Banda( Minor, suing through Eswart Ntokoma, next friend) v Khauya and Prime Insurance Co. Ltd (Personal Injury Cause 249 of 2020) [2021] MWHC 350 (19 April 2021)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 249 GE 2020 BEV WWEER THOKOZANI BANDA (Minor, suing through ESMART NTOKOMA, next friend...,, 1st CLAIMANT RICHWELL KHAUVAL.. vcscssscssesssese stesseaeeences teense LST DEFENDANT PRIME INSURANCE CO. LTD vo TTaeaenseteneaseenees wc ssssssenssonenesesesseseaccasscavessssusenesses, ZN DEFENDANT CORAM: T. Soko, Assistant Registrar Mr Kanyika, of counsel! for the claimant Mr Chikaonda, of counsel for the defendant E. Chimang’angae, Court Clerk ORDER ON ASSESSMENT OF DAMAGES , loss of amenities of life and - The facts aver that On or about the 25" day of December 2019, the 15 defendant was driving a motor vehicle registration number NU 9374 Toyota vitz saloon from the direction of Chingeni heading towards Ntcheu. The vehicle was insured by the 2" defendant uncer insurance certificate number 131837790 valid from 8" /21/2019 ~ 07/11/2020. Upon arrival at or near Balaka Market Trading Centre, the driver of the motor vehicle lost control of it anc hit the claimant who was walking on the right hand side of the road from Opposite direction. On 20" October 2020, a judgment on liability was entered against the defendants. in evidence next friend Esnart Ntokoma adopted the witness statement where she stated that the claimant sustained a fractured distal tibia, cut wound on the medial aspect exposing bone and swollen and painful right leg. She was attended to and treated at Balaka Hospital. A police and medical report were tendered as part of evidence. In cross examination, Ntokoma stated that the claimant after being discharged from treated as an outpatient and the last time she had visited the hospital was in January 2021. She stated that the claimant was able to attend school although her leg was not completely healed, in submissions, Counsel for the claimants submitted that the claimant should be awarded a sum of K6,500,000.00 in all heads of damages. Counsel cited a number of comparable authorities which | will consider later, Counsel for the defendants did not file submissions. ft is a trite law that in Civil Cases the burden of proof rest upon he who asserts the affirmative. The standard of proof is that on balance of probabilities. It was stated in Miller vs Minister of Pension (1942) All ER 3.79 that the degree js well settled, lt must Carry a reasonable degree of can say: We think it more than hot, the burcan of proof is discharged, but if the probabilities are equal it is not. See Afifler ys Minister of “ensions and also Mr Livenga( Administrator oF the Estate of Jones George} vs Prime lnsuracce Co Ltd Civil Cause No, 2306 of 2004, of contract or tort are damages which, so far aS money can compensate will give the injuredparty reparation for the wrongful act.” See Admiralty Commissioners Ws §.§. Valeria (1922) AC 242 ot 249. PAIN AND SUFFERING lt connotes that which is immediately felt upcn 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 City of Blantyre vs Savawa (1993) 16(2) MLR 6? (SCS) LOSS OF AMENITIES OF LIFE Loss of amenities of life js attributed to the Cesprivation of the claimant's capacity to engage in @ past time activity which he formerly enjoyed. It embraces all that which reduces the plaintiff's enjoyment of life, his deprivation GF an amenity o? fife whether he is aware of it or not. See Kanvors ys sitorney Generel (2996; 23, MELB 169 onef Blantyre Sagowe {2993} AGED) ALR SP (SCA), DISFIGUREMENT Damages are paid under this head for the change in physical form of a person injured either a$ a result of the impact of the injury or its treatment, such as a scar coming in as a result of a Surgical operation necessitated by the injury. in the present matter, | have carefully looked 2¢ the evidence oresented by the claimant. | have aiso considered the submissions by Counsel for the claimant and the authorities cited in the submissions. | have found that the claimant sustained an open fracture of distal tibia, swollen and painful right leg and wound or: mecial aspect of leg exposing bone as Stated in the evidence. The wounds were debrided and she was given a painkiller. The degree of incapacity was begged at 40%. The medical report states that the claimant will have difficulties to participate in sporting activities and even perform household chores. | haya considered the case of Virginie Moakiyi vs Towing Chatchukey and Reunion Insurance Co, Lie Personal Injuries Conse No. 392 of 2015 whe-c the claimant suffered a fractured left tibia and fibula and rauliiple bruises on the chest. The: Court awarded her a surn of K5,C00,000.06 as damages for pain and suffering and loss Of av::enities of life. The award was made on 6th May 2016. in Makiyi case, the degree of incapacity for the claimant was pegged at 30%. The injuries that the claimant Sustained ir. tne present latter are more serious thar; the ones in Makiyi case. In the light of the foregoing, | award the claimant a sum of K5,500,000,00 in all heads of damages. Special damages were not proved so | decline awarding the special damages. Costs are for the claimants. Made on this 19" day of April 2021. ir” ¥. Soko Assistant Registrar