Chibayo v Jika and Prime Insurance Company Limited (Personal Injury Cause 577 of 2017) [2018] MWHC 1266 (30 April 2018)

HIGH COURT } LIBRARY t aR Ry tat PF - The Judiciary IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NUMBER 577 OF 2017 BETWEEN MOR PORT CEE 0 venient s vxastnntine vevenns ovaesintesiensvemeunennd es sheep awe oenNae CLAIMANT AND CPP ILARO DIA sssscssssesssi sorties sssssivisaes ss srwanasdesssswenivarvessanwenqacoe 18? DEFENDANT PRIME INSURANCE COMPANY LIMITED...........cceccscsecceceeceeeees 2NP DEFENDANT CORAM: A. J. BANDA, ASSISTANT REGISTRAR Mr. T. Mwabungulu, for the Claimant Mr. Chisale Mwale, for the Defendants Ms. M. Galafa, Clerk/ Official Interpreter BANDA, AR: ASSESSMENT ORDER Background The claimant obtained judgment in this matter, when Honourable Justice Chirwa by his order of 14" December, 2017 struck out the defence filed by the defendants. In a formal order signed on the 8" day of January, 2018, the Judge ordered that judgment be entered for the claimant on liability; and that the defendants do pay the claimant damages for pain, suffering, and loss of Page 1 of 4 amenities of life, deformity and disfigurement to be assessed, among other orders. The matter was therefore set down for hearing on assessment of damages. Evidence The claimant was the only witness in the hearing. He did not call any other. The defendants did not call any witnesses at all. Mr. Montfort Chibayo told the court that on 9" June, 2017 whilst he was crossing the M1 road near Manjawira trading centre, he was hit by a motor vehicle which was driving from Balaka direction going towards Blantyre. He said that he lost consciousness and only regained it at Balaka District Hospital. The claimant went on to state that he sustained a fracture on the right femur and bruises on his forehead and face. He said that he was hospitalized from 9" June, 2017 to 12" July, 2017. He said that his leg was cast in a Plaster of Paris. Mr. Chibayo went further to state that the leg was not completely healed such that he still uses clutches to walk and that he had permanent scars and the right lower limb was shortened. He produced a police report and a medical report as part of his evidence. These were marked ‘MC1’ and ‘MC 2’ respectively. In cross examination, the claimant said that he was then feeling better. He said that he suffered injuries and that his fractured leg had to be inserted with a metal pin. He also said that he was a farmer before the accident but that he had not gone back to farming after the accident. Issue The quantum of damages payable for pain, suffering, loss of amenities of life, deformity and disfigurement. Analysis and Determination The law on torts is that a person who suffers injury from the wrongful act or omission of another, must be compensated by damages from that person. It has been stated that the money awarded as damages must be in the region that would put the victim in the position that he would have been if the wrong was not done to him- Livingstone v. Rawyards Coal Co [1880]5 App. Case 25. It is also noted that it is not mathematically possible to make an award with such precision as to compensate a wrong that is not a pecuniary loss. Courts normally use awards made in comparable cases to come up with the right quantum of damages, with caution as not to lose sight of the circumstances available in the case before them. The court also has to factor in maintenance of the value of the money in cases where the award in the comparable cases were made some time back- George Sakonda v. S. R. Nicholas, Civil Appeal Number 67 of 2013 High Court, Principal Registry. Page 2 of 4 The claimant in this case sustained a fracture on the right femur and bruises on his forehead and face. He was hospitalized from 9" June, 2017 to 12™ July, 2017, a period of a month and days. He was inserted with a pin to help with the healing process and his leg was cast in a Plaster of Paris. His leg was shortened and he now has scars on his face and leg. In the case of Christina Mande v. Charter Insurance Company Limited, Personal Injury Cause no. 329 of 2016, the court made an award of K6, 300,000.00, on 11" January, 2017, to the plaintiff who had sustained a fracture of the right femur and knee cap, and dislocation of a right hip joint. She also had cuts on the head and had lost consciousness on the spot of the accident. In Rex Walala v. Davison Chikuta and Prime Insurance Company Limited, Civil Cause no. 461 of 2011, the plaintiff was awarded K6, 500, 000.00 damages for a fracture of the left tibia, bruises on the left arm and cuts on his face. This award was made on 20" March, 2013. In this case a separate award was made for deformity since the court found that the plaintiff had suffered a permanent deformity from the injuries he sustained. The court cited Mwasinga v. Stagecoach (Mal) Ltd (1993) 16 (1) MLR 363 for this separate award. In Kachasu and another v. Peter Kondowe and Another, Civil Cause no. 320 of 2009, the a plaintiff who had a cut wound on his head, closed fracture of the right humerus and an open fracture of the right lower leg was awarded K5, 600, 000.00 On 16" October, 2009. In the instant case, the plaintiff suffered a fracture of the femur and had head cuts and bruises on the arm. He lost consciousness and stayed a month in hospital to heal. He now has one leg shortened than the other since the broken femur healed. The plaintiff submitted that an award of K10, 000,000.00 would be adequate compensation in this matter. I have considered the award especially in Christina Mande v. Charter Insurance Company Limited, Personal Injury Cause no. 329 of 2016, which appears to be very close in nature and extent of the injuries but also in time of making the award. I am more inclined to be within the region of the damages in that case than the quantum proposed by the plaintiff. I have considered though that there is one other significant circumstance that prevail in this instant case before me than the one in consideration. This is the fact that plaintiff was hospitalized for a period more than one month. In the circumstances, and considering all necessary factors and principles stated above, I consider a sum of K6, 600,000.00 to adequately compensate the claimant for pain, suffering and loss of amenities of life. I make a further award of K 1, 300, 000.00 for deformity and disfigurement. I Page 3 of 4 further make awards of special damages as follows, K3, 000.00 cost of police report and K10, 346.00 cost of medical report. | In conclusion therefore, the plaintiff should be paid damages as follows: K 6, 600,000.00 for pain, suffering and loss of amenities of life; K1, 300,000.00 for deformity and disfigurement; K3, 000.00 cost of police report; and K10, 346.00 cost of medical report. The total award comes up to K7, 913, 346.00. | | | | Made this 30" day of April, 2018. | Pau Austin Jesse Banda ASSISTANT REGISTRAR Page 4 of 4