Andimoni v Easten Produce Malawi Limited (Personal Injury Cause 857 of 2013) [2021] MWHC 390 (23 August 2021)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NUMBER 857 OF 2013 BETWEEN: BINWELL ANDIMON 0.00.0 2c0c cece cece cere tenner rere reese ent nn nese ee na neer eres need CLAIMANT AND EASTERN PRODUCE MALAWI LIMITED................ eee cece cence tenner tenn DEFENDANT CORAM: WYSON CHAMDIMBA NKHATA (AR) Mr. Mwabungulu- of Counsel for the Claimant Mr, Zambezi-of Counsel for the Defendant Ms. Chida- Court Clerk and Official Interpreter ORDER ON ASSESSMENT OF DAMAGES INTRODUCTION The claimant suffered injury while under the employment of the defendant. Apparently, on 28" April, 2010, he was instructed to cut off tree branches and he fell down from one of the trees and landed on a stump of another tree and got injured. Apparently, he sustained a very deep cut wound on the scrotum which exposed his testes. He attributed the accident to the defendant’s negligence in failing to provide him with protective gear, among others. Subsequently, he commenced this action against the Defendant herein claiming damages for pain and suffering, damages for loss of amenities of life and costs of the action. By a judgment dated 21“ April, 2021, the court found in favour of the claimant and granted him damages for pain and suffering, loss of an erection of the penis at 70% and the costs of the action. The matter was referred to this court for assessment of damages which I must now consider. puerta Binwell Andimoni v Eastern Produce Malawi Limited, Personai Injury Cause No. 857 of 2013 Page 1 ae Sa RAE SEE THE EVIDENCE Through his witness statement that he adopted in court, the Claimant testified that at all material times he was employed by the defendant as a tea plucker. On 28" January, 2010, whilst working at the defendant’s estate he fell from a tree and injured himself due to the defendant’s negligence in failing to provide him with protective gear, among others. As a result of the accident, he sustained a very deep cut wound on the scrotum which exposed the testes. It was the claimant’s evidence that he was taken to Mulanje District Hospital where he was treated. He stated that the defendant company took him to the Hospital. He was hospitalised for 18 days. He tendered exhibits of his medical report and re-assessment medical reports “BAL” and “BA2”, He added that Workers Compensation Commissioner assessed his Workers Compensation based on the re-assessed Medical Report (“BA2” above) which put his incapacity at 70%. The Workers Compensation came up to MK 133,403.76. It was also his evidence that the defendant company tried to pay compensation through the labour office but he refused the money since it was too little. He tendered the Workers Compensation calculation Form marked “BA3”. The claimant also tendered a letter from the defendant’s insurers to his previous lawyers then that he be paid the sum of MK 133,403.76 which was accepted and marked “BA 4”. According to the claimant, since the accident, he lost erection of his penis and he felt severe and persistent pain in the scrotum such that he can no longer engage in sexual intercourse. It was his evidence his permanent incapacity was assessed at 70%. He told the court that he has been traumatised because he can no longer perform his marital obligation, sexually, as a husband. In cross-examination, the claimant confirmed that his assessment of incapacity was done 2011. The incapacity was assessed at 70% at 2011. It was the claimant’s story that the assessment was done while he was still recovering from the injury but soon after being discharged. He confirmed that 10 years had passed since the assessment and the permanent incapacity of 70% was made by the medical personnel. The claimant conceded that there was no evidence of his marriage on the record at trial or during assessment, He also confirmed that he was not calling any woman as to witness a prove that he cannot engage in sexual act. The claimant confirmed that without calling a woman who failed to have sex with him it will be difficult for the court to know if he can perform sex or not. The witness also told the court that he has been married before and he has four kids. The names and age are: Haswell — 18 years old (first born), Harriet — 14 years old (second born), Festone — 10 years old (third born) and Mateyu — 8 years old (fourth born). The claimant confirmed that Festone and Mateyu are his Eastern Produce Malawi Limited, Personal Injury Cause No. 857 of 2013 Page 2 biological children. He added that Fanny Kachenga is his wife and the mother of his children. She is the mother of all his kids. She is still