Mtonga v Shire Bus Lines Limited (Civil Cause 2096 of 2000) [2002] MWHC 88 (18 February 2002)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 2096 OF 2000 BETWEEN: PR COPIA DIGG ss os ness aie nner aan cagA Rami PLAINTIFF AND SHIRE BUS LINES LIMITED 00.000... eee ceeeeeeeeeteneeeteeeeeees DEFENDANT CORAM: POTANI, REGISTRAR Nkuna , Counsel for the Plaintiff Chalamanda, Counsel for the Defendant ORDER ON ASSESSMENT OF DAMAGES The plaintiff, Fredrick Mtonga, commenced this action for damages arising from a road traffic accident attributed to the negligence of a driver in the employment of the defendants, Shire Bus Lines Limited. By a judgment order of the Honourable Justice Twea made on February 7, 2001, it was adjudged that the defendants do pay the plaintiff damages to be assessed. The plaintiff and one Chris Moyo, PW2, testified for purposes of the assessment of damages. The defendants who were represented by counsel during the hearing elected not to call any witnesses. According to the plaintiff, prior to the accident giving rise to this action, he was an active entrepreneur dealing mainly in breakable kitchenware and second hand clothes and shoes, among others. He also was a progressive farmer growing mainly maize and groundnuts. On April 18, 2000, the plaintiff embarked on the defendants’ bus on a business trip to Lilongwe and had with him the following items: 300 pieces of zitenje cloth each valued at K110.00, a black bike, K13,600.00 cash, $800.00 (United States) cash and various ducuments relating to his business. A part from the items of business, he had, for personal use, shoes , clothes and other items. In the course of the journey the bus got involved in a terrible accident as a result the plaintiff got severely injured. He could not stand up to disembark from the bus due to severe pain. He had to crawl with struggles to come out of the bus. He was heavily bleeding from the mouth. He was later taken to Mzimba District Hospital. An X-ray was conducted. The results revealed a complicated compound fracture of the lower left leg and fracture of right thumb. It was also discovered that the bleeding from the mouth was due to loss of a tooth. On the following day, a plaster of paris was administered on the left leg. The leg was very swollen though. The right thumb was operated on. The plaintiff was then taken to a surgical ward at which a drip was administered. It was his testimony that the left leg was severely painful. He could hardly sleep such that after a night, the plaster of paris had to be removed. It was discovered that the leg had blisters all over. Later, after being at Mzimba Hospital for 8 days during which he experienced severe pains and remained on a drip, the plaintiff was informed that it was not possible to properly assist him as such he was referred to Embangweni Mission Hospital. That was on April 26, 2000. While at Embangweni Hospital, the condition of the wound on the fractured leg worsened. On April 29, the lower part of the leg was amputated below the knee. Due to the bad state of the wound, a second amputation had to be done just close to the knee after which the wound was stitched. Two days later, the stitches were removed in order to check if the wound was getting healed. A lot of puss came out and it was discovered that the flesh and borne had separated. The wound was producing a very unpleasant smell thereby attracting a lot of flies. A third amputation was done. This time, the wound was not stitched. The wound was being cleaned every morning as it was producing a lot of puss. This was done for 2 months after which he was_ taken to the threatre to check on the progress whereupon it was discovered that the wound was decomposing. The decomposing flesh had to be removed. Due to loss of blood resulting from the amputations, the plaintiff was informed that he needed some blood transfusion. Meanwhile, the wound continued to decompose resulting in loss of more flesh thereby shortening the leg to close to the hip. The daily cleaning of the wound continued. Eventually, there were signs of some improvement. The flesh became redish. The wound was stitched. He still was in severe pain though. He was discharged on June 30, 2000, after the flesh on the wound had come together, as he put it. At the time of his discharge, he left an outstanding bill of K3,616.00 as per exhibit P1. To butress his evidence on the nature, extent and effects of the injuries he sustained, the plaintiff tendered in evidence exhibit P2, a medical report issued by Embangweni Hospital. The plaintiff further had it that he lost all the items he had carried with him at the time of the accident. He personally and through friends contacted the police and the defendants’ officials in an attempt to trace his items but to no avail. He estimated the value of the bicycle that was among the lost items to be at K7,500.00. With regard to his merchandise business, it was the plaintiff's evidence that he used to generate a total income of about K25,000.00 in a month. As for the farming, he estimated his annual turn over to have been about K120,000.00. He explained that due to the success of these ventures, he owns a pick up vehicle which at present is anon runner. In addition, he used to provide for his family, his father’s family and that of his father inlaw. It was also the plaintiffs evidence that before the accident, he used to like performing body exercises like frog jumps, press ups and jogging, among others. His main hobby was, however, soccer and he used to play for a local soccer team in Embangweni area. He can no longer engage in these activities. He further testified that due to the amputation of the left leg, mobility is extremely difficulty. When he has to travel, he has to be accompanied by someone else to assist him to balance his body. He can no longer engage in his trading business and farming since he lost all his money and business assets. The plaintiff also testified that the amputated leg could be replaced with an artificial one. He tendered as Exhibit P1, a detailed written advice, issued by the Orthopaedic Centre at the Queen Elizabeth Central Hospital, regarding the cost of the fitting of an artificial leg. The evidence of PW2, Chris Moyo, was briefly that he is related to the plaintiff and that on the day the plaintiff boarded the bus which was involved in the accident giving rise to this action, he escorted him to the bus stage such that he was able to see most of the items the plaintiff carried on his journey. The law of tort avails the remedy of damages