coming to the fourth ground of appeal, which is that the
learned trial Judge misdirected himself when he
evaluated the medical evidence of the two expert
witnesses as to the cause of deceased's death in an
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unbalanced manner, Counsel submitted that through
this ground, the Appellant is attacking findings of fact
made by the lower court. That it seeks to impugn the
said findings by revisiting the evidence of the two expert
witnesses given in the Court below thereby inviting this
Court to substitute its own opinion in place of that of the
lower Court.
8.23 Counsel submitted that the law as to when an appellate
court can disturb findings of fact made by a trial court is
well settled in this jurisdiction. That through our
decisions in various cases, such as that of WILSON
MASAUSO ZULU V AVONDALE HOUSING PROJECT
we have guided that findings of fact arrived at by a trial
Court can only be reversed on appeal if they are found to
be 'perverse or made in the absence of any relevant
evidence or upon a misapprehension of the facts or that
they were findings which, on a proper view of the
evidence, no trial Court acting correctly could reasonably
make.'
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8.24 According to Counsel, the finding of fact as to the cause
of death of Mrs. Beatrice Sakala Miti, made by the lower
Court, is not perverse in any way and does not warrant
reversal. To buttress this submission, he referred us to
a portion of the judgment of the lower Court at page 47
of the record of appeal in which the judge stated, irter
alia:-
"During trial, it was plain for me to see that DW1 md PW5 were both highly respected scientists of international repute. In my assertion, was called to show the deceased could have died from other caused other than respiratory failure caused by toxic fumes. However, he did not examine the deceased's body nor examine any microscopic evidence that PW1 did.
I accept PW5's testimony because firstly, it was corroborated by other testimony, in particular that of PW1 PW2 and PW3 all who highlighted the circumstances and which the deceased fell ill after inhalation of toxic fumes. Secondly, PW5 examined the deceased's body. He performed the initial examination and the subsequent microscopic examination. Thirdly, I find that he was an independent witness with no interest that would be self serving. Even under vigor us cross- examination, PW 5 stood firm to his findings that the deceased died as a result of acute respiratory failure caused by toxic fumes. I accept PW5's testimony and find that the deceased died as a result of respiratory failure after inhalation of sulphur dioxide emitted by the 1st Defendant. This is the only inference I make upon a consideration of the evidence before me. I equally accept the Plaintiff's submissions that eve a if they had other conditions, the 'egg-shell skull' :-ule meant the Defendants must take its victim as it found her." (sic)
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8.25 According to Counsel, it is clear from this portion of the
judgment that contrary to the Appellant's assertion that
the trial judge assessed the medical evidence in an
unbalanced manner, the Judge objectively considered
the evidence given by both expert witnesses and was
persuaded to accept the evidence of PW5 over that of
DW 1 because:-
a) the testimony of PW5 was corroborated by the evidence of PW1, PW2 and PW3 that the deceased died shortly after inhaling toxic fumes rather than from a poor state of the heart as stated by DW 1;
b) that PW5 conducted the physical examination of the deceased's body while DW1 only conducted a desk review of the documents given to him by the Appellant; and,
c) the Judge noted that in cross examination, DW1 was 'hard pressed' while PW5, on the other hand, stood firm.
8.26 Counsel submitted further that the trial Judge had the
benefit of assessing the witnesses first hand and he
was, therefore, better placed to arrive at the conclusion
which he did. That the Appellant has not proved that
the manner in which the lower court assessed the
evidence fell foul of the established principles, other
than to supplant its own opinion as to how the Court
below should have assessed the evidence before it. In
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Counsel's view, the Appellant's submissions in support
of this ground of appeal are not tenable, more so in the
face of our guidance in the case of ATTOR?EY
GENERAL V GEORGE MWANZA and WHITES ON
MWANZA2° when we said:-
"The purpose of expert evidence in establishing negligence in the realm of diagnosis and treatment is not necessarily to pit one professional against another, but to guide the Court. At the end of the day, the Court still has to make its own conclusion based on the evidence before it. When considering the evidence, the Court is entitled to draw inferences based on facts and circumstances surrounding the case."
8.27 Counsel submitted that in this case, the lower court
drew its own inferences as to the cause of death of the
deceased based on her sudden collapse and death
within minutes of inhaling sulphur dioxide fumes
emitted into the atmosphere by the Appellant. That the
lower court cannot, therefore, be faulted for proceeding
in the manner that it did. He urged us to dismiss the
fourth ground of appeal.
8.28 The fifth ground of appeal is with regard to the Third
Party proceedings against the Attorney-General. No
heads of argument have been filed by the Attorney-
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General in response to the submissions by the
Appellant.
