Golombe & 5 Ors. v Trans Rukuru Bus Service (Personal Injury Cause 867 of 2013) [2018] MWHCCiv 39 (6 February 2018)

JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY PERSONAL INJURY CAUSE NO. 867 OF 2013 BETWEEN DOROTHY GOLOM BE .............................................................................. 1 sr PLAINTIFF ANDREW CHAPE .................................................................................... 2ND PLAINTIFF HYMAN GRANT CHATEPA ...................................................................... 3RD PLAINTIFF CHIPATA MAM BALA ............................................................................... 4TH PLAINTIFF JOLIN! CHATEPA ..................................................................................... 5TH PLAINTIFF SEMU DZUNGULI MODZI ........................................................................ 6TH PLAINTIFF TRANS RUKURU BUS SERVICE ........................................................... DEFENDANT AND CORAM : HER HONOUR MRS E. BODOLE Ms. Kambwili, of Counsel for the Plaintiff Counsel for the Defendants, Absent Ms. Kazembe, Court Clerk ORDER ON ASSESSMENT OF DAMAGES Introduction The plaintiffs and 2nd defendant entered consent judgment on 12th October, 2016 for damages for persona l injuries and special damages as pleaded. The matter has now com e for assessment of damages for pain and suffering, loss of amenities of life, disfigurement, loss of earn ing capacity and special damages. The 3rd plaintiff did not appear during the assessment proceedings. I must tha nk Counsel for the pla intiff for the authorities on assessment of damages which were usefu l to this court. The Evide nce On 6th April, 2013, the plaintiffs were lawfu l passengers in motor vehicle registration num ber 5286 Scania Marcopolo bus wh ich be longed to the defendant. The bus w as travel ling from Balaka heading towards Ntcheu . Upon arrival at Kamzingeni village the driver of the bus lost control of the bus and served to the nearside verge, hit road embankment and stopped in a maize ga rde n. As a result of the accident the plaintiffs sustained injuries. The ist plaintiff sustained a painful shoulder and painful leg. She testified that aft er she mops or work, the left leg gives her pain and sometimes gets swollen. She works as a house keeper. The 2nd pla int iff sust ained a laceration on the mouth and painful lower molar tooth. He testified that t he tooth was later removed. The court noted a scar on the lip. He is feel ing fine now. The 4th plai ntiff sustained a painful right ankle and left hip (subluxation of the hip). He testified that after he was injured he was unable to sit due to back pain. He is now feeling better only that he is unable to farm because of the back pain. He is a farmer. The 5th pla int iff sustained swollen right lateral side of the head and a deep cut wound on th e anterior aspect of the right leg. He testified that he has scars on his body. This court noted a small scar barely visible on the head and a small scar like a black dot on the leg. He is feeling fine now. The 6th plaintiff sustained a painful right shoulder. She testified t hat she feels pain when she stretches herself and she is unable to lift heavy objects. She works as a house keeper. The special damages being claimed by each of the plaintiffs are K3,000.00 and K2,500.00 as costs for obtaining Pol ice and medical reports respectively. General Law on Damages A person who suffers bodily injuries due to the negligence of another is entitled to the remedy of damages. Such damages are recoverable for both pecuniary and non-pecuniary losses. The principle underlying the award of th e damages is to compensate the injured party as nearly as possible as money can do it- Elida Bello v Prime Insurance Co. Ltd Civil Cause No. 177 of 2012 (unreported ). The damages cannot be quantified in monetary terms by use of a mathematical formula but by use of experience and guidance affordable by awards made in decided ca ses of a broadly similar nature - Wright v British Railway Board [1983] 2 AC 773. The court, however, considers the time t he awards were made and currency devaluation - Kuntenga and Another v Attorney General Civil Cause No. 202 of 2002. The non-pecuniary head of damages include pain and suffering, loss of amenities of life and disfigurement. These are assessed by the court. Pecun iary loss must be pleaded and proved. In Renzo Benetollo v Attorney General and National Insurance Co. Ltd Civil Cause No. 279 of 1993 (HC) the court held t hat where a part y has not proved special damages reasonable compensation in the ci rcumstances can be awarded. In Phiri v Daudi (1992) 15 MLR 404 (HC) the court did not allow the claim for loss of profits as these were special damages that had t o be specifical ly pleaded and strictly proved. The court awarded damages on the basis that during the period the vehicle was with the defendant, the plaintiff lost profit and use of the vehicle . Pain and Suffering Pain and suffering is attributable to the plaintiff's injury or to any necessary surgical operations and mental anguish such as that suffered by a person who knows that his expectation of life has been reduced or who being seve re ly incapacitated, realizes the condition t o which he has been redu ced - Sakonda v S. R. Nicholas Civil Appeal Ca use No. 67 of 2013 . It is clear from th e evidence that the plaintiffs we nt t hrough a lot of suffering and were in great pai n and are stil l suffering. The 1 st plaintiff sustained a painful shoulder and painful leg. After she mops or wo rk, th e left leg gives her pain and sometimes gets swollen . The 2nd plaintiff su stained a