Gama v AG (Civil Cause 1361 of 1994) [1996] MWHCCiv 5 (25 March 1996)

_...,. _ .............. ,. , _, .. -~ --·~- --~----.._.. ,_._................. .,,._, ................. ,_,, . .. .. _. . •<' ••- • . ~ •-~ ---· - -· .... - - -- -· · •·-- - · - - - - ·· - --~-- - - --- · - - - - - - -- - - · - ··------ ----- - -·- - . - ---- --- - -- ·-- 'G J., ~........_ . Co(/ lf\J THE HIGH COURT OF MALAWI PRINCIPAL liEGISTRY CIVIL CAUSE NUMEJER 1361 OF 1994 BETWEEN: C. GAMA ................................................................ PLAINTIFF and A-n-ORNEY GENERAL ................................ .. ............. DEFENDANT CORAM: E. B. TWEA, FlEGISTFV\F1 Masumbu, Counsel for the Plaintiff OefundantlCounselabsent HULING This action was brought by the plaintiff for personal lnjuries, assauilt and battery. The p lalntiff sought that U1ese be exemplary. At thE-) end of the day the defendant did not defend the action and Judgm ent was entered for tt1e plaintiff. - 1twas the plaintiffs-story thaton the evening of5 December 1992, -he left his place of work atAlekeni Anene F~estaurant in Lilongwe for his home. At about 7.35 p.m. while walking t1ome, tt1e Police Mobile Force men shot at and inJured him. The bone of his left leg was shattered a•fl1d he was hospitalised for three months. This, notwithstanding he was referred for further treatment in Souttl Africa. His claim is based on the injuries and expenses incurred as a result thereof. 2/ ..... The issu es of liability was deterrn ined by the judgment. What remains to be dctern1 ined is tt1e amount of damages that the court would award for tt1e plaintiffs suffering. The plaintltf called one witness, r1irnself, the defendant declin ed to call an y witn ess. However, in its subrn iss ion, wr1 lie admitti ng llab lilly, called on th e court to award damages as per pleadings only and no more tha n that, although it was agreed that the plain tiffs writ was only general ly endorsed. Both parties made submissions on the case fro m whict1 I will consider the basis of tt1is assessment. The plaintiff s evidence was that tie , was hospitalised at Kam uzu Central Hospital for tt1re months and underwent 15 th eatrical proced ures : including bone grafting from his rlbs and sk in grafting from his hip . The treatment was not completely successful and he was referred to South Africa. He attended Dr. M. S. Mahomed Clinic twice a nd is required to continue to do so. He is curren tly dependent on crutches , the shot wound is not r1ea led, he still feels a lot of pain, his leg has shortened, he has lost his ind ependent life and is dependent on his parent in -laws, hi~-; pursuit of leisure is destroyed and cannotconducthis publican buslne~-;s anymore sin ce he sold his capital goods to pay for his medical expenses. The med ical report PEX6, does corraborate his self-acquisition of essential drug s. Th is ls U1e essenc e ln the evidence. I now have to turn to the damages: personal injuries, assault and battery. ] / ..... .. ) '.) In his ev idence tl1e plaintiff gc1ve evidence wt1ich centred on pain, suffering an d loss of amenities and earnings and special dam ages. The defen dant in their submission sought to exclude specia l dam ages whict1 was not pleaded. Tt1is would, in my view, be so. I note tlmt the plaintiff had produced documentary evidence on medicatio n and cost of trips to South Africa but I have no evidence of referrals. I rn ust say . that one is entitled to seek med icare, but where one c hooses one mode and changes to a more expensive one withoutany proof of fail ure of the first ct1oice, as is my view of PEXG, I do not think th e court should penalise the defendant unles s th is is specifica lly pleaded. In U1is case, I do not think the cases of f1enzo Benefolo vs. Attorney General and NIGQ. cc 279 of 1993, District Hegistry and lJarney Brown Ct1ikumba v~1. Man lea FreightServic es_PFl Cc 13 of 1990, are app I lcab le. Tt1ere is no explanation as to why Hie p lainti ff c ho se to use more expensive mode of treatment. PEX6 does not support this. I grant the defendants prayer and I wi ll not include the co st of the plaintiffs South African trips in the damages si nce it was only necessitated by his drive to check other horizons tha n lack of attention within this jurisdiction. There ls no contens lon on other dmna~ws and I note that the plaintiff ls, as per PEXG, '.50% disabled, he wlll not enjoy life as before . The head of general dam ages has not been c tiallenged as to particulars. I wlll, therefore, grant tl1e plaintiff KGO,DCHJ for pain, suffering an d loss of am enities. 4/ ..... Loss of earning had not been pleaded but lt is not disputed th at the man was employed and that this is part of general damages. The plaintiff only gave his age and not his liability and there is no indication as to how much he earned from his busines s as a p ublica n. In such circumstances, I can not have any formu la for calculatin g what he would have earned. I will thus treat this head as genera l darn ages and grant K78,000 damages for loss of earni ng for a 31 year old publican who was in regular employment. In all I grant the plaintiff K138,000 damages with costs. PRONO UNCED in Chambers this 25th day of March 1996, at Blan lyre.