Chikwawe v Lackson, Ngunya and Reunion Insurance Company Limited (Personal Injury Case 220 of 2017) [2018] MWHC 1257 (30 July 2018)

rian PEDAL REA Pe HDR RNR e APO Ey rMIGH COURT | Sih Py i wWBRARY Co ona marenrane aSmnen enamta mA REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CASE NO. 220 OF 2017 BETWEEN TATE PW AWE 5. vanrenmmancncannains 44464 x exanummoe s vs nav enuaimbicntaun 4 6344 peetnwemmemnned) CLAIMANT AND CHIKOPA LACKSON....0. 0. cee cee ccc cece cee cense ce ee eee eeeeseeseea een ceceeceeeueeucueeasuseasaes 1s DEFENDANT JIMMY GUNYA....0. 0. cccecsceteeensesecnessenseaeearsecsenbensssetessececewsnessevsseeswasenads 24 DEFENDANT REUNION INSURANCE COMPANY LIMITED...............c0ccececeeceeeeeceeeeeeeens 3™ DEFENDANT Coram: WYSON CHAMDIMBA NKHATA (SRM) Maere- of Counsel for the plaintiff Chitsulo- Court Clerk and Official Interpreter ORDER ON ASSESSMENT OF DAMAGES This is the court’s order on assessment of damages pursuant to a default judgment on liability entered in favour of the claimant on the 27" of June 2018. The issue of the Defendant’s liability having been settled already by the said judgment, the duty placed upon this court was to determine the reasonable quantum of damages that would adequately compensate the claimant for the losses and damages herein. The plaintiff in this matter took out a writ of summons issued on the 30" of March 2017 against the defendant claiming damages for pain and suffering, loss of amenities of life, disfigurement, special SR SS SN TSMR cae A ASU RS USE a ag cee laa ee enemas Martin Chikwawe v Chikopa Lackson & 2 Others Civil Cause No. 220 of 2017 Page 1 damages and costs of the action. In his Statement of Claim, he had alleged that at all material times he was a passenger in a motor vehicle registration number BP4077 ToyAce Pickup driven by the 1* defendant. The 2" defendant is sued as the employer of the 1‘ defendant. The 3" defendant is sued in terms of s.148 of the RTA as the insurer of motor vehicle registration number BP4077. On the 3 of September 2016, the plaintiff hired the motor vehicle registration number BP4077 from Limbe to Mangochi to deliver a consignment of bottled water in Mangochi. Upon reaching Kambulire Village along the Liwonde Mangochi road, the 1°‘ defendant so negligently drove the said motor vehicle and lost control of the same and the motor vehicle swerved to the offside lane where it hit a stationary minibus registration number BLK2796 and overturned several times. He claims that the said accident was caused by the negligence of the 1%' defendant. Consequent to the said accident the claimant avers that he sustained traumatic amputation of the middle, ring and little fingers, severe soft tissue injury on the left hand and multiple cuts and bruises on the head and hands. He also claims K3000.00 special damages being cost of obtaining a police report. It is against this background that the claimant claims damages for pain, suffering and loss of amenities of life, damages for disfigurement and costs of this action. I must state that the law generally provides that a person who suffers bodily injuries or losses due to the negligence of another is entitled to recover damages. The fundamental principle which underlines the whole law of damages is that the damages to be recovered must, in money terms, be no more and no less than the Plaintiff's actual loss. The principle was laid down in numerous case authorities more particularly by Lord Blackburn in the case of Livingstone v. Rawyards Coal Company (1880) 4 AC 25 in the following terms: where any injury or loss is to be compensated by damages, in settling a sum of money to be given as damages, you should as nearly as possible get at the sum of money which will put the party who has been injured, or who has suffered loss, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. I diligently perused the medical evidence as to the injuries and the prognosis given by the medical expert. I had the opportunity to observe the injury on the leg and the present physical, condition of the claimant. I gave meticulous thought to the written submissions filed by counsel for the claimant. I went through the precedents cited by the counsel with a view to assist this Court to make a critical evaluation of the damages. I considered the relevant aspects particularly of the following precedents cited by the counsel: Alex Kameko v Starplex Industries Personal Injury Cause No 305 of 2014 where the claimant traumatic amputation of the right index and middle fingers. He also suffered a fracture of the phalange of the right mene ra ea NUE eR UT ei SRS ESS iS i ES ER US A RS ARN ES Martin Chikwawe v Chikopa Lackson & 2 Others Civil Cause No. 220 of 2017 Page 2 ring finger. The court awarded K2,000,000.00 for pain and suffering and K1,000,000.00 for loss of amenities of life. Stanley Chiwanda v Masha Missi and Prime Insurance Company Civil Cause No 92 of 2014 where the Plaintiff had big scars on his body and had permanently lost use of his left hand. The court awarded him K800,000.00 for disfigurement. The award was made on the 27" of April 2017. It was therefore Counsel’s submission that in the circumstances of this case, the reasonable compensation for loss of amenities of life and K800,000.00 for disfigurement and the sum of K2,500,000.00 for pain and suffering. I agree that the injuries suffered by the claimant are serious. The claimant has lost three fingers which has negatively impacted his general livelihood. He lamented that he can longer cultivate because he has difficulties in handling hoe. It was his testimony further that even his business of buying and selling fish has been affected in that he has to hire people to assist in carrying his merchandise. Essentially, the claimant has not only suffered a deformity in an excruciating manner but his livelihood has been affected. It is therefore upon a thorough consideration of facts and circumstances of this case, and upon an exhaustive consideration of the submissions by the plaintiffs’ Counsel in the light of the relevant and applicable law regarding damages for the claimed heads herein I award the plaintiff K4,000,000.00 under all heads claimed and proved. The plaintiff also claims K3,00.00 being special damages. I take note that he paid K3,000.00 for the police report under GR. No. 3066170. I proceed to award him as such. In summary the claimant is awarded K4,003,000.00 as damages. The plaintiff is further awarded costs of this action to be taxed if not agreed by the parties. ASSISTANT REGISTRAR Martin Chikwawe v Chikopa Lackson & 2 Others Civil Cause No. 220 of 2017 Page 3