Cassation Case No. 251532 Payment of Compensation for Bodily Injury

Cassation Case No. 251532

January 5, 2024 E.C.

Judges:

• Teferi Gebru (Dr.)
• Endashaw Adane
• Teshome Shiferaw
• Wazimo Wasira
• Senait Adnew

Applicant: Zeta Construction Private Limited Company – represented by Attorney Solomon Demissie

Respondent: Ato Masresha Dejene – Present

The case was scheduled for review and rendering of a judgment. Accordingly, after review, we issue the following judgment:

Judgment

This cassation petition was initiated because the Applicant, in its cassation petition written and submitted on July 31, 2023 (Hamle 26, 2015 E.C), alleged that the decision rendered by the Federal Supreme Court in Case No. 234819 on July 19, 2023 (Hamle 12, 2015 E.C) contained errors and requested that it be reviewed and corrected in cassation.

The matter concerns the payment of compensation for bodily injury. The litigation commenced in the Federal High Court, where the Applicant was the Defendant and the Respondent was the Plaintiff.

In the lawsuit written and submitted on May 18, 2021 (Ginbot 10, 2013 E.C), the Respondent claimed that he was employed as a heavy truck driver at Melcon Construction Private Limited Company and was working on the Adi Remet Adi Goshu Road Project. While working, the current Applicant, who had taken on the blasting work as a subcontractor from Melcon Construction, failed to exercise the required high level of caution and remain within the prescribed radius when performing the blasting work. As a result, on September 30, 2020 (23/09/2012 E.C), a rock fragment from the blasting struck the Respondent’s right arm, causing an injury that resulted in its amputation and a permanent disability of 60%. He further stated that before the accident, he was employed by Mane Girmay, a general contractor, and earned a monthly income of Birr 17,443 (Seventeen Thousand Four Hundred Forty-Three Birr). He was 52 years old and had 16 years remaining to reach the average life expectancy of 68 years in Addis Ababa. Therefore, he requested the court to order the Applicant to pay him Birr 3,349,056 (Three Million Three Hundred Ninety-Nine Thousand Fifty-Six Birr) for loss of earnings due to the injury, along with appropriate expenses.

In its response, the Applicant did not deny performing the blasting work or that the Respondent was injured. However, it argued that according to its contract with Melcon Construction Company, the company was obligated to keep its employees at a distance of five hundred meters from the blasting radius. The Applicant stated that two days before commencing the blasting work on the specified date, it filled out a form, as per the established procedure, indicating the date of the blast and urging the company to ensure that its employees did not approach the area and that property was removed. It submitted the form to the company, and the company confirmed to the Applicant that the blast could proceed. In addition, it announced the evacuation of employees through a loudspeaker on the day of the blast. According to the work regulations, the local police verified and confirmed the work and gave a signature and document confirming the permission to proceed with the work. The blasting work was carried out after all of these procedures were completed. The respondent’s injury was a result of his failure to acknowledge the gravity of the situation, and was his own fault according to article 2086(2) and 2067(2) of the Civil Code. Therefore, the respondent himself is responsible. The Applicant claimed that there was no fault or negligence on its part, that the Respondent was struck by a rock fragment, not by the blasting material itself, that the accident occurred within a 438-meter radius as confirmed by the police, and that even if the Defendant were found liable, the calculation of compensation until the age of 68 did not consider the retirement age limit and the binding decision of the Supreme Court in Cassation Case No. 92040. The Applicant argued that, at most, its liability should be partial, according to Article 2097(2) of the Civil Code and the binding Supreme Court decision in Case No. 106450. It also argued that the Birr 19,386 (Nineteen Thousand Three Hundred Eighty-Six Birr) already paid to the Respondent by his employer should be deducted from any compensation amount that might be awarded against the Applicant. Therefore, it requested that the lawsuit be dismissed.

The Federal High Court, which heard the case, found that the Applicant carried out the blasting work based on information from Melcon Construction Company and the local police. However, considering the potential harm caused by blasting, the Applicant should have independently verified whether individuals were present in the blast zone or within the five-hundred-meter radius and considered the potential for harm. Its failure to do so indicated negligence, which, according to Articles 2028 and 2029 of the Civil Code, established liability. The court also found that the accident occurred when the Respondent was sitting under a tree within the five-hundred-meter radius. Therefore, according to Articles 2097(2), 2086(2), and 2098 of the Civil Code, the Respondent shared responsibility for the accident. The court also determined that the Respondent’s net monthly salary was Birr 8,492.50 (Eight Thousand Four Hundred Ninety-Two Birr and Fifty Cents), as proven by evidence presented under court order. It held that the compensation should be determined based on the principles of compensation assessment outlined in Articles 2090, 2091, and 2092 of the Civil Code, and that the assessment should consider not only the victim’s income before the injury but also the negative impact the injury might have on their future ability to work. The court further noted that the Applicant had not substantiated its claim that it had already paid Birr 19,386 (Nineteen Thousand Three Hundred Eighty-Six Birr) through the Respondent’s employer. It stated that the Respondent could no longer perform his former driver’s job due to the 60% permanent disability, making it impossible to accurately determine the amount of compensation. Thus, the compensation should be determined fairly, according to Article 2102(1) of the Civil Code. The Federal High Court then ordered the Applicant to pay Birr 800,000 (Eight Hundred Thousand Birr), plus interest, to the Respondent.