8.29 In the sixth ground of appeal, the Appellant has taken
issue with the global award of K400,000.00 as damages
with interest at 10% per annum from the date of
judgment. Counsel pointed out that the lower Court
declined to award some of the claimed heads of
damages, namely; damages for expenses incurred
during the funeral, damages for loss of income; and,
damages for loss of dependency. This left general
damages and damages for anguish and loss of
expectation of life yet to be determined. According to
Counsel, it is under these remaining heads that the
deceased was awarded a global sum of K400,000 with
interest at 10% per annum.
8.30 Counsel argued that the Judge was on firm ground
when he awarded a global sum of K400,000.00 as
general damages. According to Counsel, the said figure
is not excessive, inordinate or unreasonably high, given
that it encompasses all the remaining heads of claim,
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some of which are non pecuniary in nature and are
claimable under the LAW REFORM (MISCELLANEOUS
PROVISIONS) ACT6.
8.31 To support his submissions, Counsel cited a passage
from the learned authors of McGregor on DAMAGES' in
which they state:-
"...where it is clear that some substantial loss had been incurred, the fact that an assessment is diffitult because of the nature of the damage is no reason for awarding no damages or merely nominal damages. As Vaughan Williams L.J put it in CHAPLIN V KICKS, the leading case on the issue of certainity; 'The fact that damages cannot be assessed with certainity does not relieve the wrongdoer of paying damages.... In certain cases general damages may be awarded in the sense of damages 'such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. The damages are said to be at large."
8.32 Counsel also referred us to a passage in HALSBURY'S
LAWS OF ENGLAND" in which it is stated:-
"394 Ascertainment of damages difficult. The fact that damages are difficult to estimate and cannot be assessed with certainty or precision does not relieve the wrongdoer of the necessity of paying damages for his breach of duty, and is no ground for awarding only of nominal damages. A distinction must be drawn, however, between cases where the difficulties are due to uncertainty as to the causation of damage, where questions of remoteness arise, and cases where they are due to the fact that the assessment of damages cannot be made with any mathematical accuracy... Where it is established however, that damage has been incurred for a defendant should
J73
be held liable the plaintiff may be accorded the benefit of every reasonable presumption as to the loss suffered. Thus the Court, or a jury, doing the best that can be done with insufficient material, may have to form conclusions on matters on which there is no evidence and to make allowance for contingencies even to the extent of making a pure guess;38" (emphasis by Counsel)
8.33 On the home front, Counsel referred to our decisions in
the cases of PHILLIP MHANGO V DOROTHY NGULUBE'8
and DAVID CHIYENGELE AND 5 OTHERS V SCAW
LIMITED" in which we accepted that judges are
sometimes driven to making inspired and intelligent
guesses when awarding damages since there has to be a
redress for a legal wrong or injury that has been
occasioned to a person.
8.34 It was the submission of Counsel that in keeping with
these authorities, the learned trial Judge did the best he
could when he was presented with claims for non
percuniary losses and awarded the deceased a global sum
of K400,000.00. That the said award cannot be regarded
as unreasonable given the abrupt manner in which the
deceased met her death.
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8.35 Counsel contended, consequently, that the Court below
was entitled to award a global sum to the deceased in
order to redress the infraction to her legal rights. He
pointed out that the Appellant has not raised any
challenge to the quantum of the global damages but that
its complaint is with regard to the principle and legal
formula employed by the Judge when awarding the global
sum. He urged us to dismiss the 6th ground of appeal and
ultimately the entire appeal with costs.
9. CONSIDERATION OF THE APPEAL BY THIS COURT
9.1 We have considered the grounds of appeal, the eloquent
and extensive submissions by the parties and the issues
raised in this appeal.
9.2
It is trite that every civil case is shaped by the pleadings
of the parties filed in court. A pleading is a formal
document in which a party to a legal proceeding sets forth
or responds to allegations21. According to the learned
authors of HALSBURY LAWS OF ENGLAND:
"Every pleading must contain, and contain only, a statement in a summary form, of the material facts on
J75
-which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved."
9.3 In the Statement Of Claim filed by the 1st Respondent in
the Court below, he set out the material facts on which he
was relying and accused the Appellant of negligence
and/or breach of duty by releasing toxic sulphur dioxide
into the atmosphere which, upon being inhaled by his late-
wife, allegedly caused her to suffer fatal acute respiratory
failure. In denying the claim, the Appellant, in its
defence, conceded that it released sulphur dioxide into
the atmosphere but averred that the amount of the gas so
released was not excessive. Its position was that 'only
trace sulphur dioxide generated in the secondary
tertiary smelter was being emitted into the
atmosphere.' The Appellant further stated that the
deceased was a well known asthmatic and diabetic
patient, seemingly suggesting that these medical
conditions could have led to her death. To this
imputation, the leaned trial Judge stated that even if the
deceased had other medical conditions, the 'egg-shell
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Counsel ably submitted, citing relevant authorities on the
tort of negligence.
