Chanza v Somanje & Anor. (Civil Cause 122 of 2017) [2018] MWHC 710 (18 May 2018)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI P R IN C IP A L R E G IS T R Y C IV IL C A U S E N 0.122 O F 2017 B E T W E EN : R E U B E N H A S W E L L C H A N Z A .......................................................................................................... CLA IM A N T J O N E S S O M A N JE .......................................................................................................................... 1st D E FE N D A N T PRIM E IN SU R A N C E C O M PA N Y L T D ........................................................................................ 2"“ D E FE N D A N T AND CO RAM Mrs T. So ko : A ssista n t R egistrar Kambwiri : Counsel for the claimant Chipembere : Counsel for the defendant Mrs Mkandawire : Court Clerk B A C K G R O U N D This is an order on assessm ent of dam ages following a default judgment against the defendants entered on 23rd June 2018. The claimant’s claim is for damages for pain and suffering, damages for loss of amenities of life, dam ages for loss of earning capacity, special dam ages for medical treatment, medical and police report and costs of the action. The facts of the case are that on 12th May 2016, a motor vehicle registration number l BM 7835 Hiace Minibus was coming from a direction of Mchinji heading towards Lilongwe. Upon arriving at Ludzi turn off, the said motor vehicle started overtaking a truck. In the course, the motor vehicle lost control and went to the extreme of the road where he hit a tree injuring three passengers on board including the claimant. Resultantly, the claimant sustained an open tibia fracture on the right leg, deep cut wound on the right thigh, degloving wound on the left leg, chest pains and bilateral knee injury. E V ID E N C E On the date of hearing, the claimant appeared through a Legal Practitioner. The claimant adopted his witness statement where he stated that on 12th May 2016, he boarded a minibus registration number 7835 Toyota Hiace minibus which was coming from Mchinji heading towards Lilongwe. As the minibus arrived at Ludzi turn off, the driver of the said motor vehicle started overtaking a truck and in the course, he lost control of the vehicle and went to the extreme of the road where he hit a tree. The claimant and other passengers got injured. The claimant explained that he sustained an open fracture of the tibia and fibula on the right leg, a deep cut wound on the right thigh, degloving wound on the left leg, chest pains and bilateral knee injury. The Claimant tendered a medical report as part of evidence. The claimant stated that he experienced a lot of pain and suffering at the time of the accident and even after the accident. He said he could not walk properly and he even stopped playing soccer. The Claimant stated that he was 43 years old at the time of the accident. He added that before the accident, he used to earn K 3 5 ,000.00 per month but he lost the means of earning. In cross examination, the claimant stated that before the accident he used to work as a welder. He said he was earning K35, 000.00 but could not adduce evidence further to that. Besides, the claimant admitted that welding involves using hands but said that he had to walk for a long distance to get to the place of work and now he cannot walk for a long distance since his legs swell. IS S U E S The quantum of damages payable to the claimant SU B M ISSIO N S Only Counsel for the Claimant filed submissions. It was submitted that K 5, 0000,0000.00 would adequately compensate the claimant on damages for pain and suffering, loss of amenities of life and disfigurement. It was further submitted that K3, 601,728.00 would compensate the Claimant on the loss of earning capacity. Counsel cited a number of comparable authorities which I will use later in this matter. G E N E R A L LA W ON D A M A G ES In assessing dam ages for personal injuries, the intention of the court is to compensate the injured party as nearly as possible as money can do. The principle is to put the plaintiff at the position he would have been if it would have not been for the tort committed. Se e N am w iyo v S e m u (1993) 16 (1) M LR 369. In calculating d a m age s, therefore, the Courts consider, in monetary terms, the sum which will make good to the sufferer, as far as money can do, the loss he has suffered as a result of the wrong done. Se e A dm iralty C o m m isio n e rs v s S . S Valeria (1992) 1 A . C . 242 at 248. In C h ristin a M ande v s C h a rte r In su ra n ce C o . L t d P e rso n a l In ju ry C a u s e No. 3 2 9 o f 2016 the C o u rt q u o tin g W right v s B ritish R a ilw a y B o a rd 1938 A C 1 1 7 3 ,1 1 7 7 sta ted that: ‘Non-economic loss.., is not susceptible of measurement in money. Any figure at which the assessor of damages arrives cannot be other than artificial and, if the aim is that Justice meted out to all litigation should be even handed instead of depending on idiosyncrasies of the assessor, whether Judge or Jury the figure must be basically a conventional figure derived from experience and from awards in comparable cases. ’ In the case of C ity o fB la n tv re v s Saoaw a the court said the following: ‘It would appear to us that if the award is to be conventional, an aw ard fo r a sim ila r in ju ry should be comparable and should, to some extent, be influenced by amounts awarded in the previous case, either in the same or neighboring jurisdictions. In citing previous awards the court should not lose sight of factors like devaluation of the currency since the awards were made. PAIN AND S U F F E R IN G In damages for pain and suffering, the court considers the physical experience of the nerves and mental anguish which comes as a result of the injury. Se e Le m o n Banda a n d 19 o th e rs V Mota E n q il Lim ite d a n d G en era l A llia n ce In su ra n ce Lim ited, p e rso n a l in ju ry ca u s e n u m b e r 178 o f 2012 (unreported. In the C ity o f B lan tyre v s Sagawa 1993 16 (1) M LR 67 the court quoted Kemp and Kemp volume II paragraph 1007 where it was stated that; Pain is, it is suggested, used to describe the physical pain caused by or consequent upon the injury, while suffering