Yada v Prime Insurance Co. Ltd (Civil Cause 504 of 2016) [2017] MWHCCiv 11 (28 December 2017)

, /. ! 1 IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO. 504 OF 2016 BETWEEN Chada Y ada Kazembe her Yada) ................................................................................................. Plaintiff ( a minor through Hamisi Father friend suing next and AND Prime Insurance Company Ltd ........................................................... Defendant CORAM: JJ;Jadalitso J(lwswe Chimwaza, Assistant Registrar C. Mhone, Mpandaguta, Counsel for the plaintiff on a brief Court Clerk ORDER ON ASSESSMENT OF DAMAGES Matter was set down for assessment of damages following a summary judgment obtained on 26'" August 2016. The defendants were served with the notice of assessment on 19th September,2017 but they did not appear and no excuse was given for such failure. The assessment is therefore based on the plaintiffs' uncontroverted evidence. The plaintiff invited one witness only. Brief Facts: According to the witness statement of the plaintiff which he adopted in its entirety, he told the court that it was on or about the 15'" day of march 2016 at about 06:55hours, when motor vehicle Reg No. MN 2185 Toyota Hiace was negligently driven, managed or controlled from the direction of area 3 heading towards Likuni, along the Likuni road that upon arrival at Ching'onga it hit the plaintiff who was crossing the road from the offside to the nearside verge of the road. As a result the plaintiff sustained multiple cuts on both legs, bruises on right arm and general body injuries. She sustained a tibia fracture on the right leg and was applied POP below the knee. She therefore claims damages for pain, suffering and disfigurement, damages for loss of amenities of life damages for earning capacity, special damages for medical and police reports. The defendants were sued by virtue of being the insurers of the said vehicle under ce1tificate of insurance number l 30584818 valid from 18/9/2015 to 27/6/20 I 6. GENERAL PRINCIPLES ON DAMAGES A person who suffers injury as a result of another's negligence is entitled to be compensated for the injury suffered by the negligent pa1iy. Such damages are awarded to compensate the plaintiff in so far as money can do (see Nakununkhe v Paulo Chakhunibira and Attomey General Civil cause no.357 of 1997 (Unrepo,ied). As was held in the case of Namwiyo v Semu et al [1993] 16 (!) MLR 369, in awarding compensation, the comi attempts to put the plaintiff in the position he/she would have been but for the injury arising from the to1i. Such damages however ca.nnot be quantified by any mathematical calculation as such the court relies on decided,cases of a comparable nature for guidance. Sight must not be lost however, of peculiar facts of each case in order to avoid occasioning injustice by inflexible maintenance of consistency and uniformity (D. /(rvataine Malombe & Another vs. G. H. Chikho Ila Bee Line Minibus Civil Cause No. 3687 of200! (HC Unreported). PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE AND DISFIGUREMENT Pain is used to suggest physical experience of pain caused by and consequent upon the injury while suffering relates to the mental elements of anxiety, fear, embarrassment and the like. On the other hand, loss of amenities oflife embraces all that which reduces the plaintiff's enjoyment oflife, his deprivation of amenity whether he is aware of it or not (See City ~f Blantyre v Sagawa [ 1993] 16 (I) MLR 67). In /(anyoni v Attomey Geneml [1990] 13 MLR 169, 171 the court held that loss of amenities of life must include the loss of all the things the claimant used to be or to do, see, and experience-they need not be of leisurely nature at all. In the case of Manley v Rugby Portland Cement and Company [1950] No 286 (rep01ied in Kemp and Kemp, "Quantum of Damages," Volume I 2"d edition 1961 at p.2640) Birkett, LJ had this to say: "There is a head of damages which is sometimes called loss of amenities; the man-made blind by accident will no longer be able to see familiar things he has seen all his life, the man has both legs removed will never again go upon his walking excursions, things of that kind-loss of amenities. " Although pain and suffering and loss of amenities for life are distinct however for purposes of quantum the court does considers them together and make a single award under those heads. (see Henry Manyowa v. Phiri and Prime Insurance Co. Ltd Personal Injury Cause No. 139/2012; Andrew /(atola v. Prime Insurance Co Ltd Civil Cause No. 2807/2009). Counsel for the plaintiff gave some comparable awards for cases of injmy of similar nature to that of the plaintiff which have been very useful in guiding the court to come with a just and reasonable award. In the present case the plaintiff who was I !years old at the time of the accident suffered multiple cuts on both legs, a bruise on the right arm, general body injuries, and a fracture of the tibia on the right leg. She has developed post traumatic aiihritis of the proximal joint and her degree of incapacity was rated at 35%. This comi is the view that a reasonable award of damages would be in the region ofK3,000,000 for pain and suffering and loss of amenities of life, and KS00,000 for disfigurement. LOSS OF EARNING CAPACITY This head of compensation refers to total loss or reduction in the income of the plaintiff as a result of the accident suffered (See Kambwiri vs Attorney General 11991]14 MLR 151. It is percuniary loss that is loss which is past, present or future and which is capable of being quantified, subject to it being not too remote. Loss of earnings is categorized into two: past loss and future loss. Past loss refers to loss from date of accident or injury to date of assessment. In the present matter the plaintiff is a minor of school going age she had not yet started earning a living. In the case ofMwasinga vs Stagecoach (MW) Ltd, [1993] 16(1) MLR 363 (HC) Mwaungulu as he was Registrar, then stated that the practice of the cotnts has been to award Jowly for loss of earning capacity for two reasons: There are no problems if the applicant is an adult and is already working and earning a living at the time of the accident. The problem arises when the victim is an infant ... because at that age it is very difficult to assess a child's s/dlls and abi!Wes 1,vith a view to ascertaining his possible achievement and thereby determfr1e the possible loss ofearnings ... The award is made before the child has started earning. This cou1t has noted that it is dealing with a claim for loss of earnings capacity. There is no evidence that the plaintiffs earning capacity will be impaired as a result of the injuries. The procedure in claiming such loss of earnings is that the losses should be specifically pleaded with all sufficient pa1ticulars and proved by the party. The duty of the court is just to see if the claim has been substantiated. Therefore the cou1t will make a minimal award of K400,000.00 on this head Special Damages The plaintiff is also awarded just and reasonable damages for police and medical reports in the sum of I<.6,000,00 as there was no evidence to prove payment of 1(8,000.00 these being special damages. ORDER The plaintiff is awarded a global sum of K4,208,000.00. and costs of these proceedings to be taxed if parties do not agree. Right of appeal Either patty aggrieved by the award of this cou1t has the right to appeal. Made in Chamber this ...... :k.3 ... day of ....... ~~ - : ............ 2017 ~ Madalitso Khoswe Chimwaza ASSISTANT REGISTRAR