Chipoka v Chibuku Products and NICO General Insurance Limited (Civil Cause 838 of 2014) [2018] MWHC 1325 (20 April 2018)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 838 OF 2014 BETWEEN: VERONICA CHIPOKA ........................................ .................................................. CLAIMANT CHIBUKU PRODUCTS .................................................................................... 151 DEFENDANT NICO GENERAL INSURANCE COMPANY LIMITED ............................................. 2nd DEFENDANT AND CORAM Mrs T. Soko : Assistant Registrar Ching'ande : Counsel for the claimant Juma : Counsel for the defendant Mrs Mkandawire : Court Clerk - ORDER ON ASSESSMENT OF DAMAGES BACKGROUND This is an order for assessment of damages following a consent Judgment which was entered on 23rd June 2015. The claimant is Veronica Chipoka (suing on her behalf and on behalf of the Estate of Patrick Chimwemwe (deceased) and the defendants are Chibuku Products Limited and Nico General Insurance Company Limited respectively. The claimant's claim is for damages for pain and suffering in respect of the deceased, damages for loss of expectation of life and its amenities, damages for pain and suffering arising from shock, hysteria and depression in respect of the claimant persona, damages for loss of dependency, funeral expenses, special damages and costs of the proceedings that arose from an accident that occurred on 26th August 2012 and killed the claimant's son. EVIDENCE On the date of hearing of the assessment, Veronica Chipoka adopted her witness statement. In the witness statement the claimant averred that she is unmarried woman fending on subsistence farming raising and being raised by the Four year old deceased son Chimwemwe Patrick. She continued to state that Chimwemwe was four years old when he met his fate in the accident where Chibuku products motor vehicle struck and injured him on 26th August 2012 out of which injuries he later died at Dowa District Hospital on the same day. She said the deceased was healthy, intelligent and cheerful. He was in the first year of pre- school at Dzamalala Nursery School when he died. The claimant added that even at the elementary level, he had stunning intelligence that left the claimant with no doubt that he would be academic and career achiever in future. The claimant had this hope because at that level he had mastered reciting the alphabet and counting 1- 100. He had already known how to write alphabet and writing numbers up to 20. The claimant said the deceased was fond of her and when he comes back from school he would help her with some chores for example, fetching burn charcoal from the neighbor, starting fire and other chores. The claimant continued to state that on that fateful day, the deceased was badly injured and people rushed him at Dowa District hospital. She said the road was untarred and rough and the deceased endured pain and agony. He died at Dowa District Hospital and the claimant exhibited a copy of death certificate issued by Dowa District Hospital. The claimant also exhibited a death certificate issued by the Registrar General. The claimant said upon hearing the news, she followed up to the hospital and only to see her son badly injured with entrails dangling of out his stomach. She was in shock and hysteria. The claimant f said that she experienced pain and stress up to the present time. The claimant said that during the funeral she spent k30, 000.00 for a goat, K20, 000.00 for two bags of maize, K6, 000.00 for purchasing firewood and K15, 000.00 for purchasing sugar and bread. She added that she also spent K3000 for issuance of a police report which she exhibited K2000 for report • fee to the Department of the Registrar General and KS, 000.00 to Dowa District hospital for issuance of the death certificate. The claimant exhibited the said documents. Lastly the plaintiff prayed that she be compensated as claimed. - In cross examination the claimant stated that her husband died and she now lives alone. She said she is a farmer. She said the child was 4 years old when he died. The claimant said the child was not able to support her in monetary terms. She repeated that the deceased was intelligent and was able to bath himself and make fire. She also expressed her hope that the deceased would have made it to the University because he was able to recite alphabet and counting numbers. She said she gets K100 , 000.00 per year and she believes that she would have managed to pay her child school fees. She confirmed that she spent k70 , 000.00 funeral expenses. She also confirmed that she paid K5000 at Dowa District Hospital for the death Certificate. Asking her to produce proof she said she did not have any proof. SUBMISSIONS Counsel submitted that the Court should award the claimant a sum of K1 500,000.00 as damages for pain and suffering considering the injuries the deceased suffered and the length of the span of the injuries before death. Counsel also