9.6 The Appellant is a mining company. It is inevitable that
when carrying out its operations, it will emit some toxic
fumes into the atmosphere. We agree with Mr. Sangwa,
SC, that there is no absolute duty on mines or other
industry not to emit any gases at all. To mitigate the
harmful effects of such gases, laws have been enacted to
prescribe and regulate the emission of toxic fumes into
the atmosphere.
9.7 In Zambia, ZEMA, was established under the
Environmental Management Act No. 12 of 2011 as an
autonomous environmental regulator. It is a coordinating
agency which replaced the Environmental Council of
Zambia. The stated objective of ZEMA was '....to continue
the existence of the Environmental Council and rename it
as the Zambia Environmental Management Agency...'
9.8 Section 4(1) of THE ENVIRONMENT MANAGEMENT
ACT' stipulates that '...every person living in Zambia has
J78
the right to a clean, safe and healthy environment'. ZEMA
is thus enjoined, as the regulator to:
"...do all such things as are necessary to ensure the sustainable management of natural resources and protection of the environment, and the prevention and control of pollution." (underlining ours)
The Agency has power to, among others, carry out
investigations into actual or suspected air pollution, and,
to sanction or prosecute those who breach environmental
standards and guidelines.
9.9
Both viva voce and documentary evidence before the lower
Court established that ZEMA prescribed limits of the
quantity of sulphur dioxide which the Appellant was
allowed to emit into the atmosphere. The lower Court
found that the Appellant owed a duty of care to the
deceased and that it breached this duty when it emitted
excessive amounts of sulphur dioxide into the ambient
air, beyond the allowable limits.
9.10 In the first and third grounds of appeal, the Appellant has
taken issue with the finding of the lower Court that on the
day when the deceased met her fate, the Appellant had
released high volumes of sulphur dioxide into the ambient
I
A
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* air in excess of the statutory limit. According to the
Appellant, there was no evidence to support such a
finding. Mr. Sangwa, SC argued that the Court below did
not even establish the statute or statutory instrument
where such limit was imposed. The second ground of
appeal faults the lower Court for relying on the evidence
of witnesses at trial, to prove the existence of a statutory
duty. The three grounds of appeal have raised issues
which are inter-related and we will deal with them
together.
9.11 We have considered the spirited arguments by the
Appellant in support of the three grounds of appeal. The
learned counsel for the Appellant submitted and we agree
with him, that mines and industries are allowed to emit
some gases into the atmosphere but that the law has
prescribed and regulated the amounts of gases which can
be emitted into the atmosphere. It goes without saying
that such limits are designed to ensure safe levels of
emissions for human, plant and animal health. Counsel
pointed out that the statutory obligations of entities which
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emit harmful substances into the atmosphere are found
in the Environment Management Act No. 12 of 2011. We
have reproduced the relevant provision of this law in
paragraph 7.5 above. The actions of these entities are
policed by ZEMA. Counsel argued that as long as an
entity is operating within the limits imposed by law and
regulations, it cannot be held to be liable for any
consequences arising from such emissions.
9.12 We agree with this submission. Indeed, the various
authorities cited support the position that a statute can
provide a defence to an act which is otherwise actionable
under common law. But there is a rider. As ably stated
in the case of X AND OTHERS (MINOR)5:-
"The statute only authorizes invasion of the private rights to the extent that statutory powers are exercised with reasonable and proper regard for the holders of such rights. Thus careless performance of an authorized act rather than amounting to breach of a new duty, simply ceases to be a defence to a common law right of action."
9.13 The 1st Respondent claimed damages for negligence
and/or breach of duty alleging that the Appellant released
toxic fumes into the atmosphere which induced acute
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respiratory failure in the deceased. The issue to be
resolved, therefore, is whether in releasing the said toxic
fumes, the Appellant acted negligently. Several witnesses
testified as to what actually transpired on that fateful day
of 31st December, 2013. The deceased was attending a
religious function at Chawama Hall in Mufulira. PW1,
PW2 and PW3 were also attending the same function.
They testified as to the events which led to the deceased
collapsing and being conveyed to the hospital where she
was pronounced dead. There was testimony from other
witnesses, like PW6, an environmental scientist and DW3,
a metallurgical engineer, two doctors, PW5 and DWI who
are professionals in their respective fields and assisted the
Court to resolve the issues before it.