The Applicant, dissatisfied with this decision, filed an appeal with the Federal Supreme Court, and the Respondent also filed a cross-appeal. The Supreme Court reviewed the appeal and found no defect in the portion of the decision holding the Applicant liable for the lawsuit. Regarding the decision that the Respondent should share responsibility, the Supreme Court stated that although the Respondent was told to move away from the area with a loudspeaker, the injury occurred in a situation where he was sitting under a tree within a five-hundred-meter radius (438-meter radius), meaning his own negligence was partially responsible. However, the Supreme Court determined that the witnesses presented by the Applicant, as well as the documentary evidence, did not sufficiently prove that adequate and appropriate precautions were taken before the blast. The Supreme Court also noted that the Respondent stated in the High Court that he only learned about the blasting on the day it was happening as he sat under the tree, and that his injury happened when he stood up to leave the area but had insufficient time. The High Court records confirmed this assertion. As such, the Supreme Court reversed the part of the decision saying the Respondent should share responsibility. It also rejected the Respondent’s cross-appeal, in which he argued that he should have been awarded Birr 3,349,056 (Three Million Three Hundred Ninety-Nine Thousand Fifty-Six Birr) in compensation. It upheld the High Court’s judgment of Birr 800,000 (Eight Hundred Thousand Birr) by finding that it accurately considered the circumstances and was reasonable.

The Applicant filed the cassation appeal on July 31, 2023 (Hamle 26, 2015 E.C), contesting this decision. Its grounds were that the lower court’s decision failed to consider Articles 2086(2) and 2067(2) of the Civil Code, given that the Respondent was injured due to his own negligence in disregarding the warning and safety measures provided by the Applicant and sitting under a tree in the area where the blast was taking place. It also claimed that even if the Applicant were liable, the calculation of the compensation amount was flawed because it failed to consider the binding decisions of the Supreme Court in Cassation Cases No. 92040 and 108251, Article 18(1) of Proclamation No. 1268/14, Articles 2090, 2097(1), and 2153 of the Civil Code, and Article 25 of the Constitution. It argued that the lower court failed to properly consider the factors that should have been considered, made an emotional and biased decision, and did not clearly state the accurate parameters considered for the calculation. Therefore, it argued that a fundamental legal error was committed, and the decision should be corrected.

The Applicant’s cassation petition was examined by the cassation screening panel, and it was determined that the lower court’s decision holding the Applicant liable for the injury to the Respondent was appropriate in light of Article 2069 of the Civil Code. Regarding the amount of damages, in light of Civil Code Articles 2090, 2091, and 2102 and Cassation Case No. 92040 et al. the panel decided to call forth the Respondent to give an answer. The case has been presented to this panel.

In his response written and submitted on November 12, 2023 (Hidar 03, 2016 E.C), the Respondent argued that the injury was caused without any fault; that whether the Applicant had taken adequate precautions to prevent the injury or how the amount of compensation should be calculated were matters of evidence, not legal arguments; that the matter should not have been submitted to cassation in the first place; that since it was undisputed that the Respondent was injured by the Applicant’s blasting, and Article 2069 of the Civil Code stipulated that the individual who used or caused the blast was liable for the injury, even if there was no fault on their part. The respondent also argued that since the applicant’s lack of fault doesn’t mean he wasn’t responsible according to article 2086, and if a person is found liable for a liability and the person that is liable tries to say he is not responsible, the court can dismiss this argument. He also argued that because Article 2099 of the Civil Code allows for the amount of compensation for damages to be determined fairly, and because Article 2152 of the Civil Code stipulates that no appeal can be made against a decision regarding the amount of compensation, a cassation appeal should not be filed in a case where an appeal is not allowed. The respondent argued that the lower court’s decision regarding compensation was based on fairness and did not unduly harm the respondent, and wasn’t exaggerated or based on improper reasoning. Because the applicant did not prove miscalculations were made, the appeal should be rejected. The Applicant submitted a reply, which was attached to the file.

