Q&A – 3 December 2018
Airbags fail in accident
Our office has a policy of buying brand new vehicles from a dealer in Dar es Salaam. This is purely for safety reasons as our office is based upcountry and we are on the road most of the times. We also service our vehicles at the same dealers workshop to ensure that we get the best service. About three months ago when our car was returning from Dar, it met with an accident. The airbags for both the driver and passengers next to him did not come out. Luckily they were both wearing seatbelts and survived the crash but the passenger who is a fellow employee and a key part of our organisation has lost part of his memory and unable to work. Can we sue the dealer in Dar for failure of the airbags to come out?
JE, Arusha
You have a cause of action based on product liability. When the car was bought, the dealer and the manufacturer provided an assurance that the airbags would work when required to. In your colleagues case they did not which means that you have a cause of action both against the dealer and the manufacturer. There might be all kinds of disclaimers in your car manual but a lot of those will not protect the dealer and manufacturer if you can prove that the airbags were faulty and caused this harm to your colleague.
The burden of proof is associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, which translates to “the necessity of proof always lies with the person who lays charges.” Hence you will be required to ensure that you bring in enough evidence that convinces the judge that on a balance of probabilities (not beyond reasonable doubt as in murder cases) the dealer and manufacturer are liable.
Lastly, you might want to bring in an expert witness in this trial for her/him to connect the injury to the non-opening of the bag. You may also want to consider someone to testify that the airbag indeed malfunctioned. If you plan your approach well, you might have a very good case. Settlement in such cases is in the billions and it is something your lawyer can guide you on.
Rights when under arrest
Can a police officer start asking a suspect questions without following some procedures? In other countries, there is a strict protocol to follow including informing the suspect their rights before one can be questioned. I ask this because one of my colleagues was arrested and was aggressively questioned without being told his rights.
FR, Dar
Questioning in criminal law is governed by the Criminal Procedure Act which states the following clearly and unambiguously in section 53: Where a person is under restraint, a police officer shall not ask him any questions, or ask him to do anything, for a purpose connected with the investigation of an offence, unless– (a) the police officer has told him his name and rank; (b) the person has been informed by a police officer, in a language in which he is fluent, in writing and, if practicable, orally, of the fact that he is under restraint and of the offence in respect of which he is under restraint; and (c) the person has been cautioned by a police officer in the following manner, namely, by informing him, or causing him to be informed, in a language in which he is fluent, in writing in accordance with the prescribed form and, if practicable, orally– (i) that he is not obliged to answer any question asked of him by a police officer, other than a question seeking particulars of his name and address; and (ii) that, subject to this Act, he may communicate with a lawyer, relative or friend.
A critical right is access to a lawyer or friend as the law does not want suspects to make statements without presence of some support for the suspect, which is their right whether or not the suspect is guilty or not.
Section 54 further states that (1) Subject to subsection (2), a police officer shall, upon request by a person who is under restraint, cause reasonable facilities to be provided to enable the person to communicate with a lawyer, a relative or friend of his choice. (2) A police officer may refuse under subsection (1) for the provision of facilities for communicating with a person being a relative or friend of a person under restraint, if the police officer believes on reasonable grounds that it is necessary to prevent the person under restraint from communicating with the person for the purpose of preventing– the escape of an accomplice of the person under restraint; or the loss, destruction or fabrication of evidence relating to the offence.
You can see from the above that there are cases where the police officer may deny the suspect from making a call to a friend or relative.
Shortage of toilets at factory
We work in a large factory with hundreds of employees. Apart from the salary challenges we face with our employer, our factory has only got a single toilet for all of us. We have to literally queue in line to get into the washroom which is in a very poor state. The boss says there is no room to construct a toilet and therefore we have no choice. What should we do? We also have no supply of drinking water.
ER, Dar
The Occupational Health and Safety Act (OSHA Act) provides that (1) Sufficient and suitable sanitary conveniences shall be provided for persons employed in a factory or workplace and shall be maintained and kept clean and effective provision shall be made for lighting the sanitary convenience. (2) Where Persons of both sex are or are intended to be employed, the sanitary conveniences shall afford separate accommodation for persons of each sex. (3) For every number of females or males the provision of sanitary conveniences shall be one toilet for every 25 persons or part thereof up to one hundred one additional urinal for males shall be provided in excess of forty persons.
You must note that the above is a statutory requirement and an offence under the OSHA Act. We recommend you contact the nearest OSHA office and report this matter.
As for drinking water, the OSHA Act also has a provision that mandatorily requires the employer to ensure that adequate supply of clean safe is available.