9.14 Mr. Sangwa, SC, argued that the lower court
misapprehended the evidence of DW 3 when he testified
that the release of sulphur dioxide at the material time
was 14.3 times above the limit. According to Counsel,
DW 3 was referring to the sulphur dioxide released at the
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starks and not the concentration of the gas in the
ambient air.
9.15 It is not in dispute that in its operations, the Appellant
does emit sulphur dioxide into the atmosphere. There
was evidence from PW6 that the raw materials used by
the Appellant release sulphur dioxide when exposed to
heat. ZEMA has issued guidelines under which the said
release of toxic fumes should be done. The evidence on
record conclusively established that in September, 2009
the Environmental Council of Zambia (ECZ) revised the
sulphur dioxide emission capture in Mufulira to 50% from
55-59%. This is contained in a letter to the Appellant
dated 18th September, 2009. The letter, which appears at
page 379 of the record of appeal, states in part as
follows:- ollows:-
"I "I wish therefore to inform you that based on the reasons advanced to us regarding sulphur dioxide emissions in Mufulira, ECZ has reduced the sulphur dioxide emission capture to 50% instead of 55% to 29% capture as indicated in an environmental management commitment for the Smelter Upgrade Project."
9.16 The evidence also conclusively established that the
Appellant put in place a system to monitor the levels of
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sulphur dioxide emissions in the community. It placed
various monitoring stations within the community to
monitor the levels of emissions of sulphur dioxide and
report the same to ZEMA. According to DW 3, the system
which was put in place was automated to reduce human
interface and it captured and stored data every
millisecond. He alluded to the limit of sulphur dioxide
emissions imposed by ZEMA on the Appellant and stated
that on 31st December, 2013, the emissions released at
the starks were 14.3 higher than the limit imposed by
ZEMA.
9.17 We have not been persuaded to accept the argument by
Mr. Sangwa, SC that DW3 was referring to emissions at
the starks and not the concentration of the gas in the
ambient air. This is because DW3's evidence is supported
by the documentary evidence on record. It is clear that
the data which was being collected from the various
stations in the community was being analysed by ZEMA.
In January, 2014, ZEMA Inspectorate issued an Air
Quality Monitoring Report in respect of sulphur dioxide
J84
emissions at Mopani Copper Mines Pie in Mufulira. A
copy of the said report appears from page 193 to 198 of
the record of appeal. On page 198, it has tabulated the
Findings and Data Analysis of sulphur dioxide emissions
from 1st to 31s' December 2013. These are damning
against the Appellant.
9.18 We have reproduced the findings in paragraph 8.16 above
but just to recap, the report shows that throughout the
month of December 2013, the sulphur dioxide emissions
at Mufulira were 14.3 times higher than the allowable
statutory limit. More importantly, the report states that
'the ambient air monitoring station at Clinic 3' which is
near Chawama Hall, 'recorded a higher concentration in
sulphur dioxide' from 2d to 31s' December, 2013 than
Clinic 6, which was further away. Clearly, the argument
by Counsel, that the evidence of DW3 should be
understood to refer to sulphur dioxide emissions at the
starks and not the concentration of sulphur dioxide in the
ambient air is untenable. Further, the witnesses testified
that the fumes of the gas were visible as they entered the
iRs
hail and they caused a lot of discomfort to the people
gathered there. As such, whatever was released at the
starks affected the ambient air.
9.19 As against the testimony of DW3 and the documents on
record, it cannot seriously be argued that there was no
evidence to support a finding of excessive emission of
sulphur dioxide by the Judge. In fact, the evidence on
record completely negatived the defence put forward by
the Appellant in the Court below, that only trace elements
of sulphur dioxide were released into the atmosphere.
9.20 It is also our finding, from the evidence on record, that
the argument by Mr. Sangwa, SC, that the Appellant
acted within the law, cannot be sustained. Firstly, ZEMA,
which is a creature of statute with a specific mandate to
prevent and control pollution, prescribed the limits of
sulphur dioxide which the Appellant was allowed to emit
into the ambient air. The evidence established that in
December, 2013 the Appellant emitted more sulphur
dioxide than it was allowed. Secondly, the authorities
cited to us by Counsel are clear that if an action which is
J86
allowed by law is performed carelessly, thereby resulting
in damage, a common law action will lie. The Appellant
had the capacity to control the quantity of gases which
were being emitted. As alluded to above, in this case,
ZEMA, pursuant to its statutory mandate, gave the
Appellants the parameters with regard to the emissions of
sulphur dioxide into the atmosphere. The analysis by
ZEMA shows that the Appellant was not compliant and
inexplicably, it was not visited by sanctions prescribed by
law. To insist that the Judge should have established the
statute or statutory instrument where the said limits were
imposed is neither here nor there because the
Environmental Management Act has designated ZEMA to
impose limits and ensure compliance by entities.