The origin of the case is briefly as described above. This panel, after considering the arguments of both parties in relation to the decision that initiated the cassation appeal, the relevant provisions of the law, and the point raised as justifying the cassation, has examined the matter as follows:

Accordingly, it can be understood from the course of the litigation that the Applicant did not deny that the accident occurred, but argued on the issue of liability and the method [of calculation] and amount of compensation. Regarding liability, the Federal High Court, which first heard the case, concluded that the Respondent should share responsibility because the accident occurred when the Respondent was sitting under a tree within a five-hundred-meter radius (438 meters) due to his own negligence, based on Articles 2097(2), 2086(2), and 2098 of the Civil Code. However, the Federal Supreme Court, which reviewed the appeal, stated that the witnesses presented by the Applicant, as well as the documentary evidence, did not sufficiently prove that adequate and appropriate precautions were taken before the blast, and that the Respondent stated that he only learned about the blast in the afternoon as he sat under the tree, and that he was injured when he stood up to leave the area but had insufficient time. As such, the Supreme Court reversed the High Court’s decision that the Respondent should share responsibility.

Although the Applicant did not dispute that the blasting work, which caused the Respondent’s injury, was performed pursuant to an agreement between the Applicant and the Respondent’s employer, the Applicant’s agreement with Melcon Construction Company required it to ensure that no person or property, including the company’s employees, was within the five-hundred-meter radius before and during the blasting work. The Applicant’s contract with the Respondent’s employer, Melcon Construction Company, or the issuance of a blasting permit from the police, alone, cannot release it from liability for the injury that occurred. Regardless of whether prior warnings were given, and given that Respondent was injured while at work within the exclusion zone, and was unable to leave, it is hard to view his conduct as negligence. The lower court’s conclusion that the Applicant didn’t show due diligence is reasonable. As such, the lower court was right to conclude that the Respondent should not share responsibility. In light of the above, the Federal Supreme Court, which reviewed the appeal, properly weighed the evidence presented by both parties and held the Applicant fully liable for the injury. No legal reason has been found to criticize this decision.

Regarding the system and amount of compensation, it is undisputed that the Respondent was 52 years old at the time of the accident, had eight years remaining until retirement, and had a verified net monthly income of Birr 8,492.50 (Eight Thousand Four Hundred Ninety-Two Birr and Fifty Cents). It is also not disputed that the injury sustained by the Respondent prevents him from earning income in his profession in the future. Article 2092 of the Civil Code states that when a future injury is established, the injured party must be paid damages for it before it actually occurs. It is stated in F.H.H.Q 2091 that the compensation a person is liable to pay because of an injury should match the injury. Also, if there is a disagreement regarding how much loss should be paid to an injury, the judges should consider the circumstances, and the care given by the person, and should give the damage in fairness according to Civil Code 2002(1).

Therefore, in the present case, the fact that the Respondent was employed as a heavy truck driver at Melcon Construction Private Limited Company at the time of the accident, was 52 years old, and had a known fixed income of Birr 8,492.50 indicates that it was possible to calculate and determine the amount of compensation to be paid. Yet the court that originally heard the case rendered a decision with the damages calculated fairly, according to the Civil Code. It may be argued that this has led to a situation in which the compensation paid to the Respondent isn’t equal to the damage he suffered. On the other hand, the lower High Court rendered its decision, it did so without confirming the circumstances that are stated in article 2153. If those circumstance are met, then the only issue that would remain is how to pay for the damages. Because the Lower High Court based its verdict on the fact that 2153 circumstances were not met, then the Supreme Court can not hear this case, because the Civil code article 2152 states that in 2153 cases, the verdict of the High Court is final.

Therefore, it is determined that the Applicant is liable for the injury, and the compensation it must pay should be proportionate to the injury caused to the victim, as stipulated in Article 2091 of the Civil Code. Considering this, the Respondent was working as a heavy truck driver with a monthly salary of Birr 8,492.50 and was 52 years old. Therefore, calculating the compensation accordingly: Salary 8,492.50 x 12 months x 8 years = 815,280 (Eight Hundred Fifteen Thousand Two Hundred Eighty Birr). Subtracting the Birr 19,386 (Nineteen Thousand Three Hundred Eighty-Six Birr) previously paid by the employer results in a figure similar to the amount of compensation determined by the lower court. Therefore, we find that the lower court’s decision regarding the amount of compensation should be upheld. Accordingly, the following is decided:

Decision

1. The decision of the Federal Supreme Court in Case No. 234819, rendered on July 19, 2023 (Hamle 12, 2015 E.C), is affirmed in accordance with Article 348/1/ of the Civil Procedure Code for the reasons stated in the reasoning above.
2. The Applicant and Respondent shall bear their own costs and expenses incurred in connection with the arguments made before this panel.

Order

The injunction order issued in this file on October 25, 2023 (Tikimt 15, 2016 E.C), is hereby lifted. Let it be written.

The case is closed.

[Unreadable Signatures of Five Judges]