Nyalugwe v Prime Insurance Company Limited (Personal Injury 416 of 2013) [2017] MWHC 107 (26 July 2017)

JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPA L REGISTRY PERSONAL INJURY CAUSE NO. 416 OF 2013 BETWEEN FAYINESS NYALUGWE {On her behalf and on behalf of of the beneficiaries of the Estate MCDONALD NYALUGWE, Deceased) ....... ................. ............................. PLAINTIFF ...... PRIME INSURANCE COMPANY LIMITED ........................ ...................... DEFENDANT AND CORAM HER HONOUR MRS E. BODOLE, ASSISTANT REGISTRA� Khan, of Counsel for the Plaintiff Chikaonda, of Counsel for the Defendant Mrs. Ngoma, Court Clerk ORDER ON ASSESSMENT OF DAMAGES Introduction The plaintiff on her own behalf husband. is the widow of McDonald and on behalf on liability Judgment of other beneficiaries for personal of the estate was entered injuries this action of her late against the Nyalugwe and she commenced defendant damages. of damage's which-were on 24th February, Counsel I must thank useful to this court. 2016. The matter has now come for assessment of on assessment for the plaintiff for the authorities The Evidence During plaintiff the assessment proceedings herself. only one witness testified and that was the The facts of this case are that on or about 21st January, the deceased Public Hino Truck which was being driven along Machinga-Liwonde road. number MHG 2951 registration driver. 2012 at around 8:30 hours, Upon arrival he was hit by a motor vehicle by the defendant's was lawfully Works Office insured cycling at of the accident, As a result spleen head injuries, Machinga Hospital. District marked as exhibit P.2. ruptured the deceased who severe was aged 28 years, at and loss of blood from which he died upon arrival and The death certificate was tendered in evidence sustained by the plaintiff, his death, life. He was the sole bread winner in his family was enjoying a predominantly happy, vibrant and the deceased Before healthy Shop Manager. He is survived and Prince Nyalugwe is also survived result depended themselves. by his father financially of the deceased's death, Fredreck Sukali the plaintiff and working at DAPP as a namely Bridget 2 children Nyalugwe He Jimu. As a and his mother Catherine who solely and maintain and other beneficiaries to survive on the deceased are struggling who in 2013 were aged 4 years and 2 years respectively. her husband's comfort, constantly ask her about their father love and care that he used which causes misses constantly her. The children The plaintiff to provide grave pain in her heart. In her own. It is very difficult of the deceased. due to the negligence insured. of the defendant's she did not contempl addition, for her to maintain the 2 children without ate to raise 2 children on the support a father It pains herto know that her children will grow up without As a result for the burial o of the accident, the plaintiff f the deceased . had to incur unplanned funeral expenses The plaintiff dependency, and Police is claiming damages for loss of expectatio funeral expenses n of life, loss of for obtaining the medical and a sum of K13,500:00 reports and costs of the action. General Law on Damages who suffers bodily injuries due to the negligence A person the remedy of damages. Such damages are recoverable non-pecuniary losses. The principle compensate v Prime Insurance Co. Ltd Civil Cause No. 177 of 2012 (unreported). of another is entitled to for both pecuniary and the award of the damages is to party as nearly as possible as money can do it- Elida Bello underlying the injured terms by use of a mathematical cannot be quantified in monetary The damages formula decided 2 AC 773. The court, currency devaluation 202 Of 2002. and guidance but by use of experience nature cases of a broadly affordable by awards made in Railway Board [1983] however, considers the time the awards were made and Cause No. - Kuntenga and Another v Attorney - Wright v British similar General Civil head of damages The non-pecuniary assessed dependency. damages and must be pleaded General and Nati These are include loss of expectation of life and loss of by the court. and proved. - Renzo Benetollo Pecuniary loss is also called special v Attorney onal Insurance Co. Ltd Civil Cause No. 279 of 1993 . Damages for Loss of Ex pectation of Life Damages for loss of expectation injuries have are extended estate and is thus available to reduced his expectation to actions of life are claimable by a plaintiff where his 1 KB 354. They of life - Flint v Lovell (1935) which have survived for the benefit of the deceased's onal represen tatives of hi s estate. the pers the damages, In