9.21 As we have stated above, it is the Appellant who had the
capacity to control the quantity of sulphur dioxide which
could be emitted into the ambient air to ensure that it is
within the authorized safe limit. The Supreme Court of
India in the case of INDIAN COUNCIL FOR ENVIRO-
J87
LEGAL ACTION AND OTHERS V UNION OF INDIA AND
OTHERS" observed that:
"....the enterprise (carrying on the hazardous inherently dangerous activity) alone has the resource to discover and guard against the hazards or dangers - and not the person affected..."
The onus to ensure safe emissions of gases fell squarely
on the Appellant and not the deceased or the community
in Mufulira. By failing to do so, the Appellant failed in its
duty to ensure a safe environment for the community in
Mufulira.
9.22 Counsel also argued, in the second ground of appeal, that
the lower Court was wrong to rely on the evidence of the
witnesses to prove the existence of a statutory duty. In
response, the learned Counsel for the Respondents
pointed out that the Court below did not base its
conclusion on limits imposed by the statute, but on the
limits imposed by ZEMA. He cited a portion of the
judgment in which the Judge said:-
"I thus find as a fact that the Defendant emitted high volumes of sulphur dioxide from its smelter and exceeded the limits imposed by ZEMA."
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9.23 The document on page 379 of the record which we have
referred to above, and the Air Quality Monitoring Report
appearing from page 193 to 198 of the record of appeal,
both show that ZEMA, pursuant to its statutory
mandate, had imposed limits on the Appellant as to the
quantity of sulphur dioxide which it (the Appellant) was
permitted to release into the atmosphere. Both PW6 and
DW3 told the lower Court that the Appellant was not
compliant in that it exceeded the limits imposed by
ZEMA. The evidence of these witnesses was supported
and augmented by the documents on record. These
formed the basis of the findings by the Court. Apart from
the analysis on page 198 of the record of appeal, which
shows an average release of sulphur dioxide which was
14.3 times higher than the allowable limits for the month
of December, 2013, there is also the 2010 Mopani Copper
Mine Analysis of Returns on pages 152 and 153 of the
record of appeal which, on Air Pollution which states that
"All emissions were still above the statutory limits for
licensed starks." On comments/ analysis, it states:-
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"All parameters are above the ECZ limits, with sulphur dioxide emissions being the most highest above the ECZ limit, 70 times above from the Converter Slag Blow. In view of the above, Mopani should include, in the report, what could be the cause. With these results, it clearly shows that the environment is being polluted by Mopani Copper Mines."
These documents and the evidence show that the
Appellant was truant from as far back as 2009 and
throughout 2013. All this evidence was before the lower
Court. It is, therefore, not correct to state that the
Judge only relied on the evidence and assertions of
witnesses to prove the existence of a statutory duty. We,
therefore, do not find any merit in the first three grounds
of appeal.
9.24 In the fourth ground of appeal, the Appellant has
accused the lower Court of having evaluated the evidence
of PW5 and DWI in an unbalanced manner. PW5
conducted the postmortem on the body of the deceased.
He also conducted the microscopic examination. He
found that the deceased succumbed to death due to
acute respiratory failure. DW 1, on the other hand,
disagreed with PW5 as to the cause of the deceased's
death. He reached his conclusion after a desk review of
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the postmortem report and the report of the microscopic
examination prepared by PW5. The Appellant now
argues that the trial Judge only considered the evidence
of PW5 and not that of DW1.
9.25 The Respondents' response to this ground of appeal is
that the Appellant is contending with findings of fact.
That unless the said findings are found to be perverse
and not supported by evidence on record, they cannot be
set aside. He referred us to a portion of the lower Court's
judgment on page 47 of the record of appeal. The Judge
stated:-
"I accept PW5's testimony because firstly, it was corroborated by other testimony, in particular that of PW1, PW2 and PW 3 all who highlighted the circumstances and which the deceased fell ill after inhalation of toxic fumes. Secondly, PW5 examined the deceased's body. He performed the initial examination and the subsequent microscopic examination. Thirdly, I find that he was an independent witness with no Interest that would be self serving. Even under vigorous cross-examination, PW5 stood firm to his findings that the deceased died as a result of acute respiratory failure caused by toxic fumes. I accept PW5's testimony and find that the deceased died as a result of respiratory failure after inhalation of sulphur dioxide emitted by the 1t Defendant. This is the only inference I make upon a consideration of the evidence before me. I equally accept the Plaintiff's submissions that even if they had other conditions, the 'egg-shell skull' rule meant the Defendants must take its victim as it found her."