submitted that the Court should award the claimant a sum of K600, 000.00 for loss of amenities of life by account of injuries. In addition Counsel submitted that the Court should award the claimant a sum of K 750,000.00 damages for loss of expectation of life by account of the injuries. Further Counsel submitted that the Court should award the claimant a sum of K3, 800,000.00 damages for loss of expectation of life by account of the death borne by the estate and K2,000,000.00 loss of amenities of life occasioned by death. Counsel also submitted that the Court should award the claimant a sum of K3, 600,000.00 with regard to personal injury occasioned to the claimant in the state of emotional shock, hysteria and depression. Lastly Counsel submitted that the Court should award the claimant a sum of K9 , 004,320.00 as damages for damages for loss of dependency. On the other hand Counsel for the defendant submitted that the Court should award a sum of K700, 000.00 on damages for loss of expectation of life and K700, 000.00 for damages for loss of dependency. ISSUES Whether the Court should award damages prayed by Counsel for the claimant GENERAL LAW ON DAMAGES In assessing damages 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. See Namwiyo v Semu (1993) 16 (1) MLR 369. - In calculating damages , 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. See Admiralty Commisioners vs S. S Valeria (1992) 1 A. C. 242 at 248. In Christina Mande vs Cherter Insurance Co. Ltd Personal Injury Cause No. 329of 2016 the Court quoting Wright vs British Railway Board 1938 AC 1173, 1177 stated 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 City of Blantyre vs Sagawa the court said the following: 'It would appear to us that if the. award is to be conventional, an award for a similar injury 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. DAMAGES RECOVERED BY BENEFICIARIES OF THE DECEASED IN PERSONAL INJURY MATTERS The Principle under common law was that death of either party extinguishes any existing cause of action in tort by one against the other. It was expressed in a maxim actio personalis moritur cum persona i.e a personal action dies with the person. See Jackson vs Watson & Sons (1909) 2 KB 193. It meant that a person could not claim against the defendant on behalf of a dead person. Fortunate enough, a Fatal Accidents Act 1976 was enacted under English law. It simply maintained liability against the defendant despite the death of the plaintiff. In Malawi, a statute called Statute Law (Miscellaneous provisions) Act was enacted with the same wording as Section 1 of the Fatal Accident Act. Part 1 Section 3 of the Statute Law (Miscellaneous provisions) Act provides that: Whenever the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (If death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding - the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony. As Counsel for the defendant rightly put it in submissions, the Section meant that where a person died as a result of a wrongful act, neglect or default, an action against the person who caused such death is maintained despite the death and the beneficiaries of the deceased are the ones who can claim damage. Section 4 of the same Act provides that: Every action brought by virtue of this Part shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused, and shall, subject to section 7, be brought by and in the name of the executor or administrator of the person deceased; and in every such action, the court may award such damages as it may think proportioned to the injury resulting from such death to the persons respectively for whom and for whose benefit such action is brought; and the amount so recovered after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned persons in such shares as the court, by its judgment, shall find and direct: Provided that not more than one action shall lie for and in respect of the same subject-matter of complaint, and that every such action shall be commenced within three years after the death of such deceased person. Part II Section 3 of the Act provides that: No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either- (a) proceedings against him in respect of that cause of action were pending at the date of his death; or (b) Proceedings are taken in respect thereof not later than six months after his executor or administrator took out representation. It is not the deceased's own cause of action which is caused to survive, it is a new action for the benefit of his dependants. Winfiled & Jolowicz 17th ed. (2006) Sweet and Maxwell p. 1013. - In Binwe/1 Tembetani and others vs Malasha Holdings Limited t!a Malasha Bus Company and Citizen Insurance Company Limited Civil Cause No 45 of 2011 (principal Registry) (unreported) it was stated that: Our statute allows both actions to be brought. Part 1 of the Act allows an action for damages to be brought in instances where, if not for the death, the deceased would have been