his wife but she stays away from him. The witness told the court that all his four kids were born while he was married to his wife but before he was injured. It was his evidence that his wife left him in 2011. He confirmed that he visits his wife but he does not sleep there. The claimant told the court that Mateyu had a twin sister but she passed on. He confirmed that Mateyu is 8 years old. He also confirmed that he was only injured on the scrotum. It was his evidence that he can still pluck tea but he was dismissed by the defendant and he survives on piece works. The claimant stated that he did not suffer any bladder injury. He emphasized that when he was injured he had a cut on the scrotum. He added that he never played professional football but he was able to play football for fun and he is 35 years old. In re-examination, the claimant stated that he was born in 1981. He referred to a National Identity and stated that he was born on che July, 1981. The claimant stated that Haswell was born on a date he could not recall. However, he was confident that Haswell he is 18 years old. It was his evidence that the mother is the one who knows the age of the children. Hazwell wanted to work and he is 18 years old. The claimant stated that his daughter Harriet is 14 years but he could not recall that year of birth. He explained that he checked the ages on the Health Passport for the hospital. He stated that he checked and verified the age of the woman. The claimant confirmed to the court that Festone is 10 years because he saw the age with his own eyes on the Hospital Health Passport. The witness confirmed that Mateyu is 8 years and he saw it on the on the Hospital Health Passport. He denied any possibility of guess work and insisted that he saw the ages when the children were sick. He also confirmed that he saw the Hospital Health Passports this year when the children were sick and he was being forced by his wife to take them to the hospital. The claimant could not recall the years of birth but he was very certain about the age of the children. He stated that the children were born before he was injured. He told the court that his scrotum was torn and his wife left him in 2011. It was his evidence that since the accident, he has never had any desire for sex as such he has never approached anyone for sex. He also told the court that he cannot have sex with anyone. He concluded that he has never been married again after the accident. Such was the evidence on assessment of damages. I would like to thank Counsel for the guidance as evidenced by the well-researched submissions filed in support of the assessment of damages herein in which several authorities have been cited. This court has given the submissions and the authorities counsels cited the most anxious consideration. Binwell Andimoni v Eastern Produce Malawi Limited, Personal Injury Cause No. 857 of 2013 Page 3 THE LAW AND APPLICABLE LEGAL PRINCIPLES On the law and principles governing assessment of damages, it is trite that the purpose of awarding damages is to compensate the injured party as nearly as possible as money can do. That is to say, to place the claimant in a position he would be had he not suffered the damage or loss. This is what is termed the principle of restitufio infergrum. it is not possible to quantify damages with exactitude. However, courts use comparable cases as a guide in coming up with a reasonable quantum of damages. See the case of Kalinda —vs- Attorney General (1992) 15 MLR 170 at p 172. The Court will also consider factors like passage of time when the award was made, as well as the value of the kwacha at the time of making the award. Pain and suffering The word “pain” connotes that which is immediately felt upon the nerves and brain, be it directly related to the accident or resulting from medical treatment necessitated by the accident while “suffering” includes fright, fear of future disability, humiliation, embarrassment and sickness. See: Lan Goldrein et al, Personal Injury Litigation, Practice and Precedents (Butterworths, 1985) and City of Blantyre vs. Sagawa: [1993] 16(1) MLR 67 (MSCA), In Sakonda vs. 8. R. Nicholas: Civil Appeal Cause No. 67 of 2013, it was highlighted that pain and suffering is attributable to the claimant's injury or to any necessary surgical operations and mental anguish. The fundamental factor in assessing damages for pain and suffering was aptly put by the Supreme Court of Appeal in Chidule vs. Medi: Malawi Supreme Court of Appeal, Civil Appeal No. 12 of 1993, to say: “In assessing damages for pain and suffering, the court must consider the pain which the particular plaintiff has suffered because the