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On the basis of this passage, the Respondents argued
that the learned trial Judge did consider the evidence of
both expert witnesses.
9.26 We have carefully perused the portion of the judgment to
which Counsel has referred us. It shows that the Judge
alluded to and compared the evidence of the two
witnesses. He accepted the evidence of PW5 and gave
three reasons for doing so; firstly, that PW5's testimony
was corroborated by the eye witnesses who narrated that
the deceased fell ill after inhaling some toxic fumes;
secondly, that PW5 conducted the initial and subsequent
microscopic examinations on the body of the dceased;
and, thirdly, that PW 5 was an independent witness who
stood firm even under rigorous cross-examination. The
Judge observed that even if the deceased could be said to
have had other medical conditions, the 'egg shell skull'
rule meant that the Appellant must take its victim as it
found her.
9.27 It is not in dispute that the lower Court was faced with
two conflicting opinions as to the cause of death of the
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deceased. It is apparent to us that the evidence of DWI
was solicited to challenge the findings of PW5 as to the
deceased's cause of death. The Court below established
that DWI did not examine the body of the deceased and
neither did he carry out any examination relating to her
body. That his (DW l's) conclusions were drawn from the
reports of examinations carried out by PW5.
9.28 It is evident to us that the trial Judge did consider the
conflicting evidence of the two expert witnesses and
decided to believe PW5. As we guided in the case of
ATTORNEY GENERAL V GEORGE MWANZA AND
WHITESON MWANZA20 the purpose of expert evidence is
to guide the Court. 'At the end of the day, the Court still
has to make its own conclusion based on the evidence
before it. When considering the evidence, the Court is
entitled to draw inferences based on facts and
circumstances surrounding the case'
9.29 In this case, the Judge accepted the evidence of PW 5
and gave his reasons for doing so. He drew inferences
based on the facts and the circumstances surrounding
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the case. We find the said findings and inferences not to
be perverse. They are amply supported by the evidence
on record. We, therefore, do not agree with the
contention by the Appellant that there was an
unbalanced consideration of the expert witnesses as to
the cause of death. The fourth ground of appeal must
also fail.
9.30 The fifth ground of appeal has been advanced in the
alternative, should we not be persuaded to find in favour
of the Appellant in the other five grounds of appeal. The
Appellant filed a Third Party Notice seeking to be
indemnified against the Respondents' claim pursuant to
an Environmental Liabilities Agreement which it executed
in March, 2000 with the Government of the Republic of
Zambia. According to the Appellant, its case against the
Attorney General was not considered at all. It was
submitted that the lower Court's approach was cavalier
as it glossed over the issues in contention.
9.31 In paragraph 10 of its defence the Appellant averred as
follows:-
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"10. The Defendant will aver, in the alternative to paragraph 9, that it is not liable to the Plaintiff in any case pursuant an agreement called 'Environmental Liabilities Agreement' made on 31st March, 2000 between the Government of the Republic of Zambia (GRZ) and the Defendant in which GRZ undertook to and covenanted with the Defendant to indemnify and hold the Defendant harmless against any and all environmental liabilities arising from the operation of the assets acquired from GRZ by the Defendant." (sic)
9.32 DW5, Alexie Mpishi, testified to this Environmental
Liabilities Agreement. He stated that the Government of
the Republic of Zambia undertook to indemnify the
Appellant as long as it operated within the Environment
Management Plan. In re-examination, he stated that
regulations put in place by the Government were not
applicable to-the Appellant as long as it complied with the
approved management plan.
9.33 The learned trial Judge considered the evidence of DW5
who, according to the Judge, had stated that the Appellant
was exempted from complying with statutory limits. The
Judge did not accept this evidence. He stated that upon
perusing the Agreement, he did not find any express
provision 'highlighting exemptions from statutory limits'. To
fortify his conclusion, he referred to the opinion of the
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Solicitor General, the relevant portion of which we
reproduce below. The Judge reached the conclusion that
the Appellant was not absolved from complying with limits
imposed by statute on account of the Environmental
Liabilities Agreement.
9.34 In our view, it is not correct to state that the lower Court
did not consider the Appellant's claim against the Attorney
General. The judgment shows that the Judge considered
the claim but did not agree that the Appellant could claim
indemnity under the Environmental Liabilities Agreement
in circumstances where the Appellant was not in
compliance with the statutory limits. In arriving at this
conclusion, the Judge alluded to the opinion of the Solicitor
General who stated:-
"If judgment could be entered against Mopani, and hence the statutory indemnity to Mopani by GRZ pursuant to the Mines and Minerals (amendment) Act 2000 for any and all environmental liabilities that may arise as a result of the operations with the Environmental Plan, such liabilities vest in GRZ. However Environmental Liabilities do not arise of a matter in respect of which the company is not in compliance with the Environmental Plan."