entitled to bring an action for damages for injuries against a tortfeasor responsible for the death. (See S, 3 &4). Part II provides for the survival of causes of action subsisting against or vested in the deceased against, or as the case may be, for the benefit of, his estate (S. 10(1 )). These two actions are respectively loss of dependency and loss of expectation of life. In Mbaisa vs Ibrahim Ismail brothers (1971-72) 6 ALR (Mai) 321 the Court stated that the two actions are quite distinct and separate. The former is brought on behalf of the dependants (Loss of dependency) and the provisions of the Act are similar to those of the Fatal Accidents Act in England and the latter is on behalf of the deceased's estate and is similar to that which can be maintained in England under the Law Reform ( Miscellaneous Provisions) Act. This in my mind rules out damages for pain and suffering and loss of amenities which the claimant is claiming by arguing that the deceased died after four hours and the claimant has to be compensated for the pain and suffering that the deceased went through and the loss of amenities of life. It rules out all heads of damages save as damages for loss of expectation of life and Loss of dependency. Besides, the claimant claims that she suffered shock, pain and suffering upon the death of the deceased. However, there is no medical proof to show that she suffered shock. The authority that Counsel cited in this matter shows that the plaintiff suffered shock and went to the hospital due to trauma. I will now proceed to award damages on the foregoing heads of damages. LOSS OF EXPECTATION OF LIFE - In the case of Aaron Amosi (on his own behalf and on behalf of the estate of Teleza Amosi and Laniesi Lile vs Prime Insurance Company Limited Personal Injury Cause No. 133 of 2013 PR (unreported) the Court stated that the claim is based on the notion t(1971 hat due to the injuries suffered the deceased would not have enjoyed his life to the same extent as when he was in good health .see Benham vs Gambling (1941) ALLER 7. The damages are non- pecuniary and the Court use common sense, reference being had to the earliest awards without actually assigning value to the years lost. All relevant factors such as the age of the individual, prospects of life and life expectancy are to be considered . It must be remembered that human life is not continually enjoyable so as to deserve compensation for any shortening thereof on quantitative basis. Life's vicissitude are therefore to be taken into consideration too. In Mbaisa vs Ibrahim Ismail Brothers the Court stated that this action is brought for the benefit of the estate and must be brought by the personal representative only. In Binwe/1 Tembetani and others vs Malasha Holdings limited t!a Malasha Bus Company and others it was stated that damages for loss of expectation of life accrues to the estate of the deceased and for that reason can only be claimed by an executor, administrator or personal representative. It was further stated that a plaintiff cannot bring such action without obtaining letters of administration. Section 7 of the Statute Law (Miscellaneous provisions) Act: Where, in any case intended and provided for by this Part, there shall be no executor or administrator of the person deceased, or if no action is brought by such executor or administrator within six months after the death of such deceased person, an action may be brought by and in the name or names of all or any of the persons for whose benefit such action would have been brought, if it had been brought by and in the name of such executor or administrator, and eve,y action so brought shall be for the benefit of the same person or persons as if it were brought by and in the name of such executor or administrator. In the present matter, I have perused through the Court record and find that the claimant did not obtain letters of administration. I would not have allowed to make assessment for this head of damages if it were not that it was brought after six months after the death of the deceased (according to Section 7). LOSS OF DEPENDENCY Makifale Dimingu and others vs The Attorney General personal injury cause No. 749 of2012. (High Court) (Unreported) the court held that: - Damages for loss of dependency are calculated in reference to a reasonable expectation of pecunia,y benefit as of right or otherwise from continuance of life. The approach the courts have adopted in arriving at damages recoverable in suits for loss of dependency is that of using what is termed the multiplicand and multiplier formula. See Ntelera vs Sabot Hauliers 15 MLR 373 and Mallet vs Mc Monagle 1970 AC 166175. The multiplicand is the deceased's monthly income whilst the multiplier is the approximated number of years the deceased would have lived if it were not for the wrongful death. As rightly pointed out by the 6th plaintiff in order to arrive at the level of dependency, the multiplicand is multiplied by the multiplier