Kambalame v Phale Builidng Contractors (Civil Cause 1142 of 1994) [1996] MWHCCiv 12 (10 January 1996)

H,-.. BETWEEN : IN 'l'IJE HIGH COURT OF Ml\LAWI PRINCIPAL REGISTRY CIV IL CAUSE NO. 1142 OF 1994 EFENESI KAMBALAME (FEMALE) .... . . . . . . . . . . . . . . . Plaint iff AN D PHALE BUILDING CONTRACTORS . .... .. . . . . . . . . . . . . . Defendant CORAM : W. W . Qoto , Deputy Registrar R . Mh o ni of counsel for the pJ ai n t iff ORDER The matte r comes before me damages in respect o f road ace id e n t plainti ff also c l a _irns costs of the action. f or a n order of assessment of the death of the deceased who d _i_ed in a Th e 'which occured on 18th December , 1 9 91 . Th ere being n o no t ice of in te n t::. i on to def e nd having been given by the d e fe 11 dant , plaintiff entered default j udgement a g ainst him on 12U1 October , 1994. That was an interlocutory j u dge me nt and damages had to b e assessed. the The hearing o f th e noti ce of assess ment was on 22nd November , 1995 . in the absence of the defenda n t who , despite being duly served with t h e notic e of the No reasons heari n g of a sses s ment oE damage s , did not appear. were given for hi s abse n ce . Th a t h eari n g [Jroc e ed e d Th e deceased was the hu sband of the plaintiff and they had Th e first o n e is a boy Edi son KambaJame born in four chi l dre n. 1981 . The second child is a girl born on 3Qt_h May 19 8 3 . The third child is a boy born in October , 1986 and finally , the last child is Gift who was born on llt l1 May 1991. The decea sed had a daug h ter born of another woman before te married the plaintiff. Her na me is Jane and she wa s born in 1979. Th e se pe op J. e used to s t ay wi th the deceased until his death which was ca u sed by the wr ongf u J. act of the defendants . -2- the d e fendant. Unt i l his d e ath, the The e mp loy of evi dence o f the plaintiff was that at the time of his d eath , the dece as e d wa s aged JO years. His salary was and s t il l is no t known but i n every two months , he used to send to h e r Kl60 for he r maint e nance and that of all the five children. the decea se d wa s He was based in Mang o ch i. a carpen t er in Th e d eceas e d left his father, his brother, h i s sister and his uncle a live. ( Misc e llaneous Prov is ions) Act The action was brought under the provisions of th e statute .5: 01) of th e Laws of I t has be e n brought by the plaintiff for th e b enefit of ( Cap Law Mal awi. the famil y of the deceased. i s I of to put cJ working the said Act s p an of life. The purpose of part a n annul Ly of an amount e qual t h e def endant s of the deceased , who had been the breadwinner of t h e fa mi ly, in the same position financially as if he had l ived his In time s of st e ady money valu es , wage nat ur a l thi s c o uld b e a ch _i eved by awardi n g leve ls an d inte re st ra tc.s, r e q uired Lo t h e d e pen da nl: s o f pur cha s e t h e be n e fits wit h which he had provid e d them wh i le he l i v e d , and for s u c h per io d as it c ould reasonably b e estimated th e y would have cont inued to enjoy !: h e m but for h i s premature dea t h. Although t h is does not repr es ent the way in which i t i s calcula ted such a capi tal s u m may b e expressed as a produ c t of multip lying an an nual sum which r e pre se nts the d e p e ndancy by a numb e r of years p ur c hase Cookson v Knowles Th is later fig u r e the number of years which repre sents t h e peri od fo r which it is estimated that the d e pendants wo uld have con t i nued t o enj o y t he benefits of the dependancy. ( 19 7 8) 2 ALL E. R 6 0 4. rn,1n Lile c,1p i Lal the v a lu e of is Jess th a n sum to Th e underly i ng p r in c iple is of course that damages are comp ensatory. Th e y are not design e d to put the plaintif f or t h e esta te in a better financial position than that in whi ch she or it would otherw is e have been if the accident had not occured . In making the as s e s sment account has to be taken of a n umber of imp redictable contingencies . Such an assessment cannot , in the natu re of things, be an exact science. Further the pr esence of i mponderable factors necessarily r e nders t.,he, p rocess to so ma n y be both i nb apable of producing b e t_ter than an approximat e result. B,e that a s it may, I must awa rd compensatory d a mages although I a~ precluded, from a wa rding d a mage s f or senti·mental or other r easons, in the robust la ngu a ge o f Lord Wright v Powell Durr~r y n \ Assoc. in Davi s Co llier i e s Ltd ( 1947) A. C. 616 at 617. imprecise, one wh i ch c ompl e x and '"\ is 'j \ There is no questio n of what may be called 7 n imenta l It is a fiard matter the el ement of the the c o11 rts is to assess damag e s in two stag es. The is d a ma g e , b er eaveme nt or pain and suffering. s ubject o f pounds shillings and pence re asonabl e future probabilities. In a case like th i s one , practice o f firs t co n c erned with loss of d e pendancy b e tween the date of d eath of the p re -trial st a ge and t he court there s tag e to i_s -3- t he breadw i nner and the date of the trial Banda v Chung a 12 MLR This is refc~rred to as the pre-trial loss wh ich the (M) 283 . de pendants have The deceased died on 18th De cember 1991. notice of ass ess ment