circumstances of the particular plaintiff are bound to have a decisive effect in the assessment of damages”. Loss of amenities of Life Loss of amenities is attributable to deprivation of the claimant's capacity to engage in some sport or past- time which he/ she formerly enjoyed. Basing on the case of Kanyoni vs. Attorney General: 4990] 13 MLR 169. It means that he is incapable of performing some activities he used to do. Damages for loss of amenities of life are therefore awarded for the fact that the plaintiff is simply deprived of the pleasures of life, which amounts to a substantial loss, whether the plaintiff is aware of the loss or not. Poh Choo vs. Camden and Islington Area Health Authority: [1979] 2 All ER 91. oni v Eastern Produce Malawi Limited, Personal Injury Cause No, 857 of 2013 Page 4 Binwell Andim COMPARABLE CASES Comparable cases, when available, should rather be used to afford some guidance, in a general way, towards assisting the Court in arriving at an award which is not substantially out of general accord with previous awards in broadly similar cases, regard being had to all the factors which are considered to be relevant in the assessment of general damages. At the same time, it may be permissible, in an appropriate case, to test any assessment arrived at upon this basis by reference to the general pattern of previous awards in cases where the injuries may have been either more serious or less than those in the case under consideration. in this case, the evidence indicates that the Claimant herein raptured his serotum exposing his testicles. Counsel representing the claimant invites the court to consider the case of Innocent Sukali vs Southern Bottlers Malawi Limited, Personal Injury Cause No. 774 of 2012, wherein the claimant sustained a raptured bladder, crushed penis, crushed testicles, painful waist and loss of blood from his raptured bladder which, among other things, resulted in his inability in sexual intercourse for life. An award of MK25,000,000.00 was made on 17 June, 2013 as damages for pain, suffering, loss of amenities of life and disfigurement. In the light of the above authority, Counsel opines that the claimant be compensated the sum of MK20,000,000.00 damages for pain and suffering, MK5,000,000. 00 for loss of amenities of life and MK10,000,000.00 disfigurement. On the other hand, Counsel representing the defendant calls upon the court to consider the case of Steve Fred vs. G4S Secure Solutions (Malawi) Limited Injury Cause No. 987 of 2015) [2018] MWHC 1074, wherein the claimant was employed as a dog handler by the defendant. On 24! November, 2014, he was assigned by his supervisor to take a dog outside the defendant's premises. As he took the dog out of the kennel and tried to handle it, the dog turned and mauled him. As a result, he sustained injuries. The claimant sustained multiple wounds on the left upper and lower limbs, and multiple wounds on the chest and abdomen, His scrotum was partly bit off taking off one testicle. He had difficulties in walking due to the severe amount of pain he was experiencing. He was treated as an outpatient from 24'" November 2014 to 26" December, 2016 at Queen Elizabeth Central Hospital. As a resulted of the injuries he sustained, he has visible scars on the parts of his body where he was injured. In October, 2018, the court awarded the claimant a sum of MK2,600,000.00 as damages for pain and suffering, and a sum of MK1,500,000.00 as damages for loss of amenities of life. Counsel representing the defendant is of the view that the court should award the claimant the sum of MK2,500, 000 00 bei damages for pain and suffering and loss of amenities of lif Binwell Andimoni v Eastern Produce Malawi Limited, Personal Injury Cause No. 857 af 2013 Page 5 DETERMINATON In making assessment, the court shall begin with damages for pain and suffering. The court takes note that the evidence indicates the Claimant herein raptured his scrotum which exposed his testicles. A closer reading of the pleadings and the attendant evidence, indicates that the action herein is predicated upon this injury and nothing else. Be that as it may, the court is of the view that the injury by its very nature is a dreadfully serious injury. Undoubtedly, the claimant in this matter suffered excruciating pain during the occurrence of the injury and the healing period of the wound. The court further takes cognizance that he stayed in hospital for 18 days because of the injury. In respect of the issue of comparable cases, Counsel cites the case of Innocent Sukali (supra) where the claimant suffered a raptured bladder, crushed penis, crushed testicles, loss of blood from the