to a person who suffers bodily injury due to the negligence of another. Such damages are recoverable for both monetary and non monetary losses. It must, however, be remembered that the aim of awarding damages is to compensate the injured party as nearly as possible as money can do. See Cassell and Company v Broome_ (1972) AC 1027. Clearly, therefore, damages should not be awarded as a means of, in effect, punishing the tortfeasor. Looking at the statement of claim, this action relates to damages for both monetary _ and non monetary losses. As regards monetary losses, they relate to the special damages set out in the statement of claim as follows: (a) Cost of artificial leg K 125,000.00 (b) Cost of replacing tooth K15,000.00 (c) Cost of current medical bill K3,616.00 (d) Cost of lost Zitenje K33,000.00 (e) Cost of lost bicycle K7,000.00 (f) Lost cash $800.00 plus K13,600.00 TOTAL K197,216.00 The other aspect of monetary loss the plaintiff has suffered relates to the earnings he used to gain before the accident from his trading and farming activities. |, however, need to consider whether in that respect, the plaintiff should be awarded damages for loss of earnings or loss of earning capacity. This! shall determine later on. Reverting to the claims relating to special damages, the plaintiff's statement of claim is in compliance with the law in that the special damages being claimed are specifically particularised as required. It is also trite law that special damages must be proved before an award can be made. With regard to the claim for cost of artificial leg, there is in evidence exhibit P3, being a letter from the Orthopaedic Centre at Queen Elizabeth Central Hospital, which shows an amount of K109,250.00 as what would be required to provide a suitable artificial leg as opposed to the K125,00.00 particularised in the statement of claim. | therefore award him the K109,250.00. In relation to the cost of current medical bill, there is exhibit P1, which clearly is a letter of reminder from Embangweni Hospital to the plaintiff about an outstanding bill of K3,616.00. The validity or authenticity of exhibit P1 is not at all challenged by the defendants. | thus award the plaintiff such sum as claimed. ~ Then there is the claim for the sum of K33,000.00 being the value of lost zitenje. It was the plaintiffs evidence that among the items he had on his business trip were 300 pieces of zitenje cloth which got lost in the confusion of the accident. It was his evidence that each piece of cloth was valued at K110.00. This evidence is not in serious dispute. |, therefore, award the plaintiff the sum of K33, 000.00. There is also the claim for the sum of K7,000.00 being the value of lost bicycle. Counsel for the defendant, in cross examination, attempted to cast some doubt regarding the items the plaintiff had during the accident including the bicycle. However, the plaintiffs assertion regarding the fact that he also carried with him a bicycle on his journey was amply supported by that of PW2 who was able to give the name and description of the bicycle which matched with that given by the plaintiff. The plaintiff, in his evidence gave the value of the bicycle as being K7,500.00. In the Statement of claim, the value is put at K7,000.00. | take the view that the plaintiff should not be awarded more than what he has claimed. | thus award him K7,000.00 for the lost bicycle. With regard to the claim for loss of cash amounting to $800.00 (United States) being the equivalent of K13,600.00 the submission by counsel for the defendant is that the plaintiff was in possession of the $800.00 in contravention of Regulation 10 of the Exchange Control Act which requires ministerial permission before one deals in foreign currency. It should be observed that the Regulation in issue relates to buying or borrowing and selling or lending of foreign currency. In the instant case, the plaintiffs evidence is that he was simply asked to deliver the money to some person. He did not buy or borrow, sell or lend such currency. The submission by counsel for the defendant is therefore misplaced. | award the plaintiff the sum of K13,600.00 being the equivalent of the $800.00 the plaintiff lost. Then there is the claim of K15,000.00 being the cost of replacing lost tooth. The plaintiff led no evidence in that respect. It, therefore, must fail. The awarded sum for special damages in total comes to K166,466.00. | did mention earlier on that there is need to determine whether the plaintiff should recover damages for loss of earnings or loss of earning capacity. In my view loss of earnings falls into the category of special damages while loss of earning capacity falls into that of general damages. | take this view because lost earnings would be Vici Uaiii VOVUGUSISG IVSOL Valliltyo WUUIU UO an ascertainable figure while loss of earning capacity is an aspect that can not be ascertained by any method of calculation. That said, loss of earnings should be specifically pleaded which is not the case in this action as such the plaintiff cannot be awarded damages for loss of earnings. He can only be awarded general damages for loss of earning capacity and | award the plaintiff the sum of K200,000.00 in that respect. This award takes into account the fact that the plaintiff has lost a leg which would render him almost incapable of engaging in his trading and farming occupations. | now move on to consider damages for pain, suffering and loss of amenities of life. The plaintiff in his testimony repeatedly stated that right after the accident, he was in severe pain which continued for the entire period he was in hospital. Indeed, considering the fact that he underwent several amputations of the left leg, it is quite clear that he underwent severe pain and considerable suffering. For quite some time, he had to nurse a decomposing wound. | consider an award of K180,00.00 to be fair and adquate. The loss of the leg that was amputated has obviously rendered the plaintiff incapable of enjoying a normal life. His testimony was that he used to like bodily exercises like frog jumps and jogging, among others. He also used to play soccer. He can no longer engage in these activities. Again, it was his evidence that he walks with difficulties and needs someone to help him balance his body. | award him the sum of K300,000.00 for loss of amenities of life. The total award in this case comes to K846,466.00. The plaintiff is also awarded costs of this action. Made in Chambers this day of February 18, 2002, at BLANTYRE. S B Potani EGISTRAR