was 22nd November, 1995 . t o 4 years. The hearing of the It is ve ry close the date of the tr ial. suffered up to t a ke median to calculat e I fi r st hav e th e multipLi c and. r a te of wages as In Cookson v that the loss of Knowles, Loi:-c1 Frazer said ibid at page 575 support b e tween the date o f the death and the date of t he trial is the total of the amounts assumed to have been Jost f or each those dates, although as a matt e r of p ractical we ek between co nvenience it is usual to t h e multiplicand. The evidence on record in this case sh ows that t he deceased s e nt to his wif e ~nd all his children Kl60 in two mo nths. This is the sum of money which was solely for h is wife a nd his children and it is the sum of mon e y he gave to h is wife I have no evidence of his sa lary a nd af ter he had paid his tax. The evidenc e shows a lso of how much he required for himself. t hat the sum representing dependancy is K9 60. 00 p e r ann um. I increa sed or h ave no evidence d ecreased had it as take r epresenting Lhe median rate of salary and as such it is the multiplicand. to the dat e of the tr ial, the loss of dep e ndancy suffered by the plaintiff and t he c hildren to KJ,840.00. this salary would have I will is K960 multiplied by 4 years which For a p e riod of 4 years up the deceased lived and is e q u al that For to consider the mult_iplicand in relation to the I pass p ost-trial period. the formula the multiplicand, I aga i n turn to what Lord Frazer said in Coo k son v Knowles at page 575. He said , " for the period after the date of is in my opinion ba sed upon t he trial, the proper multiplicand t he rate of wages for the job at the date of trial . Th e reason is that that is Lhe la t est available information, bein g a hard It is more reliable s tarting point for the cal c u lation f act. t han the rate of wages at the time of death." determin e to Here again there 1s no evidence of the rate of wa ges for , t he job of Lhe dec e ased at the date of the trial . The d eceased f uture prospects are also not known. It is not known whether t he deceased would have retired and would have qualif ied for p ension. In view of the paucity of evidence on these matters I s hall still take K960 as the multJ.plicand for post trial period. The case of British Transport Commission v Ourley (1955) 3 ALL E . R. 7 9 6 the court, in determining the amount of the p laintiff's actual loss of earnings to which the multip lier is t o be applied , to take into account specifically the inc o me tax which if the d e ceased had continued to work , he would actually have had th e facts to pay on his annual salary. However on p e culiar to this case K960 p e r annum is the amount the d eceased would have paid to the plaintiff:\ and the childr e n aft e r paying his ta x. K960 does not represent his annual salary and infact h i s salary is not known. compel s , -4- th e n o w have age and e x pectation of the time of the deceased d e ath and to select a multipl.ier representing what I I the circumstances particular to the deceas ed to be co nsider i n I am aware that th is has app ropriat e number of years ' pu r chase. to be det er mined from t h e fact ors h ave to take into account in assessing the mul tiplier the inc lude dece ased , t he life expectancy jf th e widow and other d epe n d a nts , the futur e p rospects of the deceased, engag e ment by the deceased in some esp e cialJy hazardous employment and any prospec t of the into o f re marriag e I however also have a ccount . that the deceased was n ot going to produce inc ome in per petuity and as such the capital fund must be capable o f be i ng ex h a usted over the anticipated period of d e pendancy. This was s t a t ed by Lord Diplock in Cookson v Knowles at pages 56 7 - 568 . The p resen t range of muJ.tipliers u sed by the courts wh i ch has an e f fective maximum of the as sumption that th e person who invests a sum of mon e y will enjoy a r eturn on his investment of 4 or 5% per year. This is however t r u e in a st able fi s cal regime . approximately corresponds the working life of t: he widow. ta ke to to Neith e r the age of t he d e ceased nor of the wi dow is g i ven . Ther e is n o evide nce of any prospect of remarriag e of th e widow. I t h owever cannot be said that t he work the d e ceased was engag e d in was ha zar dous. The d e ceased had a fjrst chjJd jn 1979. Like Chunga I co nsid e r ci rcumstan c es computing p re - trial loss. Th i s leaves 12 and when I app ly i t the multipl i cand of K960, i n Banda v the multipJicr of ]6 to be oppr o pri a t e in the the 4 years which was u sed in to I get Kll,520.00. s ubtract from I I awa rd this sum to th e d e pendants as damag e s repr esenting In to anti cipat e d loss of dependancy during the post-trial pe riod . tota l roun d up KlS ,400 .0 0. a wa rd the dependants I<l5, 360. 00 which I I I a ppo rLion it amo ng th e d e pendants as follows:- l. 2 . 3 . 4 . 5. 6. Decea s ed ' s wife Jane Kambalame Edison Kambalame Chri s y Kambalame Stanley Kambalame G.ift Ka111balame K2 ,4 00 .00 K2,000.00 K2,000.00 K2,000.00 KJ ,000.00 1~4,000.00 I al s o award the plaintiff costs of the action. Made in Chambers this 10th January 1996 at Bloanty re. ( \{{\ \1 //1 \ · 'lY.v ( ~,\t DEPUTY RE ISTRAR \.