raptured bladder and painful waist and was awarded the sum of MK25,000,000.00 as damages for pain and suffering, loss of amenities of life and damages for disfigurement. It is submitted in the claimant’s skeleton arguments, that the sum of MK20,000,000.00 would be reasonable and fair as damages for pain and suffering. It appears, however, that the defendant contends that although the claimant is entitled to damages for pain and suffering caused by the injury, the quantum claimed is excessive and manifestly exaggerated. Counsel representing the defendant contends that the injuries in the Sukali case were very serious injuries compared to the injuries in the present case where the claimant suffered a deep cut on the scrotum. Counsel points out that during assessment, the claimant confirmed that he only suffered an injured scrotum that was split open and testes exposed and denied suffering a crushed penis, crushed testicles, or raptured bladder. Counsel further contends that the claimant never pleaded any pain in the waist region which would affect his sexual movements. He further submits that the court must distinguish it on the basis of the severity of the injuries suffered by the claimant in the Sukali case. Apart from that, Counsel representing the defendant is of the view that the injuries in the present case are closer to the case of Steve Fred (supra), where the claimant’s scrotum was bitten off from the testicle by a dog that turned and mauled him in the course of handling it. In addition to the bitten and mauled testicle, the claimant in the Steve Fred case further sustained multiple wounds on the left upper and lower limbs, and multiple wounds on the chest and abdomen. In the Steve Fred case the court made an award of the sum of MK2,600,000.00 as damages for pain and suffering. Mindful that the Steve Fred order on assessment was delivered in October, 2018, Counsel contends that the Kwacha currency has not devalued much to shift the awards apart. Binwell Andimoni v Eastern Produce Malawi Limited, Personal Injury Cause No. 857 of 2013 Page 6 In principle, each case must be decided on its own merits. As long as the discretion is not exercised in a manner that invokes a sense that the injury has been regarded as trivial or over-sensationalised. Frankly speaking, it is impossible to use an exact mathematical standard to measure the amount that an injured person is entitled to recover for pain and suffering. It is true that the cases referred to herein are distinguishable from the facts in this case. As noted above, the claimant only suffered a cut wound on the scrotum which exposed his testes while in the Steve [red case, the claimant lost one of his testicles from the dog bite, sustained wounds on his upper and lower limbs and multiple wounds on the chest and abdomen following which he had to be treated as an out-patient as Queen Elizabeth Central Hospital from 34'° November, 2014 to 26 December, 2016, Likewise, as noted above in the case of Innocent Sukali (supra) the claimant sustained a raptured bladder, crushed penis, crushed testicles, painful waist and loss of blood from his raptured bladder which, among other things, resulted in his inability in sexual intercourse for life. It goes without saying that the injury herein is a bit lower in intensity compared to the cases cited. As regards the assessment of damages, it should be noted that in a case of tort, damages are compensatory and not punitive. As a rule, when there has been a fluctuation in the cost of living, the prejudice the claimant may suffer, must be evaluated as at the date of judgment. But damages must be assessed in such a manner that the claimant suffers no loss and at the same time makes no profit. Thus, having given diligent consideration to all the facts and circumstances to the instant case, L award K5,000,000.00 to the claimant as damages for pain and suffering. Turning to damages for loss of amenities of life, it is trite that these are awarded based on the curtailment of the claimant’s enjoyment of life by his inability to pursue the activities that he pursued before the injury. In the case at hand, the question is whether the claimant suffered any curtailment of his enjoyment of lite on account of the injury vis-d-vis having sex? In his evidence in chief, the claimant laments that since the accident, he lost the ability to gain erection of his penis and he felt severe and persistent pain in the scrotum such that he can no longer engage in sexual intercourse. He further laments that his permanent incapacity was assessed at 70%. He told the court that he has been traumatised because he can no longer perform his marital obligation, sexually. He