Chingapa v Wizimani and 1 other (Civil Cause 670 of 2020) [2023] MWHC 105 (31 March 2023)

CIVIL CAUSE NUMBER 670 OF 2020 BETWEEN ELARD CHINGAPA (suing through HARRY ELARD CHINGAPA, litigation guardian)......c:csccccecesceserecee see caver sor semtene CLAIMANT AND KINGSTONE WIZIMANL 0. cs cca cee cee car ceecnstesce sre ceeaae eee tisaee seaeenssssees ered) DEFENDANT PRIME INSURANCE COMPANY LIMITED... ccc ces cee eee eee tecnea sen eee cea eae 2°07 DEFENDANT CORAM: KAPASWICHE : ASSISTANT REGISTRAR (AR) Kambalame ; Counsel for the Claimant Kapinda : For the Defence | Mwangosi : Clerk / Official Interpreter ORDER ON ASSESSMENT OF DAMAGES BACKGROUND This’ is a + claim for damages for pain ‘and cd sulfering; loss of amenities of life; disfigurement; future niirsing care; cost of police and médical réport and costs of the action, The matter was cortmenced : . - “ on the 3 day of August 2020. On 26m August 2026, a defauitt Judgment was entered on ail the claims a against ‘the Defendants and the matter was referred for assesment. of damages: This is” is my, a determination on the ve damages payable in v the present case, - yh tas a “THE EVIDENCE ress | ae | “The evidence in the present case came from oné witness namely Hairy lard Chingapa beings a ue litigation guardian for the minor. He adopted his witness statement that was filed with the Court, His evidence was that on 8"" February 2020 around 18:30 hours the minor was crossing the road from left to right. The 1° Defendant was driving motor vehicle from the direction of Mponela going towards Ntchisi along the Mponela/ Ntchisi road. Upon arrival at Mponela Trading Centre, he overtook another motor vehicle and in the process he hit the minor who was about to finish crossing the road from ieft to right, The injuries sustained by the minor were a deep cut wound and severe bleeding on the left frontal temporal bone, cut on the feft ear, painful back and hip, loss of memory, persistent headaches and serious scars on the affected parts. The minor was treated at Mponela Rural Hospital where he was referred to Mtengowanthenga Hospital where he was admitted for two days. His permanent Incapacity was assessed at 20%, PW1 stated that the minor still has persistent memory loss; he is no longer doing well in class as he used to; he has mental illness as he wonders about aimlessly and can no longer run errands as he used to and that he even relies on his mother to bath him, In cross examination, PW4 stated that the minor got injured on the head, shoulder and leg as well as the back. He stated that after the accident, the minor was firstly taken to Mponela hospital and then to Mtengowanthenga hospital. He stated that the medical report tendered was stamped at Mponela hospital though the treatment was received at Mtengowanthenga. He admitted that the medicai officer who prepared the medical report was based at Mponela hospital and was not the one who treated the minor as the minor was treated at Mtengowanthenga hospital, He stated that the Mponela medical officer was not paid any money to produce the medical report. He stated that the police report was prepared by the police officer who handled the matter and he is not sure of the injures recorded in the police report but that what he knows js that the child had serious injuries. The witness admitted that he has not brought evidence in court to prove that the minor js not performing well in class as compared to the period prior to the accident. He further stated that the Page 2 , child has not been taken to any mental health facility © on ithe alleged mental illness asa result of the: accident, ‘When Defence Counsel asked Guestion t to the | minor, the minor r told the court th that prior to Tne . though s sometimes he feels pain in especially when ¢ carry a bucket of water. Sa the law generally provides that? a person 1 who suffers bodily i injuries or losses due io the svegligence. a 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 foss, 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.” Be that as It may, it ought to be borne in mind that it is not possible to quantify damages for pain and suffering, loss of amenities and deformity as claimed in this matter with mathematical precision. As a result, courts use decided cases of comparable nature to arrive at awards. That ensures some degree of consistency and uniformity in cases of a broadly similar nature: See Wright -vs- British Railways Board [1983] 2 A. C. 773, and Kalinda -vs- Attorney General [1992] 15 M. L. R. 170 at p.172. As such this court will have recourse to comparable cases to arrive at the appropriate quantum of damages for the plaintiff. SUBMISSIONS AND ANALYSIS DAMAGES FOR PAIN AND SUFFERING ‘Pair’ is used to suggest physical experience of pain caused by consequent act upon the injury while ‘suffering? relates to the mental elements of anxiety, fright, fear of future disability, humiliation, embarrassment, sickness and the like as was held in City of Blantyre v. Sagawa [1993] 16 (1) MLR 67 Page 3 DAMAGES FOR Loss OF oF ANE N mies OF LI E the head of | loss of amenities of if is awarded to cater for loss of all things that the claimiait used to be able to do, see and experience aid that these things can no longer