Court name
High Court of Tanzania

Zuleikha Bint Amour vs Construction Engineering & Builders Ltd () [1983] TZHC 21 (06 June 1983);

Law report citations
1984 TLR 289 (TZHC)
Media neutral citation
[1983] TZHC 21

Ramadhani, C.J.: The plaintiff, Zuleikha Amour Hassan, is the widow of one Issa Bakari Seif, deceased, who was an employee of the defendant.  On the other hand the defendant is the Construction Engineers & Builders Ltd.  This is a construction company contracted to build the new Post Office at Kijangwani, Zanzibar. I 

The plaintiff has stated that the deceased was injured in the course of employment of defendant on 20th  A January, 1981.  He was admitted at the V.I. Lenin Hospital and ultimately died on 26th July, 1981.  The plaintiff has claimed the salary of the deceased for seven months at the rate of Shs. 900/= per month i.e. a total of Shs. 6,300/=.  She has also claimed a gratuity for the 19 months he had been in the employment of  B the defendant and finally she claims compensation Shs. 24,000/= for the death of the deceased.
The defendant objected that the deceased was not injured while in his employment.  I am fully satisfied that the deceased had the accident of falling down while he was within the employer's premises.  Jamnadas  C Bhanji who is an employee of the defendant and who in the course of this suit has thrice appeared together with other officials on behalf of the defendant, told the court that the deceased fell down while climbing down the steps within the premises at Kijangwani and that he (Jamnadas) took the deceased in a  D Company's vehicle to the V.I. Lenin Hospital where the deceased was admitted.  Apart from that the defendant after being summoned to come to court wrote a letter CEB/EI/I.B/FRI/82 of 12th November, 1982.  In that letter he asked the court to defer entertaining the suit for three months and promised that all lawful  E claims would be met once the Directorate of the Community Development presented the relevant claims papers.  Thus by that letter the defendant admitted the duty to pay compensation.  Again on the 28th March, 1983, the representative of the defendant, one Swinder Singh, when asked about the letter reiterated to the court that they were awaiting the papers from the Directorate to make payments. F
Therefore the deceased had the accident and got injured while he was within the premises of the defendant.
On the other hand the plaintiff produced a letter from the defendant which claimed that the deceased had  G the accident after the working hours.  However, Mr. Sachdev, who came on behalf of the defendant, denounced the letter.  He said that the letter was not signed and so any body could have written it.  Mr. Sachdev added that the Company was ready to assist the plaintiff inspite of the letter.  But the issue here is not assistance but right. H
Though the letter, exhibit B, is not signed and therefore its admissibility is doubtful it brings us to the vital issue in this suit.  According to Mr. Jamnadas the deceased had the accident within the employment premises as he was climbing down some steps to go home after the working hours.  Therefore the  I deceased was not injured while working as the plaintiff claims.

The relevant legislation here is the Workmen's Compensation Decree Cap. 65.  Sub-section (1) of Section 6 A    requires an employer to compensate an employee who gets injured as a result of an accident "arising out of and in the course of the employment".  Is the accident in this case covered by that provision?
As I have already said the accident took place after the working hours and as the deceased was going home but B    while was still within the premises of employment.  In the case of Hill v Butterley Co. Ltd.  [1948] 1 All E.R. 233 the plaintiff was an employee of the defendant.  As she was crossing the premises of the defendant to get to the office so as to register her name before starting work she slipped on an icy slope and was injured.  The Court of C    Appeal held that the accident "arose out of and in the course of employment".  I do not see any difference between an injury sustained while one goes to work within the employer's premises and that sustained while one goes from work within the employer's premises. D 
In another case of Campbell v Proud's Engineering Co-Ltd. [1947] 2 All E.R. 97 a workman was an employee of the defendant and was going for his pay in another office of the defendant which was some distance away.  On his way he jumped on the near side of a passing lorry that was going in the same direction.  An accident happened and   E   the workman died.  the Court of Appeal held that the workman was going to the office for his pay and he was in the course of his employment.  The jumping on the lorry instead of proceeding on foot did not make his journey of a different kind from what it would have been had he used a safer method.  In the case before me the deceased did   G   not even use any unsafe method.  He was merely leaving the employment premises which he had to leave.  Therefore the injuries arose out of and in the course of employment.
In a case of Tanzania (Mainland) of Ali Mahdi v Abdulla Mohammed [1961] E.A. 83 the respondent was in a lorry of the appellant.  Some sand was thrown up by a passing vehicle and entered his eye and caused him to lose it.  The High Court of Tanganyika (as it was then) upheld the decision of the District Court that the accident arose out of and in the course of the respondent's  employment.  The phrase "out of employment" has been given wider H    meaning which I think will apply in this case.
Finally I should add that in other jurisdictions within the Commonwealth legislations like this have provided expressly that an injury sustained by a workman while going to or from work at the place of employment and residence is arising out of and in the course of employment.  The statute of Victoria, Australia is like  I 