laments that he is permanently flaccid and he can no longer have sex. Counsel representing the claimant submits that failure to engage in sexual intercourse is such a serious issue that no proper amount of money can compensate it. During cross-examination, the veracity of the foregoing assertions were put to test with regard to the ages of his biological children vis a vis the period he sustained the injury. From the evidence on record, the claimant’s admittedly last two biological children, Festone and Mateyu are 10 and 8 years. In re- examination, the claimant re-affirmed that the ages of the children are accurate. He emphatically stated Binwell Andimoni v Eastern Produce Malawi Limited, Personal Injury Cause No. 857 of 2013 Page 7 that he recently saw the ages this year. The evidence further indicates that the claimant was injured on 28" April, 2010. From the date of the injury, to the date of the assessment, eleven (11) years have elapsed which is a clear indication that the claimant’s last two children Festone and Mateyu were born after the accident. There is no doubt that this defeats the assertion that the claimant has suffered loss of enjoyment of sex. Other than that, the claimant’s assertion on failure to have sex was assessed soon after the accident and since then, he has never gone for any re-assessment. The claimant told the court that the first assessment was done before he was healed and since then, | 1 years have gone by. Be that as it may, it is not in dispute that the claimant suffered a raptured scrotum which exposed his testes. He stayed in the hospital for 18 days and clearly there must have been time thereafter for recuperation. Essentially, but for the injury, there must have been a considerable period before he could engage in sexual activity again. Much as the evidence supporting his assertion of loss of erection is feeble, it does not take away the fact of curtailment of enjoyment of conjugal rights or sexual activity in general, The court is compelled to make an award under this head as well on that regard. Counsel for the defendant challenges the claimant’s submission of the sum of MK5,000,000.00 for loss of amenities of life based on the case of Lemoni Banda, Thomas Austine, Januario Kagomo and 17 others vs. Mota Engil (Malawi) Limited and General Insurance Company Limited: Personal Injury Cause No. 178 of 2012 (unreported), wherein the 1 claimant sustained several fractures and he was unable to stand and was bound on a wheel chair, consequently he was unable to enjoy sexual intercourse ag a misconceived authority for his claim for damages for loss of amenities. In that case, the claimant was awarded MK2,500,000.00 as damages for loss of amenities of life. Counsel cails upon the court to consider that in the Lemoni Banda case, sex was not the only amenity that the 1° claimant was deprived of but also the proper use of his legs. He submits that the sum of MIK500,000.00 would adequately, fairly and reasonably compensate the claimant for failing to have sex immediately after the injury. With foregoing, I must state that the amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending on the court's view of what is fair in all the circumstances of the case. In this case, upon a thorough consideration of the circumstances of this and the case cited above, I award the claimant K2,500,000.00 as damages for loss of amenities of life. Finally, it is the claimant’s submission that he be awarded the sum of MK10,000,000.00 as damages for disfigurement. However, these damages were not specifically pleaded in the claim, proven at trial or awarded in the judgment. Clearly, the claim for damages for disfigurement is misconceived. It is trite law Binwell Andimoni v Eastern Produce Malawi Limited, Personal Injury Cause No. 857 of 2013 Page 8 that the parties are bound by their pleadings hence the need for the parties to stick to their pleadings throughout the course of the case. The court makes no award for disfigurement. CONCLUSION Upon a thorough consideration of facts and circumstances of this case and upon an exhaustive consideration of the submissions by both Counsel in the light of the relevant and applicable law regarding damages for personal injuries that this court awards the claimant K5,000,000.00 for pain and suffering and K2,500,000.00 for damages for loss of amenities of life. In total, the claimant is awarded K7,500,000.00 as damages. He is further awarded costs for the assessment of damages proceedings to be taxed if not agreed by the parties. DELIVERED IN CHAMBERS THIS 9382 DAY OF AUGUST 2021 ASSISTANT REGISTRAR Malawi Limited, Personal Injury Cause No. 857 of 2013 Page 9