assessing days but of a predominantly damages are supposed conventional Ephraim (on his the thing to be valued is not the prospect of length of happy life- Venham v Gambling [1919] AC 157. The to be modest and the sum is supposed to be one - Chikoti v Attorney General (2006] MWHC 28. In Masauko Company Limited of life should be in the region of the awards for loss of expectation the court on 19th July, 2013 stated that of Shadreck Banda Personal lr:ijury_ Cause court then proceeded to award the said sum and on behalf of other dependents of the Estate v Limited v Prime Insurance own behalf Deceased) Number 658 of 2012 (unreported) currently K900,000.00. The damages for loss of expectation of 2010 (unreported) Kl,000,000.00 deceased other beneficiaries such a life. In view of the decided were made some time back, this court awards the plaintiff a damages for loss of expectation the court on 27th July, 2012 awarded for loss of expectation and his family had lived a predominantly and the of the deceased estate have Cause No. 2135 a sum of the plaintiff of life. In the present case, the happy life. The plaintiff been deprived cases herein cited, and in view that the awards of life. In Chipeto v Nyirenda the enjoyment of as damages Civil of life. as as sum of Kl,500,000 of K900,000.00 Damages for Loss of Dependency That is ascertained General (supra). Where the deceased's at a third of the amount of �is In Malawi this thing in this head is the amount of dependency. from the wages earned by the deceased the estimated is estimated and living expenses. income - Chikoti v Attorney income is unascertained, worker earns - Kenson Shapu v NICO General (unreported). The foremost by deducting own personal deceased's monthly domestic Civil Limited use the multiplicand and multiplier formula. courts monthly earnings representing representing for the wrongful multiplied while the multiplier years the deceased would have lived if not is to what a the court awards a sum equivalent Company the damages, In calculating The multiplicand is a figure is the figure the deceased's the estimated death. The product of the multiplicand by 12 representing the number of months Cause Number 222 of 2007 number of Insurance in a year. and the multiplier The deceased died aged 28 years. The World Health Organization expectancy for males in Malawi at 56.7 years www.worldlifeex -expenctancy. pectancy.com/malawi-life account the fact that there would have been other factors shortened the deceased's minimum wage or domestic that would have life. I would have to adopt a multiplier of 25. The worker's which is Kl 7,880.20 would be used The court takes into earnings puts the life as a multiplicand earning. The award und was er this head would, therefore, be K3,576,040.00. since there is no evidence as to how much the deceased Special Damages Insurance are supposed to be pleaded and proved. In Renzo Benetollo v Co. Ltd (supra) the court held that where in the damages reasonable compensation 15 MLR 404 (HC) the court had Special damages Attorney General and National a party has not proved special circumstances did not allow the claim for loss of profits as these were special to be specifically basis that during profit and use of the vehicle. pleaded and strictl the period the vehicle The court awarded was with the defendant, damages on the the plaintiff lost In Phiri v Daudi [1992] can be awarded. y proved. damages that in the present This is a free hospital case to show that the plaintiff expended the the death certificate There is no evidence amount he is claiming for obtaining Hospital. been shown to the court. However, this court is mindful of the fact that the plaintiff had to travel to the hospital from Reasonable compensation K2,500.00 for that is fair and just. I, therefore, the death certificate. had been spent, that should have home in order to obtain the death certificate. as costs for obtaining so if some money from Machinga award him a sum of District to show how much the plaintiff spent for the funeral of spend money for his survivors There is also no evidence the deceased. It is a fact that when a person dies, his funeral. expenses should be made. I award the plaintiff expenses. and just that reasonable It also only fair funeral compensation for a sum of K30,000 as funeral I award the plaintiff also award him costs of the action. a sum of K3,000.00 as costs for obtaining the Police report, and Conclusion In conclusion, the plaintiff i costs of the action. s hereby a warded a t otal sum of K S,111,540.00 and. Pronounced in chambers this 26th day of June, 2017 at Blantyre. EDNA BODOLE (MRS) ASSISTANT REGISTRAR 6