laceration on the mouth and painfu l lower molar tooth . The tooth was later removed. The 4th pla intiff sustai ned a painf ul right ankle and left hip (subluxation of the hip). After he w as injured he w as una ble to sit due to back pain. He is now feeling better only that he is una ble t o farm because of the back pai n. The 5th plaintiff su sta ined swo llen right lateral side of t he head and a deep cut wound on the anterior aspect of the right leg. The 5th plaintiff susta ined a painful right shou lder. She feels pain when she stretches herself and she is una ble to lift heavy objects. Loss of Am enities of Lif e Loss of amenities is att ributable t o deprivation of the plaint iff's ca pacity to engage in some sport or past-ti me w hich he formerly enjoyed - Kanyoni v Attorney General [1990] 13 M LR 169. It means that he is incapa ble of performing some activities he used to do . It is clear from the evidence that the 1 st plaintiff is unable t o enjoy life as she used t o. Her leg gives her pain and sometimes gets swoll en after she mops or works. This is very unfortu nate and inconvenient because she is a house keeper and th is requires he r to do such ch ores. It is also cl ear that t he 4 th pla intiff has been deprived of enjoyment of his life as before. He is unable t o farm because of the back pain. He is a farmer and his livelihood has been t aken away from him . The 5th plai ntiff is una ble to enjoy life as she used t o. She feels pain when she stretches herself and she is una ble to lift heavy object s. This is very unfortunate for her because she works as a house keeper which requires her to lift heavy objects. There is no evidence to show that t he 2nd plaintiff and the 5th plaintiff are unable to enjoy life as they used. The assessment on this head is dismissed. Deformity/Disa bility Disability is a limitation either physically or mentally for someone to do what any other person can do without reasonable accommodation. In Ching'amba v Deerless Logistics Ltd Civil Cause No. 2888 of 2007 the court stated that disfigurement is not a matter to be taken lightly and casually. It is something that one has to live with permanently. The 2nd plaintiff has a permanent disability in that he lost one tooth. He also has a scar on the lip which has taken away his beauty. The 5th plaintiff has a small scar barely visible on the head and a small scar like a black dot on the leg. They are very minor scars though it is not very clear whether or not they will fade with time. There is no evidence to show that there is any permanent limitation either physically or mentally on the 1st plaintiff, 4th plaintiff and 5th plaintiff. This head on the assessment of damages is dismissed. Loss of Earni ng Capacity Neither th e evidence nor the skeleton arguments show how the injuries sustained by the plaintiffs would have an impact on their earning capacity. It appears to this court that this head on assessment of damages was abandoned. It is, therefore, dismissed . Award of Damages In Trifonia Kaisi v Veramo Mukomera and Prime Insurance Company Limited Personal Injury Cause No. 482 of 2014, the plaintiff sustained multiple cuts on the chest, legs and on both elbows. She also had a bruised face. She had permanent disfigurement in that she had scars and residual shou lder pain. She was awarded a sum of Kl,800,000.00 as damages for pain and suffering, loss of amenities of life and disfigurement. In Master Kaliati v Prime Insurance Company Limited Personal Injury Cau se No. 996 of 2013 the plaintiff sustained severe soft tissue injury, bruises, swollen left leg and reduced left knee joint movement. He was awarded a sum of Kl,500,000.00 as damages for pain and suffe ri ng and loss of amenities of life. Looking at the comparable cases above and the injuries sustained by the plaintiffs in those ca ses and this case, I make the following awa rd s: The 1st plai ntiff is awarded a sum of K800,000.00 as da mages for pain and suffering, and KS00,000.00 as damages for loss of amenities of life . Th e 2nd plaintiff is awarded a sum of K800,000.00 as damages for pain and suffering, and K800,000 .00 as damages for disfigurement. The 4th plaintiff is awa rd ed a sum of Kl,800,000.00 as damages for pain and suffering, and Kl,000,000.00 as damages for loss of amenities of life. The 5th plaintiff is awarded a sum of Kl,000,000.00 as damages for pain and suffering, and KlS0,000.00 as damages for disfigu rement. The 6th plaintiff is awarded a sum of K600,000 .00 as damages for pain and suffering, and KS00,000.00 as damages for loss of amenities of life. Special Damages Special damages are supposed to be pleaded and proved. There is no evidence to show that t he plaintiffs expended t he amount they are claiming for obtaining the medical report. If some money had been spent, that should have been shown to t he court. However, this court is mindful of the fact that the plaintiffs had to travel to the hos pital from home in order to obtain the medical report. Reasonable compensation for that is fair and just. I, therefore, award each plaintiff a sum of K2,500.00 as costs f or obtaining t he medical report. I also award the each plaintiff a su m of K3,000.00 as costs for obtaining th e Police report. Conclusion The 1st plaintiff is awarded a total sum of Kl,305,500.00, the 2nd plai ntiff a total sum of Kl,605,500.00, the 4th plaintiff a total sum of K2,805,500.00, the 5th plaintiff a tot al sum of Kl,155,500.00, and the 6th plaintiff a total sum of Kl,105,500.00. The plaintiffs are also awarded costs of the action. Pronounced in court this 6th day of February, 2018 at Bla ntyre. ~~ E. BODOLE (MRS) ASSISTANT REGISTRAR 7