and the figure is 12 representing the number of months in a year. Whatever the product there is a reduction of one third representing the portion the deceased would have presumably expended on purely personal needs.' Counsel for the defendant cited a case of Jimmy Gongolo vs The Attorney General Civil Cuae Number 2347 of 2006 where damages for loss of dependency were defined as such sum as would give the plaintiff the annuity lost for the time in which the deceased would have been employed. In the present matter the deceased was 4 years old when the accident occurred. In Senga vs Malawi Railways Ltd (1996) (2) MLR 796. What has given me a great deal of uneasy is that the fact that the deceased was only a young boy, who as I have said, was 12 years old and still in primary school. It is somehow easy when we are talking about an adult who was working and assisting the parents financially and I or materially. Indeed it has been said somewhere that with regard to deceased infant children, there is, on the one hand, no clear evidence of the desire or ability of the child to assist the parents in later years, and on the other, parents have all expenses of bringing up the children ahead of them. I think that the issue is really whether the parent can be said to have a reasonable expectation of a pecuniary benefit from the continuance of life of the deceased child, regardless of whether the parent was actually receiving such benefit at the time the deceased's death. It is also a question of facts and evidence, like the present case, showing that the deceased was generally helpful to his parents and evidence that he was serious about his education and was bright, should proffer much guidance in dealing with this issue, bearing in mind that damages in such case are essentially speculative. - Counsel for the defendant in his submissions cited a case of Linda Tembo (suing as administratrix and on her own behalf as a mother of the deceased and on behalf of other dependants of Alinafe Kubwalo (deceased) vs Pilirani Kavalo and Prime Insurance Company Limited Personal Injury Cause No. 274 of 2013, where the plaintiff was claiming for damages for loss of dependency and loss of expectation of life on behalf of the deceased who died when she was 6 years old. The Court considering that the deceased was a school going child and the circumstances of the case awarded a sum of K1 , 000,000.00 for loss of expectation of life and K800, 000.00 for loss of dependency. The awards were made on 2nd June 201 4. Counsel also cited a case of Christopher Mkanga/a (on his own and as administrator of the Estate of Akuzike Nkangala (Deceased), Mbumba Nkangala vs Mayeso Luhanga, Malasha Bus Servicess and United Genearal Insurance Company Limited Personal Injury Cause No. 7 45 of 2011 where the deceased was two years old when she died in a road accident. The Court stated that the child was very young and her parents could not say that they were dependent on her to deserve a monetary award, The Court further stated that the child was not of age that she could do any gainful work. The Court declined to award damages for lo of dependency and awarded a nominal award of K100, 000.00 in lieu. The Court further awarded a sum of K800 , 000.00 as damages for loss of expectation of life. The Court made the awards on 16th July 2014. In the present matter there is evidence that the deceased was in school when he died. He was able to recite alphabet and could count numbers 1 - 100. He was able to fetch for fire from the neighbors and could even go on her mother's errands. The evidence shows that he was a bright child and had a potential to be an educated and successful child in future. Besides, the deceased was a happy child because he could go and play with friends. On that basis and considering the owing circumstances the case and the devaluation in currency, the Court awards a sum of K1 , 500,000.00 on loss of expectation of life and K1, 000,000.00 on loss of dependency. SPECIAL DAMAGES The rule is well settled that special damages have to be specifically pleaded and strictly proved. See Phiri V Daudi 15 MLR 404. This means the plaintiff must produce receipts to prove the amount of special damages. In the present matter the claimant produced receipts in the Court to prove special damages and the Court awards K10, 000.00. FUNERAL EXPENSES - Section 6 of the Statute Law Miscellaneous (Provisions Act) states that the Court may award damages in respect of the funeral expenses of the deceased person, if such expenses have been incurred by the parties for whom and for whose benefit the action is brought. In the matter at hand, it is obvious that the claimant incurred funeral expenses because she had to buy food and other things. I therefore award a sum of K70, 000.00 for funeral expenses. In total the Court awards a sum of K2, 580,000.00 as damages. COSTS Costs are for the claimant Delivered in chambers this ~ day of April 2018. tv\-- T. Soko Assistant Registrar. - 10