Farrah v Kenya Ports Authority [1992] KECA 33 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant acted reasonably in jumping from the tractor to avoid the unstable heap of scrap metal, so as to establish negligence on the part of the respondent
- 2.Whether the appellant's evidence was at material variance with the pleadings, so as to defeat his claim
- 3.Whether the quantum of damages assessed by the trial judge was erroneous
Key legal issues
#Whether the appellant's apprehension of danger was reasonable so as to found liability despite his injury occurring while alighting from the tractor
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.
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.
Whether the variance between the pleadings and the appellant's evidence was fatal to the claim
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.
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.
Whether the trial judge's award of damages was erroneous
The quantum assessment disclosed no error of principle and was upheld, even though the appellate judge might personally have awarded more.
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.
Legal principles established
#- 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
#- 1.Appeal allowed on the issue of liability
- 2.The trial judge's dismissal of the suit set aside; the defendant (respondent) found liable in negligence to the plaintiff (appellant)
- 3.Second ground of appeal (quantum) dismissed; trial judge's assessment upheld
- 4.Award to the appellant of Shs.30,000/- general damages and Shs.1,000/- special damages
- 5.Respondent to pay the costs of the appeal and of the proceedings in the High Court on the High Court scale
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the leading judgment. Re-evaluated the evidence as a first appellate court, held the appellant acted reasonably in jumping from the tractor under a reasonable apprehension that the unstable scrap metal heap would fall on him, applied Jones v Boyce, held the variance between pleadings and evidence immaterial, allowed the appeal on liability but upheld the trial judge's quantum, and awarded costs to the appellant.
In my judgment the belief that the Appellant entertained was reasonable. Its reasonableness is demonstrated by the fact that the scrap metal did fall into the tractor.p. 2
Wrote the judgment
Agreed with the judgment of Hancox CJ. Added that the fork lift operator stacked the scrap metal negligently, placing the appellant in imminent danger, and that the plaintiff's steps to avoid danger could not amount to negligence or contributory negligence.
In my view the steps the plaintiff took to avoid danger cannot be correctly said that he was negligent or contributed to his injuries.p. 4
- 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)
Relief refused
#Enhancement of the general damages award
The trial judge committed no error of principle in quantum, tested by the criteria in Butt v Khan
Costs
The Respondent to pay the costs of this appeal and of the proceedings in the High Court on the High Court scale
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I would allow the appeal on the issue of liability. I would substitute for the learned trial Judge's finding that the Defendant (then respondent) was liable in negligence to the plaintiff (the Appellant) and should be condemned in damages.
I would order the Respondent to pay the costs of this appeal and of the proceedings in the High Court on the High Court scale. As the other members of this Court agree it is so ordered.
A man is not bound to wait until disaster befalls him and then attempt to extricate himself from it.
In my view the steps the plaintiff took to avoid danger cannot be correctly said that he was negligent or contributed to his injuries.
Issues in the judgment
#Minor internal typographical and factual inconsistencies: the judgment refers to 'the reen had broken, and that he horses were careering' in the Jones v Boyce narrative, and notes its own variance between the plaint (11 am) and evidence (5.30 pm) as to the time of the accident
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.