Last updated on August 16th, 2024 at 09:44 am
Topic: Duty of Care – Negligence of Employer Resulting in Death of Employee
Date of Judgment: 10th July 2024
Court: High Court of Uganda at Jinja
Case Number: Civil Suit No. 58 of 2015
Judge: Hon. Lady Justice Faridah Shamilah Bukirwa Ntambi
Summary Facts of the Case
The plaintiff, Auma Betty Okullu filed this lawsuit against the defendant, National Water & Sewerage Corporation (NWSC) for the loss of her son, Bosco Atube, who died while trying to unblock a public sewer owned by the defendant.
She claimed that NWSC was negligent in not providing her son with adequate protective gear in the form of oxygen masks, communication equipment, etc, thus violating Section 13 (1) of the Occupational Safety Act.
She sought compensation for loss of expectation of life, bereavement, and pecuniary support on her own behalf and that of the deceased’s dependants.
NWSC denied negligence, stating that the deceased at the time of his accident acted without the knowledge and authority of the corporation.
That the deceased left his protective gear behind and was therefore on a “frolic of his own”.
Main Legal Issue
- Whether the deceased’s death was caused by the negligence of the defendant.
The Decision of the Court
Negligence: The Court determined that NWSC owed a duty of care to the deceased, which they breached by not providing adequate protective gear.
Despite NWSC’s claim that Atube acted independently, evidence showed that he was working on a public sewer in service of NWSC at the time of his death.
The Court held that an employer owes a duty of care to an employee even if the employee’s actions are wanton or done without the employer’s authority as long as what the employee does is in the ordinary course of his or her employment.
The Court found that NWSC’s failure to provide necessary protective equipment directly caused Atube’s death due to a respiratory arrest.
Remedies:
- The Plaintiff was awarded special damages of UGX 2,350,000 for burial expenses at 15% interest rate; Despite the lack of receipts, the court granted the plaintiff these damages that must be specifically pleaded and strictly proved. (See this Brief). The Court, citing Kyambadde v. Mpigi District Administration [1983] HCB 44, reasoned that failure to attach expenses was excusable due to the emotional and practical challenges faced during the Plaintiff’s bereavement. It may not have been feasible to attend to details such as asking for receipts for expenses.
- General damages of UGX 120,000,000 at Court rate were awarded for loss of expectation of life, bereavement, and loss of financial support.
- Interest on general damages at court rate from the date of judgment until payment in full.
- Costs of the suit to be borne by the defendant.
Key Quote
“From my analysis of the evidence adduced by both parties, it is clear to this court that the deceased was working for the Defendant Corporation at the time of his death. The Defendant owed the deceased a duty of care to ensure his safety while undertaking dangerous or risky operations like that of unblocking a manhole that was 15 metres deep at Factory Street where he met his death. Lord Atkin in Donoghue v Stevenson [1932] AC 562 stated that; ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.‘” – Lady Justice Faridah Shamilah Bukirwa Ntambi
Law Applied
- Law Reform (Miscellaneous Provisions) Act: Section 5
- Occupational Safety and Health Act: Section 13
- Muwonge Vs. Attorney General [1967] EA 17; An act may be done in the course of employment so as to make his master liable even though it is done contrary to the orders of the master.
- A.K.P.M. Lutaya Vs. Attorney General Civil Appeal No.10 of 2002
Counsel on Record
- Plaintiff: Achiles Bwete of Cathage Advocates
- Defendant: Isaac Walukagga of MMAKS Advocates
Conclusion
This case demonstrates the duty of care owed by employers to their employees, particularly in hazardous work environments. The duty of care may be found to exist even when the employer does something outside the authority of the employer provided they do so in the course of employment.