Kantiki v Mkandawire (Civil Cause 1175 of 1993) [1994] MWHCCiv 3 (7 January 1994)

IN THE HIGH COURT OF MALAWI PRINCIPAL. REGISTRY CIVIL CAUSE NO. 1175 OF 1993 BETWEEN: BLESSINGS KANTIKI (FEMALE)........................ PLAINTIFF - and - 0 S MKANDAWIRE.................................... DEFENDANT CORAM: MWAUNGULU, REGISTRAR For the Plaintiff, Mhone Interpreter, Ndalama ORDER This is an action for damages for personal injuries following an accident on the 31st of July 1992. The plaintiff is a Secretary at Shire Limited. The defendant is owner of motor vehicle Registration Number BD 969, the motor vehicle involved in the accident. The plaintiff was a passenger in the car. On the 31st of July, the plaintiff and the defendant were going to Chirimba. The defendant was driving the car. At the robots near the Henry Henderson Institute the motor vehicle hit a stationary vehicle. The plaintiff sustained some injuries for which he had treatment at the Queen Elizabeth Central Hospital. The injuries are the subject of the assessment of damages, liability having been conceded by default of defence. She had a deep cut on the forehead. She also had deep cuts on her lips. Two front upper canines were broken. Of course the statement of claim was amended to include dislocation of the pelvis. I reject the evidence on this matter. It is not supported by the medical report which only details the injuries I have mentioned. As a result of the injuries, the plaintiff was admitted for treatment for a period of two weeks. The injuries were well treated and, according to the medical report, the patient improved and recovered thoroughly. The injury to the forehead healed very well. I had difficulty, inspite of the attempt by the plaintiff to ensure that I saw, to find the scar left by the injury to that area. The cut to the lips, however, has left a deep and revulsive scar inspite of plastic surgery. The two broken teeth have been filled. There has, therefore, been tremendous improvement on the injuries. - 2 - The effects of the injury, however, can be seen. The scars on the lips are obscenely conspicuous. The plaintiff, who is unmarried, is a beautiful young woman. You are pointedly led to the deformity when you look at her young face. The broken teeth disadvantages her looks when she opens her mouth to speak. There has been a facelift to her look-up. In order, to enable me better assess the damages, Counsel for the plaintiff, and I am grateful for that, referred to a number of awards of this Court. Unfortunately, none of those cited dealt with the sort of injuries that I have to consider in this case. I have to consider the case on its facts. When awarding damages for personal injuries courts endeavour to compensate in money because this is the only medium acceptable, for all the circumstances caused by the injuries. This is achieved by trying to award for all the suffering or loss the victim has suffered, physically or financially. For the non-pecuniary losses, justice is achieved by awarding according to the known, yet not exhaustive, heads of damages recognised by the Courts. These are pain and suffering and loss of amenities. There is another non-pecuniary loss which occurs when there is a substantial risk that the injury has disadvantaged the victim's prospects of earning in the future. Together with those non-pecuniary losses the Court will award damages for any financial loss or expenses past, present, or future which follow the injury. By awarding on all these, the Court, the plaintiff, the defendant and indeed the bystander is satisfied that the victim has been adeguately compensated. In this particular case, Counsel for the plaintiff submitted that his client, still in the same employment and at the same salary, should be awarded for loss of earning capacity because the injuries have affected the prospects of her re-employment as a Secretary should she lose her present job. I am not convinced that there is a substantial risk that she could lose her earnings on account of the injuries. In the Moeliker -v- Ley Rolle & Co Ltd (1977), 1 All ER 9, the Court of Appeal held that, where the plaintiff continues in the same employment and no reduction in earnings or where there is a reduction in earning, there is a prospect of the plaintiff losing his earnings as a result of the injuries, when awarding damages for loss of earning capacity, the Court must first decide whether there is a substantial risk that the plaintiff will suffer the loss. There is no evidence on which I can properly decide the matter. I will not, therefore, award the plaintiff damages for. loss of earning capacity. The plaintiff is, however, entitled to damages for pain and suffering. I do not think, however, that the plaintiff is entitled to damages for loss of amenities. I award the plaintiff the sum of K6,000.00 for - 3 - pain and suffering. The disfigurement is very conspicuous and obviously affects the plaintiff's presentableness, not only to those at her place of work, but also to all pretenders and possible suitors and to all who for all sorts of reasons have to look at her. I award her K8,000.00. In all, I award her K14,000.00. MADE in -Chambers this 7th day of January 1994, at Blantyre.