that.  That legislation agrees with the decision in Hill v Butterley Co. Ltd. above.  I do not think that it was  A the intention of our legislation to exclude workmen who sustain injuries on their way to or from work.
In the case of James Patrick & Co. Proprietary Ltd. v Sharpe [1954] 3 All E.R. 216 the husband of the  B respondent was employed by the appellant.  As he was  travelling between his place of residence and his place of employment he suffered an auricular fibrillation as a result he died.  It was held that the injury arose out of and in the course of employment.  This case was governed by the law of Victoria that I have  C mentioned that being on the way to work is being at work.  Nevertheless the fact is that even such diseases as the one in that case has been taken into consideration.  I feel therefore that falling from some steps as one leaves the work premises is even a stronger case.
I therefore find that the injuries sustained by the deceased are covered by the said Sect. 6(1). D
There are certain conditions under this Decree.  First, under Sect. 18 (1) the employer is to be informed as soon as possible after the accident.  I am satisfied that such notice was given.  Mr. Jamnadas said that soon after the accident he reported to the man in charge, one Gurcham Singh, and asked for the keys to  E take the deceased to the hospital.  The plaintiff also has said that they reported that the deceased was admitted to hospital.  Thirdly, the attendance and Pay Register of the defendant has shown that the deceased from 20th January to 24th January was recorded as sick.  Then that entry was  Fcancelled and the deceased was not paid for those four days.  This shows that the defendant was aware of the illness of the deceased.  It is possible later doubted the information hence the cancellation.  But there is abundant evidence from the V.I. Lenin records (Exhibit A) that the deceased was admitted there from 20th  G January to 26th July.  Hence I am satisfied that the defendant had this information.  If he had doubted it then there were no grounds for the doubt.
The Second condition under section 18(2) is that claims for compensation have to be lodged within six  H months from the date of the accident or death.  Here death occurred on 26 January, 1981.  Hence the claims had to be presented before 26th January, 1982.  It is not clear exactly when the plaintiff started the claims.  She stated that when  she wanted to see the defendant she was ignored and so decided to go to JUWATA  I and the Directorate of Community Development.  A letter 3/ZNZ/Vol.11/1/79 of 19th June, 1982 from

  A the Secretary of JUWATA of the Urban District to the Junior Minister of Health making inquiries as to whether the death of the deceased was due to injuries sustained out of and in the course of employment.  Thus there is no proof whether the claims were presented before 26th July, 1981 or not.  However, there is   B a proviso that claims presented out of time will be maintained if the delay was due to mistake or other reasonable cause.  I am of the well considered opinion that even if the plaintiff was late in presenting her claims, of which there is no evidence, then it was because of some mistake on her part as I would not   C expect her, a mere housewife, to know the law.
Let me now turn to the claims themselves.  The defendant has said that the deceased had a bad leg to start with and that he was regularly attending treatment.  Mr. Jamnadas stated so.  But it is equally true that the   D deceased received some injuries from the accident within the employment premises.  It is possible, therefore, that the accident aggravated the already existing illness.  Nevertheless the defendant is obliged to compensate.  The case of Ogden Industries Pty Ltd v Lucas [1969] 1 All E.R. 121 is relevant here.
I concede that the deceased must have had some other disease and that is why it took him seven months   E in the hospital without the wound healing.  Medical records show that he was not diabetic.  The wound was discharging and the pus was taken for culture and sensitivity.  He was also anemic and they had to give him blood transfusion.  I consider all these in the question of the payment of his salary for the seven   F months.  I have not been told of the terms of employment but they seem to be that of daily paid.  Pay was given every week but only for the days one had worked.  As there is no law in Zanzibar on these questions of terms of employment I am prepared to take it that an employer in Zanzibar can afford to wait on an   G employee for a month.  The defendant has shown that he normally pays his employees even for the days they have been ill.  Therefore I find that the plaintiff is to get a month's salary of the deceased i.e. Shs. 900/=.
  H Section 12 of the Workmen's Compensation Decree provides a compensation equal to the salary of 36 months or to Shs. 24,000/= which ever is the lesser.  I find therefore that compensation is Shs. 24,000/=.
Again there is no law in Zanzibar regarding payment of gratuities or severance allowances.  But for a   I service of 19 months there is a right of receiving some sort of a gratuity.  I am prepared to allot a quarter of the total emoluments of the 19 months i.e. Shs. 4,275/=.

I may just add that the Revolutionary Government of Zanzibar uses such formula in the payment of  A gratuities.
Judgment for the plaintiff.

B