be seen or be dorie’ or be experienced due to the impact of the | injury ir ctiestion, In the: case of Mitika v ‘Chagomerana tfa Trans, ee Usher (1997)2 2 MLR 123, 126; the court explained loss of amenities of life i in the foil lowing terms; me - a 7 os itera is loss know as the oss of amenties ‘afte life, _thiscover ‘helo eabeedb by the i — ( a | the plainttt will be unable to pursue the lelsure and sleasues of ita that he used 6 enjoy but for . the injury” DAMAGES FOR DISFIGUREMENT Damages for disfigurement are awarded for some form of permanent scars or deformity left on the body of the victim as was held in the case of Tabord v. David Whitehead and Sons (Mw) Ltd, (1995) 1 MLR 297 (SCA). DAMAGES FOR FUTURE NURSING CARE Damages for future nursing care are awarded on the basis that one is entitled to recover for any care” to be provided for by someone eise as result of her injuries. See Donnely v Joyce (1973) 3 AILER. Two methods have been employed by courts in calculating this head of damages. The first one is to use the multiplicand/ multiplier method. See Housecroft v Burnett (1986) 1 AIL ER 332 and Chibwana v Prime Insurance Co. Ltd civil Cause No. 1179 of 2009 (unrep). The second method is to make a discretionary award, In Harawa v Axa Bus Co. Ltd Civil Cause No. 1477 of 2008 (unrep), the plaintiff was unable to do laundry and other household chares and had to depend ona maid. Her permanent incapacity was assessed at 35 percent. The Court awarded a sum of MK500,000.00 for future nursing care. DETERMINATION Counsel for the Claimant filed skeleton arguments in support of the awards prayed for, On the other hand, Defence Counsel also filled his submissions on the appropriate quantum to be awarded In the present case. The filed documents have helped this Court to have a proper appreciation of the circumstances of the present case to reach at an appropriate quantum of damages payable to the minor, The law on assesment of damages payable | in personal injury cases ses emphasties that damages should” paid to compensate the in jury suffered reasonably. This means s that the first step Is to ascertain the: 8 actual i injuries suffered by: a claimant, in the present casey a ‘medical report has been presented by ” the Claimant and the i injuries sustainéd by the minor weré said to bea ‘deep cut wound and severe | - bleeding on the left frontal temporal bone, cut on nthe faft eat, painful back and hip, loss of memory, : . - and serious scars on the affected parts. These ate the injur ies contained in the medical i ‘eport as well . oe as the witness statement of the Claimant. ‘The witness “stated that as a ‘result of the accident, the: ne minor ‘still has per sistent meniory loss; hel ig no longer doing well in class as he tised to; he has mental a illness as he wonders about aimlessly and can no longer run errands as he used to and that he even relies on his mother to bath him. Based on the injuries as presented by PW1, the prayer from the Claimant in the skeleton arguments was that he be awarded a total sum of MK13,010,000,00. The breakdown of the prayed sum was as follows, MK5,000,000.00 for pain and suffering; MK3,000,000.00 for loss of amenities of life; Mi2,000,000.00 for disfigurernent; Mi3,000,000.00 for future nursing care and MK10,000.00 for cost of police and medical report. it must be stated that in cross examination, the evidence of PW1 was wholly defeated, The only thing that stood out from his evidence was just the fact that the minor was indeed involved in a road accident. The medical report exhibited has no bearing in my determination of the matter as it was not prepared by the actual medical practitioner who treated the minor, As conceded by the witness, the actual examination and treatment of the minor occurred at Mtengowanthenga hospital but the medical report exhibited in this Court was prepared by a person from Mponela hospital. All the iniurles stated in the witness statement are based on the medical report which has been found to be wanting by this Court. The police report indicates that the minor suffered soft tissue injuries. During cross examination, all the alleged effects of the accident as stated in witness statement were rebutted, There was no proof for the minor’s poor performance in school due as in actual fact the minor told the court that prior to the accident he repeated classes twice. This gives an indication that his poor performance in school is not as a result of the accident. The minor further stated that he is able to do errands and abie even to bath on his own though sometimes he feels pain when carrying buckets. The precedents cited in the Claimant’s skeleton arguments are based on the wrong assumptions of the purported injuries contained in the medical report. In the circumstances of the present case, the Court will award nominal sum of money to compensate the minor for the soft tissue Page 5 injuries. suffered, 1 | proceed to. awar a sur fF MK900,0 claims herein, 2 ne The court fuirthier awards a a sum ‘of -MK750,¢ 000. 60 as costs ‘of f the present action. The awarded sums: An - should ibe paid within 4 days from today . MADE IN CHAMBERS THIS 31 DAV OF MARCH 2023, AZANI KAPASWICHE ASSISTANT REGISTRAR 5. eT Ele SEO DO EES Page 6