relates to the mental element of anxiety, fear, embarrassment and the like. Page 831 of Me Gregor on damages defines pain as the immediately felt effect on the nerves and brain of some lesion or injury to a part of the body, while suffering has been defined as the distress which is not felt as being directly connected with any bodily condition. Pain includes any pain caused by medical treatment or surgical operations rendered necessary by the injury inflicted by the defendant. Suffering includes fright at the time of the injury and fright reaction, fear of future incapacity, either a s to health, sanity or the ability to make a living, and humiliation, sadness and embarrassment caused by disfigurement. A ls o s e e G ed io n M hanao v s N ico G en era l In su ra n ce C o . L t d P e rs o n a l In ju ry C a u se No. 703 o f 2016 (unreoorted). LOSS OF AMENITIES OF LIFE Loss of amenities is concerned with loss of enjoyment of life. This follows from the fact that human beings enjoy certain activities which may as a result of the injury be curtailed. See Le m o n B an d a a n d 19 o th e rs V Mota E n g il Lim ite d a n d G en eral A llia n ce In su ra n ce Lim ited, p e rso n a l in ju ry ca u se n u m b e r 178 o f 2012 (unreoorted. Sirkett L. J in M anley v s R u g b y P o rtla n d C e m e n t Co. (1951) C . A No. 286 stated that there is a head of damage which is sometimes called loss of amenities, the man made blind by the accident will no longer be able to see familiar things he has seen all his life, the man who had both legs removed and will never again go upon his walking excursions- things of that kind- loss of amenities. Me G re g o r on da m ages at P a g e 834 explains that loss of impairment of any one or more of the five senses is compensated under this head. Besides loss resulting from interference with the plaintiffs sexual life. DISFIGUREMENT Disfigurement is concerned with change of looks of the individual. This may be scars, amputations and postures. See Le m o n Banda a n d 19 o th ers V Mota E n g il Lim ite d a n d G en era l A llia n ce In su ra n ce Lim ited, p e rso n a l in ju ry ca u s e n u m b e r 178 o f 2012 (unreported. Dam ages for disfigurement are normally awarded as part of pain and suffering. They are awarded separately if the plaintiff has been ridiculed, lost his social status, or that his is in need of plastic surgery. Se e M ary K am w endo v s Sta g e co a c h Malawi Lim ite d C iv il C a u s e No. 840 o f 1995. L O S S O F E A R N IN G C A P A C IT Y This in essence is the decrease in ability to earn income. For example, in cases of continuing disability the claimant may be able to remain in his employment but with the risk that, if he loses that employment at some time in future, he may then, as a result of his injury be at disadvantage in getting another job or an equally paid job. S e e W infield & J o lo w ic z o n Tort page 957 The amount is calculated by taking the figure of the claimant’s present annual earnings less the amount, if any which he can now earn annually and multiply this by a figure which, while based on the number of years during which the loss of earning power will last is discounted so as to allow for the fact that a lump sum is being given now instead of periodical payments over the years. The latter has long been called the multiplier, the former figure has now come to be referred to as the multiplicand. Further adjustments however may have to be made to the multiplicand or multiplier on account of variety of factors viz, the probability of future increase or decrease in the annual earnings, the so called contingencies of life and the incidence of inflation and taxation. Me G re g o r on da m ages page 797. S P E C IA L D A M A G ES The rule is well settled that special damages have to be specifically pleaded and strictly proved. Se e P h iri V D a u d i 15 M LR 404. A plaintiff who claims special dam ages must therefore adduce evidence or facts which give satisfactory proof of the actual loss he or she alleges to have incurred. See A ia s C h ika n da v s Prim e In su ra n ce Co. L t d P e rso n a l In ju ry C a u se No. 1053 o f 2010. D ETERM IN A TIO N The medical report in the matter at hand points that the claimant sustained an open tibia fibula fracture on the right leg. Besides, the claimant sustained a deep cut wound on the right thigh, degloving wound on the left leg, chest pains and bilateral knee injury. He was admitted at Queen Elizabeth Central Hospital from 12th May 2016 to 23rd May 2016. The claimant was taken for emergency. The wounds were dressed and an external fixation with rods was done. He suffered a permanent incapacity of 35% and the report shows that he will have difficulties to walk since he has a limp. The medical report also indicated that the claimant is not fit for manual work. The injuries that the claimant sustained and the treatment that he went through only proves that the pain and suffering that the claimant experienced was great. In addition, the claimant will have difficulties to walk which means he cannot even run for a long distance or do sports that involves use of legs. Counsel cited a case of Clifford Petu lo (su in g h trouah h is m o th er a n d n e xt friend, Maria L o m o s i P etu lo) v s G en era l A llia n c e In su ra n ce Lim ite d P e rs o n a l In ju ry C a u se N u m b er 847 o f 2014. where the plaintiff suffered a fractured left lower leg therefore award a sum of K 4 ,000,000.00 on dam ages for pain and suffering, loss of amenities of life and disfigurement was made on 29th October 2015. In the foregoing reasons I award a sum of K 5 ,000,000.00 dam ages for pain and suffering, loss of amenities of life and disfigurement. On loss of earning capacity, there is no substantial evidence that the claimant used to earn K 3 5 ,000.00 per month and no evidence a s to how much he earns in his business. Besides, the claimant has the capacity to embark on a welding business even at his home. On that basis I will award K 1 ,500,000.00 damages. The Court also awards K 3 ,000 for Police report which was paid under G R 2804273. Costs are for the claimant. Pronounced in chamber on this 18th day of May 2018. T. S O K O A S S IS T A N T R E G IS T R A R 6