It would appear that the State did not want to honour the
Agreement on account that the Appellant did not comply
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with the Environmental Plan. The Judge did adjudicate on
the matter and reached a decision. We find no merit in the
fifth ground of appeal.
9.35 Coming to the sixth and last ground of appeal, the Appellant
is assailing the award by the Court below, of a global sum
of K400,000.00 as general damages with interest at 10%
from the date of judgment up to the date of settlement.
9.36 While conceding that the lower Court disallowed some of
the heads of damages claimed, it was Counsel's position, in
the main, that instead of awarding a global sum, the Court
should have apportioned the damages and stated under
which heads they fell. In response, the learned Counsel for
the Respondents pointed out that after the Court declined
to award damages for expenses incurred during the funeral
and damages for loss of income and dependency, what
remained to be determined were general damages and
damages for mental anguish and loss of expectation of life.
That it is in respect of these heads that the global sum was
awarded.
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9.37 We have considered the submissions by the parties in
respect of the sixth ground of appeal. The writ of summons
and the statement of claim enumerate the damages which
the 1st Respondent was claiming. After removing the heads
which the Court below declined to award, what remains are
the following: -
(a) General damages (b) Exemplary damages (c) Damages for bereavement (d) Damages for mental anguish of the deceased, and (e) damages for mental anguish of the Plaintiff, children
and dependants of the deceased.
The learned trial Judge awarded a global sum of
K400,000.00 stating that this was to represent the gern;ral
damages sought.
9.38 The learned Counsel for the Appellant referred us to several
authorities including the case of MANFRED KABANDA
AND KAJEMA CONSTRUCTION" in which we frowned
upon a global award of damages where such damages had
been claimed under the FATAL ACCIDENTS ACT' AND
THE LAW REFORM (MISCELLANEOUS PROVISIONS)
ACT'. We guided that in such cases, damages should be
allocated between the said Acts. At the outset, it is
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apparent that the case of MANFRED KABANDA'2 is
distinguishable from the case in casu in that, in this case,
there can be no claim for damages under the FATAL
ACCIDENTS ACTS5 because the claim did not arise from a
fatal accident. As the authors of BLACK'S LAW
DICTIONARY" state, an accident is '...an unintended and
unforeseen injurious occurrence; something that does not
occur in the usual course of events or that could not be
reasonably anticipated." The 1st Respondent in the main,
claimed general, exemplary and other specific damages
arising from the negligent discharge of toxic fumes into the
atmosphere.
9.39 Counsel for the Appellant also referred us to the provisions
of Section 2(1) and (2) of the LAW REFORM
(MISCELLANEOUS PROVISIONS) ACT 6. He highlighted
the provisions of section 2(2) of the Act which state that:-
"where a cause of action survives aforesaid, for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person shall not inclide exemplary damages."
He drew our attention to the High Court case of FAINDANI
DAKA'4 in which the learned High Court Judge decided
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that Section 2(2) of the Act barred the award of exemplary
damages. In that case, the Plaintiff had claimed damages
arising from the negligent discharge of a fire arm by a
police officer which culminated in the injury and death of
his son.
9.40 In our view, Section 2 of the LAW REFORM
(MISCELLANEOUS PROVISIONS) ACT must be
understood in its proper context. One of the objectives of
this Act is to provide for survival of actions after death.
Section 2 of the Act is in Part II whose provisions are on the
'Effect of death on certain causes of action.' Section 2(1)
states that '...on the death of any person. . . all causes of
action subsisting or vested in him shall survive against or
as the case may be, for the benefit of his estate.' The
person referred to is, at the time of his/her death, aireacy a
litigant or facing a suit in court. This provision of the Law
provides for survival of such a cause of action after the
death of the litigant. The action is not extinguished by the
death of that party. Section 2(2)(a) of the Act then comes in
to state that where the cause of action has survived for the
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benefit of the estate of the deceased person, damages
recoverable for the estate shall not include exemplary
damages. This is very different from a person suing or
commencing an action seeking damages on behalf of a
deceased person on account of that person's wrongful
death. It could very well be that a defendant acted so
recklessly and maliciously that there could be need to
award punitive damages to punish such conduct. In so far
as the case of FAINDANI DAKA'4 purports to make a
blanket and unqualified statement that exemplary damages
are barred under Section 2(2)(a) of the LAW REFORM
MISCELLANEOUS PROVISIONS ACT' without clarifying
that it only applies to cases which have survived the death
of a litigant, it was wrongly decided.
