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Court of AppealPartially AllowedCivil Appeal No. 138 of 1991· [1992] KECA 33 (KLR)

Farrah v Kenya Ports Authority [1992] KECA 33 (KLR)

Court of Appeal
16 March 1992
HCHancox CJGJGachuhi JACJCockar JA
2,403 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a worker who jumps to escape obvious danger caused by an employer's negligence is not contributorily negligent and can still recover damages.

What this practically means

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Executive summary

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The appellant, a tractor driver employed by the Kenya Ports Authority, was seriously injured when he jumped from his tractor fearing that an unstable heap of scrap metal stacked on it by a fellow employee operating a forklift would fall on him. The High Court dismissed his suit, finding his testimony at variance with the plaint and treating his hurried alighting as the cause of the injury. The Court of Appeal, on a first appeal, re-evaluated the evidence and unanimously allowed the appeal on liability. Applying Jones v Boyce, it held that a person placed in peril by another's negligence is entitled, and indeed bound, to take reasonable precautions to escape, and that the appellant's apprehension was reasonable since the metal did in fact fall into the tractor after he jumped. The court held that in tort it is enough that the defendant's or his servants' acts created the situation which obliged the plaintiff to take avoiding action; whether he had been instructed to alight, and the distinction between driver and passenger, were immaterial. The variance between pleading and evidence was circumstantial and immaterial, following Kenya Meat Commission v Raden. However, the second ground of appeal on quantum was dismissed: tested against Butt v Khan, the trial judge's award of Shs.30,000 general and Shs.1,000 special damages disclosed no error of principle. The appeal was allowed, the dismissal of the suit reversed on liability, judgment entered in negligence with the trial judge's quantum, and the respondent ordered to pay the costs of the appeal and of the High Court proceedings on the High Court scale.

Key legal issues

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01

Whether the appellant's apprehension of danger was reasonable so as to found liability despite his injury occurring while alighting from the tractor

Holding

The appellant's belief that the unstable heap of scrap metal would fall on him was reasonable, demonstrated by the fact that the metal did fall into the tractor after he jumped; his avoiding action was neither rash nor contributory negligence.

Reasoning

The court analysed the appellant's testimony showing he jumped out of fear that the unstable heap loaded by the forklift driver would fall on him, and that the metal did in fact fall into the tractor afterwards. Applying Jones v Boyce, a plaintiff placed by the defendant's default in a situation where he must choose between a dangerous escape and remaining in peril may recover; the driver/passenger distinction and the absence of instructions to alight were immaterial.

p. 2
02

Whether the variance between the pleadings and the appellant's evidence was fatal to the claim

Holding

The variance was circumstantial and immaterial; the real test is whether there was any unfairness to the defendant in knowing the case to be met.

Reasoning

Relying on Kenya Meat Commission v Raden and the passage from Plotti v Acacia Co. cited there, the court held the function of pleadings is to give fair notice of the case to be met. The account of the event was materially the same, the allegation of alighting 'as per instructions' was immaterial to the liability principle, and the respondent suffered no unfairness or injustice.

p. 3
03

Whether the trial judge's award of damages was erroneous

Holding

The quantum assessment disclosed no error of principle and was upheld, even though the appellate judge might personally have awarded more.

Reasoning

Tested against the criteria in Butt v Khan, the trial judge's assessment of Shs.30,000 general and Shs.1,000 special damages, based on a fracture of the fifth metacarpal with six weeks off work and no permanent incapacity, showed no error of principle. The second ground of appeal was therefore dismissed.

p. 3

Legal principles established

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  • A person placed in peril by another's negligence is entitled to take reasonable avoiding action, and if the apprehension of danger is reasonable, he is not guilty of contributory negligence even if injured in escaping.
  • In tortious liability it is enough for a plaintiff to establish that the defendant's acts or omissions, including vicariously through servants or agents, created the situation which obliged him to take avoiding action.
  • A variance between pleading and evidence is immaterial unless it causes unfairness to the opposing party in knowing the case to be met; a personal injury plaintiff who has proved his case should not be deprived of remedy due to niceties of pleading.
  • A first appellate court is entitled to re-evaluate the evidence given in the High Court.

Court orders

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  1. 1.Appeal allowed on the issue of liability
  2. 2.The trial judge's dismissal of the suit set aside; the defendant (respondent) found liable in negligence to the plaintiff (appellant)
  3. 3.Second ground of appeal (quantum) dismissed; trial judge's assessment upheld
  4. 4.Award to the appellant of Shs.30,000/- general damages and Shs.1,000/- special damages
  5. 5.Respondent to pay the costs of the appeal and of the proceedings in the High Court on the High Court scale
On appeal from
High Court
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the High Court (no constitutional or statutory provision expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Farrah v Kenya Ports Authority [1992] KECA 33 (KLR)", Case Analysis (1992). Civil Appeal No. 138 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1992/33/eng@1992-03-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.