9.41 Mr. Sangwa has submitted that the claim for exemplary
damages was not pleaded. On the contrary, we have found
that exemplary damages were expressly pleaded in
paragraph ii of the Writ of Summons and again in
paragraph 12 ii of the Statement of Claim. Although
instances when exemplary damages may be awarded have
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been quite topical, it is now accepted that exemplary
damages can be awarded in many torts. In the words of
the learned authors of MCGREGOR ON DAMAGES":
"Provided always that there is unacceptable behavior on the part of the defendant, behavior that displays features which merit punishment by way of malice, fraud, cruelty, insolence and the like, there is no tort where the writ of exemplary damages will not run. ...It follows that all torts or more precisely all torts which may contain a willful element, are now up for consideration in the exemplary stakes."vii
They have referred to the case of DESIGN
PROGRESSIONAL LTD V THURLOE PROPRTIES LTD 22 in
which exemplary damages were awarded for breach of
statutory duty.
9.42 As to whether, in the case in casu, evidence was adduced
to prove unbecoming conduct on the part of the Appellant,
we find that there is overwhelming evidence, both oral and
documentary showing that for years, the Appellant flouted
the limits of sulphur dioxide emissions imposed by ZEMA,
thereby jeopardizing the right to life of an entire
community.
9,43 The learned Counsel for the Respondents argued that the
global figure awarded by the lower court was not excessive,
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He stated that some of the heads of claim are non
pecuniary and fall under the LAW REFORM
(MISCELLANEOUS PROVISIONS) ACT 6. He also referred
to authorities which support the notion that even where
damages are at large, that is, uncertain and difficult to
assess, the wrongdoer is not relieved from the duty to iJay
damages and neither should this be a ground for awarding
nominal damages.
Counsel also referred us to our decision in the case of
PHILLIP MHANGO V DOROTHY NGULUBE23 in which we
acknowledged that Judges are sometimes driven to make
inspired and intelligent guesses when awarding damage; to
redress wrongs.
9.44 It is evident that the remaining heads of damages claimed
by the Respondents are non pecuniary. The Court has a
duty, on the facts of each case, to award adequate damages
to compensate for wrongful acts. In instances where
damages are at large and difficult to ascertain, we would
not frown upon an award of global damages by a trial
Court. The general damages in this case encompassed non
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pecuniary damages which were difficult to quantify. In the
circumstances, we do not fault the trial Judge for having
awarded a global figure.
9.45 The facts on which this litigation was founded are quite
disturbing. As we have pointed out above, the evidence on
record shows that for years, the Appellant had been
emitting excess amounts of sulphur dioxide into the
ambient air contrary to directives of lawful authorities. The
Air Quality Monitoring Report at Mopani Copper Mine in
Mufulira, prepared by ZEMA Inspectorate, in January 2014
and the 2010 analysis on pages 152 and 153 of the record
of appeal show that the Appellant had been emitting higher
levels of sulphur dioxide into the air than the allowable
limits. What is shocking is that these repeated and
persistent breaches which seriously undermined the
residents' right to life, the regulator, ZEMA, did not invoke
the provisions of the law to punish the Appellant. As a
statutory body whose stated mandate is the prevention and
control of pollution and protection of the environment,
ZEMA failed the community in Mufulira.
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9.46 Against this backdrop, the Respondents are entitled to
enhanced damages. As was observed by the Court in the
Indian case of INDIA COUNCIL FOR ENVIRO-LEGAL
ACTION V UNION OF INDIA AND OTHERS2' referred to
above, the measure of compensation in such cases 'mus: be
collerated to the magnitude and capacity of the enterprise
because such compensation must have a deterrent effect.
9.47 From the foregoing, we are of the view that the glcbal
award of K400,000.00 was too modest in view of the
aggravating circumstances in this case where the entire
community was put at risk, more so that the pollution went
on for a long time and it was within the capacity of the
Appellant to control the amount of gases which were being
emitted into the ambient air. We therefore set aside the
global award of K400,000.00 damages to the estate of the
deceased and in its place we award the estate an amount of
One Million Kwacha (K1,000,000) with interest, at the rate
of ten percent (10%) per annum from the date of the High
Court judgment to the date of settlement. The sixth
ground of appeal therefore fails.
N.K SUPREM
Ut na OUT JUDGE
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10. CONCLUSION
10.1 All the grounds of appeal having failed, the entire appeal is
dismissed. The Respondents will have their costs both in
this court and in the court below.
I.C. Mambiima CHIEF JUSTICE
--Mi Malila SU1ME COURT JUDGE